- Effective January 1, 2020, the California Legislature banned the importation and sale of alligator products within the State.
- Two lawsuits filed by a Louisiana state agency, landowners and retailers of alligator products have challenged the ban on preemption and Commerce Clause grounds.
- The ban is subject to a temporary restraining order while the court considers whether to enjoin its enforcement.
The State of California and the federal government have a storied history of battling over the authority to regulate California’s citizens and commerce. The state’s ongoing dispute with the U.S. Fish and Wildlife Service (USFWS or Service) over the sale of alligator products in California is a recent microcosm of that ongoing battle. This year, the California Legislature sought to impose controversial restrictions on the importation and sale of alligator and crocodile products through Section 653o of the state Penal Code. Since 1970, the Legislature has attempted to ban the import and sale in California of products made from exotic animals under Section 653o, including products made from alligators, crocodiles, polar bears, leopards, ocelots, tigers, kangaroos, and others. In 1979, a court in the Eastern District of California enjoined enforcement of Section 653o with respect to American alligators, finding the alligator ban unconstitutional and unenforceable, and preempted by the federal Endangered Species Act (ESA). See Fouke Co. v. Brown, 463 F. Supp. 1142 (E.D. Cal. 1979). As discussed further below, the 1979 injunction remains in effect.
The California Penal Code included the ban on the sale of alligator and crocodile parts until 2006, when the Legislature lifted the ban. However, the 2006 legislation contained a sunset clause which would reinstate the prohibition on trade of alligator and crocodile parts in 2015. The Legislature exempted alligator and crocodile products from the restrictions of Section 653o through a series of deferrals but allowed the most recent exemption to expire on January 1, 2020. As a result, Section 653o(b) currently provides that, effective January 1, 2020, it is “unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of a crocodile or alligator.”
Legal Challenges to Penal Code Section 653o
In December 2019, just weeks before the alligator ban was to take effect, two sets of plaintiffs filed challenges in federal court to the ban in two related cases: Louisiana Wildlife and Fisheries Commission et al v. Becerra (Delacroix) (No. 2:19-cv-02488-KJM-CKD) and April in Paris, et al. v. Becerra (April in Paris) (No. 2:19-cv-02471-KJM-CKD). In both cases, plaintiffs, a collection of Louisiana landowners, a Louisiana state agency, and wholesalers and retailers of alligator products, claim that the ban is expressly preempted by the ESA, and violates the dormant Commerce Clause of the U.S. Constitution. Plaintiffs requested a temporary restraining order (TRO) and preliminary injunction against the ban, claiming that the ban would cause irreparable economic harm to plaintiffs’ businesses, and would undermine state and private conservation efforts protecting American alligators. In December 2019, pursuant to a stipulation by the parties, a court in the Eastern District of California approved TROs against California’s enforcement of the ban; those TROs remain in effect while the court considers Plaintiffs’ requests for preliminary injunction. The District Court held a hearing on the request for preliminary injunction on June 5, but no ruling has been issued as of the date of this publication.
The American alligator, a 150 million-year-old-species, has been touted as a rare endangered species success story. By the 1950’s and 60’s, the American alligator had been hunted nearly to the brink of extinction to make exotic leather, and in 1976, the USFWS listed the American alligator as an endangered species. Just over 10 years later, the Service declared the alligator fully recovered, and removed the animal from the endangered species list. Since then, a profitable market has grown around the sustainable farming of alligators. In many cases, private landowners have implemented conservation efforts on their lands to facilitate the sustainable harvesting of...
