Opposition Brief — The Art and Antique Dealers League of America, Inc., et al., Petitioners v. Amanda Lefton, in Her Official Capacity as the Acting Commissioner of the New York State Department of Environmental Conservation, et al.
Supreme Court briefApr 16, 2025
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No. 24-868
IN THE
Supreme Court of the United States
————
THE ART AND ANTIQUE DEALERS
LEAGUE OF AMERICA, INC., et al.,
Petitioners,
v.
SEAN MAHAR, IN HIS OFFICIAL CAPACITY AS THE
INTERIM COMMISSIONER OF THE NEW YORK
STATE DEPT. OF ENVIRONMENTAL CONSERVATION,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
————
BRIEF IN OPPOSITION FOR
INTERVENOR-RESPONDENTS
————
J. SCOTT BALLENGER
RALPH HENRY
UNIVERSITY OF VIRGINIA
Counsel of Record
SCHOOL OF LAW
NICHOLAS ARRIVO
APPELLATE LITIGATION
KATHERINE HENDRIX
CLINIC
JONATHAN LOVVORN
580 Massie Road
HUMANE WORLD FOR ANIMALS
1255 23rd St. NW, Ste. 450
Charlottesville, VA 22903
Washington, D.C. 20037
(202) 701-4925
sballenger@law.virginia.edu (434) 987-3366
rhenry@humaneworld.org
Counsel for Humane World
Counsel for Humane World
for Animals
for Animals, Center for
VIVIAN H.W. WANG
Biological Diversity,
NATURAL RESOURCES
Natural Resources Defense
DEFENSE COUNCIL
Council, Inc., and Wildlife
40 W. 20th St.
Conservation Society
New York, NY 10011
(212) 727-4477
vwang@nrdc.org
Counsel for Natural
Resources Defense Council
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
QUESTION PRESENTED
The New York State Ivory Law prohibits intrastate
sales of a narrow class of elephant ivory products. No
federal permit or regulation guarantees a right to
engage in intrastate sales of these products. Did the
court of appeals correctly find that the Endangered
Species Act does not expressly preempt New York’s
law?
(i)
ii
PARTIES TO THE PROCEEDINGS BELOW
AND RULE 29.6 DISCLOSURE STATEMENT
Petitioners The Art and Antique Dealers League of
America, Inc. and The National Antique and Art
Dealers Association of America, Inc. were the
plaintiffs in the district court and the plaintiffappellants in the court of appeals.
Respondent Sean Mahar, in his official capacity as
the Interim Commissioner of the New York State
Department of Environmental Conservation, was the
defendant in the district court and the defendantappellee in the court of appeals.
Intervenor-Respondents
Humane
World
for
Animals, 1 Center for Biological Diversity, Natural
Resources Defense Council, Inc., and Wildlife
Conservation Society were intervenor-defendants in
the district court and intervenor-defendant-appellees
in the court of appeals.
Pursuant to this Court’s Rule 29.6, each of the
Intervenor-Respondents, Humane World for Animals,
Center for Biological Diversity, Natural Resources
Defense Council, Inc., and Wildlife Conservation
Society, states that no company owns 10% or more of
its stock.
In February 2025, the Humane Society of the United States
officially changed its name to Humane World for Animals.
1
iii
STATEMENT OF RELATED PROCEEDINGS
The following proceedings are directly related to this
case within the meaning of Rule 14.1(b)(iii).
The Art and Antique Dealers League of America,
Inc., et al. v. Basil Seggos, Civ. No. 18-02504, 2019 WL
416330 (S.D.N.Y. Feb. 1, 2019).
The Art and Antique Dealers League of America,
Inc., et al. v. Basil Seggos, Civ. No. 18-02504, 394
F. Supp. 3d 447 (S.D.N.Y. Aug. 14, 2019).
The Art and Antique Dealers League of America,
Inc., et al. v. Basil Seggos, No. 21-569, 121 F.4th 423
(2d Cir. Nov. 13, 2024).
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..................................
i
PARTIES TO THE PROCEEDINGS BELOW AND
RULE 29.6 DISCLOSURE STATEMENT ......
ii
STATEMENT OF RELATED PROCEEDINGS...
iii
TABLE OF AUTHORITIES ................................
vi
PRELIMINARY STATEMENT...........................
1
I.
THERE IS NO CONFLICT MERITING
REVIEW ....................................................
2
A. The Claimed Circuit Split Is Illusory ....
2
B. Alleged Conflict With Agency Practice
Is Not a Valid Basis To Grant
Certiorari .............................................
8
THIS CASE IS A POOR VEHICLE FOR
REVIEW BECAUSE THE QUESTION
PRESENTED WAS NOT DISPOSITIVE
BELOW .....................................................
10
III. THIS IS NOT A CASE OF NATIONAL
IMPORTANCE .........................................
12
IV. THE DECISION BELOW IS CORRECT...
14
CONCLUSION ....................................................
16
II.
(v)
vi
TABLE OF AUTHORITIES
CASES
Page(s)
April in Paris v. Bonta,
659 F. Supp. 3d 1114 (E.D. Cal. 2023) . 2, 3, 6, 7
Arizona v. United States,
567 U.S. 387 (2012) ...................................
15
Chinatown Neighborhood Ass’n v. Harris,
794 F.3d 1136 (9th Cir. 2015), cert.
denied, 578 U.S. 1002 (2016) ....................
4
Cresenzi Bird Importers, Inc. v.
New York,
658 F. Supp. 1441 (S.D.N.Y. 1987), aff’d,
831 F.2d 410 (2d Cir. 1987) ...................... 14, 15
H.J. Justin & Sons, Inc. v. Deukmejian,
702 F.2d 758 (9th Cir. 1983)..................... 3-5, 7
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) ................................. 2, 8, 14
Man Hing Ivory & Imports, Inc. v.
Deukmejian,
702 F.2d 760 (9th Cir. 1983)..................... 3-5, 7
New York ex rel. Silz v. Hesterberg,
211 U.S. 31 (1908) .....................................
15
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) ...................................
15
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ...................................
8
vii
TABLE OF AUTHORITIES—Continued
STATUTES
Page(s)
Endangered Species Act, 16 U.S.C. § 1531
et seq. .............................................................
1-15
§ 4(d), 16 U.S.C. § 1533(d) ........................
3
§ 6(f), 16 U.S.C. § 1535(f) ..................... 1, 2, 5-15
§ 9(a), 16 U.S.C. § 1538(a) ........................
10
§ 9(d), 16 U.S.C. § 1538(d) ........................
4
§ 10, 16 U.S.C. § 1539 ...............................
15
§ 10(a)(1)(A), 16 U.S.C. § 1539(a)(1)(A) ....
13
N.Y. Env’t Conserv. Law § 11-0535-a ... 1, 2, 10, 12
REGULATIONS
50 C.F.R. § 17.40(e)(3) ..................................
13
RULES
Sup. Ct. R. 10(a) ...........................................
3, 6
COURT FILINGS
Exhibit 4 of Declaration of Clinton Howell,
Art & Antique Dealers League of Am., Inc.
v. Seggos, 394 F. Supp. 3d 447 (S.D.N.Y.
2019) (No. 1:18-cv-02504-LGS), ECF No.
25-4 ............................................................
4
Statement of Findings of Fact and
Conclusions of Law, Ivory Educ. Inst. v.
California, No. BC602584 (Cal. Super. Ct.
Jan. 4, 2017) ...............................................
15
OTHER AUTHORITIES
57 Fed. Reg. 35,473 (Aug. 10, 1992) ............
3
viii
TABLE OF AUTHORITIES—Continued
Page(s)
81 Fed. Reg. 36,388 (June 6, 2016) ..............
9
89 Fed. Reg. 22,522 (Apr. 1, 2024) ...............
9
U.S. Fish & Wildlife Service, Conservation
Benefit Agreements for Private Property
Owners (2024), available at https://www.
fws.gov/sites/default/files/documents/202
4-05/conservation-benefit-agreements-fa
ct-sheet.pdf ................................................
13
Endangered Species Permits: Frequently
Asked Questions, U.S. Fish & Wildlife
Service, https://www.fws.gov/page/endan
gered-species-permits-frequently-askedquestions (last visited Apr. 14, 2025) .......
10
PRELIMINARY STATEMENT 1
Petitioners ask this Court to invoke its certiorari
power to conduct garden-variety appellate review of a
routine and relatively insignificant exercise of statutory
construction. The Second Circuit held that the best
reading of the Endangered Species Act’s (“ESA”) express
preemption provision, 16 U.S.C. § 1535(f) (“Section
6(f)”), is that it does not preempt New York’s law
restricting intrastate commerce in elephant ivory and
rhinoceros horn with respect to certain antiques and
items containing de minimis amounts of ivory, N.Y.
Env’t Conserv. Law § 11-0535-a (“State Ivory Law”).
This narrow question of first impression does not merit
review by this Court.
Petitioners identify no court of appeals decision that
conflicts with the Second Circuit’s ruling. Petitioners
tellingly claim a “circuit split” with a district court
decision out of the Ninth Circuit, but the Ninth Circuit
precedent that ruling relied on is fully consistent with
the distinction the Second Circuit drew here. In both
Ninth Circuit cases cited in the petition, the regulated
party had a federal permit authorizing sale that,
unlike the antique and de minimis exceptions relied
on by Petitioners, meets the Second Circuit’s interpretation of the term “exemption or permit” in Section 6(f).
And the district court decision cited by Petitioners
turned on the interaction between a federal regulation
governing different species and a California law that,
unlike New York’s, applied to interstate transactions.
Petitioners also point to some tension between the
Second Circuit’s careful reading of the ESA and
various informal agency comments. But as the Second
Intervenor-Respondents incorporate by reference Respondent
Sean Mahar’s statement of the case.
1
2
Circuit pointed out, it is ultimately the role of the
courts to determine what the law is. And by giving the
statute a plain language construction, despite what
agency personnel may have said in non-binding
comments, the Second Circuit was doing exactly what
this Court instructed in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024). There is no “conflict”
meriting certiorari just because a court’s construction
of a statute does not track some past agency
comments. In any event, the implementing agency has
expressly indicated that dealers must abide by state
laws regulating the sale of ivory within their borders.
Even looking past these deficiencies, this case would
still be a poor vehicle for review because the question
presented was not dispositive of the outcome below.
The Second Circuit rejected Petitioners’ conflict
preemption claim on the ground that the State Ivory
Law does not trigger Section 6(f) since it does not
reach interstate transactions. That alternative
holding, which the petition does not ask this Court to
review, would result in affirmance of the Second
Circuit’s decision even if Petitioners prevailed on the
arguments they present.
For all of these reasons, Petitioners’ mundane
disagreement with the holding of the Second Circuit
does not warrant the issuance of certiorari.
I. THERE IS NO CONFLICT MERITING
REVIEW
A. The Claimed Circuit Split Is Illusory
Petitioners claim “a [c]onflict [b]etween the Second
and Ninth Circuits,” Pet. 15, based on a California
district court decision, Pet. 18-19 (discussing April in
Paris v. Bonta, 659 F. Supp. 3d 1114 (E.D. Cal. 2023)).
Of course, tension between a decision by the Second
3
Circuit and a district court in another circuit would
not constitute a “conflict with the decision of another
United States court of appeals on the same important
matter.” S. Ct. R. 10(a) (emphasis added). But even this
purported conflict is non-existent. The Second Circuit’s
decision does not conflict with the district court’s
ruling in April in Paris, and, crucially, it is entirely
consistent with the Ninth Circuit cases cited in April
in Paris.
The Ninth Circuit cases that Petitioners cite addressed
preemption under the ESA where parties had direct
administrative authorization from the federal government,
in the form of a permit, to engage in the conduct at
issue – which, as Petitioners acknowledge, is not the
question presented here. These Ninth Circuit cases
would have been decided exactly the same way under
the Second Circuit’s reasoning.
In Man Hing and H.J. Justin & Sons – both decided
under a long-superseded regulatory scheme 2 –
plaintiffs had permits from the federal government
that specifically authorized the conduct that a state
statute sought to prohibit. In Man Hing, the plaintiffs
had been issued a “special purpose permit” by the
federal agency, the U.S. Fish and Wildlife Service, that
specifically “authoriz[ed] [the] activity” that plaintiffs
wished to engage in. Man Hing Ivory & Imports, Inc. v.
Deukmejian, 702 F.2d 760, 764-65 (9th Cir. 1983). It
was this “federal permit authorizing trade in elephant
parts,” issued pursuant to the regulations governing
that trade in the 1980s, that the Ninth Circuit held
These cases were decided over forty years ago under a
regulatory scheme that has been defunct for over thirty years. See
57 Fed. Reg. 35,473, 35,486 (Aug. 10, 1992) (amending the 4(d)
rule for the African elephant and rescinding the provision
authorizing the issuance of permits for trade in elephant parts).
2
4
preempted the state prohibition. Id. at 765. On the
same day it decided Man Hing, the Ninth Circuit also
decided H.J. Justin & Sons, in which it answered the
same question the same way, explaining only that
“[f]or the reasons set forth in” Man Hing, the same
state prohibition “could not be applied to [another]
holder of [the same] federal permit” that authorized
“trade in African elephant products.” H.J. Justin &
Sons, Inc. v. Deukmejian, 702 F.2d 758, 759 (9th Cir. 1983).
Here, there is no federal permit “authorizing [the]
activity” that Petitioners wish to engage in. 3 Rather,
Petitioners ask this Court to answer whether the
ESA’s preemption provision protects activities that are
not affirmatively authorized by the federal government.
Pet. i. Neither Man Hing nor H.J. Justin & Sons
contains any ruling on this question, let alone one that
conflicts with the Second Circuit’s holding. These cases
While Petitioners’ members may have a federal license to
operate as an importer of elephant products, that document does
not authorize trade in such products. See Exhibit 4 of Declaration
of Clinton Howell at 2, Art & Antique Dealers League of Am., Inc.
v. Seggos, 394 F. Supp. 3d 447 (S.D.N.Y. 2019) (No. 1:18-cv-02504LGS), ECF No. 25-4; 16 U.S.C. § 1538(d). Recognizing this,
Petitioners waive any reliance on the threshold question of a
permit and instead rely only on “the antique and de minimis
exceptions” in the ESA and its regulations. Pet. 9; accord id. at
13. But statutory and regulatory exceptions that merely choose
not to assert regulatory authority for purposes of federal law are
not affirmative authorizations that displace state restrictions,
like a permit that guarantees the right to engage in the conduct
would be. See Chinatown Neighborhood Ass’n v. Harris, 794 F.3d
1136, 1142-44 (9th Cir. 2015), cert. denied, 578 U.S. 1002 (2016).
Of course, if Petitioners did have affirmative authorization to
trade in elephant products, then the Question Presented that
they ask this Court to review, Pet. i, would not, in fact, be presented
by this case, and their quarrel would not be with the Second
Circuit’s legal reasoning but with its understanding of the facts.
3
5
thus examine not only a different set of facts, but a
wholly different legal question than the one that
Petitioners present here. Pet. i.
But the absence of a federal permit guaranteeing
the right to sell ivory is not the only reason this case
is distinguishable from Petitioners’ cited Ninth Circuit
cases. Those decades-old cases also did not engage in
the textual statutory construction that the Second
Circuit applied to the ESA’s preemption provision. See
Pet. App. 10a-18a. The Ninth Circuit merely accepted
at face value that a “federal permit [that] authoriz[es]
trade” constituted an “authoriz[ation] pursuant to an
exemption or permit” within the meaning of the ESA’s
preemption provision. Man Hing, 702 F.2d at 764-65. It
did not consider – as it had no reason to – the specific
meaning and operation of the “exemption or permit”
clause in Section 6(f). Id.; H.J. Justin & Sons, 702 F.2d
at 759. The Second Circuit’s analysis of this language
thus cannot conflict with that of the Ninth Circuit
decisions because the Ninth Circuit has not done the
analysis at all.
Indeed, Man Hing and H.J. Justin & Sons would
come out the same way under the Second Circuit’s
reasoning. Both cases dealt with vendors who had
permits specifically granting them affirmative authorization to sell the products in question. Under the
Second Circuit majority opinion here, the permits in
Man Hing and H.J. Justin & Sons are precisely the
type of “written individual authorizations” that “can
give rise to express preemption.” Pet. App. 14a-18a
(emphasis added). Thus, under the reasoning of both
the Ninth and Second Circuits, the plaintiffs in Man
Hing and H.J. Justin & Sons had the kind of
affirmative authorization to trade in elephant parts
that can preempt a state law prohibiting such trade.
6
Petitioners do not. Pet. App. 13a-14a (“Neither [the
antiques exception or the de minimis exception] is
referred to as an ‘exemption’ or ‘permit.’”); see also Pet.
i. 4 This case does not present a disagreement between
two courts of appeals, but one between Petitioners and
the Courts of Appeals.
Without a conflict between circuit courts, Petitioners
can point only to the district court ruling in April in
Paris v. Bonta. Again, a purportedly conflicting ruling
from a single district court is not a basis for this
Court’s review. See S. Ct. R. 10(a). But even if it were,
the April in Paris ruling does not conflict with the
Second Circuit’s analysis. April in Paris addressed
what the district court characterized as a “narrow”
issue, 659 F. Supp. 3d at 1116, that turned on specific
language in, and the intent underlying, the speciesspecific regulations at issue. There, the district court
held that the U.S. Fish and Wildlife Service “create[d]
a positive right to engage in some specific conduct”
regarding alligator and crocodile parts, providing
affirmative authorization to the plaintiffs, and
therefore displacing state law under Section 6(f). See
id. at 1126, 1130. The district court’s ruling is limited
Contrary to Amici’s suggestion, the Second Circuit’s decision
does not undermine the U.S. Fish and Wildlife Service’s authority
to issue such exemptions or permits under the ESA. See Br. Amici
Curiae Property & Environment Research Center & Safari Club
International 3-4 (“Br. Amici Curiae”). The Second Circuit did not
hold that the agency could not issue affirmative authorizations
for trade in ivory, thereby preempting state law; it held that the
agency has not. Moreover, the type of regulatory provisions that
Amici fret over, id. at 6-7, 18-21, are not the subject of this case,
and the concerns that Amici have are therefore not presented
here, see Pet. i (asking whether Section 6(f) protects conduct that
is not affirmatively authorized by agency action but is otherwise
excluded from the Act’s regulation). See also infra n.8.
4
7
to the detailed regulatory scheme applicable to those
species and does not delve into the distinctions
between different types of exceptions analyzed by the
Second Circuit.
Notably, the April in Paris court reached the issue of
preemption only because it concluded that the state
statute regulated interstate transactions. See id. at
1122; see also Pet. App. 84a-85a (district court in this
New York case distinguishing Man Hing and H.J.
Justin & Sons on the basis that those cases address
interstate or import restrictions); 16 U.S.C. § 1535(f)
(directed at “[a]ny State law or regulation which
applies with respect to the importation or exportation
of, or interstate or foreign commerce in” ESA-listed
species). In contrast, the Second Circuit found that
New York’s law prohibits only intrastate transactions.
Pet. App. 24a. On the facts of this case, the reasoning
of the April in Paris decision would lead to the same
outcome: no express preemption of a state law
governing transactions wholly within the state.
In short, the Ninth Circuit decisions cited by
Petitioners did not even address the legal issue
presented by this petition, and the April in Paris
district court ruling concerned a narrow, speciesspecific regulation as applied to interstate trade.
Petitioners conspicuously do not identify any previous
decision addressing the question posed by their
petition in the more than fifty years since the ESA was
passed. And the Ninth Circuit cases that Petitioners
point to are – to the extent they relate to the question
presented here at all – entirely consistent with the
Second Circuit’s holding below. As to the proper
interpretation of the ESA itself, it is unremarkable
that some lower courts find preemption of state law
and some do not, depending on the different
8
regulations and facts involved. This Court should not
grant certiorari based on hypothetical predictions of
how a circuit split might arise.
B. Alleged Conflict With Agency Practice
Is Not a Valid Basis To Grant Certiorari
Unable to identify a conflict between the Second
Circuit’s opinion and any other appellate court’s
interpretation of Section 6(f), Petitioners emphasize
potential conflicts with past agency comments broadly
related to that provision. While courts may look to
agency interpretations when determining the meaning
of a statute, see Loper Bright, 603 U.S. at 394 (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)), this
Court recently affirmed “the unremarkable, yet elemental
proposition reflected by judicial practice dating back
to Marbury: that courts decide legal questions by
applying their own judgment,” id. at 391-92. Purported
inconsistency with agency guidance or practice does
not merit review by this Court.
Petitioners’ cherry-picked examples of agency statements were fully considered and correctly rejected by
the Second Circuit. Pet. App. 22a-23a. Even assuming
Petitioners are correct about the occasionally preferred
interpretation of federal regulators, the Second Circuit
did exactly what this Court instructed in Loper Bright.
It parsed the ESA’s language, structure, and purpose,
concluding that its plain text compelled a different
interpretation. See id. at 23a (concluding that
Congress carefully “structured the relationship between
‘exceptions’ and ‘exemptions,’ and the consequence it
intentionally gave to the difference between them with
respect to preemption”); see also infra Section IV.
That the Second Circuit reached a different statutory
interpretation than the agency is unremarkable and
9
calls into question neither the Second Circuit’s interpretive methodology nor its conclusions.
Moreover, the petition overstates the degree to
which the implementing agencies have articulated
and maintained a “longstanding” conflicting interpretation of the ESA’s express preemption provision.
See Pet. 14. None of the five disparate examples
Petitioners cobble together are formally adopted agency
interpretations of Section 6(f). Pet. 11-14. Indeed, as
the Second Circuit noted, no such interpretation
exists. Pet. App. 23a (“We recognize that the one,
perhaps only, circumstance in which consequences
attach to distinctions between ‘exception’ and ‘exemption’
is the operation of the preemption provisions of § 1535.
No regulation was drafted to help implement it.’”).
In fact, the U.S. Fish and Wildlife Service currently
takes the position that the ESA does not preempt state
regulation of intrastate ivory sales. In a 2016
amendment to its special rule governing trade in ivory
and other African elephant products, the agency noted
that intrastate commerce in ivory could continue
“where such activity is allowed under State law.” 81
Fed. Reg. 36,388, 36,416 (June 6, 2016); see also id. at
36,407 (“Businesses will not be prohibited by the final
rule from selling raw or worked ivory within the State
in which they are located, unless prohibited under
State law.” (emphasis added)). 5 If the agency’s position
were that antique and de minimis ivory sales within a
state could continue despite more stringent state
prohibitions, it could have said so. It did not, instead
While the ESA special rule governing African elephants has
since been amended to strengthen standards governing import of
sport-hunted elephant trophies and live elephants, these relevant
portions of the 2016 rule pertaining to commerce in ivory remain
in place. See 89 Fed. Reg. 22,522, 22,522 (Apr. 1, 2024).
5
10
plainly stating, without qualification, that state law
may prohibit intrastate commerce in ivory. 6
At best, the petition makes the case that the Second
Circuit’s interpretation differs not from a clear and
longstanding agency interpretation of Section 6(f),
but from positions this Court is asked to infer from
a handful of non-binding agency statements made
informally, inconsistently, and occasionally. Even then,
there is nothing noteworthy, let alone certiorari-worthy,
about an appeals court deciding a novel question of
statutory interpretation differently than an agency.
II. THIS CASE IS A POOR VEHICLE FOR
REVIEW BECAUSE THE QUESTION
PRESENTED WAS NOT DISPOSITIVE
BELOW
Even if there were tension between the agency’s and
the Second Circuit’s interpretation of Section 6(f),
the petition presents a poor vehicle for reviewing the
question presented. The majority’s opinion contains
two independently sufficient alternative rationales for
reaching the conclusion that the State Ivory Law is not
expressly preempted. Petitioners ask this Court to
Similarly, the U.S. Fish and Wildlife Service’s public website
acknowledges that states may regulate intrastate commerce in
listed species even where such activity is not prohibited by federal
law. Endangered Species Permits: Frequently Asked Questions,
U.S. Fish & Wildlife Service, https://www.fws.gov/page/endan
gered-species-permits-frequently-asked-questions (last visited
Apr. 14, 2025) (“Commercial activities that take place entirely in
one state and involve legally acquired endangered or threatened
species are not prohibited by ESA Section 9(a). . . . However,
many states have their own laws that regulate activities
involving protected species. Contact the appropriate state agency
before undertaking activities involving endangered or threatened
wildlife and plants.”).
6
11
review only one. This Court’s resolution of the question
presented therefore would not affect the outcome of
the case even if decided in Petitioners’ favor, rendering
it an inappropriate vehicle to interpret Section 6(f).
Petitioners challenge the Second Circuit’s interpretation of the “exemption or permit” language in Section
6(f). 16 U.S.C. § 1535(f). But Section 6(f)’s express
preemption provision applies only to state laws governing “the importation or exportation of, or interstate
or foreign commerce in, endangered species or
threatened species.” Id. As the Second Circuit
recognized, New York continues to “grant[] licenses to
interstate and international sales that are in
compliance with the federal law” and restricts only
wholly intrastate ivory sales. Pet. App. 24a; see also
Pet. App. 77a (“DEC will not deny a license for the sale
of ivory from within New York to a buyer located
outside of New York, provided the transaction fully
complies with federal requirements.”). Because the
challenged law does not reach interstate or foreign
commerce, it does not trigger the ESA’s preemption
provision.
The district court disposed of all ESA preemption
claims on this ground, interpreting the “plain terms”
of Section 6(f) to “foreclose[] any notion that state laws
regulating only intrastate commerce fall within its
scope.” Pet. App. 83a. The Second Circuit majority
embraced the same rationale in rejecting Petitioners’
conflict preemption claim, Pet. App. 24a, but did not
reach the interstate/intrastate question when considering express preemption, ruling instead on the
statutory meaning of “exemption or permit.” If,
however, the Second Circuit had agreed with
Petitioners’ arguments about the meaning of that
phrase, the court would have then needed to articulate
12
whether the challenged law regulates “interstate or
foreign commerce” as required to trigger preemption
under Section 6(f) in order to resolve the express
preemption claim. 16 U.S.C. § 1535(f). 7 The reasoning
of the majority would have led to answering that
question in the negative, as demonstrated by its
conflict preemption analysis. See Pet. App. 25a
(“Because Plaintiffs are free to sell these items across
state lines in accordance with the ESA, there is no
basis to conclude that the State Ivory Law undermines
the regulatory scheme established in federal law.”).
Even under Petitioners’ interpretation of “exemption
or permit,” applying the Second Circuit’s reasoning
would have meant ultimately rejecting Petitioners’
express preemption claim because the challenged law
reaches only intrastate transactions.
III. THIS IS NOT A CASE OF NATIONAL
IMPORTANCE
The question presented by this case has extremely
narrow legal and practical significance. As explained,
the legal issue has not arisen with any frequency in
the lower courts, nor has it led to conflicting circuit
court rulings. Indeed, if, as Petitioners suggest, the
issue is “unlikely . . . to percolate among the Courts of
Appeals,” Pet. 4 (emphasis added), that is an apparent
concession that the petition does not raise a legal question
of national importance meriting this Court’s review.
Likewise, as for practical consequences, the law at
issue does not threaten any thriving industry; trade in
new ivory is already illegal, and the sale or exchange
of pre-ban ivory products is permitted subject to
Indeed, this is exactly the analytical path followed by the
dissent. Pet. App. 46a-47a.
7
13
stringent restrictions. 50 C.F.R. § 17.40(e)(3). This case
concerns only a narrow class of antique and de
minimis objects that are excluded from the federal
prohibition but are not excluded from the New York
state law prohibition. It affects only items that are
more than 100 years old and between 20-50% ivory,
where that ivory is in total less than 200g by weight,
and certain items that contain small amounts of ivory
that are not antique, that are sold and bought within
New York’s borders. See Pet. App. 5a-6a. Even as to
those articles, New York permits interstate transactions,
so this decision affects only intrastate sales, where
both buyer and seller are in New York. 8 Pet. App. 24a.
While there are other states with laws that may or
may not align with the federal exceptions, each of
those laws is different and will pose its own particular
Amici misleadingly argue that the decision below threatens
federal administration of candidate conservation agreements
with assurances and safe harbor agreements (collectively
referred to as “Conservation Benefit Agreements” (“CBAs”))
under the ESA. Br. Amici Curiae 18-21. At most, the Second
Circuit’s opinion affects whether CBAs expressly preempt state
law, not whether they can be issued at all. It is unclear, and Amici
fail to explain, why CBAs – which shield participants who take
voluntary conservation measures from liability under federal law
– must preempt state law through Section 6(f) in order to function.
But even if the operation of CBAs did for some reason depend on
their preemptive effect, the Second Circuit’s decision would not
affect this because CBAs operate through ESA permits that
would trigger Section 6(f) under the Second Circuit’s
interpretation. CBAs, even when structured “programmatically”
to cover multiple entities, are implemented through
“Enhancement of Survival” permits issued under Section
10(a)(1)(A) of the ESA. See U.S. Fish & Wildlife Service,
Conservation Benefit Agreements for Private Property Owners 1-2
(2024), available at https://www.fws.gov/sites/default/files/docu
ments/2024-05/conservation-benefit-agreements-fact-sheet.pdf.
8
14
interpretive questions. The exact contours of the New
York restrictions at issue in this case are of interest
only to a narrow set of antique dealers and buyers
located within one state. Indeed, while Petitioners
claim that the Second Circuit’s ruling threatens
national commerce, Pet. 19-20, they admit that the
question presented is unlikely to arise again and that
they are effectively the only parties impacted by the
decision, id. at 4. These limited legal and practical
implications do not merit this Court’s review.
IV. THE DECISION BELOW IS CORRECT
Review is also inappropriate for the straightforward
reason that the Second Circuit correctly applied this
Court’s precedent in interpreting Section 6(f). Following
Loper Bright’s directive to “make[] its own determination of the meaning of ambiguous provisions,” Pet. App.
23a (citing Loper Bright, 603 U.S. at 412-13), the court
of appeals carefully examined the text and structure
of Section 6(f) as well as the broader statutory context.
Pet. App. 9a-19a. The majority’s conclusion – that
“exemption or permit” is a narrower category than,
and not interchangeable with, “exception” as used in
the ESA – gave meaning to Congress’s deliberate choice
of language in Section 6(f) and throughout the statute.
The Second Circuit’s holding also accords with
decisions of the few courts that have interpreted
Section 6(f) or its application to state regulation of
wildlife product sales. In Cresenzi Bird Importers, Inc.
v. New York, for example, the court held that “Congress
has indicated that even state statutes which apply to
interstate commerce will not be preempted by [the]
ESA unless they conflict with affirmative federal
regulation.” 658 F. Supp. 1441, 1445 (S.D.N.Y. 1987),
aff’d, 831 F.2d 410 (2d Cir. 1987). There, the court
distinguished between an agency’s general grant of
15
“permission to engage in business as an importer or
exporter of wildlife” and permits affirmatively authorizing specific commercial activity, holding that only the
latter “supersede more restrictive state laws.” Id. at
1446. Like the majority ruling in this case, the court in
Cresenzi held that the term “exemptions” in Section
6(f) refers to specific affirmative authorizations – those
issued under Section 10 of the Act – and not every
exception to a federal prohibition under the Act or
associated regulations. Id.; see 831 F.2d at 410
(affirming “substantially for the [same] reasons”). And
in Ivory Education Institute v. California, the only
other case where a state ivory sales law was challenged
on federal preemption grounds, a California trial court
held that Section 6(f) did not preempt California’s ban.
Statement of Findings of Fact & Conclusions of Law at
7, Ivory Educ. Inst. v. California, No. BC602584 (Cal.
Super. Ct. Jan. 4, 2017).
Moreover, the Second Circuit’s holding is consistent
with states’ traditional role in regulating wildlife and
commerce in wildlife products. “The states’ authority
to establish local prohibitions with respect to out-ofstate wildlife has, since the late nineteenth-century,
been recognized by the courts.” Cresenzi, 658 F. Supp.
at 1447 (citing New York ex rel. Silz v. Hesterberg, 211
U.S. 31, 41-43 (1908)). The Second Circuit’s reading of
Section 6(f) best aligns with this Court’s precedent by
more narrowly construing the ESA’s preemptive reach
into an area of historic state police power. See Arizona
v. United States, 567 U.S. 387, 400 (2012) (“In
preemption analysis, courts should assume that ‘the
historic police powers of the States’ are not superseded
‘unless that was the clear and manifest purpose of
Congress.’” (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947))).
16
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
J. SCOTT BALLENGER
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
APPELLATE LITIGATION
CLINIC
580 Massie Road
Charlottesville, VA 22903
(202) 701-4925
sballenger@law.virginia.edu
Counsel for Humane World
for Animals
VIVIAN H.W. WANG
NATURAL RESOURCES
DEFENSE COUNCIL
40 W. 20th St.
New York, NY 10011
(212) 727-4477
vwang@nrdc.org
Counsel for Natural
Resources Defense Council
April 16, 2025
RALPH HENRY
Counsel of Record
NICHOLAS ARRIVO
KATHERINE HENDRIX
JONATHAN LOVVORN
HUMANE WORLD FOR ANIMALS
1255 23rd St. NW, Ste. 450
Washington, D.C. 20037
(434) 987-3366
rhenry@humaneworld.org
Counsel for Humane World
for Animals, Center for
Biological Diversity,
Natural Resources Defense
Council, Inc., and Wildlife
Conservation Society
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.