Opposition Brief — Landreneau, Secretary for the Louisiana Department of Wildlife and Fisheries v. Pelts & Skins, LLC

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| Supreme Court, U.S)

P| | FILED

No. 04-23 | SEP ~7 2004

[OFFICE OF THE CLER |

IN THE

Supreme Court of the United States

WILLIAM DWIGHT LANDRENEAU,

Secretary for the Louisiana Department

of Wildlife and Fisheries,

Petitioner,

v,

PELTS & SKINS, LLC,

Respondent.

On PETITION FOR A Writ OF CERTIORARI 10 THE

UNITED STATES CourT OF APPEALS

FOR THE FirTH CIRCUIT

BRIEF IN OPPOSITION

ALEX J. PERAGINE

PERAGINE & Lea, L.L.C.

527 East Boston Street, Suite 201

Covington, Louisiana 70433

(985) 871-7925

Attorneys for Respondent

189605 g

COUNSEL PRESS

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

i

QUESTION PRESENTED

Whether using mandatory assessments imposed on

alligator farmers under Louisiana Revised Statutes 56:253

and 279 to fund generic marketing programs (as opposed to

funding other, legitimate purposes authorized for those fees)

violates the First Amendment rights of alligator farmers that

disagree with the message of generic marketing.

——

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STATEMENT OF THE CASE

The Secretary of the Louisiana Department of Wildlife

and Fisheries (“DWF” or “Petitioner’’) describes this case as

“a First Amendment challenge to the mandatory assessment”

that creates a fund from which DWF supports generic

marketing. Petition at 2. That statement is plainly wrong.

Pelts & Skins, L.L.C. (“Pelts & Skins”) has never challenged

any mandatory assessment in these proceedings. The

assessment ancillary to the First Amendment challenge before

the Court continues to be collected and used by DWF to fund

other programs authorized by statute.

Indeed, Pelts & Skins could not have invoked the

jurisdiction of the federal courts to challenge the assessment

itself, given the Eleventh Amendment’s bar to jurisdiction

in such cases. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441

(1908), only authorizes Pelts & Skins to obtain prospective

injunctive relief based on the unconstitutionality of the

generic marketing expenditures funded by the mandatory

assessment. Accordingly, the affirmed Judgment of the

district court in this matter is narrowly tailored, permanently

enjoining Petitioner from “approving, authorizing or

expending any revenue ... from the Louisiana Alligator

Resource Fund for the purpose of generic alligator

marketing.” [R. at 241.]

This case is squarely based on United States v. United

Foods, Inc., 533 U.S. 405, 121 S. Ct. 2334 (2001), where

the Court held mandatory assessments to fund generic

advertising of mushrooms violate the First Amendment rights

of mushroom growers that object to the generic marketing

message. One difference between Louisiana’s statutory

alligator scheme and the federal mushroom marketing statute

at issue in United Foods is that Louisiana’s mandatory

assessment creates a revenue fund that has other regulatory

goals in addition to generic marketing, whereas the federal

statute at issue in United Foods had only one objective — to

generically market mushrooms. But that difference is

constitutionally insignificant, as Pelts & Skins has not

challenged either (1) the assessment itself, or (2) the funding

of other, statutorily authorized programs of regulation.

PETITIONER’S MISSTATEMENTS

OF FACT AND LAW

DWF’s Generic Marketing Program. DWF has

co.uceded that its alligator marketing program is generic

(i.e., it promotes alligator products generally, without

differentiating any particular type, quality, or brand of

alligator products). DWF actually has no control over the

content of its own generic marketing strategy. Rather, the

Louisiana Fur and Alligator Advisory Council (the “Alligator

Advisory Council”), whose members represent “a cross

section of [Louisiana’s] trappers, alligator hunters, coastal

landowners and alligator farmers” [La. R.S. 56:266(C)], is

the exclusive source of recommendations for the marketing

programs funded by the Louisiana Alligator Resource Fund.

La. R.S. 56:266(E)(3). Petitioner can only approve or reject

these marketing expenditures. Thus, DWF does not maintain

“editorial control” of the generic marketing message.

Petitioner asserts that Pelts & Skins is a part of a

group that “benefit[s] the most” from generic marketing.

Petition at 15. That position is less than accurate.

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First, the record below established that DWF’s generic

marketing program allows certain alligator farmers, acting

through the Alligator Advisory Council, to perform their own

direct marketing — at the expense of Pelts & Skins.

The Alligator Advisory Council recommended, and DWF

approved, the hiring of a consultant to attend fashion trade

shows at various corners of the globe. That same consultant

also sells alligator skins for a collective of independent

alligator suppliers. When attending trade shows throughout

the world, at the expense of Pelts & Skins and of other

Louisiana farmers subject to the mandatory assessment,

he markets alligator skins on behalf of competitors of

Pelts & Skins. Such a “generic marketing program”

advances only the interests of certain private entities, and

does nothing to advance the interests of either the government

or Pelts & Skins. Thus, the Fifth Circuit specially noted the

contention of Pelts & Skins that the generic marketing

program may be nothing more than a “boondoggle.” Pelts &

Skins, LLC v. Landreneau, 365 F.3d 423, 426 (Sth Cir. 2004).

Second, the implementation of DWF’s generic marketing

program does not follow any reasoned strategy. Pelts & Skins

therefore is opposed to the generic marketing message

because: (1) there is no proof that DWF’s marketing actually

increases aggregate demand, (2) generic marketing dilutes

the distinctiveness of the marketing image of Pelts & Skins,

which promotes the unique qualities of its own brand of

alligator skins based on its competitive advantage in the

science of animal husbandry, and (3) generic marketing tends

to denigrate product image, and may even act to lower prices.

Alligator Regulation Does Not Restrict Market

Autonomy. In United Foods, the Court distinguished

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457,

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117 S. Ct. 2130 (1997), by holding that a government entity

cannot force a private business to fund commercial speech

unless the affected industry acts collectively under a

broad regulatory scheme that restricts marketing autonomy.

United Foods, 533 U.S. at 413, 121 S. Ct. at 2339. In the

instant case, the record below overwhelmingly “emonstrated

that the alligator industry does not act collectively under a

broad regulatory scheme that restricts marketing autonomy.

The Fifth Circuit correctly concluded:

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.

Pelts & Skins, LLC, 365 F.3d at 433.

DWF argues that the alligator industry is subject to

“comprehensive regulation.” Petition at 6. Admittedly, the

State of Louisiana regulates many aspects of alligator hunting

and farming. But the scope of that regulation clearly does

not include restrictions on marketing autonomy, the Court’s

sole relevant inquiry with respect to compelled commercial

speech.

5

DWF’s Generic Marketing Is Not Government

Speech. DWF’s government speech analysis is similarly

flawed. The injunctive relief ordered by the district court

leaves DWF free to engage in any generic marketing program

it might select, provided that program is funded by general

revenues, and not by a tax or assessment imposed on only

one group. Furthermore, the Alligator Advisory Council

controls the content of the marketing, and it reflects the

interests of certain private alligator farmers. Thus, DWF’s

generic marketing is properly characterized as “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.”

Id. at 432.

Respectfully submitted,

ALex J. PERAGINE

PeRAGINE & Lea, L.L.C.

527 East Boston Street, Suite 201

Covington, Louisiana 70433

(985) 871-7925

Attorneys for Respondent