# The Fouke Company v. Brown

> District Court, E.D. California · June 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10012866

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10012866

## How later opinions describe it (automated extraction)

- holding permanent injunction must not disserve public interest and 9 must balance hardships, among other requirements

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 The Fouke Company, No. 2:78-cv-00398-PCW
12 Plaintiff,
13 v.
14 Edmund G. Brown,
15 Defendant,
16 _______________________________/
17 April in Paris, et al., No. 2:19-cv-02471-KJM-CKD
18 Plaintiffs,
19 v. ORDER AND RELATED CASE
20 Rob Bonta, et al., ORDER
21 Defendants.
22 _______________________________/
23 In a previous order, this court granted summary judgment to the plaintiffs in this
24 consolidated action. See Prev. Order (Mar. 7, 2023), ECF No. 78. In short, the court held that the
25 federal Endangered Species Act partially preempts sections 653o and 653r of the California Penal
26 Code insofar as those sections apply to certain alligator and crocodile products. See id. at 18–24.
27 The Endangered Species Act expressly voids any state laws and regulations that effectively
28 prohibit what federal laws and regulations permit, see 16 U.S.C. § 1535(f), and federal
1 regulations permit some of the same trade prohibited by sections 653o and 653r, see 50 C.F.R.
2 § 17.42. The court also determined in its previous order that a 1979 permanent injunction against
3 the same two sections remains in force. See Prev. Order at 10–18 (citing Fouke Co. v. Brown,
4 463 F. Supp. 1142 (E.D. Cal. 1979)). That injunction rests on a similar analysis of the same
5 federal preemption, but only with respect to alligator products, not crocodile products, which are
6 also at issue in this case. See id.
7 At the conclusion of its previous order, the court directed the parties to propose a final
8 resolution of this matter. Id. at 24. Plaintiffs now propose a permanent injunction. Prop. Inj.,
9 ECF No. 81. Defendants object to the proposed injunction in part, and plaintiffs have responded
10 to those objections. See Min. Order, ECF No. 80; State Defs.’ Objs., ECF No. 82; Intervenor
11 Defs.’ Objs., ECF No. 83; Resp., ECF No. 84. The parties raise five disputes.
12 First, defendants argue the proposed injunction would wrongly bar California from
13 prohibiting purely local trade. State Defs.’ Objs. at 2–3; Intervenor Defs.’ Objs. at 2–3. They
14 underscore that the Endangered Species Act preempts only state laws and regulations that
15 “appl[y] with respect to the importation or exportation of, or interstate or foreign commerce in,
16 endangered species or threatened species,” 16 U.S.C. § 1535(f). The court agrees the California
17 law is preempted only insofar as it meets that statutory criterion. The injunction must be limited
18 in the same way.
19 That said, the plaintiffs are correct to note that federal appellate courts have defined
20 “interstate and foreign commerce” broadly. See Resp. at 4. The Supreme Court has decided the
21 Commerce Clause has a similarly broad reach: for example, one person’s local cultivation of a
22 small amount of marijuana—cultivation solely for personal consumption within one state—was
23 within Congress’s power to regulate under the Commerce Clause. See Gonzales v. Raich,
24 545 U.S. 1, 6–7, 15–22 (2005). For that reason, there may be very little trade in alligator and
25 crocodile products that is not conducted in interstate or foreign commerce, and therefore very
26 little, if anything at all, that California may prohibit under sections 653o and 653r, at least when it
27 comes to alligator and crocodile products. But the court need not interpret the scope of the
28 Commerce Clause in this action and so does not decide exhaustively what is permitted and
1 prohibited. Cf. PDK Lab’ys Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
2 concurring in part and concurring in judgment) (“[I]f it is not necessary to decide more, it is
3 necessary not to decide more . . . .”). The court therefore sustains defendants’ objection without
4 deciding whether any particular enforcement action is preempted or any particular conduct is
5 beyond Congress’s authority to regulate.
6 Second, defendants contend the proposed injunction is overbroad in a different way. As
7 proposed, the injunction would bar enforcement of sections 653o and 653r except against conduct
8 that violates the Endangered Species Act or related regulations. See Prop. Inj. at 2–3. The
9 defendants argue the injunction should instead bar California from enforcing sections 653o and
10 653r against conduct the Endangered Species Act or related regulations affirmatively authorize.
11 See State Defs.’ Objs. at 3; Intervenor Defs.’ Objs. at 3–4. The parties’ competing proposals
12 differ most clearly when no federal laws or regulations apply. Under the plaintiffs’ proposal,
13 California could not prohibit conduct when federal laws and regulations say nothing about that
14 conduct; under the defendants’ proposal, California could prohibit that conduct. The defendants’
15 interpretation is the better reading. It tracks the language of the federal preemption, which voids
16 state laws and regulations that “prohibit what is authorized” by federal laws and regulations.
17 16 U.S.C. § 1535(f).
18 Although the defendants’ proposal overall is superior, the plaintiffs’ proposal tracks the
19 1979 permanent injunction issued in Fouke, which remains in force. See Resp. at 7 (citing
20 463 F. Supp. at 1145); see also Prev. Order at 10–18 (determining Fouke injunction remains in
21 force). For that reason, if the Fouke injunction is not modified, defendants would be subject to
22 inconsistent injunctions, as the Fouke injunction applies to alligator products only. In addition, in
23 Fouke, the court did not appear to consider whether the injunction it entered could be overbroad
24 when federal laws and regulations do not address conduct that California law prohibits. To this
25 limited extent, the Fouke injunction also appears to be inconsistent with the Ninth Circuit’s
26 intervening decision in Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760 (9th Cir.
27 1983). As this court observed in its previous order, for example, if an animal is not “endangered”
28 or “threatened” under federal law, then California could ban trade in that animal outright. See
1 Prev. Order at 23–24 (citing Man Hing, 702 F.2d at 765 n.4). This court has “broad” and
2 “flexible” power to modify the terms of the injunction in Fouke. Brown v. Plata, 563 U.S. 493,
3 542 (2011) (quoting N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967
4 (2d Cir. 1983)). For these reasons, the court will modify the terms of the Fouke injunction. See
5 Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam) (holding injunction may be
6 modified to account for changes in law or facts, if doing so is appropriate under legal standard
7 governing previously entered injunction); see also eBay Inc. v. MercExchange, L.L.C.,
8 547 U.S. 388, 391 (2006) (holding permanent injunction must not disserve public interest and
9 must balance hardships, among other requirements).
10 Third, defendants argue the scope of the proposed injunction is wrongly defined using a
11 list of animals from an appendix in the Convention on International Trade in Endangered Species
12 of Wild Fauna Flora (CITES) rather than the preemptive federal regulations. See State Defs.’
13 Objs. at 3; Intervenor Defs.’ Objs. at 4–5. The CITES list could include more animals than the
14 federal regulatory list, so it could be overbroad. See Intervenor Defs.’ Objs. at 5. Plaintiffs do
15 not explain why the CITES list is the best list, and they do not dispute the defendants’ claim that
16 the CITES list could be overbroad. The court will define the scope of the injunction in terms of
17 the preemptive federal laws and regulations, not the treaty.
18 Fourth, the state defendants ask the court to avoid ambiguities in the identities of the
19 parties who are enjoined by referring to them in their official capacities. See State Defs.’ Objs.
20 at 3. Plaintiffs do not oppose that request, but they ask the court to expressly enjoin those who
21 are “under supervision” of the Attorney General under the state constitution, such as local district
22 attorneys and sheriffs. See Resp. at 7 (citing Cal. Const. Art. V, § 13). The court will avoid the
23 ambiguities identified in the state defendants’ objections and will enjoin those under the Attorney
24 General’s supervision, as plaintiffs request.
25 Finally, the intervenor defendants argue the proposed injunction is overbroad because it
26 would prohibit California from punishing mere possession. See Intervenor Defs.’ Objs. at 5–6.
27 The plaintiffs persuasively explain that possession must be covered by the injunction in part. A
1 person cannot do what federal laws and regulations authorize without possessing the alligator and
2 crocodile products in question. See Resp. at 8.
3 The court therefore orders as follows:
4 1. Under the Supremacy Clause of the United States Constitution (Article VI,
5 Clause 2), California Penal Code Sections 653o and 653r are hereby declared unenforceable and
6 unconstitutional as applied to the importation, possession or sale of American alligator bodies,
7 parts, or products thereof, and of the bodies, parts or products of saltwater crocodiles and Nile
8 crocodiles subject to 50 C.F.R. § 17.42.
9 2. California Defendants, in their official capacities as Attorney General of the State
10 of California and Director of the California Department of Fish and Wildlife, their successors in
11 office, their agents and employees acting within the scope of their official duties, and those under
12 their supervision as defined in Article V, section 13 of the California Constitution, are hereby
13 permanently enjoined from enforcing California Penal Code Sections 653o and 653r in
14 connection with the importation, possession or sale of American alligator bodies, parts, or
15 products thereof, and of the bodies, parts or products of saltwater crocodiles and Nile crocodiles
16 subject to 50 C.F.R. § 17.42, to the extent the Endangered Species Act of 1973, as amended
17 (16 U.S.C. Sections 1531–1543), or regulations promulgated by the Secretary of Interior of the
18 United States implementing said Act, authorize the same importation, possession or sale.
19 3. The permanent injunction issued in Fouke Co. v. Brown, 463 F. Supp. 1142
20 (E.D. Cal. 1979) remains in force but is modified to the extent that injunction is inconsistent with
21 this order.
22 4. On the court’s own motion, and having examined Fouke Co. v. Brown,
23 No. Civ. S-78-398-PCW, the court has determined that action is related to this action under the
24 terms of Local Rule 123(a). “[B]oth actions involve similar questions of fact and law and their
25 assignment to the same Judge or Magistrate Judge is likely to effect a substantial savings of
26 judicial effort.” Local Rule 123(a)(3). The parties should be aware that relating cases under
27 Rule 123 causes the actions to be assigned to the same judge; it does not consolidate the actions.
28 Under Rule 123, related cases are generally assigned to the judge and magistrate judge to whom
1 | the first filed action was assigned. In this instance, however, the judge who presided over the
2 | first-filed action is deceased, and no magistrate judge is assigned. For these reasons,
3 | No. Civ. S-78-398-PCW is reassigned to the undersigned and to United States Magistrate Judge
4 | Carolyn K. Delaney, and any documents filed in the reassigned case must bear the case identifier
5 | 2:78-cv-00398-KJM-CKD.
6 5. Within seven days, plaintiffs shall file a proposed form of judgment
7 | implementing the terms of this order, to be filed in this related action and in Fouke Co. v. Brown,
8 | No 2:78-cv-00398-KJM-CKD.
9 IT IS SO ORDERED.
10 | DATED: June 28, 2023.
1]
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CHIEF ED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10012866. Public record. Not legal advice.