Petition for Writ of Certiorari — Landreneau, Secretary for the Louisiana Department of Wildlife and Fisheries v. Pelts & Skins, LLC

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Supreme Court, U.S.

}) FILED

No.04 22 JUN 30 2004

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

WILLIAM DWIGHT LANDRENEAU,

Secretary for the Louisiana Department

of Wildlife and Fisheries,

Petitioner,

PELTS & SKINS, LLC,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE |

UNITED STATES CourRT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

C. Berwick Duvat, I

DuvAL, FUNDERBURK, SUNDBERY,

LoveLit & WATKINS

101 Wilson Avenue

Post Office Box 3017

Houma, Louisiana 70361

(985) 876-6410

Attorneys for Petitioner

188152 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

ELLE oT

IPRS WI I ne me me ap em

QUESTION PRESENTED

Whether La.R.S. 56: 253 and 279 violate the First

Amendment insofar as they require alligator hunters and

alligator farmers in Louisiana to pay assessments to fund

generic marketing with which they disagree.

LIST OF PARTIES

The plaintiff-appeliee in the Fifth Circuit Court of

Appeals was Pelts & Skins, L.L.C., a Louisiana limited

liability company. The original defendant-appellant was

James A. Jenkins, Jr., Secretary of the Louisiana Department

of Wildlife and Fisheries. William Dwight Landreneau, the

current Secretary of the Louisiana Department of Wildlife

and Fisheries, was substituted in the Court of Appeals in the

place of Mr. Jenkins on January 22, 2004.

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TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved . .

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Reasons for Granting the Petition ..............

Generic alligator marketing by the Louisiana

Department of Wildlife and Fisheries is

government speech which is exempt from

First Amendment scrutiny ...............

A. The First Amendment permits a state to

engage in its own speech and to assess

its citizens, or a segment of its citizens,

to pay for that speech ..............

Contents

Louisiana’s alligator marketing program

is government speech because the

state specified the message, created a

governmental entity to disseminate it,

and vested control in a politically

accountable official ................

The Court of Appeals incorrectly found

that the speech in question is not

government speech .............+..

The question whether Louisiana’s

alligator marketing program involves

government speech warrants the Court’s

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II. Louisiana’s assessments are constitutional

under the intermediate scrutiny applicable to

regulations of commercial speech ........

III. Louisiana’s alligator marketing program is

part

of a broader regulatory scheme that

exempts this program from the First

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Conclusion

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Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Abood v. Detroit Board of Education, 431 U.S. 209

CEPTS cnvcdereesccndedidartsseaiinoneee 17, 29

Board of Regents of Univ. of Wis. Sys. v. Southworth,

SEP ile BAY GED hvkccsssccbanee 17, 18, 21, 22

Board of Trustees v. Fox, 492 U.S. 469 (1989) .... 25

Central Hudson Gas & Electric Corp. v. Public

Service Comm'n, 447 U.S. 557 (1980) ........

(0ans dehae bine beenkeeeee 13, 14, 15, 25, 26

Charter v. United States Dept. of Agriculture, 230

F. Supp. 2d 1121 (D. Mont. 2002), appeal pending,

eS gd * 5 Pere oes e ree eee 4

Columbia Broadcasting Sys., Inc. v. Democratic

Nat’l Committee, 412 U.S. 94 (1973) ......... 16

Cox v. New Hampshire, 312 U.S. 569 (1941) ..... 23

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.

SST (ESF tD vescdscbecsdhcuivnceeseeiee passim

In re R.M.J., 455 U.S. 191 (1982) .............. 26

Kadrmas v. Dickinson Public Schools, 487 U.S. 450

PD sano os tteeedueentsnteceeee 23

Cited Authorities

Page

” Keller v. State Bar of California, 496 U.S. 1 (1990)

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Lebron v. National R.R. Passenger Corp., 513 U.S.

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Legal Services Corp. v. Velazquez, 531 U.S. 533

CROGED oc cccccccddcsecctsesectsaustduuanen 16, 18

Livestock Marketing Ass'n v. U.S. Dept. of

Agriculture, 335 F.3d 711 (8®* Cir. 2003), cert.

granted in part sub nom. Veneman v. Livestock

Marketing Ass'n (May 24, 2004) (No. 03-1164)

WETTTTITITITTTTT ITT passim

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)

0 ncccecccenceceseeeeeeseusaeussueeneael 26

Michigan Pork Producers Ass'n v. Veneman, 348 F.3d

157 (6* Cir. 2003), petition for cert. filed sub

nom. Michigan Pork Producers Ass'n Vv.

Campaign for Family Farms (Jan. 20, 2004)

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National Endowment for the Arts v. Finley, 524 U.S.

SED CISSED cs ccvcccccsedebucsescasueuseave: 16

Rosenberger v. Rector and Visitors of the Univ. of

Pee., SIS UB. SID CUGSS) .nccccccccccccccess 4, 16

Rust v. Sullivan, 500 U.S. 173 (1991) ........... 16

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Cited Authorities

Page

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

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United States v. Frame, 885 F.2d 1119 (3* Cir. 1989),

cert. denied, 493 U.S. 1094 (1990) ........... 5,24

United States v. Sperry Corp., 493 U.S. 52 (1989)... 22

United States v. United Foods, Inc., 533 U.S. 405

GOED oc dcseccceprivdcccéensneedaqececel passim

United States Postal Serv. v. Council of Greenburgh

Civic Ass ‘ns, 453 U.S. 114 (1981) ............ 23

West Va. Bd. of Education v. Barnette, 319 U.S. 624

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Wooley v. Maynard, 430 U.S. 705 (1977) ........ 28

Codes:

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Cited Authorities

Page

Constitution:

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Statutes:

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Miscellaneous:

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Cited Authorities

Page

Treaties:

Convention of International Trade in Endangered

Species of Wild Fauna and Flora, 27 U.S.T. 1087,

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TABLE OFAPPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Fifth Circuit Filed April 2,

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Appendix B — Findings Of Fact And Conclusions

Of Law Of The United States District Court For

The Middle District Of Louisiana Dated And Filed

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Appendix C — Relevant Statutes ...............

William Dwight Landreneau, Secretary of the Louisiana

Department of Wildlife and Fisheries, respectfully petitions for

a writ of certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit (App. A at 1a-23a) is reported at Pelts & Skins,

LLC v. Landreneau, 365 F.3d 423 (5" Cir. 2004). The opinion

of the district court (App. B at 24a-49a) is reported at Pelts &

Skins, L.L.C. v. Jenkins, 259 F. Supp. 2d 482 (M.D. La. 2003).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1). The judgment of the Fifth Circuit was entered April

2, 2004. Neither party requested rehearing in the Court of

Appeals.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The First Amendment to the United States Constitution

provides in pertinent part:

“Congress shall make no law . . . abridging the freedom of

speech.”

2. La.R.S. 56:253 is reproduced in pertinent part at

App. C at 50a.

3. La.R.S. 56:266 is reproduced in pertinent part at

App. C at 50a-52a.

4. La.R.S. 56:279 is reproduced in pertinent part at

App. C at 52a-56a.

STATEMENT OF THE CASE

This case presents a First Amendment challenge to the

mandatory assessment by the Louisiana Department of Wildlife

and Fisheries (the Department) of certain fees on alligator

farmers and alligator hunters to fund generic marketing, research,

and industry and consumer information about Louisiana

alligators. The Fifth Circuit held in this case that the assessment

violated the First Amendment rights of a Louisiana alligator

farming operation that objected to funding part of the cost of

such marketing.

On two prior occasions, the Court has granted review of

decisions declaring unconstitutional assessments under similar

regulatory programs. In Glickman vy. Wileman Bros. & Elliott,

Inc., 521 U.S. 457, 477 (1997), the Court held that mandatory

assessments to fund generic advertising under a marketing

program for California tree fruit survived First Amendment

scrutiny as “a species of economic regulation.” Conversely, in

United States v. United Foods, Inc., 533 U.S. 405 (2001), this

——ourt (over the dissents of Justices O’Connor, Ginsburg, and

Breyer) held that mandatory assessments to fund generic

advertising of mushrooms failed to pass muster under the First

Amendment.

Both the Eighth Circuit and the Sixth Circuit recently upheld

First Amendment challenges to generic marketing programs in

Livestock Marketing Ass’n v. U.S. Dept. of Agriculture, 335 F.3d

711 (8" Cir. 2003), cert. granted in part sub nom. Veneman v.

Livestock Marketing Ass'n, (May 24, 2004) (No. 03-1164), and

in Michigan Pork Producers Ass’n v. Veneman, 348 F.3d 157

(6" Cir. 2003), petition for cert. filed sub nom. Michigan Pork

Producers Ass'n, Inc. v. Campaign for Family Farms (Jan. 20,

2004) (No. 03-1043). The Eighth Circuit case, Livestock

Marketing, involved assessments for generic marketing of beef;

the Sixth Circuit case, Michigan Pork, challenged assessments

for generic marketing of pork.

On May 24, 2004, this Court granted the petition for a writ

of certiorari in the Livestock Marketing case, and in the case

consolidated with it in the Eighth Circuit, Nebraska Cattlemen,

Inc. v. Livestock Marketing Ass'n, 335 F.3d 711 (8" Cir. 2003),

limited to the following issues:

From the Livestock Marketing case:

Whether the Beef Promotion and Research Act of

1985 (Beef Act), 7 U.S.C. 2901 et seg., and the

implementing Beef Promotion and Research Order

(Beef Order), 7 C.F.R. Part 1260, violate the First

Amendment insofar as they require cattle producers

to pay assessments to fund generic advertising with

which they disagree.

From the Nebraska Cattlemen case:

Whether the Eighth Circuit erred in holding that

the Beef Promotion and Research Act of 1985

(“Beef Act”), 7 U.S.C. §§ 2901 et seq., and

regulations promulgated thereunder — which

impose assessments on beef producers and importers

to fund research, education, and promotional

activities carried out by special administrative bodies

created by Congress for the express purpose of

furthering important governmental objectives under

the direct supervision and control of the Secretary

of Agriculture — are “unconstitutional and

unenforceable.”

The petition in the Michigan Pork case, filed January 20,

2004, is pending as of the time of filing this petition.

In this case, the Fifth Circuit decided the same constitutional

issue addressed by the Eighth Circuit in Livestock Marketing

and by the Sixth Circuit in Michigan Pork.' The government

defendant in each of these cases raised as a defense the

government speech doctrine, an issue that the Court has never

decided in the context of compelled subsidies for generic

marketing. (In the United Foods case, this Court specifically

declined to consider the issue because the argument had not

been raised below. 533 U.S. at 416-17.) The government speech

doctrine is based on the principle that “when [the government]

is the speaker or when it enlists private entities to convey its

own message ... it is entitled to say what it wishes.”

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

833 (1995). Although each of the circuit courts in these three

cases upheld the First Amendment challenge to the government

program involved, the decisions represent a conflict within the

circuit courts on the government speech issue in the context of

compelled subsidy cases.

The Eighth Circuit held categorically that the government

speech doctrine does not apply to compelled subsidy cases.

335 F.3d at 720. In contrast, the Fifth Circuit held in this case

that “the government speech doctrine is at least potentially

applicable to this general category of cases.” 365 F.3d at 429

n.13, App. A at 12a. The Eighth Circuit’s decision is in tension

1. The same constitutional issue is also pending before the Ninth

Circuit in an appeal from a district court’s decision finding that the Beef

Act’s generic marketing program constitutes government speech and is

therefore exempt from First Amendment scrutiny. Charter v. United

States Dept. of Agriculture, 230 F. Supp. 2d 1121 (D. Mon. 2002).

Following oral argument and submission of the case in the Ninth

Circuit, that court vacated the submission on May 27, 2004, pending

this Court’s resolution of the identica! issue posed in the Livestock

Marketing case, which will be heard by this Court next term.

9" Cir. docket sheet for No. 02-36140, 5/27/04 entry.

with not only the Fifth Circuit’s decision in this case, but with

both the Sixth Circuit’s decision in the Michigan Pork case and

the Third Circuit’s less-recent decision in United States v. Frame,

885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990).

In both the Michigan Pork and Frame cases, the circuit courts

assumed that, if the compelled subsidy program qualified as

government speech, producers would have no First Amendment

right to avoid assessments for those programs.

Statutory and Regulatory Background. Louisiana has

one of the largest remaining wetland areas in America, with

over four million acres of marsh, swamp, and other wetland

habitat for alligators and other animals. Over 1.5 million

alligators live in these four million acres. Although much of

this land is privately owned, the wild alligators who inhabit

these wetlands belong to the state, La. Civ. Code art. 3413, and

are under the jurisdiction of the Department. La.R.S. 56:3.A.

But these fearsome nongame quadrupeds have not always

roamed Louisiana’s wetlands in such vast numbers.

At the turn of the last century, the state was home to almost

the same number of wild alligators as today. But over the

following decades, the number of wild alligators in the state

declined to a point near extinction. Beginning in the 1960s, both

the state and federal governments began taking steps to protect

endangered species. Due to the coordinated federal and state

regulatory scheme — now enforced worldwide through a treaty

signed by over 160 nations — Louisiana’s alligator population

has not only come back from the brink of extinction, it has grown

large enough to support a statewide industry with an annual

economic impact of more than $54 million.

But the state’s alligator industry has been threatened by

market dynamics not unrelated to the rebound of the alligator

population, including the worldwide animal rights movement.

As part ofits comprehensive regulation of the alligator industry,

the Louisiana legislature has addressed this threat and other

market issues through education and marketing programs. It is

the funding of these marketing programs that is at issue in this

case.

Congress’ first step in the conservation effort came with

passage of the Endangered Species Preservation Act of 1966,

P.L. 89-669, 80 Stat. 926. That law provided for a listing of

certain native animal species as endangered and established

limited means for protecting listed species.” The following year,

the Alligator Mississippiensis or “American Alligator” was

placed on the endangered species list. 50 C.F.R. § 17, App. D

(1971). Louisiana’s 1.5 million alligators are members of the

American Alligator species.

In 1973, the United States, along with other countries,

signed the Convention of International Trade in Endangered

Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27

U'S.T. 1087, T.I1.A.S. No. 8249. The treaty, which has been

signed by over 160 countries in the three decades since its

enactment, restricts international commerce in wild animals and

plants that are believed to be actually or potentially harmed by

trade.

The treaty classifies covered species in three categories

according to their relative need for protection, and placed the

American Alligator in the middle category with other species

that are not necessarily now threatened with extinction but may

become so unless trade is Closely controlled. CITES, Art. II.

The United States implemented CITES through the Endangered

Species Act, 16 U.S.C. § 1537a.

2. The Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.,

superceded both the Endangered Species Preservation Act of 1966 and

the Endangered Species Conservation Act of 1969.

The Endangered Species Act makes it unlawful for any

person subject to U.S. jurisdiction to engage in any trade contrary

to CITES, or to possess any specimens traded contrary to the

treaty. 16 U.S.C. § 1538(c)(1).

Louisiana’s efforts to rebuild its alligator population began

in earnest in the 1960s through research, management and law

enforcement. In 1962, the state closed its alligator hunting season

and began a concentrated effort to manage this valuable resource.

After a ten-year hiatus, Louisiana reestablished its annual

alligator harvest on a limited basis. In 1970, the Legislature

gave the Department full authority to regulate alligators in the

state. In 1972, Louisiana initiated its first program aimed at

managing the wild alligator population based a sustained-yield

harvest. The first hunt, authorized in 1972, was confined to one

parish in southwestern Louisiana. The hunt area was gradually

expanded until 1981, when the season was opened statewide.

Between 1972 and 2001, Louisiana’s wild alligator harvest

produced almost 500,000 wild skins with an estimated value of

$168 million. This renaissance of the alligator population and

industry was made possible by state and federal regulation of

the industry. In 1987, the American Alligator was removed from

the Endangered Species List due to recovery.

The Department oversees two alligator programs: the first

based on a wild harvest strategy, the other based on farming of

captive adult alligators and alligator eggs collected from the

wild. The state regulates almost every aspect of these two

programs.

Louisiana’s hunting season for wild alligators takes place

in September and lasts roughly a month. See La.R.S. 56:259.A;

La. Admin. Code Title 76, Ch. 7, § 701 G.1. Ahunter who wishes

to take part in the wild alligator harvest season must obtain a

license from the Department. La.R.S. 56:251A(2)(a)(i). If the

license is approved, the Department issues the hunter a license

and one or more numbered tags. Each tag authorizes the hunter

to trap one wild alligator. All unused tags must be returned to

the Department within 15 days after the close of the season.

Id., La. Admin. Code Title 76, Ch.7, § 701.F.2.c. Through this

tagging program, the Department monitors and controls the exact

number of alligators killed in the wild each year, i.e., the supply

of alligator skins on the market.

Once a licensed hunter captures an alligator, the state’s

tracking system for wild alligators kicks in. At this point, the

hunter dispatches his quarry and either skins his catch that day

or, more typically, sells it directly to a dealer. Once an alligator

has been dispatched, the hunter iaust insert one of his tags into

the last six inches of the animal’s tail. La. Admin. Code Title

76, Ch.7, § 701.F.5S.

As with alligator hunting, the alligator farming industry is

heavily regulated. The Department’s tracking system for farmed

alligators begins with the harvest of eggs from the wild and

continues through the time these eggs are hatched, the baby

alligators are raised, slaughtered, and skinned, and the skins are

shipped out of state. An alligator farmer who wishes to collect

alligator eggs on private property must also obtain a license

from the Department. La.R.S. 56:262B.

The egg collection license allows the farmer to collect his

quota of alligator eggs, then incubate, hatch and raise them at

his farm. At the end of his second year of egg collection, the

farmer must return 14 percent of the hatch, each averaging at

least 4' in length, to the original property. The returned animals

are closely monitored by the Department, which measures each

animal before it is returned, records its sex, numbers and tags

it, and notches one of the ridges on its back for future reference.

When alligators skins are ready for shipment out of state,

the dealer provides a shipping manifest to the Department.

At this point the dealer — or in this case the respondent — pays

the “tag fee” of $2 per skin. La.R.S. 56:253(C)(2)(a). These tag

fees are credited to the Louisiana Alligator Resource Fund which

pays for numerous programs, including generic marketing.

Louisiana’s regulatory scheme not only resuscitated a

species which had by 1962 become endangered by over-

harvesting, but also facilitated the creation of a strong, stable

market for this valuable resource. From 1972 through 2001,

Louisiana’s harvest of wild and farm alligators produced almost

2.2 million wild skins (over 2,000 miles of leather) with an

estimated value of $317.6 million. Ninety percent of the farm

harvest has occurred since 1990. But with the state’s efforts to

save and maintain its alligator population and develop an

industry came other forces: the worldwide animal rights

movement, along with markets that changed, but did not expand.

A relatively small percentage of products made from

Louisiana alligator skins are consumed in the United States.

Many potential buyers in this country still believe that alligators

are endangered, and know nothing of the quality of the leather.

Therefore, the Department determined that market enhancement

programs were needed to increase demand and support stronger

prices.

In 1991, the Louisiana Legislature created the Alligator

Resource Fund. La.R.S. 56:279, App. C at 52a-53a. In the statute

creating this fund, the Legislature recognized that the state’s

alligator industry is a vital aspect of its economic base, and that

there is a need to educate the public concerning alligator hunting

as a sound wildlife management practice and to support the

industry with a comprehensive research and development

program. A portion of all Department revenues received from

tag fees is credited to the Resource Fund. These monies may be

spent only on authorized programs, including salaries within

the Department’s fur and refuge division; law enforcement

activities associated with the alligator farm industry; marketing

programs; research on alligator conservation and techniques for

enhancing the industry; and management of the alligator

population. La.R.S. 56:279B, App. C at 53a.

The Legislature also created a governmental entity — the

Louisiana Fur and Alligator Advisory Council (Advisory

Council) — within the Department. The Advisory Council is

responsible for reviewing and approving recommended

procedures and programs to be funded by the Alligator Resource

Fund and another fund. The Secretary (or his designee) is an

ex officio member of the Advisory Council and “shall be present

at all official meetings.” La.R.S. 56:266C, App. C at Sla.

Moreover, one member of the Council is appointed by the

speaker of the Louisiana House of Representatives and another

by the president of the Louisiana Senate. The remaining nine

members of the Council are appointed by the Secretary, and

represent a cross section of trappers, alligator hunters, coastal

landowners and alligator farmers. The Council reviews and

approves programs and services implemented by the Department

and recommends expenditures from the two funds to ensure

that funds are dedicated solely to projects that further goals

identified by the Legislature. The Department, not the Council,

creates and controls its own budget.

The Legislature sets the tag fees which help fund the

Alligator Resource Fund. R.S. 56:253, App. C at 50a. Such fees

are not fixed or controlled by the Advisory Council, but are

under the Department’s administrative control. See, e.g., 28 La.

Council’s recommendations regarding expenditures from the

Fund, and the Department, not the Council, is responsible for

annual reporting to the Legislature on the status and uses of

fund revenues. La.R.S. 56:279E.

The legislative goals of public education, marketing, and

resource management are interrelated and essential parts of

Louisiana’s comprehensive program directed at conservation

and sustainable use of this valuable state resource. In the period

since implementation of these measures, the Louisiana alligator

industry has enjoyed substantial growth. The alligator farming

industry has grown from only 30 farmers in 1987 to 66 in 2000,

with over 500,000 animals in captivity.

Proceedings in the District Court. On April 16, 2002,

Pelts & Skins, LLC filed this suit in the Middle District of

Louisiana for injunctive relief against James A. Jenkins, Jr., then

Secretary of the Louisiana Department of Wildlife and Fisheries.

Plaintiff challenged as violative of the First Amendment

expenditures for generic marketing from two separate funds

controlled by the Department, one of which is the Alligator

Resource Fund.’ Plaintiff moved for a preliminary injunction,

and the parties agreed that trial of the preliminary injunction

would be combined with trial on the merits. Plaintiff moved for

summary judgment, the Secretary opposed the motion, and the

parties agreed to submission of the case on the record. District

Judge John Parker heard oral argument on plaintiff’s summary

judgment motion, the parties filed exhibits into the record

without objections, and the case was submitted on the merits

without any live testimony. Thereafter, the district judge issued

his Findings of Fact and Conclusions of Law, App. B at 25a-

3. Respondent also challenged generic marketing expenditures

from the Louisiana Fur and Alligator Public Education and Marketing

Fund. The Fifth Circuit held that respondent lacked standing to challenge

expenditures from that fund. 365 F.3d at 428, App. A at 9a. That portion

of the court of appeals’s holding is not at issue in this petition.

49a, directing that a permanent injunction issue against the

Secretary prohibiting expenditures from the two funds “for the

purpose of generic alligator marketing.” Judge Parker entered

judgment May 9, 2003, which included a permanent injunction

prohibiting state officials from “approving, authorizing or

expending any revenue from the ... Louisiana Alligator

Resource Fund for the purpose of generic alligator marketing.”

Judgment, CA rec.exc. 3.

The district court found that the alligator marketing program

was not government speech, citing three factors: (1) the

advertising is funded not through general tax dollars, but through

fees on what could be considered “a narrow segment of society

with common interests and one not representative of the general

population, App. B at 39a; (2) the lack of evidence that the

Advisory Council “was created to participate in the state’s

general government, id.; and (3) the “close nexus between the

alligator producers and the message funded.” Jd. The district

court also held that the marketing program “amounts to

unconstitutional compelled commercial speech.” App. B at 40a.

The Fifth Circuit’s Decision. On April 2, 2004, the Fifth

Circuit issued its decision, App. A at 1a-23a, affirming the district

court’s injunction insofar as it enjoined use of the Alligator

Resource Fund for generic alligator marketing. The circuit court

also vacated and remanded (on standing grounds) the injunction

insofar as it barred state officials from using the Louisiana Fur

and Alligator Public Education and Marketing Fund to support

generical alligator marketing.

The Fifth Circuit held that “the government speech doctrine

is at least potentially applicable to this general category of cases,”

365 F.3d at 429 n.13, App. A at 12a, but found that “the generic

marketing at issue is not government speech, but government

facilitation of the private speech of fur and alligator harvesters.”

365 F.3d at 429, App. A at 12a. The Fifth Circuit’s factual

findings on this point are not supported by the record.

On the issue of whether the program is constitutional under

the standard articulated by this Court in Central Hudson Gas &

Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980),

for regulation of commercial speech, the Fifth Circuit expressed

“doubt” that the Central Hudson test applies. 365 F.3d at 434

n.21, App. A at 23a, but added that, in any event, Louisiana’s

program “burdens First Amendment speech more than necessary.

Louisiana does not need to compel alligator harvesters to support

generic marketing, but could simply fund generic marketing

from its general tax revenues.” Jd.

REASONS FOR GRANTING THE PETITION

The Fifth Circuit has held unconstitutional provisions of

Louisiana law designed to protect one of the state’s once-

endangered natural resources — the American Alligator — and

the multi-million dollar industry that has grown up around it.

That holding is incorrect, for the Louisiana law is not one

“abridging the freedom of speech” under the First Amendment.

The law promotes speech — by the government — through

modest assessments on persons who voluntarily participate in

the alligator industry.

Respondent breeds and sells the very product that Louisiana

has chosen to promote in the law in question, and the law does

not constrain respondent from communicating its own messages.

Therefore, whether analyzed under the First Amendment

standard applicable to programs of government speech, the

standard applicable to regulations of commercial speech, or the

two in combination, Louisiana’s assessment does not abridge

respondent’s freedom of speech. Indeed, in the context of

sustaining similar statutes against First Amendment challenge,

the government speech and intermediate scrutiny analysis are

mutually reinforcing.

This Court should grant this petition in order to address the

applicability to compelled subsidy cases of these two legal

doctrines: the government speech doctrine and the intermediate

First Amendment scrutiny under the standard articulated by this

Court in Central Hudson.

1. The decision of the Fifth Circuit in this case on the

applicability of the government speech doctrine to compelled

subsidy cases conflicts with the Eighth Circuit’s Livestock

Marketing decision, which this Court has agreed to hear.

The Fifth Circuit outlined the conflicting decisions of the two

circuit courts as follows:

The Eighth Circuit declared the government speech

doctrine categorically inapplicable to compelled

subsidy cases. See Livestock Mktg. Ass’n v. U.S.

Dep t of Agric., 335 F.3d 711, 720 (8" Cir. 2003),

petition for cert. filed sub. nom. Veneman v. Livestock

Mktg. Ass'n, 72 U.S.L.W. 3539 (U.S. Feb. 13, 2004)

(No. 03-1164). The Supreme Court’s treatment of

compelled subsidy challenges convinces us that the

government speech doctrine is at least potentially

applicable to this general category of cases.

365 F.3d at 429 n.13, App. A at 12a

2. The Court has not decided how or if the Central Hudson

test applies to compelled subsidy cases, see United Foods, 533

U.S. at 410, and the circuit courts are split on the issue.

The Sixth Circuit in the Michigan Pork case refused to apply

the test to a compelled subsidy for a pork marketing program;

the Eighth Circuit in Livestock Marketing applied a version of

the Central Hudson test that it adapted to “the particular

i circumstances” of that case. 335 F.3d at 723. In this case, the

Fifth Circuit expressed “doubt that the Central Hudson test

applies, 365 F.3d at 434 n.21, App. A at 23a, but then chose “to

leave this question open because even were we to apply the

Central Hudson test, Louisiana’s alligator marketing program

would not pass it.”’ Jd.

3. In light of the conflicts and inconsistences among the

circuits on both of these issues, this Court should either grant

the petition in this case and hear it on the merits along with

Livestock Marketing/Nebraska Cattlemen, or withhold ruling

on the petition until the Court decides the merits of the those

two consolidated cases. If the issue before the Court in Livestock

Marketing/Nebraska Cattlemen is resolved in favor of those

petitioners, the Court should grant this petition, vacate the Fifth

Circuit’s decision insofar as it affirmed the district court’s

injunction, and remand the Fifth Circuit’s decision for

reconsideration in light of Livestock Marketing/Nebraska

Cattlemen.

I. Generic Alligator Marketing By The Louisiana

Department Of Wildlife And Fisheries Is Government

Speech Which Is Exempt From First Amen#éient

Scrutiny.

Sections 253 and 279 of Title 56 of the Louisiana Revised

Statutes establishes a program of government speech. The

genciic marketing of alligators under that program serves public

purposes identified by the state, is confined to a message

specified by the state, and is disseminated by a governmental

entity created by the state and subject to the supervision of the

Secretary of the Department. The First Amendment does not

constrain a state government’s ability to engage in its own

speech, whether funded by general tax revenues or by “tag fees”

assessed against those who benefit most from the speech and

are members of an industry that the state has chosen to protect.

A. The First Amendment Permits A State to Engage

In Its Own Speech And To Assess Its Citizens, Or A

Segment Of Its Citizens, To Pay For That Speech.

The First Amendment limits the government’s interference

with private speech rather than the government’s own speech.

Therefore, “when the State is the speaker, it may make content-

based choices ... [and] it is entitled to say what it wishes.”

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.

819, 833 (1995); see Columbia Broad. Sys., Inc. v. Democratic

Nat’l Comm., 412 U.S. 94, 139 n.7 (1973) (Stewart, J.,

concurring) (“Government is not restrained by the First

Amendment from controlling its own expression.”).

The First Amendment does not apply to government speech

when the government is itself the speaker, as well as when the

government “disburses public funds to private entities to convey

a governmental message.” Rosenberger, 515 U.S. at 833.

In Rust v. Sullivan, 500 U.S. 173, 192-93 (1991), for instance,

this Court upheld regulations prohibiting private physicians from

providing abortion counseling as part of family planning

counseling financed by federal funds. Although “Rust did not

place explicit reliance on the rationale that the counseling

activities of the doctors under T’*!e X amounted to governmental

speech,” subsequent cases “have explained Rust on this

understanding.” Legal Services Corp. v. Velazquez, 531 U.S.

533, 541 (2001); see National Endowment for the Arts v. Finley,

524 U.S. 569, 598 (1998) (Scalia, J., concurring) (It “makes

not a bit of difference, insofar as either common sense or the

Constitution is concerned, whether [government] officials

further their (and, in a democracy, our) favored point of view

by achieving it directly . . . or by advocating it officially . . . or

by giving money to others who achieve or advocate it.”’).

Government speech necessarily is paid for by citizens, some

of whom may disagree with its message. But such disagreement

provides no basis under the First Amendment to silence the

government or to excuse objecting citizens from having to share

the costs of its speech. This Court has recognized that the

government, “as a general rule, may support valid programs

and policies by taxes or other exactions binding on protesting

parties,” even when the government will spend the funds so

raised “for speech and other expression to advocate and defend

its own policies.” Board of Regents of Univ. Of Wis. Sys. v.

Southworth, 529 U.S. 217, 229 (2000). Indeed, if

every citizen were to have a right to insist that no

one paid by public funds express a view with which

he disagreed, debate over issues of great concern to

the public would be limited to those in the private

sector, and the process of government as we know it

radically transformed.

Keller v. State Bar of California, 496 U.S. 1, 12-13 (1990);

cf. Abood v. Detroit Bd. of Education, 431 U.S. 209, 259 n.13

(1977) (Powell, Jr., concurring in the judgment) (“Compelled

support of a private association is fundamentally different from

compelled support of government.”).

B. Louisiana’s Alligator Marketing Program Is

Government Speech Because The State Specified

The Message, Created A Governmental Entity To

Disseminate It, And Vested Control In A Politically

Accountable Official.

The Court has not defined the precise contours of the

government speech doctrine. But the Court’s decisions suggest

that, when the government establishes a program to convey a

specific message, in order to advance a public purpose and

retains ultimate editorial control over the message, the program

is one of government speech. See Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 303 (2000) (holding that an invocation

delivered at school events by a student selected in a school

election was government speech under the Establishment Clause

because the invocation was “subject to particular regulations

that confine the content and topic of the student’s message”);

Velazquez, 531 U.S. at 542 (contrasting a program designed

“to promote a governmental message” with one designed

“to facilitate private speech” on an array of topics); Southworth,

529 U.S. at 229 (suggesting that, if a state university established

a program “to advance a particular message” of its own and

remained “responsible for its content,” the program would

involve government speech). And, although the government may

choose to convey a message through private parties, it may be

particularly evident that a program involves government speech

when the speaker is itself a government entity. Applying those

principles, Louisiana’s alligator marketing program is

government speech.

First, in 1991, the Legislature created the Alligator Resource

Fund, La.R.S. 279A, App. C at 52a-53a, and specified that the

Fund’s goals were to finance specific items related to protection

and enhancement of the alligator population and industry,

including salaries within the Department, law enforcement

activities, marketing programs, and research on alligator

conservation and management. La.R.S. 56:279B, App. C at 53a-

54a.

Second, the Legislature created a governmental entity —

the Advisory Council — within the Department. The Advisory

Council is responsible for reviewing and approving

recommended procedures and programs to be funded in part by

the Alligator Resource Fund. The Secretary (or his designee) is

an ex officio member of the Advisory Council and is required

by law to attend all official meetings. La.R.S. 56:266C, App. C

at 51a. Moreover, all eleven members of the Council are

appointed and may be removed by state officials (the Secretary

and the two elected leaders of Louisiana’s Legislature). The

Council reviews and approves programs and services

implemented by the Department and recommends expenditures

from the Resource Fund. The Department, not the Council,

creates and controls its own budget.

Furthermore, the Louisiana Legislature sets the tag fees

which help fund the Alligator Resource Fund. R.S. 56:253,

App. C at 50a. Such fees are not fixed or controlled by the

Advisory Council, but are under the Department’s administrative

control. See, e.g., 28 La. Register 1874. The Secretary exercises

veto power over the Council’s recommendations regarding

expenditures from the Fund, and the Department, not the

Council, is responsible for annual reporting to the Legislature

on the status ard uses of fund revenues. La.R.S. 56:279E.

This statutory scheme confirms that the State of Louisiana,

through the Legislature, the Department and its Secretary, is

substantially involved in the workings of the Advisory Council,

that the marketing recommended and approved by the Advisory

Council is directly related to state goals and interests, and that

the state maintains editorial control of the message and is the

literal speaker. The Council is not an industry self-help group

but an advisory and oversight council (whose members extend

beyond the alligator industry) created to ensure that important

and substantial state interests in the alligator, its habitat, and

the industry are advanced by proper application of dedicated

state revenue.

In Lebron v. National R.R. Passenger Corp., 513 U.S. 374,

400 (1995), the Court found that Amtrak is subject to the First

Amendment when it regulates advertising displayed at its

facilities. Lebron set out a three-part test for determining whether

an entity is subject to the First Amendment when it restricts the

speech of others: When “the Government creates a corporation

by special law, for the furtherance of governmental objectives,

and retains for itself permanent authority to appoint a majority

of the directors of that corporation, the corporation is part of

the Government for purposes of the First Amendment.”

Louisiana’s alligator marketing program satisfies Lebron’s

three-part test. First, the legislative branch of the State of

Louisiana created the Advisory Council‘ “by special law,”

La.R.S. 56:266C, App. C at 50a. Second, the Council is

responsible “for reviewing and approving recommended

procedures and programs” to be funded by the Resource Fund.

La.R.S. 266C, App. C at 50a. Each of the specific goals of the

Alligator Resource Fund constitutes a “governmental objective”

under Lebron. These include funding research on alligator

conservation and techniques needed to enhance the industry,

and funding “management of the alligator population through

proper management, harvest, and farm facility management.”

La.R.S. 56:279B(5), App. C at 54a. And, third, the State of

Louisiana appoints not only a majority, but all of the Council’s

members. (The Secretary appoints nine members; the speaker

of the House of Representatives and the president of the Senate

each appoint one member.) La.R.S. 56:266C, App. C at 51a.

4. The Advisory Council is not a corporation under Louisiana

law; rather, it is “within the Department of Wildlife and Fisheries.”

La.R.S. 56:266C, App. C at 50a. This appears to be a distinction without

legal significance; in fact, the Advisory Council’s existence “within”

the Department more easily supports a finding that the Council is “part

of the Government for purposes of the First Amendment,” Lebron, 513

U.S. at 400, then if it were a separate corporation.

Because Louisiana enacted the “tag fee” system to serve

public purposes, directs the message to be disseminated, created

a governmental entity to disseminate it, and requires the

Secretary’s continuing control over that entity, the challenged

law is properly understood as creating a program of government

speech. The First Amendment does not prohibit the imposition

of fees to fund such programs. See Southworth, 529 U.S.

at 229.

C. The Court Of Appeals Incorrectly Found That The

Speech In Question Is Not Government Speech.

The Fifth Circuit found that the challenged alligator

marketing program is “not government speech, but government

facilitation of the private speech of fur and alligator harvesters.”

365 F.3d at 429, App. A at 12a. The court of appeals relied on

three factors in reaching its decision: first, the method by which

the Department funds the Advisory Council, the composit*” ::

and operation of the Council, and an application of the puizies

underlying the government speech doctrine. Jd.

In Keller v. State Bar of California, supra, which presented

a First Amendment challenge to the use of mandatory dues to

fund a state bar’s political speech, the Court analyzed at length

whether the state bar was a governmental entity. 496 U.S. at

10-13. It was only after concluding that the state bar was not

speaking as the government when, for example, it endorsed a

nuclear weapons freeze or a gun control initiative, id. at 6 n.2,

that the Court turned to whether the disputed use of dues could

be sustained as germane to the purposes that justified requiring

lawyers to affiliate with the state bar, such as regulating

the legal profession, id. at 13-17. Keller thus proceeded on the

understanding that the government speech doctrine would defeat

a First Amendment objection to compelled contributions to a

program of what, in contrast to the speech in Keller itself, is

properly classified as government speech.

In Southworth, which involved a First Amendment

challenge to a state university’s mandatory student activity

fee used to fund extracurricular student speech, the Court

contrasted that program with a program of government speech.

529 U.S. at 229 (“If the challenged speech here were financed

by tuition dollars and the University and its officials were

responsible for its content, the case might be evaluated

on the premise that the government itself is the speaker.”).

The Court’s discussion of the government speech doctrine in

that context implies recognition that, when a program does

involve government speech, an individual cannot assert a valid

First Amendment objection to being required to contribute to

its cost.

The Fifth Circuit in this case and the Sixth Circuit in

Michigan Pork held incorrectly that generic advertising

programs for alligators and pork are not government speech.

Both courts relied on the facts that the programs are funded by

assessments on the affected industry, not general tax revenues,

and are carried out by entities whose members, while appointed

by the government, are chosen from the industry. Neither fact

detracts from the character of the generic advertising as

government speech. The government is entitled to fund its

speech through whatever means it considers most appropriate,

including through assessments on those who participate in the

industry that the government has chosen to promote.

The assessments are a kind of “user fee,” which the Court

has viewed as a permissible means of funding many government

activities.* Moreover, the government is entitled to speak through

5. See, e.g., United States v. Sperry Corp., 493 U.S. 52, 60-62

(1989) (upholding, as a permissible “user fee,” a requirement that

successful claimants before the Iran-United States Claims Tribunal pay

a portion of any award to the U.S. Treasury as “reimbursement to the

(Cont’d)

whatever public or private entity it considers most appropriate,

and thus may speak through a legislatively-created body, which

is composed entirely of members who are appointed and

removable by state officials, and which acts under the Secretary’s

ongoing supervision and control.

D. The Question Whether Louisiana’s Alligator

Marketing Program Involves Government Speech

Warrants The Court’s Consideration.

The question whether the government speech doctrine

defeats First Amendment challenges to assessments for generic

advertising programs under Louisiana law and similar state and

federal statutes is an important one for American businesses

and consumers. The Court’s intervention is warranted in this

case, as it was in United Foods and in Glickman, and as it is in

Livestock Marketing/Nebraska Cattlemen (pending before the

Court), all of which raised First Amendment challenges to

similar government programs.

(Cont'd)

United States Government for expenses incurred” in connection with

the Tribunal); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 461-

468 (1988) (observing that it is “manifestly rational” for a state “to allow

local school boards the option of charging patrons a user fee for bus

service” rather than funding such service out of general revenues);

Cox v. New Hampshire, 312 U.S. 569, 576-577 (1941) (observing that a

state may require payment of a reasonable parade license fee to

compensate local government for its administrative and law enforcement

expenses); cf, United States Postal Serv. v. Council of Greenburgh

Civic Ass’ns, 453 U.S. 114, 141 (1981) (White, J., concurring) (“No

one questions, however, that the Government, the operator of the [postal]

system, may impose a fee on those who would use the system, even

though the user fee measurably reduces the ability of various persons or

organizations to communicate with others.”).

Petitioners in the Nebraska Cattlemen case listed in their

petition the numerous First Amendment challenges to various

agricultural commodity promotion and research programs,

specifically citing the Fifth Circuit’s decision in this case.

According to those petitioners, these decisions “reveal profound

disarray and confusion among courts in this important area of

constitutional law.” Petition for a Writ of Certiorari, No. 03-

1165 at 25-26. The amici in the Livestock Marketing case

(30 states and the Commonwealth of Puerto Rico) urged the

Court to grant the then pending petition “to resolve this conflict

in the circuits regarding application of the government-speech

doctrine,” citing the decisions from the Third Circuit (Frame),

Fifth Circuit (this case), and Sixth Circuit (Michigan Pork) as

in conflict with the Eighth Circuit’s decision in Livestock

Marketing. See Brief of Texas et al. as Amici Curiae in Support

of Petitioners, Veneman y. Livestock Marketing Association,

No. 03-1164 at 10-11.

Wholly apart from the problems engendered by the

conflicting decisions from the circuit courts, this case presents

an issue of national importance, evidenced by the participation

of 30 states and the Commonwealth of Puerto Rico as amici in

Livestock Marketing. At least 42 states have created commodity-

marketing programs, and at least one state, Oregon, has such

programs for 28 different commodities. /d. at 15 n.19. Resolution

of challenges to state commodity-marketing programs may well

depend on the question the Court has yet to address. As the

Court has granted certiorari in the Livestock Marketing and

Nebraska Cattlemen cases, it should also grant the petition in

this case in order to resolve the government speech issue.

Il. Louisiana’s Assessments Are Constitutional Under The

Intermediate Scrutiny Applicable To Regulations Of

Commercial Speech.

Aside from the government speech question, this Court’s

review is warranted on the question whether Louisiana’s

assessment provisions withstand intermediate First Amendment

scrutiny under the standard articulated in Central Hudson for

regulations of commercial speech. The Fifth Circuit declined

to decide whether the Central Hudson test applies to compelled

subsidy challenges, but expressed “doubt” that it does. 365 F.3d

at 434 n.21, App. A at 23a. Nevertheless, it held that Louisiana’s

alligator marketing program would not pass the test if it did

apply:

To pass this test, a restriction on commercial speech

must directly advance a substantial government

interest and burden First Amendment rights no

more than necessary to accomplish that interest.

Central Hudson, 447 U.S. at 566. Even granting

arguendo that Louisiana has a substantial interest in

conservation and that the message expressed by the

Council’s generic marketing helps advance that

interest, Louisiana’s program burdens First

Amendment speech more than necessary. Louisiana

does not need to compel alligator harvesters to

support generic marketing, but could simply fund

generic marketing from its general tax revenues. /d.

As the Court has explained, the Central Hudson standard

does not require a legislature to employ the “least-restrictive-

means” of regulation or to achieve a perfect fit between means

and ends. Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).

It is sufficient that the legislature achieves a “reasonable” fit by

adopting regulations “in proportion to the interest served.”

In re R.M.J., 455 U.S. 191, 203 (1982), citing Central Hudson,

447 U.S. at 563-64. Louisiana’s alligator marketing program

satisfies that standard.

Louisiana’s program advances two “substantial”

governmental interests: conserving its once threatened alligator

population and insuring stability of the worldwide market for

alligator products. Moreover, the state’s alligator marketing

program directly advances those interests. The Court has

repeatedly recognized the “immediate connection between

advertising and demand.” Central Hudson, 447 U.S. at 569;

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 557 (2001) (“[W]e

have acknowledged the theory that product advertising

stimulates demand for products, while suppressed advertising

may have the opposite effect.”). The challenged assessment

provisions play an integral role in advancing the state’s interests.

Nor is the alligator marketing program “more extensive

than is necessary to serve” the government interests. It imposes

“no restraint on the freedom of any producer to communicate

any message to any audience,” does “not compel any person to

engage in any actual or symbolic speech,” and does “not compel

the procucers to endorse or to finance any political or ideological

views.” Glickman, 521 U.S. at 469-70. It requires only that

alligator hunters and farmers contribute financially to generic

marketing (and other activities) designed to benefit the alligator

industry as a whole by promoting the sale of the product that

the industry exists to market.

III. Louisiana’s Alligator Marketing Program Is Part Of A

Broader Regulatory Scheme That Exempts This

Program From The First Amendment.

The Court has twice addressed the constitutionality of

mandatory assessments for state generic advertising programs,

United Foods, — where mushroom producers successfully

challenged mandatory assessments for generic advertising —

and Glickman — where the Court rejected a challenge to similar

assessments by growers of fruit trees. The Fifth Circuit

erroneously found that “Louisiana’s generic alligator marketing

program more closely resembles the mushroom program at issue

in United Foods than the fruit program at issue in Glickman.”

365 F.3d at 433, App. A at 19a. Petitioner submits that

Louisiana’s comprehensive regulation of the alligator population

and industry constitutes a broad regulatory scheme like the one

that validated the assessments in Glickman.

In Glickman, the Court upheld marketing orders issued by

the Secretary of Agriculture against growers, handlers, and

processors of California tree fruits. The orders were issued

pursuant to the Agricultural Marketing Agreement Act of 1937,

7 U.S.C. § 601 et seg., which Congress enacted in order to

maintain orderly marketing conditions and supply flow for

agricultural commodities in interstate commerce. The marketing

orders authorized assessments against fruit growers to finance

various projects, including generic advertising. The marketing

orders could limit quantity, quality, grade and size of the

commodity to be marketed, and could provide for marketing

research and development projects, including advertising.

The generic ads promoted the message that California

summer fruits were wholesome, delicious, and attractive.

The Court rejected a First Amendment challenge to the

advertising program, pointing to the broad regulatory framework

in which the fruit growers operated. 521 U.S. at 469. The Court

regarded the advertising component of the marketing orders as

part of an overall regulatory scheme comprising valid economic

regulation of transactions in agricultural commodities affected

by a national public interest. Jd.

The Court announced three factors that distinguished the

regulatory scheme for fruit growers from laws that violate the

First Amendment:

First, the marketing orders impose no restraint on

the freedom of any producer to communicate any

message to any audience. Second, they do not

compel any person to engage in any actual or

symbolic speech. Third, they do not compel the

producers to endorse or to finance any pelitical or

ideological views. Jd.

Each of these three factors applies equally to Louisiana’s

regulation of the alligator population and industry. First,

Louisiana law does not impose any “restraint on the freedom of

any producer to communicate any message to any audience.”

Louisiana alligator farmers and dealers are free to advertise and

market their products and services as they see fit or, if they

prefer, not at all. Second, Louisiana’s regulatory scheme does

not require respondent to engage in actual or symbolic speech.

But cf. West Va. State Bd. of Education v. Barnette, 319 U.S.

624 (1943) (enjoining enforcement of a requirement that

public school children salute the American flag); Wooley v.

Maynard, 430 U.S. 705 (1977) (striking down New Hampshire’s

requirement that auto license plates contain the motto “Live

Free or Die’’). Third, Louisiana does not require anyone who

pays an alligator tag fee to endorse or finance any political or

ideological view. The message of Louisiana’s marketing program

is straightforward, and far removed from politics or ideology

-- the message that “‘the alligator trade is legal, sustainable and

verifiable with conservation value.” Exh. H at 23.

Four years after Glickman, the Court decided in United

Foods that assessments on mushroom producers for generic

advertising programs promoting mushroom sales pursuant to

another federal statute, the Mushroom Promotion, Research,

and Consumer Information Act of 1990, 7 U.S.C. § 6101

et seq., violated producers’ First Amendment rights. Unlike the

regulatory program in Glickman, the assessments in United

Foods were not ancillary to a more comprehensive regulatory

program restricting market autonomy and the advertising itself

was the principal object of the regulatory scheme. 533 U.S. at

415.

To distinguish this result from its earlier decision in

Glickman, the Court noted that the mandatory fruit advertising

program in Glickman was merely ancillary to a more

comprehensive regulatory program restricting market autonomy,

while the advertising program in United Foods was the principal

object of the regulatory scheme and almost all of the funds

collected under the mandatory assessments were used for one

purpose, generic advertising, with no other regulatory framework

governing how mushrooms may be produced and sold. The

Court struck down the United Foods regulatory scheme on First

Amendment principles it had previously applied in Abood and

Keller.

The Fifth Circuit acknowledged “a number of

interdependent state, federal, and international laws impos[ing]

requirements on alligator harvesters,” and “Louisiana’s extensive

regulation of alligator harvesting,” 365 F.3d at 433, App. A at

20a, but nevertheless concluded that the “fees imposed here,

though used for more than generic marketing, represent a

collective association only in the loosest sense of that term.”

365 F.3d at 434, App. A at 21a. On the record before the Fifth

Circuit, that conclusion was erroneous as a matter of law.

CONCLUSION

For all of the foregoing reasons, petitioner respectfully

requests that the Supreme Court grant this petition; alternatively,

that the Court hold this petition pending its decision on the merits

of the Livestock Marketing/Nebraska Cattlemen matters and, if

the decision in those cases is favorable to petitioner herein, grant

this petition, vacate the decision of the Fifth Circuit Court of

Appeals insofar as it affirmed the district court’s grant of

injunctive relief, and remand to that court for reconsideration

in light of this Court’s decision in the Livestock Marketing/

Nebraska Cattlemen matters.

Respectfully submitted,

C. Berwick DuvaL, II

DuvAL, FUNDERBURK, SUNDBERY,

LoveELL & WATKINS

101 Wilson Avenue

Post Office Box 3017

Houma, Louisiana 70361

(985) 876-6410

Attorneys for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED APRIL 2, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30523

PELTS & SKINS, LLC,

Plaintiff-Appellee,

versus

WILLIAM DWIGHT LANDRENEAJU, Secretary for the

Department of Wildlife and Fisheries,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana.

Before KING, Chief Judge, and BENAVIDES and

CLEMENT, Circuit Judges.

BENA#w WES, Circuit Judge:

Plaintiff-Appellee Pelts & Skins farms alligators in

Louisiana. Defendant-Appellant William Dwight Landreneau

is Secretary of the Louisiana Department of Wildlife and

Fisheries (“DWF”), the agency responsible for overseeing

conservation of alligators.’ Louisiana requires alligator

1. Mr. Landreneau replaced James A. Jenkins as secretary after

the district court ruled. To avoid confusion, we refer to Mr.

Landreneau as the Secretary.

Appendix A

hunters and farmers to pay various fees, and DWF uses a portion

of those fees to support generic marketing of alligator products.

Pelts & Skins alleges that this practice constitutes a compelled

subsidy for private speech that violates the First Amendment.

The district court agreed with Pelts & Skins and permanently

enjoined use of the fees to support generic marketing of alligator

products.

We conclude that Pelts & Skins lacks standing to challenge

the use of certain alligator-related fees. With regard to the fees

Pelts & Skins does have standing to challenge, we agree with

the district court that the use of those fees for generic marketing

violates the First Amendment. We therefore affirm in part, vacate

in part, and remand in part.

The American alligator was once endangered, but Louisiana

_ law now allows the hunting and farming of alligators for their

meat and skins. DWF regulates the hunting, farming, processing,

and shipment of alligators and alligator parts. See La. Rev. Stat.

Ann. § 36:602(B) (West Supp. 2004). DWF does not regulate

the prices or marketing of alligators, but it does administer two

funds, the proceeds of which support generic marketing of

alligator products: the Louisiana Fur and Alligator Public

Education and Marketing Fund (the “Marketing Fund”’) and the

Louisiana Alligator Resource Fund (the “Resource Fund”).

The generic marketing supported by these two funds is the focus

of this case.’

2. This type of scheme—compelled subsidies for generic

marketing— has produced many familiar campaigns, including “Got

(Cont’d)

Appendix A

The Marketing Fund derives its revenues from license

fees, i.e., the fees associated with the hunting licenses that

fur trappers and alligator hunters must carry. See id.

§§ 56:251(A), 56:266(D). Twenty dollars of every twenty-

five-dollar license fee are earmarked for the Marketing Fund.’

Id. The Louisiana Legislature created the Marketing Fund to

market alligator and fur products, to educate the public about

the harvesting of those products, and to recommend strategies

to the fur and alligator industry. Jd. § 56:266(B).

The Resource Fund derives its revenues from a variety

of fees imposed on alligator hunters, farmers, and processors.

Id. § 56:279. The most notable of these fees is the tag fee, a

charge for the tag that must be attached to every harvested

alligator skin. Jd. § 56:253(C).* The Legislature created the

(Cont'd)

Milk?”; “Pork: The Other White Meat”; “The Incredible, Edible Egg”;

“Ah... the Power of Cheese”; and “The Touch . . . the Feel of Cotton

... the Fabric of Our Lives.” See Cochran v. Veneman, 359 F.3d 263,

266 (3d Cir. 2004); Mich. Pork Producers Ass’n v. Veneman, 348 F.3d

157, 162 & n.2 (6th Cir. 2003), petition for cert. filed sub. nom. Veneman

v. Campaign for Family Farms, 72 U.S.L.W. 3539 (U.S. Jan. 20, 2004)

(No. 03-1043).

3. The state treasurer may apply collected fees to the Marketing

Fund and the Resource Fund only after she ensures that state revenues

can cover due and payable state debts. La. Rev. Stat. Ann. §§ 266(D)(1),

279(C)(1) (West Supp. 2004). The record does not indicate that the

treasurer has ever applied alligator-related fees to state debts.

4. Section 56:253(C)(2)(a) allows DWF to charge up to four dollars

per tag, and during some years, Pelts & Skins paid four dollars per tag.

But starting in September 2002, DWF temporarily suspended the

collection of two dollars of the regular four-dollar fee. La. Admin. Code

tit. 76, § 701(A)(4)(a)(xi) (2003).

Appendix A

Resource Fund “to help uefray the cost of alligator programs”

administered by DWF. /d. § 56:279(A). The Resource Fund

supports alligator-related research and, when surplus funds

are available, helps to fund alligator-related law enforcement

and marketing programs. /d. § 56:279(B).

DWF monitors both funds, and the Secretary must

approve all expenditures for generic marketing, but another

State-created entity, the Louisiana Fur and Alligator Advisory

Council (the “Council”), is directly responsible for the

content of the generic marketing and must review and

approve all expenditures from the funds. /d. § § 266(C),

279(D)(3). The Council comprises the Secretary (or his

designate), who serves ex officio, and eleven appointed

members. /d. § 56:266(C). The speaker of the House and

the president of the Senate each appoint one member. /d.

The Secretary appoints nine members, and those nine

members must represent “a cross-section of trappers, alligator

hunters, coastal landowners, and alligator farmers.” Jd. Two

of those nine members must represent a private organization,

the Louisiana Alligator Farmers and Ranchers Association.

Id. The Secretary may appoint the remaining seven members

based on nominations from the Louisiana Trappers and

Alligator Hunters Association. Jd.

Pelts & Skins, as Louisiana’s (and the world’s) largest

alligator farming operation, pays fees that account for roughly

25% of the alligator- related revenues received by DWF. Pelts

& Skins does not object to the collection of these revenues

but does object to the expenditure of these funds on generic

marketing. According to Pelts & Skins, its business depends

on convincing consumers that it produces a unique product

Appendix A

that is superior in quality to other alligator products. Generic

alligator marketing undercuts this message because generic

marketing does not differentiate between particular types,

qualities, or brands of alligator products, but rather promotes

the notion that alligator products in general are desirable,

reliably available, and lawfully produced.* Pelts & Skins also

hints broadly that the Council’s generic marketing campaign,

which consists mainly of sending representatives to fashion

shows and setting up educational displays, is a boondoggle.

However, Pelts & Skins is quick to clarify that its objection

to generic marketing stems from the message of that

marketing, not its efficacy.

Based on its objection to the generic marketing’s content,

Pelts & Skins sought to enjoin DWF from expending

revenues from the Marketing Fund and the Resource Fund

for generic alligator marketing. According to Pelts & Skins,

Louisiana violated the First Amendment by imposing

mandatory fees on Pelts & Skins, then using those fees to

subsidize a message with which Pelts & Skins disagrees. In

response, the Secretary argued (1) that the Tax Injunction

Act of 1937 barred federal jurisdiction; (2) that the generic

marketing at issue was government speech not subject to First

Amendment scrutiny; and (3) that, in the alternative, the

5. Pelts & Skins’ objection to the message embodied in generic

marketing may seem minor, but the Supreme Court has explained

that the perceived importance of a plaintiff's objection is immaterial.

See United States v. United Foods, 533 U.S. 405, 411 (2001) (“First

Amendment values are at serious risk if the government can compel

a particular citizen, or a discrete group of citizens, to pay special

subsidies for speech on the side that it favors; and there is no apparent

principle which distinguishes out of hand minor debates about

whether a branded mushroom is better than just any mushroom.”).

Appendix A

generic marketing was merely ancillary to a broader

cooperative regime and therefore consistent with the First

Amendment.

The parties agreed to submit the case on the record

without live testimony. The district court determined (1) that

the Tax Injunction Act did not bar federal jurisdiction;

(2) that the generic marketing was not government speech;

and (3) that the use of mandatory fees to fund generic

marketing was not ancillary to a broader cooperative regime.

Pelts & Skins, L.L.C. v. Jenkins, 259 F. Supp. 2d 482 (M.D.

La. 2003). The court permanently enjoined the Secretary from

“approving, authorizing or expending any revenue from the

Louisiana Fur and Alligator Public Education and Marketing

Fund or from the Louisiana Alligator Resource Fund for

the purpose of generic alligator marketing.” /d. at 494.

The Secretary appealed.°®

Il.

We first address the Secreitary’s contention that Pelts &

Skins lacks standing to challenge expenditures from the

Marketing Fund. The Secretary failed to raise this argument

in the district court, but a party may raise standing at any

time, even on appeal. Johnson v. City of Dallas, 61 F.3d 442,

443-44 (Sth Cir. 1995).

The first requirement of standing is that a party must

demonstrate an injury in fact. See McConnell v. FEC, 124

S. Ct. 619, 707 (2003). Pelts & Skins alleges that it has been

6. The Secretary has appealed neither the district court’s findings

of fact nor its ultimate holding with regard to the Tax Injunction Act.

Appendix A

injured in fact because it must pay fees that directly support

a message with which it disagrees. The Secretary claims that

Pelts & Skins has failed to prove this injury with regard to

the Marketing Fund. The Secretary concedes that Pelts &

Skins has paid the tag fees that support the Resource Fund,

and the record amply supports that concession.’ However,

according to the Secretary, Pelts & Skins has not shown that

it has ever paid the license fees that support the Marketing

Fund.

We agree with the Secretary that Pelts & Skins failed to

prove that Louisiana’s use of the marketing fund has caused

an injury in fact. Because this case proceeded to final

judgment,* “the factual allegations supporting standing

(if controverted)? must be supported adequately by the

7. We must address standing on a claim-by-claim basis, so Pelts

& Skins cannot parlay its standing to challenge the Resource Fund

into standing to challenge the Marketing Fund. See James v. City of

Dallas, 254 F.3d 551, 563 (Sth Cir. 2001).

8. As noted above, the parties agreed to let the hearing on Pelts

& Skins’ motion for summary judgment serve as a submission of the

case on the merits. The district court treated the case as a trial on a

stipulated record. See Pelts & Skins, 259 F. Supp. 2d at 483. At oral

argument, Pelts & Skins claimed that it did not realize that the trial

court would go beyond addressing the motion for summary judgment.

However, even had this case been resolved on summary judgment,

Pelts & Skins could not have rested on mere allegations, but would

have had to set forth specific facts by affidavit or other evidence.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

9. This parenthetical does not mean that Pelts & Skins did not

need to support its allegations with evidence because the Secretary

(Cont'd)

Appendix A

evidence adduced at trial.” Walker v. City of Mesquite, 169

F.3d 973, 978 (Sth Cir. 1999); see also Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992). Pelts & Skins must

support each element of standing just as it would support

any other matter on which it bears the burden of proof. Lewis

v. Casey, 518 U.S. 343, 358 (1996).

Pelts & Skins has not carried this burden. Nowhere does

the record indicate that Pelts & Skins ever held a hunting

license or paid any fee that supports the Marketing Fund.

Instead, Pelts & Skins relies on assertions in pleadings. Had

the district court decided this case on a motion to dismiss,

these allegations would be sufficient; however, once a case

passes this preliminary stage, a plaintiff must set forth

evidence of an injury in fact. See Lujan, 504 U.S. at 561

(1992); Walker, 169 F.3d at 978 & n.15.'° The record contains

no such evidence.

(Cont'd)

failed to controvert those allegations in the district court. Were we to

interpret Walker in this way, we would undermine the established

rule that objections to standing may not be waived. See Lang v.

French, 154 F.3d 217, 222 n.28 (Sth Cir. 1998); Jn re Weaver, 632

F.2d 461, 463 n.6 (Sth Cir. 1980).

10. Pelts & Skins also relies on a sentence from the Secretary’s

Answer in which the Secretary “admit[s] ... that plaintiff does

contribute to the fund.” Answer § 24. However, this so-called

admission is ambiguous; the Secretary’s statement does not specify

which of the two funds Pelts & Skins has contributed to. Because

this statement is less than “deliberate, clear, and unequivocal,” it

cannot serve as a judicial admission. See Heritage Bank v. Redcom

Labs., Inc., 250 F.3d 319, 329 (Sth Cir. 2001).

Appendix A

Pelts & Skins also relies on the district court’s finding that

“plaintiff’s farming operation is conditioned upon payment of”

mandatory fees (‘license fees’ and ‘tag fees’) to the DWF.”

259 F. Supp. 2d at 483-84. We review for clear error the findings

underlying a district court’s determination of standing. Rivera

v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002);

Pederson v. La. State Univ., 213 F.3d 858, 869 (Sth Cir. 2000).

A finding is clearly erroneous if a review of the evidence leaves |

us with a firm conviction that the district court has made a

mistake. Dickerson ex rel. Dickerson v. United States, 280 F.3d

470, 474 (5th Cir. 2002). The absence of any evidence supporting

the district court’s finding firmly convinces us that, based on

the record as it stands, the district court has made a mistake.

Cf. Walker v. U.S. Dep t of Hous. & Urban Dev., 99 F.3d 761,

770 (5th Cir. 1996).'' Given the parties’ failure to contest and

to address standing in the district court, the district court’s finding

is- unsurprising; nevertheless, that finding is clearly erroneous

on this record.

On this record, therefore, Pelts & Skins lacks standing to

challenge expenditures from the Marketing Fund. A district court

may only remedy the injury in fact the plaintiff has established.

Lewis, 518 U.S. at 357 (1996). We therefore vacate the portion

of the injunction concerning the Marketing Fund.

11. The Secretary also argues that the relevant statutes provide

that only a natural person, not a corporate entity such as Pelts &

Skins, can hold a hunting license. Because the district court can

consider these arguments on remand, we need not discuss them except

to say that neither the governing statutes, see La. Rev. Stat. Ann.

§ 56:8, 56:54 (West Supp. 2004), nor the governing regulations,

see La. Admin. Code tit. 76, § 701 (2003), affirmatively support the

district court’s finding that Pelts & Skins must pay a hunting license

fee to operate its business.

10a

Appendix A

When jurisdiction is not clear from the record but could

exist, we may remand to the district court so that the parties

may supplement the record. Mollett v. Penrod Drilling Co.,

872 F.2d 1221, 1228 (Sth Cir. 1989). Remand is especially

appropriate when, as in this case, jurisdiction may hinge on

a simple factual matter that was left untested because the

parties did not dispute standing in the district court. After

further review, the district court may determine that Pelts &

Skins has paid the license fee. We therefore remand this case

in part. On remand, the district court should ascertain whether

Pelts & Skins has standing to challenge the Marketing Fund

and modify the injunction accordingly.

Ii.

Although Pelts & Skins lacks standing to challenge use

of the Marketing Fund, it has standing to challenge use of

the Resource Fund. We therefore consider whether the use

of the Resource Fund to promote generic alligator marketing

violates the First Amendment. We review the district court’s

resolution of this constitutional question de novo. Baby Dolls

Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 482

(Sth Cir. 2002).

We first consider whether the generic alligator marketing

is government speech or private speech. The government

speech doctrine holds that “when the government

appropriates public funds to promote a particular policy of

its own, it is entitled to say what it wishes.” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995).

lla

Appendix A

The Secretary argues that generic alligator marketing is

immune from First Amendment review because the State of

Louisiana is speaking."

We disagree. Not all government-facilitated speech is

government speech. The government speech doctrine does

not apply if a program is “designed to facilitate private |

speech, not to promote a governmental message.” Velazquez,

531 U.S. at 542. In this case, three considerations—the

method by which DWF funds generic marketing, the

composition and operation of the Fur and Alligator Advisory

12. The Supreme Court has not determined how the government

speech doctrine applies to compelled subsidies for generic marketing.

Neither of the two Supreme Court cases addressing mandatory

assessments for generic marketing considers the question of

government speech. See United States v. United Foods, Inc., 533

U.S. 405 (2001); Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S.

457 (1997). In United Foods, the Court intimated that the government

speech doctrine might have been applicable to the issue of compelled

assessments for generic marketing but expressly reserved this question

because the argument was not raised or addressed in the court of

appeals. 533 U.S. at 416-17.

Rather, courts usually consider the government speech doctrine

when plaintiffs challenge restrictions on government-funded

expression as content- or viewpoint-discriminatory. See, e.g., Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 536-37 (2001) (striking down

restrictions that barred government-funded lawyers from challenging

the validity of welfare statutes); Rosenberger, 515 U.S. at 822-28

(striking down state university’s restrictions on use of student

activities funds for religious publications); Rust v. Sullivan, 500 U.S.

173, 177-83 (1991) (upholding restriction that barred recipients of

federal funds from discussing abortion as a method of family

planning).

12a

Appendix A

Council, and an application of the policies underlying the

government speech doctririe—convince us that the generic

marketing at issue is not government speech, but government

facilitation of the private speech of fur and alligator harvesters."

13. Three other circuits addressed the application of the

government speech doctrine to programs similar to the generic

alligator marketing program and uniformly concluded that this type

of producer-funded generic marketing is not government speech.

The Third and Sixth Circuits relied upon two basic

considerations: first, that assessments on producers rather than

general revenues funded the marketing; and second, that the

organizations responsible for the conteni of the generic marketing

represented private rather than governmental interests. See Cochran,

359 F.3d at 273-74 (generic milk marketing); Mich. Pork, 348 F.3d

at 161-62 (generic pork marketing); United States v. Frame, 885 F.2d

1119, 1131-33 (3d Cir. 1989) (generic beef marketing).

The Eighth Circuit declared the government speech doctrine

categorically inapplicable to compelled subsidy cases. See Livestock

Mktg. Ass’n v. U.S. Deptt of Agric., 335 F.3d 711, 720 (8th Cir. 2003),

petition for cert. filed sub. nom. Veneman v. Livestock Mktg. Ass’n,

72 U.S.L.W. 3539 (U.S. Feb. 13, 2004) (No. 03-1164). The Supreme

Court’s treatment of compelled subsidy challenges convinces us that

the government speech doctrine is at least potentially applicable to

this general category of cases. In Keller v. State Bar, the Court invoked

the government speech doctrine and analyzed whether an integrated

state bar was a government agency before turning to the question of

whether bar dues constituted an impermissible compelled subsidy

for private speech. 496 U.S. 1, 10-13 (1990). In Board of Regents of

University of Wisconsin System v. Southworth, the Court considered

a compelled subsidy challenge to mandatory student fees and stated

in dictum that, had the state university not denied that the speech at

issue was government speech, “the analysis likely would be altogether

different.” 529 U.S. 217, 235 (2000).

13a

Appendix A

First, the method by which DWF funds generic alligator

marketing suggests that generic alligator advertising is the

message of fur and alligator harvesters, not Louisiana as a whole.

Government speech is typically funded from a government’s

general revenues, not assessments levied on a particular group.

See Keller, 496 U.S. at 11; Mich. Pork, 348 F.3d at 162; Frame,

885 F.2d at 1132-33. The portions of the Resource Fund.

administered by the Council do not come from general state

revenues; rather, they come from fees levied on only one group:

harvesters of furs and alligators. The Resource Fund remains in

an account segregated from the State’s general revenues.

La. Rev. Stat. Ann. § 56:279(C)(1) (West Supp. 2004). Moreover,

the expenditures recommended, reviewed, and approved by the

Council primarily concern precisely those persons who must

contribute to the Resource Fund. This “close nexus” between

the individuals who pay for the speech and the content of the

speech suggests that Louisiana is facilitating a private message,

not expressing its cwn. See Frame, 885 F.2d at 1132.

Second, an organization that represents private interests,

the Council, is primarily responsible for the generic marketing

campaign. Cochran, Michigan Pork, and Frame all dealt with

generic marketing programs run by industry-specific councils.

In each of these cases, the federal agriculture secretary appointed

the members of the council based on nominations from industry

representatives. Because these councils were composed of

industry representatives, the courts determined that those

councils, though appointed by the government, represented

private interests. See Cochran, 359 F.3d at 274; Michigan Pork,

348 F.3d at 162; Frame, 885 F.2d at 1133.

Likewise, although the Council is a government creation,

the composition of the Council demonstrates that it represents

14a

Appendix A

primarily private interests.'* The Secretary or his designate serves

on the Council ex officio, and he and other government officials

appoint all the remaining members of the Council, but the

Secretary does not enjoy plenary discretion to appoint any person

to the Council. La. Rev. Stat. Ann. § 56:266(C) (West Supp.

2004). Rather, he must appoint a carefully calibrated “cross

section of trappers, alligator hunters, coastal landowners, and

alligator farmers.” Jd. Two members of the Council must

represent a private organization, the Louisiana Farmers and

Ranchers Association. /d. The Secretary may choose all nine of

the Council members he appoints based on nominations from

private organizations, id., and the record suggests that the

Secretary does so. Because representatives of private alligator

harvesters compose the heavy majority of the Council, it

naturally reflects private rather than governmental interests. '°

14. The Secretary argues that alligator marketing is government

speech because the Council’s governing statutes lay out specific goals

and articulate Louisiana’s interest in promotion of the alligator industry.

See La. Rev. Stat. Ann. § § 56:266(B), 56:279(A) (West Supp. 2004).

The fact that the government has an interest in facilitating private speech

does not convert that speech into a governmental message. The federal

government laid out similar interests in the statutes at issue in Michigan

Pork, Livestock Marketing, and Frame, but none of those courts

considered the articulation of those interests relevant. See Mich. Pork,

348 F.3d at 159; Livestock Mktg., 335 F.3d at 713-14; Frame, 885 F.2d

at 1122-23. Moreover, in Velazquez, the Court held that the legal

representation at issue was not government speech despite the fact that

Congress had articulated a governmental interest in funding legal

representation for indigent litigants. 531 U.S. at 536, 541-42.

15. In Lebron v. National Railroad Passenger Corp., the Supreme

Court considered whether Amtrak was “an agency or instrumentality of

(Cont'd)

15a

Appendix A

Furthermore, although the Secretary portrays alligator

marketing as a DWF-run program, the Council, not DWF,

primarily controls how the Resource Fund is used.'®

Cf. Michigan Pork, 348 F.3d at 162. DWF cannot spend

money from the Resource Fund without the Council’s

approval. La. Rev. Stat. Ann. § 56:279(D)(3) (West Supp.

2004). Moreover, the record suggests that DWF’s approval.

of contracts recommended by the Council is largely

perfunctory. Cf. United Foods, 533 U.S. at 416-17

(suggesting in dictum that evidence of pro forma oversight

implies that government-facilitated generic marketing is not

government speech). Our review of the record reveals no

evidence that DWF crafts or edits the content of any of the

generic marketing at issue; rather, this task falls to private

(Cont'd)

the United States for the purpose of individual rights guaranteed

against the Government by the Constitution.” 513 U.S. 374, 394 (1995).

Lebron, however, involved an issue very different from the question

presented in this case. In Lebron, an artist sued to compel Amtra‘ to

display political artwork on an Amtrak-owned billboard. Jd. at 376-78.

The question was not whether Amtrak’s use of the billboard was

government speech; like a privately-owned billboard, the Amtrak

billboard was designed to facilitate promotion of private messages. Jd.

Rather, the question in Lebron was whether the First Amendment placed

any limitations on Amtrak’s use of the billboard. Jd. We thus consider

Lebron inapplicable to the issue at hand. Accord Cochran, 359 F.3d at

274 n.10; Livestock Mktg., 335 F.3d at 720 n.5.

16. To be sure, DWF could exercise limited control over the

Council. Aside from his appointment power, the Secretary also retains

the power io veto the Council’s expenditures from the Resource

Fund. See La. Rev. Stat. Ann. § 56:279(D) (West Supp. 2004). The record,

however, contains no evidence that the Secretary has ever exercised

that veto.

l6a

Appendix A

contractors hired by the Council to market alligator products.

Thus, the Council, not DWF, is primarily responsible for

generic alligator marketing.

Third, the policies underlying the government speech

doctrine do not support the application of that doctrine to

this case. One rationale for the government speech doctrine

is that, without the doctrine, “every citizen [would] have a

right to insist that no one paid by public funds express a

view with which he disagreed ... and the process of

government as we know it would be radically transformed.”

Keller, 496 U.S. at 12-13. This case, however, does not raise

the specter of lawsuit-induced paralysis. As our discussion

of standing demonstrates, only members of the narrow group

compelled to contribute funds to subsidize directly a private

message have standing to challenge the expression at issue.

A second rationale for the government speech doctrine

is that “[w]hen the government speaks, for instance to

promote its own policies or to advance a particular idea, it

is, in the end, accountable to the electorate and the political

process for its advocacy.” Velazquez, 531 U.S. at 541 (quoting

Southworth, 529 U.S. at 235). In contrast, the government

can easily avoid accountability when it imposes costs on a

single, narrow group to facilitate a specialized message,

especially if only a small minority of that group objects to

the message expressed.

We are not dealing with a program funded from

general revenues by broadly applicable taxes. Nor are

we dealing with a governmental message crafted, controlled,

and expressed by an agency designed to represent state

17a

Appendix A

government. Rather, in this.case we confront a program in

which the government uses its authority to exact fees from

private individuals, then facilitates the use of those fees to

express a message designed to benefit private commercial

interests. This sort of program is not government speech.

Because we have determined that use of the Resource

Fund for generic marketing represents a compelled subsidy

for private speech, we must decide whether that compuision

is nonetheless permissible. The Supreme Court has twice

addressed compelled subsidies for generic marketing. In

Glickman vy. Wileman Bros. & Elliot., Inc., 521 U.S. 457

(1997), the Court upheld compelled subsidies for generic fruit

marketing. In United States v. United Foods, Inc., 533 US.

405 (2001), the Court struck down compelled subsidies for

generic mushroom marketing. We must mediate between

these two contrasting precedents, or, in the words of the

district court, “determine whether Louisiana alligator

producers are more like mushroom producers than like peach

producers.” Pelts & Skins, 259 F. Supp. 2d at 483.

In Glickman, the Court evaluated a New Deal-era

regulatory scheme that required producers of peaches, plums,

and nectarines to participate in “[c]Jollective, rather than

competitive, marketing.” 521 U.S. at 461. This collective

marketing scheme “displaced competition” by imposing

uniform prices, dictating the quality and quantity of the fruits

marketed, determining the grade and size of the fruits

sold, providing for the orderly disposition of surplus,

authorizing joint research and development projects,

18a

Appendix A

requiring standardized packaging, and even exempting

affected producers from antitrust laws. /d. As part of this

displacement of competition, the government required

producers to pay for generic marketing of the fruit. /d.

A group of growers alleged that the assessments violated the

First Amendment. The Court upheld the assessments only

after “stress[ing] the importance of the statutory context.”

Id. at 469. Because the growers were part of a “broader

collective enterprise in which their freedom to act

independently [was] already constrained by the regulatory

scheme,” the Court characterized the assessments for generic

marketing as “a species of economic regulation that should

enjoy the same strong presumption of validity that we accord

to other policy judgments made by Congress.” Jd. at 477.

Later, in United Foods, mushroom handlers refused to

pay mandatory assessments to fund generic mushroom

marketing. 533 U.S. at 408-09. The Court struck down the

assessments as violations of the handlers’ First Amendment

right not to subsidize speech with which they disagreed.

Id. at 409. Unlike the program in J .«ckman, the Court

reasoned, the mushroom program was not “ancillary to a more

comprehensive program restricting marketing autonomy.”

Id. at 411. Rather, the generic mushroom advertising, “far

from being ancillary, [was] the principal object of the

regulatory scheme.” Jd. at 411-12. The Court summarized

its compelled subsidy cases and enunciated a guiding

principle: When the government binds individuals into a

collective association, the government can also require that

those persons subsidize speech germane to the purpose

underlying the association. United Foods, 533 U.S. at

413-15; see also Keller, 496 U.S. at 13-14 (integrated bar);

19a

Appendix A

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36 (1977)

(closed union shop). Because the mushroom program did not-————

require association except to support generic marketing, the

program violated the First Amendment. United Foods, 533

U.S-~ at 415-16.

We agree with the district court that Louisiana's generic

alligator marketing program more closely resembles the

mushroom program at issue in United Foods than the fruit

program at issue in Glickman. The Glickman rule permitting

compelled subsidies applies when individuals have been

“bound together” in a collective. United Foods, 533 U.S. at

412; accord Cochran, 359 F.3d at 275; Delano Farms Co. v.

Cal. Table Grape Comm'n, 318 F.3d 895, 898-99 (9th Cir.

2003) (striking down compelled subsidies for generic grape

marketing). Without an underlying collectivized association,

a state cannot justify a compelled subsidy. See United Foods,

533 U.S. at 413-15. Louisiana alligator producers are not

part of a collective association akin to Glickman ‘s marketing

cooperative. None of the laws governing alligator production

imposes collective rather than competitive marketing as the

scheme in Glickman did. Cf. Cochran, 359 F.3d at 275.

Rather, as the Secretary admits, the State of Louisiana does

not regulate prices in the alligator market, and alligator

harvesters are free to negotiate prices and to market products

as they wish."’

17. Abood and Keller allow compelled subsidies for speech that is

germane to a lawfully compelled collective association. Abood, 431 U.S.

at 235-36; Keller, 496 U.S. at 14. In this case there is no underlying

association to which the generic marketing could be germane. Therefore,

we need not determine whether generic marketing is germane to

Louisiana’s other alligator-related regulations.

20a

Appendix A

The Secretary emphasizes Louisiana’s extensive

regulation of alligator harvesting and argues that generic

alligator marketing, like generic peach marketing, is

permissible because it is ancillary to Louisiana’s alligator

regulations.'* Regulations alone do not create compelled

association. See Cochran, 359 F.3d at 275; Delane Farms,

318 F.3d at 899. In Glickman, the fruit producers were subject

to a specific type of regulation: a scheme that displaced

individual marketing efforts and thus necessitated collective

generic marketing. See 521 U.S. at 461. Likewise, in Keller

and Abood, the state required that individuals join a collective

interest group; to be effective, that interest group had to speak

on behalf of its members on certain issues. See Keller, 496

U.S. at 14-15; Abood, 431 U.S. at 220-23. A number of

interdependent state, federal, and international laws impose

requirements on alligator harvesters, but these laws do not

require collective association, and “it is only the overriding

associational purpose which allows compelled subsidy for

speech in the first place.” United Foods, 533 U.S. at 413

(emphasis added).'®

18. The Secretary also seeks to distinguish United Foods and

its progeny by pointing out that those cases involved privately-owned

commodities, whereas alligators are the property of the State of

Louisiana. La. Civ. Code Ann. art. 3413 (West 1994). However, this

case does not involve the marketing of live wild alligators, but the

marketing of products made from lawfully captured and enclosed

alligators, which are private property. See id. arts. 3413, 3415.

19. In Glickman, the Court identified three ways in which the

regulatory scheme at issue was different from laws found to abridge

the First Amendment: (1) the assessments did not bar producers from

communicating their own messages; (2) the assessments did not

(Cont’d)

2la

Appendix A

We recognize that, unlike the assessments at issue in United

Foods, Cochran, and Delano Farms, a majority of the alligator-

related assessments fund programs other than generic marketing.

See United Foods, 533 U.S. at 411-12; Cochran, 359 F.3d at

276; Delano Farms, 318 F.3d at 899. In each of the past several

years, the Council has spent approximately 15% of the Resource

Fund on generic marketing and the remainder on research and

law enforcement. This distinction in the percentage of fees that

go to generic marketing does not support applying Glickman to

this case. The key element of Glickman—a highly collectivized

marketing association—is still absent. The common thread

uniting Abood, Keller, Glickman, and United Foods is that

compelled subsidization of speech is permissible when

individuals have been bound into a collective association. United

Foods, 533 U.S. at 413-15. The fees imposed here, though used

for more than generic marketing, represent a collective

association only in the loosest sense of that term.”°

(Cont'd)

compel the producers to engage in any actual or symbolic speech;

and (3) the assessments did not compel endorsement of any political

or ideological views. 521 U.S. at 469. The Secretary urges us to

consider these factors. However, “[t]hese points were noted in

Glickman in the context of a different type of regulatory scheme and

are not controlling of the outcome.” United Foods, 533 U.S. at 411.

The Court in United Foods was especially careful to emphasize that

the non-political, non-ideological nature of the generic marketing

was irrelevant. /d. at 410-11. Because the compelled subsidies in

this case are materially distinct from the collective marketing scheme

at issue in Glickman, these three factors are irrelevant to this case.

20. The Secretary observed at oral argument that, in other

compelled subsidy cases, courts have struck down entire marketing

(Cont’d)

22a

Appendix A

In sum, Louisiana’s alligator regulations are more

analogous to the mushroom marketing program in United

Foods than to the fruit marketing collective in Glickman.

The use of mandatory fees for generic marketing is not

ancillary to a government-imposed collective association.

Louisiana’s use of the Resource Fund to support generic

marketing therefore violates the First Amendment.’'

(Cont'd)

programs and invalidated the collection of assessments. E.g., United

Foods, 533 U.S. at 408-09; Cochran, 359 F.3d at 280; Mich. Pork,

348 F.3d at 159; Livestock Mktg., 335 F.3d at 713; Delano Farms,

318 F.3d at 897. In contrast, Pelts & Skins does not seek to stop

paying alligator-related fees, but instead challenges only the use of

those fees. The Secretary argues that the limited nature of this

challenge proves that generic marketing is concomitant to other

programs supported by the Resource Fund. Although generic

marketing might be one of a number of alligator-related programs, it

is not ancillary to any associational regulatory scheme, much less

the type of marketing collective at issue in Glickman.

21. The Secretary contends that, even if the alligator marketing

program burdens First Amendment rights, that program survives

constitutional review under the test for restrictions on non-misleading

commercial speech enunciated in Central Hudson Gas & Electric

Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980).

United Foods did not explain if or how the Central Hudson test

applies to compelled subsidy cases, see 533 U.S. at 410, and other

circuits have diverged on this question, compare Mich. Pork, 348

F.3d at 163 (refusing to apply Central Hudson test to compelled

subsidy for generic pork marketing), with Livestock Mktg., 335 F.3d

at 722-726 (adapting Central Hudson test to compelled subsidy for

generic beef marketing).

(Cont’d)

23a

Appendix A

IV.

As the record stands, Pelts & Skins has not proven that it

has standing to challenge use of the Marketing Fund. Therefore,

we vacate the portion of the injunction barring Louisiana from

using the Marketing Fund to support generic alligator marketing

and remand so that the district court may determine whether

Pelts & Skins has standing and modify the injunction

accordingly.

With regard to the remaining challenge, we conclude that

Louisiana’s use of the Resource Fund to support generic

marketing violates the First Amendment. We therefore affirm

the district court’s judgment granting a permanent injunction

against use of the Resource Fund for generic alligator marketing.

AFFIRMED in part, VACATED in part, and REMANDED

in part.

(Cont'd)

We doubt that the Central Hudson test applies. See Glickman, 521

U.S. at 474 n.18 (questioning in dictum “why the Central Hudson test,

which involved a restriction on commercial speech, should govern a

case involving the compelled funding of speech”). Like the Third Circuit,

however, we choose to leave this question open because even were we

to apply the Central Hudson test, Louisiana’s alligator marketing program

would not pass it. See Cochran, 359 F.3d at 277-80. To pass this test, a

restriction on commercial speech must directly advance a substantial

government interest and burden First Amendment rights no more than

necessary to accomplish that interest. Central Hudson, 447 U.S. at 566.

Even granting arguendo that Louisiana has a substantial interest in

conservation and that the message expressed by the Council’s generic

marketing helps advance that interest, Louisiana’s program burdens First

Amendment speech more than necessary. Louisiana does not need to

compel alligator harvesters to support generic marketing, but could

simply fund generic marketing from its general tax revenues.

24a

APPENDIX B — FINDINGS OF FACT AND

CONCLUSIONS OF LAW OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

LOUISIANA DATED AND FILED APRIL 24, 2003

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION

NO. 02-CV-384

PELTS & SKINS, L.L.C.

VERSUS

JAMES JENKINS, JR., SECRETARY OF THE LOUISIANA

DEPARTMENT OF WILDLIFE AND FISHERIES

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PROLOGUE

The Supreme Court has held that the Constitution

prohibits the government from compelling the producers of

mushrooms to pay for generic advertising to which they

object, but allows the government to compel the producers

of peaches to pay for such advertising. Resolution of this

case requires the cou: to determine whether Louisiana

alligator producers are more like mushroom producers than

like peach producers. The answer to that riddle determines

whether a Louisiana statute compelling farmers of alligators

to fund generic advertising treads upon the First Amendment

rights of plaintiff. For reasons that follow, this court

25a

Appendix B

ultimately concludes that the alligator resembles the

mushroom more than the peach, and thus, that the First

Amendment stands between alligator farmers and Louisiana’s

mandatory assessments to pay for a generic alligator

advertising program.

BACKGROUND

This matter came before the court on a motion for

summary judgment by plaintiff, Pelts & Skins, L.L.C. (“Pelts

& Skins”), for judgment in the form of a permanent injunction

against defendant, James Jenkins, Jr., Secretary of the

Louisiana Department of Wildlife and Fisheries (“DWF”)

(doc. 29). Defendant opposes the motion (doc. 36).

Thereafter, the parties agreed that the February 7, 2003

hearing on plaintiff’s motion would serve as a submission

of the case on the merits (doc. 43). All evidence submitted

in support of and in opposition to the motion for summary

judgment, as well as all other exhibits filed at the hearing,

have been received by stipulation of the parties on the merits

of the case. After consideration of the law, evidence, and

arguments of counsel, the court renders its findings of fact

and conclusions of law in accordance with Fed.R.Civ.P. 52(a),

as follows:

FINDINGS OF FACT

1. Plaintiff’s alligator farming operation is conditioned upon

payment of certain mandatory fees (“license fees” and

“tag fees”) to the DWF. These fees are deposited into

both the Louisiana Fur and Alligator Public Education

and Marketing Fund and the Louisiana Alligator Resource

26a

Appendix B

Fund. A portion of revenues from these funds is then used

by the DWF, as recommended by the Alligator Advisory

Council, to finance generic marketing of alligator products

without differentiating any particular type, quality, or brand

of alligator product.' For example, the DWF’s public

education and marketing programs are primarily carried out

by Don Ashley and Christine Brewton. Ashley attends trade

shows, implements and designs airport booths, and produces

literature promoting alligator products. Brewton visits

various fashion houses promoting Louisiana alligator

products and has implemented various educational

information materials setting forth the “marsh to market”

program of alligator skins.

2. Plaintiff has its own internal system of grading quality.

Its marketing strategy is based on communicating the

quality and uniqueness of its branded alligator product.

Plaintiff does the majority of its business in Europe.

3. Plaintiff is “vehemently”* opposed to the DWF’s

marketing message, even if, as the DWF argues, generic

1. In its answer, defendant admits to plaintiff’s statement in the

complaint that “[t]he marketing efforts approved and authorized by

DWF through Mr. Jenkins and thereby funded by the Alligator

Marketing Fund and the Alligator Resource Fund are generic in the

sense that they promote alligator products or Louisiana’s alligator

products in general, without differentiating any particular type, quality

or brand of alligator products (hereafter, ‘DWF’s Generic

Marketing’).” Complaint for Injunctive Relief, § 21.

2. It is not clear to the court that vehemence is of constitutional

significance, but since plaintiff insists upon so describing its stance,

let it be duly noted for the record that plaintiff not only objects, but

“vehemently” objects to the message of state’s advertising program.

27a

Appendix B

marketing does not dilute product image in the mind of the

consumer and does not reduce producer profits by lowering

prices.’

4. According to the DWF’s expert, Charles C. Theriot, of the

total alligator industry related revenues received in the fiscal

year ending 2002, approximately 92% were credited to the

Resource Fund and 6% to the Education and Marketing

Fund. From 1997 to 2002, the total alligator-related generic

advertising and marketing expenditures made by the DWF

from the Resource Fund were: 1% in 1997, 15% in 1998;

16% in 1999; 20% in 2000; 16% in 2001; and 14% in 2002.

5. Mr. Theriot also calculates that if educational expenditures

made by the DWF are included as part of the DWF’s

alligator-related generic advertising and marketing

expenditures and are included with those expenditures, then

the total alligator-related generic advertising and marketing

expenditures as a percentage of the total revenues realized

by the DWF were: 1% in 1997, 9% in 1998, 12% in 1999,

22% in 2000, 16% in 2001, and 21% in 2002.*

3. Any weight placed by either plaintiff or defendant upon the

effectiveness of the generic marketing is irrelevant. For First

Amendment purposes, it is enough that plaintiff is opposed to the

marketing message and that plaintiff is one of a small part of society

that is compelled to pay the cost of such advertising.

4. The court is aware of plaintiff’s argument that Mr. Theriot’s

report fails to specify the criteria used to determine whether a

particular expenditure was for generic marketing and that the report

does not account for generic marketing financed by the Education

and Marketing Fund.

28a

Appendix B

6. Defendant argues in brief that licensing fees are the only

sources of income for the Education and Marketing Fund

and are de minimis compared to the tag fees that account

for the majority of the Resource Fund. Defendant argues

further that the percentage of the total income used for

generic marketing and public education is less than 25%

of the annual funds received and that approximately 75%

is used for maintaining proper research habitat, law

enforcement, and so on. First of all, plaintiff maintains

that it exports in excess of 80,000 raw skins per year and

pays annual tag fees in excess of $320,000. Moreover,

Mr. Theriot’s report maintains that the plaintiff’s own

alligator-related payments were approximately 22.6%,

25.4%, and 25.1% of the total alligator-related revenue

realized by the DWF from all sources for the fiscal years

ending 2000, 2001, and 2002, respectively. The fact that

plaintiff was responsible for approximately one quarter

of the DWF’s alligator revenue undermines defendant’s

de minimis argument. To trample upon one’s First

Amendment rights “just a little vit” does not rectify the

fact that those rights are being trampled upon.

7. The DWF controls and supervises all wildlife within the

state, including fish, and is charged with management,

protection, conservation, and replenishment of the

wildlife and fish. The DWF also regulates the shipping

of skins. La.R.S. 36:602(B).

8. The DWF has statutory authority to establish regulations

and licensing procedures regarding the taking, possessing,

and shipping of all alligators, raw alligator skins, and

alligator parts. La.R.S. 56:251(A)(2)(a)(ii1).

29a

Appendix B

9. Pursuant to La.R.S. 56:253(C)(1), every resident

alligator hunter or farmer or nonresident alligator hunter

must attach a tag to any out-of-state shipment of

alligators or alligator skins. The tag must be secured

from the DWF and must bear a certain color and serial

number. Before shipping alligator or raw alligator skins

out of state, La.R.S. 56:253(C)(2)(a) requires resident

alligator hunters and farmers and nonresident hunters

to pay to the DWF an alligator shipping label fee for

each alligator and an alligator hide tag fee for each raw

skin. The alligator shipping label fee and the alligator

hide tag fee may be no more than four dollars per

alligator or skin.° No alligator part may be shipped out

of state without having affixed a !abel bearing the DWF

license number and other information to the shipment.

La.R.S. 56:253(D).

10. Every resident alligator hunter must pay a $25 annual

license fee to DWF before commencing business.

La.R.S. 56:251(2)(a)(i). Payment of an additional $25

entitles a duly licensed resident alligator hunter to

another license authorizing him to be accompanied

by one resident assistant while hunting. La.R.S.

56:25 1(2)(a)(i1). Only bona fide residents may apply for

a resident alligator hunter’s license. La.R.S. 56:252(A).

5. “[H]owever, the alligator shipping label fee and the alligator

hide tag fee shall each be reduced in any fiscal year by rule or

regulation of the commission in an equal amount equivalent to any

amount of additional revenues received into the Louisiana Alligator

Resource Fund from the state general fund or sources other than

alligator-related fees established pursuant to this Title.” La.R.S.

56:253(C)(2)(a). The state currently charges two dollars for each tag.

11.

12.

30a

Appendix B

The Louisiana Alligator Resource Fund, intended to

defray the cost of alligator programs, is established by

La.R.S. 56:279. This Fund is maintained by revenues

received by the state from tag fees imposed on alligator

hunters, alligator farmers, alligator shipping label fees

on the sale of alligators, and all revenues derived from

any other alligator-regulated fees and from the severance

tax on alligator skins provided for in La.R.S. 56:256.

La.R.S. 56:279(C)(1).°

Pursuant to La.R.S. 56:279(B)(1)-(5), the Resource

Fund’s five specific goals are as follows:

(1) To provide salaries and financial support

including associated indirect cost for the following

positions, to provide a minimum of two full-

time technical positions (biologists) and eight

nontechnical positions such as computer

operators, secretaries, and wildlife specialists

existing within the fur and refuge division of the

Louisiana Department of Wildlife and Fisheries.

(2) To assist with funding for law enforcement

activities associated with the alligator farm

industry when surplus funds are available and

recommended by the Louisiana Fur and Alligator

Council.

(3) To assist with funding marketing programs

recommended by the Louisiana Fur and Alligator

6. In 2002, the tag fees comprised 79% of the Resource Fund total.

3la

Appendix B

Advisory Council’ when surplus funds are

available.

(4) To actively fund research on all aspects

involved with alligator conservation and to

develop the techniques needed to enhance the

commercial alligator industry.

(5) To assist in funding management of the

alligator population through proper management,

harvest, and farm facility management.

(Emphasis added).

13. The Louisiana Fur and Alligator Public Education

and Marketing Fund is established by La.R.S. 56:266.

This Fund is maintained by the $25 license fees imposed

upon trappers and alligator hunters as required by

La.R.S. 56:251.°

14. Pursuant to La.R.S. 56:266(B)(1)-(7), the Education and

Marketing Fund’s seven specific goals are as follows:

(1) To educate the public regarding the need for

trapping as a sound wildlife management tool and

regarding the logic of managing furbearing species

and alligators as renewable resources.

7. As established by La.R.S. 56:266(C).

8. Twenty dollars of each twenty-five dollar alligator hunting

license sold goes to the Education and Marketing Fund. La.R.S.

56:266(D)(1).

32a

Appendix B

(2) To identify the current consumers of Louisiana

furs and alligator hides.

(3) To identify present and potential Louisiana fur

and alligator marketing problems, obstacles, and

related significant issues.

(4) To strengthen existing markets and develop new

markets and marketing strategies for raw and

finished Louisiana fur and alligator products.

(5) To develop and implement an international

advertising campaign to promote the utilization of

raw and finished Louisiana fur and alligator

products.

(6) To examine, evaluate, and make recommenda-

tions concerning any aspect of the fur and alligator

industry including habitat management, harvest, and

marketing which will enhance the future of the in-

dustry and perpetuate the conservation of these spe-

cies.

(7) To make specific recommendations to the

secretary regarding the expenditures of monies from

the Alligator Resource Fund including any annual

surplus only as provided for in R.S. 56:279.

(Emphasis added).

15.

16.

33a

Appendix B

The Louisiana Fur and Alligator Advisory Council

reviews and approves recommended procedures and

programs to be funded from the Public Education and

Marketing Fund and the Resource Fund, to ensure that

fund revenues are expended for the Council’s specific

goals. La.R.S. 56:266(C).

Though Louisiana’s statutory scheme is comprehensive

and designed to protect a once-endangered species, the

DWF is not statutorily authorized and has never

attempted to regulate to whom alligator farmers may

sell their skins, the manner in which farmers promote

and market their skins, or the price at which farmers

must sell their skins on the open market.?

CONCLUSIONS OF LAW

The Tax Injunction Act of 1937

Jurisdiction is based upon 28 U.S.C. § 1331. After

consideration of the parties’ post-hearing memoranda

(docs. 44 and 45) regarding jurisdictional questions

posed by the Tax Injunction Act, 28 U.S.C. § 1341, the

9. The defendant places much weight on the alligator’s former

status as endangered, maintaining that if left unregulated, alligators

threaten to recess back into endangerment. While state regulations

may have had a hand in alligator regeneration, that is not reason

enough to save a statute that stands in violation of the First

Amendment. This is especially true when the maintenance of the

alligator population could easily be achieved without generic

advertising or when generic advertising could be funded through

general, independent sources.

34a

Appendix B

court concludes that the Act does not bar this action.

First, Pelts & Skins does not seek to enjoin the

“collection” of any monies (that is, plaintiff does not

seek to enjoin the DWF from assessing the fees), but

rather, seeks only to enjoin the Secretary from funding

generic marketing with these fees. Second, the “fees”

in question do not amount to “taxes” for purposes of

the Act. See Home Builders Ass'n of Mississippi, Inc.

v. City of Madison, Mississippi, 143 F.3d 1006, 1011

(Sth Cir. 1998) (“[T]he classic tax sustains the essential

flow of revenue to the government, while the classic

fee is linked to some regulatory scheme. The classic tax

is imposed by a state or municipal legislature, while the

classic fee is imposed by an agency upon those it

regulates. The classic tax is designed to provide a benefit

for the entire community, while the classic fee !s

designed to raise money to help defray an agency’s

regulatory expenses.” (footnotes omitted)); Goetz v.

Glickman, 920 F.Supp. 1173, 1181 (D.Kan. 1996), aff'd,

149 F.3d 1131 (10th Cir. 1998) (noting that assessments

under the Beef Promotion and Research Act were not

direct taxes, since “[a] regulatory scheme will not

constitute a tax unless the real purpose and effect of the

statute and regulations promulgate” thereunder is to

raise revenues for the general support of the

government.” (citations omitted)).

Considering the foregoing, the mandated fees used for

generic advertising are “contrary to the First Amendment

principles set forth in cases involving expression by

groups which include persons who object to the speech,

but who, nevertheless, must remain members of the

er ee cs

35a

Appendix B

group by law or necessity.” United States v. United Foods,

Inc., 533 U.S. 405, 413, 121 S.Ct. 2334, 2339, 150 L.Ed.2d

438 (2001).

Government Speech

3. The DWF contends that the speech espoused through the

generic advertising and public education programs is

government speech since the state maintains a degree of

editorial control, is the literal speaker, and is ultimately

responsible for the speech. The defendant cites several

cases in furtherance of its strong contention."®

4. Theessence of government speech is when the government

speaks in favor ofa public policy. See, e.g., Rust v. Sullivan,

500 U.S. 173 (the federal government is free to determine

how appropriated general tax money could be used—

“the government may ‘make a value judgment favoring

childbirth over abortion, and. . . implement that judgment

by the allocation of public funds.’” Jd. at 192-193)."

10. Bd. of Regents of the Univ. of Wisconsin Sys. v. Southworth,

529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000); Rust v. Sullivan,

500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Central Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 100 §.Ct. 2343,

65 L.Ed.2d 341 (1980); Sons of Confederate Veterans, Inc. v. Comm 'r

of the Virginia Dep t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002);

and Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir.

2000), cert. denied, 532 U.S. 994, 121 S.Ct. 1653, 149 L.Ed.2d 636

(2001).

11. Neither of the two main cases at issue, Glickman v. Wileman

Bros. & Elliott, Inc., 521 U.S. 457, 117 S.Ct. 2130, 138 L.Ed.2d 585

(1997) nor United Foods, 533 U.S. 405, address the issue of government

speech. See Glickman, 521 U.S. at 483 n. 2; United Foods, 533 U.S.

at 416.

36a

Appendix B

In Abood v. Detroit Board of Education, 431 U.S. 209,

97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), teachers

sought a declaration that the “agency shop” clause of

the collective bargaining agreement was invalid.

The Court held, in part, that though the clause was

valid insofar as it financed collective bargaining,

contract administration, and grievance adjustments, First

Amendment principles prohibited the union and the

Board of Education from requiring any teacher to

contribute (as a condition of employment as a public

school teacher) to the support of an ideological cause

he might oppose. In his concurrence, Justice Powell

reasoned that a union is not representative of the people,

but rather, is representative only of one segment of the

population with certain common interests. Abood, 431

U.S. at 259 n. 13.

When attorneys challenged the use of compulsory state

bar association dues to finance ideological or political

activities with which members disagreed, the Court in

Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct.

2228, 110 L.Ed.2d 1 (1990) held that the use of the dues

in this manner violated the attorneys’ First Amendment

right of free speech when such expenditures were not

necessarily or reasonably incurred for the purposes of

regulating the legal profession or improving the quality

of legal services. In so finding, the Court reasoned that

the bar was different from a traditional governmental

agency because it was not created to participate in state

government; therefore, the bar was subject to similar

37a

Appendix B

constitutional rules as was, for example, Abood s labor

union. Jd. at 13.'?

7. When considering the constitutionality of a beef

program funded by mandatory producer and importer

contributions, one district court combined the above-

12. See United States v. Frame, 885 F.2d 1119 (3rd Cir. 1989),

cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1070

(1990), where the United States sought to recover assessments under

the Beef Promotion and Research Act from a cattle buyer and

producer. Despite finding that the Cattlemen’s Board or the Operating

Committee speaks on behalf of the Secretary and the government,

the court found that the compelled expressive activities through

assessments on cattle producers were not government speech, and,

therefore, did implicate the First Amendment rights of those obligated

to participate. The court reasoned that when general tax money is

used to fund expressive activities, the “nexus” between the taxpayer

and the message is attenuated. On the other hand, when a identifiable

group’s contributions fund a particular message associated with that

group, then the government acts coercively. /d. at 1132. Though the

court found no government speech, the ultimate conclusion was to

sustain the Act’s constitutionality based on the importance of the

governmental interests. Frame 5 ultimate conclusion is not damaging

to this ruling since the case is being used only for its government

speech analysis (United Foods did not discuss it), that is, to determine

whether the First Amendment is even implicated. It is not being used

for its analysis of whether the First Amendment was indeed infringed

upon-that determination has been undercut by the intervening logic

of United Foods. See Michigan Pork Producers v. Campaign for

Family Farms, 229 F.Supp.2d 772, 789 (W.D.Mich. 2002) (citing

the 2001 United Foods decision as the justification for the differing

ultimate conclusions in the 1989 Frame and 2002 Livestock

Marketing Ass'n v. United States Department of Agriculture, 207

F.Supp.2d 992 (D.S.D. 2002) decisions, both of which considered

the constitutionality of the Beef Promotion and Research Act).

38a

Appendix B

referenced concepts from both Abood and Keller and

concluded that the Beef Board was more akin to groups

whose members are representative of one segment of

the population (like Abood’s labor union or Keller ‘s

state bar association), and thus, that the generic

advertising scheme of the Board was not government

speech. Livestock Marketing Ass'n, 207 F.Supp.2d at

1004.”

8. Several cases have considered the degree of the

government’s involvement in the workings of whatever

Board or Council manages mandatory assessments."*

These cases generally maintain that the greater the

degree of involvement, the greater chance that the

government speech doctrine will be invoked. Here,

however, while the Secretary does appoint nine of the

Alligator Council’s eleven members, he himself does

13. Livestock also relied on Frame, noting that the Board’s

speech was not funded by general tax revenues, but rather, by

mandatory contributions from cattle producers, importers, and others

who sell cattle. This was found to be an extremely narrow segment

of society and one that was not representative of the population in

general. Reliance upon Frame in this manner was also employed by

Michigan Pork Producers, 229 F.Supp.2d 772, where the court found

that mandated assessments for generic pork advertising used to

support certain educational and research programs was not

government speech and ultimately, that the payments violated the

objecting hog farmers’ First Amendment rights. The court noted that

while United Foods did not address government speech, the issue

had been addressed by Frame in a context similar to the on in

Michigan Pork. Id. at 787.

14. See Frame, 885 F.2d 1119; Livestock, 207 F.Supp.2d 992;

Michigan Pork Producers, 229 F.Supp.2d 772.

39a

Appendix B

not sit on the Council. Moreover, those he appoints do

not represent him; rather, the statute requires that they

represent a cross section of alligator trappers, hunters,

farmers, and coastal landowners from across the state.

La.R.S. 56:266(C).

9. The Alligator Advisory Council is responsible for

reviewing and approving recommended procedures and

programs to be funded from the Resource Fund and the

Education and Marketing Fund to ensure that the

revenues from the two funds are spent for the specific

goals of the Council. The Resource Fund is sustained

not through general tax dollars, but through mandatory

tag fee revenues and the Education and Marketing Fund

is sustained through mandatory licensing fee revenues.

These fees are paid by alligator trappers, farmers, and

hunters who, like Abood's union, can easily be

considered a narrow segment of society with common

interests and one not representative of the general

population.'* As with the state bar association in Keller,

there is no evidence that the Alligator Advisory Council

was created to participate in the state’s general

| government. And as in Frame, the nexus between the

trappers and hunters’ mandatory fees and the Council’s

particular message cannot rightfully be characterized as

attenuated. There is a close nexus between the alligator

producers and the message funded.

15. The fact that license fees paid by fur (as opposed to alligator)

trappers end up in the Education and Marketing Fund does not defeat

this reasoning. La.R.S. 56:251; La.R.S. 56:266(D)(1).

40a

Appendix B

10. Because the generic advertising here involved is not

government speech, plaintiff is free to challenge such

advertising on First Amendment grounds.

First Amendment Claim

11.

12.

Constitutional determinations of the alligator marketing

program are guided by the Supreme Court’s 1997

Glickman decision and its 2001 United Foods decision.

The regulatory scheme in this case more nearly

resembles the one considered in United Foods rather

than the one in Glickman.'* Therefore, because Supreme

Court precedent so requires, the DWF’s generic

advertising, as funded by the Resource Fund and the

Education and Marketing Fund through mandatory

assessments, amounts to unconstitutional compelled

commercial speech. Explanation of why this is so

requires a det.uiled consideration of that precedent.

In Glickman, the Court held that First Amendment

protections were not abridged by various regulations

contained in marketing orders promulgated by the

Secretary of Agriculture (under the Agricultural

16. “The distinction between Glickman and United Foods does

not turn on evaluation of the merits of competing policy concerns.”

Delano Farms Co. v. California Table Grape Comm ’n, 318 F.3d 895,

899 (9th Cir. 2003). Entitlement to First Amendment protection

against state compulsion to fund generic advertising is governed by

the challenged statute’s similarity to either the one at issue in

Glickman or to the one at issue in United Foods. If more similar to

the latter, then the statute is in violation of First Amendment

protections. /d. at 899-900.

4la

Appendix B

Marketing Agreement Act of 1937) requiring California

peach growers, handlers, and processors to pay

assessments, from which were paid the cost of generic

advertising of California peaches. Though the marketing

orders regulated prices and surplus along with the

quality, quantity, grade, and size of the commodity, they

did not restrain producers from communicating any

message to any audience, did not compel engagement

in any actual or symbolic speech, and did not compel

producers to endorse or to finance any political or

ideological views. Jd. at 469-470.'’ Nevertheless, the

Court placed great weight upon the statutory context

and its displacement (through the marketing orders) of

competition and many aspects of independent business

activity characterized by antitrust protection; indeed, the

orders were expressly exempted from the antitrust laws.

The Court specifically noted that “[t]he business entities

that are compelled to fund the generic advertising at

issue in this litigation do so as part of a broader collective

enterprise in which their freedom to act independently

is already constrained by the regulatory scheme.”

Glickman, 521 U.S. at 469.

17. The weight placed by the Glickman upon respondents’

presumed agreement with the advertising message is notable: “since

all of the respondents are engaged in the business of marketing

California nectarines, plums, and peaches, it is fair to presume that

they agree with the centrai message of the speech that is generated

by the generic program.” Glickman, 521 U.S. at 470. The Court also

seemed to assume that the generic advertising was “factually

accurate.” Jd. at 474. Here, plaintiff does not agree with the

advertising message for an essentially unregulated market of alligator

parts and skins.

—aniccnlbcsel

13.

14.

42a

Appendix B

United Foods held that the First Amendment prohibits

the government from compelling mushroom farmers to

pay assessments that were used largely to fund

advertisements promoting mushroom sales pursuant to

the Mushroom Promotion, Research, and Consumer

Information Act. Though the advertising message was

that mushrooms are worth consuming whether or not

they are branded, a mushroom producer objected to

being charged for a message that seemed to be favored

by a majority of producers, wanting instead to convey

the message that its brand of mushrooms was superior

to those grown by other producers. Minor as it may have

seemed, the Court found this disagreement to be

significant enough to subject the compelled funding to

First Amendment scrutiny. United Foods, 533 US. at

411. When such scrutiny revealed a violation, the Court

distinguished Glickman on the ground that its program

was fundamentally different from the one in United

Foods in that Glickman’s mandated assessments were

ancillary to a more comprehensive program restricting

market autonomy. /d. “Beyond the collection and

disbursement of advertising funds, there are no

marketing orders that regulate how mushrooms may be

produced and sold, no exemption from the antitrust laws,

and nothing preventing the individual producers from

making their own marketing decisions.” Id. at 412

(emphasis added).

Certain commentary enunciated in United Foods bears

repeating:

Just as the First Amendment may prevent the

government from prohibiting speech, the

43a

Appendix B

Amendment may prevent the government from

compelling individuals to express certain views,

or from compelling certain individuals to pay

subsidies for speech to which they object. Our

precedents concerning compelled contributions to

speech provide the beginning point for our

analysis. The fact that the speech is in aid of a

commercial purpose does not deprive respondent

of all First Amendment protection. . . . The subject

matter of the speech may be of interest to but a

small segment of the population; yet those whose

business and livelihood depend in some way upon

the product involved no doubt deem First

Amendment protection to be just as important for

them as it is for other discrete, little noticed groups

in a society which values the freedom resulting

from speech in all its diverse parts. First

Amendment concerns apply here because of the

requirement that producers subsidize speech with

which they disagree.'*

United Foods, 533 U.S. at 410-411 (citations omitted).

See also Livestock, 207 F.Supp.2d at 997-998 (“Like the

plaintiffs in Abood and Keller, the plaintiff cattle procucers

are compelled to associate. They are required by federal law

... to pay ‘dues,’ if you will, to an entity created by federal

statute ... Compelling plaintiffs to make contributions for

speech to which they object works an infringement of their

constitutional rights”).

18. As noted supra, n.2, plaintiff alligator farmer not only

“objects” to the generic speech, plaintiff vehemently objects.

16.

44a

Appendix B

Subsequent to United Foods, the Ninth Circuit in

January 2003 rendered an opinion that is entirely

consistent with this ruling. The court held that

assessments imposed on grape producers pursuant to

California’s Ketchum Act to fund generic advertising

violated the First Amendment, reasoning that the

assessments were not ancillary to a more comprehensive

program that collectivized the industry or imposed an

antitrust exemption, and that the advertising itself was

the Act’s primary object. Delano Farms Co., 318 F.3d

895. Worth noting is the court’s recognition that

“{cjonstitutional law classes will doubtless enjoy the

superficially droll question, ‘why does the Constitution

prohibit the government from compelling mushroom

growers, but allow government to compel nectarine,

peach and plum growers, to pay for generic advertising?’

Td. at 898.

The Louisiana statutory scheme at issue here 1s different

from Glickman in a number of ways. Though the

Alligator Advisory Council does collect and disburse

advertising funds, defendant has not directed the court’s

attention to any provision suggesting that the statutory

scheme displaces competition. The alligator market

remains competitive. Indeed, nothing prevents the

individual farmers or trappers from making their own

marketing, advertising, and branding decisions.'®

19. The DWF asserts in its proposed findings of fact that, as a

general matter, “Louisiana’s statutory scheme (La.R.S. 56:251 et seq.)

governs the taking of alligators, provides for licenses, defines who

may apply for a license, and regulates the tagging, shipping and

(Cont’d)

45a

Appendix B

Alligator farmers determine their own standards of

quality, and they freely negotiate prices with their

customers. The court, therefore, cannot characterize the

statutory scheme as a “broad collective enterprise”

which constrains an alligator producer’s freedom to act.

Similarly, the statutory scheme cannot be characterized

as one of economic regulation such that mandated

participation in an advertising program may be viewed

merely as one of any number of cooperative acts or

forced association. The alligator industry is also not

exempt from the antitrust law of the United States.

In short, the Louisiana alligator industry, while

regulated, is not heavily regulated (at least not as heavily

regulated as the peach industry in Glickman ).

17. Pursuant to the Act at issue in United Foods, the

Mushroom Council (recipient of the challenged

assessment), was authorized to “enter into contracts or

agreements for the implementation and carrying out of

plans or projects of mushroom promotion, research,

consumer information, or industry information,

including contracts with producer organizations” and

to pay for the associate costs with the assessments.

7 U.S.C. § 6104(e)(1). As overseer of Public Education

(Cont'd)

labeling of alligator hides. Moreover, the scheme provides for the

season for taking alligators and provides for scientific research into

the life habits of alligators through technically trained officers and

employees.” Proposed Findings of Fact and Conclusions of Law,

4 8. Nowhere is it claimed that the statutory scheme displaces

competition or otherwise prevents alligator farmers from making their

own marketing decisions.

Oe ke LT

18.

46a

Appendix B

and Marketing and Resource Fund revenues, the

Alligator Advisory Council’s responsibilities are highly

similar, especially in light of the enumerated goals of

each Fund. La.R.S. 56:266(C); La.R.S. 56:266(B)(1)-

(7); La.R.S. 56:279(B)(1)-(5).

The advertising at issue here is not ancillary to a more

comprehensive program restricting market autonomy

which the Court considered to be significant in United

Foods. As noted supra, the DWF is not statutorily

authorized to regulate to whom alligator farmers may

sell their skins, the manner in which farmers promote

and market their skins, or the price at which farmers

must sell their skins. Insofar as United Foods was

concerned with the percentages of assessment money

used for generic advertising, it is notable that the

jurisprudence does not mandate the presence of hard

and fast percentage of total DWF revenue spent on

generic advertising. In Delano Farms, for example, the

court held that in light of United Foods, the advertising

assessments mandated under state law violated the First

Amendment rights of grape producers. In addition to

being based upon the lack of either industry

collectivization or an antitrust exemption, the court’s

holding was also based in part on the fact that about

90% of the assessment money was spent on generic

promotional activities. In Livestock, 50% of the

assessments collected and paid to the Beef Board were

used for advertising, in Michigan Pork, roughly half of

the Pork Board’s budget went to advertising, marketing,

and merchandising, and in Charter v. United States

Department of Agriculture, 230 F.Supp.2d 1121

20.

47a

Appendix B

(D.Mont. 2002), a “great percentage” of the assessments

were used for generic advertising. These cases do not

suggest that lower percentages of generic advertising

spending will negate the applicability of United Foods.

Here, the percentages of total revenue spent on alligator-

related generic advertising and marketing by the DWF

from the Resource Fund are not so paltry as to render

United Foods inapplicable, especially since the

percentages have risen significantly in recent years. The

presence of less than average percentages in this case is

overcome by the fact that there is no collectivization of

the industry and that no antitrust exemption exists. And

again, as stated earlier, to trample upon plaintiff’s First

Amendment rights “just a little bit” does not rectify the

fact that those rights are being trampled upon.

The Louisiana statutory scheme provides funding from

the mandatory assessments upon plaintiff for many

useful and productive activities to which plaintiff could

not (and does not) object on First Amendment grounds.

These activities include law enforcement, research and

development of alligator habitat and protection and

management of the species—all of which have no doubt

contributed to rescuing the alligator from its once near-

extinct status. The state’s compelled generic advertising

program, however, is completely severable from those

conservation activities.

Plaintiff does not demand a refund of that portion of its

prior assessments which have been spent on such generic

advertising nor does plaintiff request that assessment

and collection of either the tag or license fee be

48a

Appendix B

restrained. Plaintiff demands as relief only that the

Secretary of the Louisiana Department of Wildlife and

Fisheries be enjoined from “approving, authorizing or

expending any money from the Alligator Resource Fund

or the Alligator Marketing Fund for the purpose of

generic alligator marketing.” That relief is available,

however, only if the statutory program authorizes the

Secretary to continue to collect the assessments and

spend them for purposes other than such advertising.

The court assumes that both sides agree that the

Secretary has such authority. If that assumption is not

correct then counsel for plaintiff shall propose a different

remedy.

EPILOGUE

The First Amendment provides, in part: “Congress” shall

make no law ... abridging the freedom of speech...”

The undersigned admits to a certain degree of difficulty

in maintaining an appropriately straight judicial face while

attempting to apply the Supreme Court precepts that explain

the simple language of the First Amendment, to the alligator

advertising program at issue here.

When important constitutional issues must be resolved

by a determination of whether an alligator is more like a

mushroom than a peach, then in the words of Justice Thomas:

“(SJurely we have lost our way.” Glickman, 521 U.S. at 506

(Thomas, J., dissenting).

20. It is well established the First Amendment applies to the

States as well.

49a

Appendix B

CONCLUSION

Accordingly, judgment shall be entered in favor of

plaintiff, Pelts & Skins, L.L.C., and against defendant,

Secretary of the Louisiana Department of Wildlife and

Fisheries and all others covered by Fed.R.Civ.P. Rule 65(d)

permanenily enjoining them from future approving,

authorizing or expending revenues from the Louisiana Fur

and Alligator Public Education and Marketing Fund or from

the Louisiana Alligator Resource Fund for the purpose of

generic alligator marketing. Counsel for plaintiff shall confer

with counsel for defendant and submit a proposed effective

date for such an injunction, along with a proposed form of

judgment.

Baton Rouge, Louisiana, April 24, 2003.

s/ John V. Parker

JOHN V. PARKER

UNITED STATES DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

50a

APPENDIX C — RELEVANT STATUTES

La.R.S. 56:253 provides in pertinent part:

C.(1) Every resident fur dealer, trapper, alligator

hunter, alligator farmer, nonresident fur “ealer, or

nonresident alligator hunter before shipping raw furs,

alligators, or alligator skins out of the state shall

secure from the department, or duly authorized

representative thereof, a tag to be attached to the

shipment... . The. . . alligator hide tag fee for each

raw alligator skin to be shipped, used for taxidermy,

or tanned shall be no more than four dollars per

alligator or raw alligator skin. . . . Revenues received

by the state pursuant to this Paragraph shall be

distributed as provided in R.S. 56:266 and 279.

La.R.S. 56:266 provides in pertinent part:

C. The Louisiana Fur and Alligator Advisory

Council. Pursuant to R.S. 36:605(B)(2), the secretary

shall create the Louisiana Fur and Alligator Advisory

Council, which shall be within the Department of

Wildlife and Fisheries. The Louisiana Fur and

Alligator Advisory Council shall be responsible for

reviewing and approving recommended procedures

and programs to be funded from the Louisiana Fur

and Alligator Public Education and Marketing Fund

and the Louisiana Alligator Resource Fund, to ensure

that any monies from the funds are expended for the

specific goals of the council. This council shall be

composed of eleven members of which nine shall

be appointed by the secretary. The individuals

appointed by the secretary to this council shall

Sla

Appendix C

represent a cross‘section of trappers, alligator

hunters, coastal landowners, and alligator farmers

as follows: one member of the council shall represent

trappers and alligator hunters from north Louisiana;

one member shall represent trappers and alligator

hunters from southwest Louisiana; one member shall

represent trappers and alligator hunters from

southeast Louisiana; one member shall represent —

trappers and alligator hunters statewide; three

members shall represent coastal landowners; and two

members shall represent the Louisiana Alligator

Farmers and Ranchers Association. One member of

the council shall be designated by the speaker of the

House of Representatives and another member

shall be designated by the president of the Senate.

These associations may submit, in writing, to

the secretary, nominations for these members.

The secretary may appoint seven members

recommended by the Louisiana Trappers and

Alligator Hunters Association and two members

recommended by the Louisiana Alligator Farmers

and Ranchers Association. The secretary or his

designee shall be an ex officio member of said

council and shall be present at all official meetings.

All members of the council shall serve four-year

terms.

52a

Appendix C

E. Expenditures. (1) The monies made available

by the legislature from the fund as provided in this

Section or from any other source shall be used solely

for the programs, purposes, and specific goals

enumerated in this Section.

F. Annual Reports. The Department of Wildlife and

Fisheries shall make a written operating report to

the legislature at the end of each fiscal year. This

report will contain a summary of revenues received,

expenditures made, and the status of achievement

of specific goals. This report shall be submitted to

the House and Senate Committees on Natural

Resources by the end of the calendar year.

La.R.S. 56:279 provides in pertinent part:

A. Recognizing that the Louisiana alligator industry

is a vital aspect of Louisiana’s economic base and

that in recent years worldwide markets and prices

have expanded at a tremendous rate; and recognizing

the rapid expansion of Louisiana alligator farming

industry statewide; and recognizing the uniqueness

of the state’s alligator farming industry, one state

agency, the Louisiana Department of Wildlife and

Fisheries, has provided the impetus for inception and

development of the total alligator conservation

program; and recognizing the many beneficial

influences that Louisiana’s alligator program has had

on crocodilian conservation worldwide; and

53a

Appendix C

recognizing world trends questioning the

consumptive utilization of wildlife species, and

recognizing that those trends, by adversely affecting

economic conditions, could have a severe impact

on the alligator industry; and recognizing that raw

an¢ finished alligator skins and products are largely

consumed outside the United States; and recognizing -

the need to educate the public concerning alligator

hunting as a sound wildlife management practice;

and recognizing the urgent need to support the

alligator industry with a comprehensive research and

development program; and recognizing the need to

staff and fund the Louisiana Department of Wildlife

and Fisheries with adequate personnel in order to

service this industry’s needs, the Legislature of

Louisiana does hereby establish the Louisiana

Alligator Resource Fund within the Louisiana

Wildlife and Fisheries Conservation Fund. The

Alligator Resource Fund is intended to help defray

the cost of alligator programs within the fur and

refuge division of the Louisiana Department of

Wildlife and Fisheries.

B. The specific goals of this Section are:

(1) To provide salaries and financial support

including associated indirect cost for the

following positions, to provide a minimum

of two full-time technical positions

(biologists) and eight nontechnical positions

such as computer operators, secretaries, and

wildlife specialists existing within the fur and

54a

Appendix C

refuge division of the Louisiana Department

of Wildlife and Fishevies. See

(2) To assist with funding for law

enforcement activities associated with the

alligator farm industry when surplus funds are

available and recommended by the Louisiana

Fur and Alligator Council. j

(3) To assist with funding marketing

programs recommended by the Louisiana Fur

and Alligator Advisory Council when surplus

funds are available.

(4) To actively fund research on all aspects

involved with alligator conservation and to

develop the techniques needed to enhance the

commercial alligator industry.

(5) To assist in funding management of the

alligator population through proper

management, harvest, and farm facility

management.

C.(1) All revenues received by the state from tag

fees imposed on alligator hunters, alligator farmers,

alligator shipping label fees on the sale of alligators,

and all revenues derived from any other alligator-

related fees and from the severance tax on alligator

skins provided for in R.S. 56:256 shall be credited

by the state treasurer to a special fund designated as

the “Louisiana Alligator Resource Fund” after those

55a

Appendix C

revenues have been deposited in the Bond Security

and Redemption Fund. Out of the funds remaining

in the Bond Security and Redemption Fund after a

sufficient amount is allocated from that fund to pay

all obligations secured by the full faith and credit of

the state that become due and payable within each

fiscal year, the treasurer, prior to placing such funds

in the state general fund, shall pay into the Louisiana

Alligator Resource Fund an amount equal to the

revenues generated from collection from those

sources provided for in this Section and other sources

as provided by law.

D.(1) The monies made available by the legislature

from the fund as provided in this Section or from

any other source shall be used solely for the

programs, purposes, and specific goals enumerated

in this Section.

(2) The Department of Wildlife and Fisheries shall

maintain records of the sources of money received

and the purposes therefor, as well as the person or

persons to whom money is paid and the purpose

therefor. Vouchers or receipts shall be kept for all

money paid out. Money appropriated or otherwise

made available to the department for authorized

purposes shall be withdrawn from the treasury on

warrant of the secretary of the department.

56a

Appendix C

(3) The Department of Wildlife and Fisheries in

utilizing monies from the fund shall contract, only

with the approval of the Louisiana Fur and Alligator

Advisory Council, for any services relating to

specific goals enumerated in this Section. The

secretary is hereby authorized and empowered to

Carry out any and all contracts entered into in order

to achieve these goals.

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.