Pacific Northwest Venison Producers, a Washington Corporation Robert v. Baker James E. Rich D. Bruce Morgan Washington Alternative Livestock Association, a Washington Corporation v. Curt Smitch, Director of Washington Department of Wildlife Dean A. Lydig, James M. Walton, Mitch Johnson, Terry Karro, John McGlenn Norman F. Richardson, Commissioners of the Wa State Wildlife Commission, Washington State Department of Wildlife
Docket: 92-36766
Court: Court of Appeals for the Ninth Circuit; March 31, 1994; Federal Appellate Court
Plaintiffs Pacific Northwest Venison Producers and several members appeal a district court's summary judgment favoring the Washington Department of Wildlife and the Washington State Wildlife Commission, which upheld regulations banning the private ownership and exchange of certain wildlife species. The regulations, initially promulgated in January 1991, prohibit the importation, possession, and sale of "deleterious exotic wildlife," including mouflon sheep, and were later amended in June 1992 to include fallow and sika deer as well as certain native wildlife species like elk. The emergency regulations aimed to mitigate perceived risks to native wildlife from captive herds.
The Department held a workshop featuring wildlife experts who raised concerns about the risks posed by game farms, specifically the importation of diseases such as tuberculosis and brucellosis, which could infect native wildlife through escape or fenceline transmission. Additionally, the workshop discussed the potential introduction of the parasitic meningeal worm, fatal to most cervids except white-tail deer, which could spread rapidly if introduced into new populations. Notably, the Department did not allow opposing experts or ranchers to present counter-evidence during the workshop. The court affirmed the regulations based on these concerns.
Captive herds pose risks of animals escaping and competing with native wildlife for resources, as well as potential breeding with wild populations, impacting the gene pool of Washington's native species. PNVP, a cooperative of game farms, filed a lawsuit against newly implemented emergency regulations affecting elk, mouflon sheep, sika deer, and fallow deer. The district court ruled that while the regulations did not violate the Commerce Clause or due process rights, they infringed on procedural due process by not providing a hearing. The court also determined that the federal Endangered Species Act preempts state regulations banning the propagation of endangered sika deer subspecies. PNVP is appealing solely on Commerce Clause grounds.
The emergency regulations for elk, sika deer, and fallow deer have expired, but similar permanent regulations have been instituted, which allow commerce in fallow deer and do not prohibit the propagation of federally listed endangered species. Consequently, the appeal is moot regarding fallow deer but remains relevant for elk and sika deer. The district court's assessment was limited to a total ban, and thus the new regulations on fallow deer are not addressed.
The analysis of the regulations includes scrutiny under the Commerce Clause, which permits Congress to regulate interstate commerce. State regulations may violate this clause if they favor in-state interests or impose excessive incidental burdens on interstate commerce, requiring the state to justify the regulations with legitimate interests unrelated to economic protectionism. Conversely, if the regulations are evenhanded, the challenger must prove that the burdens on commerce outweigh local benefits.
PNVP asserts that the Department of Wildlife's regulations are discriminatory based on two main provisions: the prohibition of 'importation' and the existence of 'grandfather clauses.' The importation ban is argued to be inherently discriminatory, referencing Supreme Court precedent that condemns state legislation that obstructs interstate commerce. PNVP cites a Tenth Circuit case that deemed similar importation bans as per se discriminatory. However, the text counters that the import ban does not create additional restrictions beyond what already applies to both in-state and out-of-state interests, as animals cannot be imported if they cannot be held or sold in the state. Therefore, the import ban does not constitute economic protectionism.
Regarding the grandfather clauses, which permit Washington residents to retain animals legally possessed before new regulations, PNVP does not contest their existence but highlights their limited protective effect on economic investments. These clauses allow for the possession and sale of existing animals while prohibiting their propagation. It is noted that these exceptions may weaken the presumption of validity for the general prohibitions but are seen as necessary for a balanced approach to regulating private ownership of affected species. The analysis concludes that, given the lack of significant scrutiny factors, the regulations are evaluated under the standard for evenhanded regulations with incidental burdens on interstate commerce.
Summary judgment is warranted when pleadings and affidavits demonstrate no genuine issue of material fact, allowing the moving party to claim judgment as a matter of law, as per Fed. R. Civ. P. 56(c). A material fact is one that could lead to a judgment for the opposing party. The presence of disputed facts does not automatically prevent summary judgment; if the nonmoving party cannot prevail even when all its evidence is accepted as true, summary judgment is appropriate, with all reasonable inferences drawn in favor of the nonmoving party.
PNVP contends that it has raised material factual issues regarding the legitimacy of the state's interests addressed by certain regulations and whether their burden on interstate commerce is excessive relative to those interests. The state's interests include protecting native wildlife from diseases, maintaining genetic purity, and preventing competition for resources. These interests are deemed significant, comparable to public health and safety. However, PNVP speculates that the regulations stem from wildlife biologists' bias against game farming rather than genuine concern for wildlife health.
PNVP has not provided sufficient evidence to support the inference that the Department lacks genuine concern for Washington’s wildlife health. It argues that the absence of bans on other species that could transmit diseases undermines the state's stated interests. However, established legal precedent indicates that addressing only one facet of a problem does not inherently question the state's motivations. Therefore, the court could not infer that the state’s interests were insincere based solely on its selective regulatory focus.
Additionally, PNVP claims that the Department's interest in genetic purity is undermined by past practices of releasing out-of-state animals. Nevertheless, PNVP fails to provide legal or factual grounds to discredit the Department's current policy stance based on historical decisions, resulting in a lack of legally sufficient evidence to question the authenticity of the state's asserted interests.
PNVP contends that there is a material factual issue regarding whether the regulations' impacts on interstate and foreign commerce are excessive compared to their benefits. The analysis begins with the question of whether foreign commerce is subject to stricter scrutiny than interstate commerce. PNVP's argument hinges on activities involving the exchange of animals between British Columbia and Washington, as well as the importation of animal semen from New Zealand. The Supreme Court has established that state regulations impacting foreign commerce require additional scrutiny to assess potential impairments to federal uniformity or national concerns, such as international retaliation.
However, the analysis concludes that national uniformity is not a significant issue here, as states and Canadian provinces have diverse regulations regarding wildlife, and PNVP has not demonstrated that these differences hinder exports. Furthermore, because borders to certain regions are already closed due to risks recognized by the Washington Department of Wildlife, it is unclear how Washington's importation ban would provoke international discontent. Without compelling reasons for heightened scrutiny, the burden on foreign commerce is assessed similarly to that on interstate commerce.
The applicable legal standard, as articulated in Pike v. Bruce Church, emphasizes that if a statute promotes a legitimate local interest and its impact on interstate commerce is incidental, it is valid unless the burden on commerce is clearly excessive in relation to the local benefits. The legitimacy of the local purpose and the degree of burden are crucial factors in this evaluation.
Regulations aimed at preserving wildlife are afforded a strong presumption of validity. To counter the Department's motion for summary judgment, PNVP must present sufficient evidence that the regulations' impacts on interstate and foreign commerce are significantly detrimental, outweighing the state's interest in wildlife health. Merely demonstrating any effect on commerce is inadequate; the evidence must illustrate that these effects are "clearly excessive" compared to the state's interests. The plaintiff must produce evidence capable of supporting a jury verdict, which PNVP has failed to do.
Recent Supreme Court rulings indicate that specific impacts on interstate commerce warrant greater consideration against state interests. These include issues like travel and shipping disruptions due to inconsistent state laws, effects extending beyond the state’s borders, and disproportionate impacts on out-of-state interests. The Commerce Clause aims to prevent economic fragmentation, and valid regulations lacking these adverse effects are not likely to be invalidated under it. Incidental burdens on interstate commerce are those that exceed intrastate burdens, with only discriminatory burdens being factored into the balancing test. Precedent suggests that non-discriminatory regulations, even if they impede commerce, do not typically warrant invalidation unless discrimination is evident.
PNVP has not demonstrated that the regulations in question have significant federal implications or substantial economic impacts on interstate or foreign commerce. The summary judgment record indicates some restrictions on the exchange of breeding stock and animal imports, but lacks quantitative evidence regarding the volume of these activities. Specifically, PNVP has not provided data on the number of animals previously shipped to Washington or the financial value of such transactions, leaving the economic impact unclear. Additionally, there is no evidence showing the regulations affect consumers or industry members in other states.
PNVP contends that there are less burdensome alternatives that could effectively protect wildlife, arguing that the extent of the burden on interstate commerce should be weighed against the state's legitimate interests. While recognizing that a lack of evidence complicates this assessment, it is suggested that strong evidence against the necessity of the regulations could potentially outweigh their burdens on commerce.
Proposed alternatives by PNVP include disease testing, quarantine, tagging, fencing, and enhanced law enforcement, supported by expert opinions claiming these measures adequately mitigate risks to wildlife. However, the determination of acceptable risk levels is primarily a legislative function, not a judicial one. Despite acknowledging that some proposed alternatives might present minimal risks compared to the regulations, the ultimate decision on acceptable risk lies with the state, not the courts.
Significant deficiencies exist in PNVP's proposals, particularly in addressing the Department's expert affidavits that indicate similar alternatives have failed in other regions due to issues like animal escapes and illegal activities. PNVP's rebuttal relies on an unsupported expert opinion asserting that animals tend to return to their herds and food sources, which does not effectively counter the Department's claims regarding animal escape tendencies and illegal practices such as tag alterations and capturing wild elk. The experts for PNVP suggest that increased law enforcement would mitigate these risks, yet these opinions are deemed insufficient to substantiate a favorable factual finding for PNVP.
The court expresses skepticism about the strength of PNVP's evidence, referencing legal precedents that allow courts to disregard contrary expert opinions when the existing evidence is compelling. The inconclusiveness of PNVP's evidence renders it ineffective in influencing the legal balance between interstate commerce burdens and state interests, making the issue immaterial to the case's outcome.
The court emphasizes that when evidence on proposed alternatives is highly disputed and inconclusive, it is inappropriate for a court to override the Department of Wildlife’s judgment on expert credibility. The Department is justified in exercising precautionary measures given the uncertainties surrounding environmental risks, asserting that the state has a legitimate interest in preemptively addressing potential environmental harm without having to wait for definitive evidence of damage.
Moreover, the Supreme Court has consistently advised against judicial second-guessing of lawmakers' empirical judgments regarding legislation effectiveness, affirming that the state retains discretion in determining the sufficiency of evidence for alternative measures. The court highlights that past rulings indicate the importance of recognizing the uncertainties related to potential risks, supporting the state's authority to act preemptively even in the face of competing expert testimony.
PNVP must conclusively demonstrate that its alternatives would eliminate risks to native wildlife to successfully challenge the Department's precautionary decision. The summary judgment record indicates that such proof is unattainable. Plaintiffs invested significant resources into an endeavor that the state later deemed potentially harmful, leading to its prohibition. The district court noted that the federal constitution offers some procedural due process protections and just compensation for property takings. However, in the absence of evidence showing state economic protectionism or significant burdens on interstate commerce, the Commerce Clause does not safeguard their economic investment from valid state regulations aimed at protecting native wildlife. The court's decision is affirmed.
