Ivory Education Institute v. Dept. of Fish & Wildlife ( 2018 )

Filed 11/5/18 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
IVORY EDUCATION INSTITUTE, B282558
etc. et al.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC602584)
v. ORDER MODIFYING OPINION
STATE OF CALIFORNIA etc. et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents,
NATURAL RESOURCES DEFENSE
COUNCIL, INC. et al.,
Intervenors and Respondents.
THE COURT:*
It is ordered that the opinion filed November 1, 2018,
be modified as follows:
The last line of the first paragraph of the opinion shall be
deleted and replaced with the following:
“We conclude that the statute is not facially vague and
therefore affirm the judgment.”
The opinion shall be corrected to indicate WILLHITE,
Acting P.J. and COLLINS, J. as the two justices concurring in the
opinion.
There is no change in judgment.
_______________________________________________________
*WILLHITE, Acting P.J. MICON, J.** COLLINS, J.
__________________________________________________________
**Judge of the Los Angeles County Superior Court assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2
Filed 11/1/18 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
IVORY EDUCATION INSTITUTE, B282558
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC602584)
v.
DEPARTMENT OF FISH AND
WILDLIFE,
Defendant and Respondent;
NATURAL RESOURCES DEFENSE
COUNCIL, INC., et al.,
Interveners and Respondents.
Appeal from a judgment of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Affirmed.
Rogers & Harris and Michael Harris for Plaintiff and
Appellant.
Xavier Becerra, Attorney General, Robert W. Byrne,
Assistant Attorney General, Gary E. Tavetian and Carol Ann
Zimmerman Boyd, Deputy Attorneys General for Defendant and
Respondent.
Jennifer A. Sorenson and Katherine Desormeau for Natural
Resources Defense Council, International Fund for Animal Welfare,
and Wildlife Conservation Society; Brendan Cummings for Center
for Biological Diversity; and Rebecca Cary for The Humane Society
of the United States, Respondent-Interveners.
__________________________________________
Plaintiff Ivory Education Institute appeals from the
judgment entered in favor of defendant and respondent
California Department of Fish and Wildlife in this action
challenging as unconstitutionally vague on its face a recently
enacted statute effectively banning the importation and sale of
ivory and rhinoceros horn. We conclude that the statute is
facially vague and therefore affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In 2015, the Legislature passed Assembly Bill 96, which
took effect July 1, 2016 as Fish & Game Code section 2022,
imposing tough new restrictions on the sale and importation of
ivory and rhinoceros horn.1 The Ivory Education Institute (the
Institute) sued the California Department of Fish and Wildlife
(the Department) to block implementation of the law, alleging
that it was unconstitutional on a number of grounds, including
vagueness, federal preemption, the takings clause, and the
commerce clause.2
1 We set forth the applicable portions of that new law as
part of our Discussion, post.
2The Institute states that it is a nonprofit association
dedicated to educating the public about the history and
2
In April 2016, the trial court allowed the Natural Resources
Defense Council, the Center for Biological Diversity, the Humane
Society of the United States, the International Fund for Animal
Welfare, and the Wildlife Conservation Society to intervene as
defendants.
In June 2016, the trial court determined that the Institute
was limited to mounting a facial attack on the provision’s
constitutionality and directed the parties to prepare and file
competing dispositive motions. The Institute filed a summary
judgment motion, while the Department filed a motion for
judgment on the pleadings. The trial court granted the
Department’s motion and denied the Institute’s motion, and
entered judgment for the Department and the intervenors.
On appeal, the Institute has expressly limited its challenge
to the void-for-vagueness doctrine, thereby abandoning all other
issues raised below.3
DISCUSSION
1. The History and Text of Fish and Game Code Section
2022
Since 1970, Penal Code section 653o has prohibited the
import and sale of the body parts of various dead animals,
appreciation of ivory objects, as well as advancing the interests of
those who collect or otherwise possess ivory objects, particularly
objects of historical and cultural importance.
3The Institute states in its opening appellate brief that
although it “continues to contend that all of the grounds
previously stated for the unconstitutionality of the Statute are
meritorious, it wishes to focus this appeal on why its provisions
are so vague as to render it unconstitutional on its face.”
3
including elephants. (Viva! Internat. Voice for Animals v. Adidas
Promotional Retail Operations, Inc. (2007) 41 Cal. 4th 929, 936–
937 (Viva! Internat. Voice for Animals).) An uncodified provision
of that section later exempted elephant ivory imported before
June 1, 1977, and placed on defendants the burden of proving the
importation date. (Stats. 1976, ch. 692, § 5, p. 1697; Stats. 2015,
ch. 475 (A.B. 96), § 2.)
Concerned that difficulties in proving the date of
importation acted as a loophole to the law, the Legislature in
2015 enacted Fish and Game Code section 2022 (section 2022).
(Stats. 2015, c. 475 (A.B. 96), § 2; Assem. Com. on Appropriation
Analysis, Rep. on Assem. Bill No. 96 (2015-2016 Reg. Sess.)
March 25, 2015, pp. 4-5.) The Legislature found and declared:
“(a) There is worldwide concern regarding the plight of
elephants and rhinoceroses, who are being poached at alarming
rates—an average of 96 elephants per day are killed in Africa.
“(b) Illegal poaching and wildlife trafficking is the fourth
largest transnational crime and ivory helps fund the military
operations of notorious terrorist groups. Smuggling gangs move
tons of tusks to markets thousands of miles away.
“(c) International, federal, and state laws are all being
strengthened to protect these iconic species from cruelty and
extinction. The states of New York and New Jersey recently
enacted strong prohibitions on intra-state ivory and rhinoceros
horn commerce and the federal government has proposed
strengthened ivory trade and import regulations.
“(d) California has prohibited the ivory trade since 1977,
but a loophole has rendered the law unenforceable—allowing
illegal sales to flourish. San Francisco and Los Angeles have
consistently ranked among the top trading markets for illegal
ivory in the United States.”
4
In order to address these concerns, section 2022 provides,
in relevant part, that, with certain specified exceptions, “it is
unlawful to purchase, sell, offer for sale, possess with intent to
sell, or import with intent to sell ivory or rhinoceros horn.”
(§ 2022, subd. (b).) Ivory is defined as “a tooth or tusk from a
species of elephant, hippopotamus, mammoth, mastodon, walrus,
warthog, whale or narwhal, or a piece thereof, whether raw ivory
or worked ivory, and includes a product containing, or advertised
as containing, ivory.” (§ 2022, subd. (a)(2).) Rhinoceros horn is
defined as “the horn, or a piece thereof, or a derivative such as
powder, of a species of rhinoceros, and includes a product
containing, or advertised as containing, rhinoceros horn.”
(§ 2022, subd. (a)(3).)
The three exceptions to section 2022 at issue here are:
“(2) An activity that is authorized by an exemption or
permit under federal law or that is otherwise expressly
authorized under federal law.
“(3) Ivory or rhinoceros horn that is part of a musical
instrument, including, but not limited to, a string or wind
instrument or piano, and that is less than 20 percent by volume
of the instrument, if the owner or seller provides historical
documentation demonstrating provenance and showing the item
was manufactured no later than 1975.
“(4) Ivory or rhinoceros horn that is part of a bona fide
antique and that is less than five percent by volume of the
antique, if the antique status is established by the owner or seller
of the antique with historical documentation demonstrating
provenance and showing the antique is not less than 100 years
old.” (§ 2022, subd. (c).)4
4Other specified exemptions include state and federal law
enforcement activities (§ 2022, subd. (c)(1)) and sale or possession
5
2. The Void-For-Vagueness Doctrine
A party making a facial challenge to a statute’s
constitutionality must meet ‘“exacting”’ standards. (Gerawan
Farming, Inc. v. Agricultural Labor Relations Bd. (2017)
3 Cal.5th 1118, 1138 (Gerawan Farming).) Under the strictest
test, the challenger must show that the statute inevitably poses a
present total and fatal conflict with the constitution. Under the
more lenient standard, we ask whether the statute is
unconstitutional in the generality or great majority of cases.
(Ibid.)
The void-for-vagueness doctrine is a component of the
constitutional requirement of due process of law. (U.S. Const.,
5th & 14th Amends.) The doctrine prevents the government
“from enforcing a provision that ‘forbids or requires the doing of
an act in terms so vague’ that people of ‘common intelligence
must necessarily guess at its meaning and differ as to its
application.’ [Citations.]” (People v. Hall (2017) 2 Cal.5th 494,
500 (Hall), quoting Connally v. General Construction Co. (1926)
269 U.S. 385, 391.)
Under the void-for-vagueness doctrine, a criminal statute
must be definite enough to provide both a standard of conduct for
those whose conduct falls within the statute’s reach, and a
standard for law enforcement and the ascertainment of guilt.
(People v. Morgan (2007) 42 Cal. 4th 593, 605 (Morgan).) There is
a strong presumption that statutes must be upheld unless their
unconstitutionality is clear, positive, and unmistakable. (Ibid.)
for educational or scientific purposes by bona fide educational
and scientific institutions. (§ 2022, subd. (c)(5).)
6
Only a reasonable degree of certainty is required. (Hall, supra, 2
Cal.5th at p. 503.)5
5 In addition to holding that a criminal statute must
provide a definite standard of conduct for the public, law
enforcement, and the ascertainment of guilt, the Morgan court
also said that a statute is not unconstitutional if it is vague in
some of its applications, but must instead be vague in all of its
applications. (Morgan, supra, 42 Cal.4th at pp. 605–606.) The
genesis of this standard seems to lie in Hoffman Estates v.
Flipside, Hoffman Estates (1982) 455 U.S. 489, 497, which was
cited for that proposition in Evangelatos v. Superior Court (1988)
44 Cal. 3d 1188, 1201, and then cited in turn by Morgan, supra, at
pages 605–606.
The Institute contends that the “vague in all its
applications” standard is no longer good law in light of Johnson v.
United States (2015) 576 U.S. ___, 135 S. Ct. 2551 (Johnson).
Johnson was the fourth time the Supreme Court considered the
“residual clause” of the Armed Career Criminal Act (18 U.S.C.
section 924(e)(2)(B) (ACCA)), which imposes increased penalties
for those with three or more violent felony convictions that
presented a serious potential risk of physical injury to others.
Previous decisions had interpreted the residual clause
based on the elements of the underlying offense, not on how a
particular defendant might have committed that offense. Based
on its repeated attempts and failures to craft an objective
standard for the residual clause, the Johnson court held that the
statute was unconstitutionally vague. As part of its holding, the
court appears to have rejected the “vague in all its applications”
approach. Even though it had used that formulation in the past,
Justice Scalia wrote that the “supposed requirement of vagueness
in all applications is not a requirement at all, but a tautology: If
we hold a statute to be vague, it is vague in all its applications
(and never mind the reality).” (Johnson, supra, 135 S.Ct. at
p. 2561.)
7
Statutory language is not impermissibly vague if its
meaning can be fairly ascertained by reference to other sources,
The Institute contends that this new formulation means
that a statute is unconstitutionally vague so long as it is vague in
any of its applications, and urges us to adopt it. The Department
distinguishes Johnson on its facts and urges us not to follow it.
That part of Johnson concerning the “vague in all
applications” rule does not, by itself, proscribe a standard of
review in void-for-vagueness cases. We believe that standard is
set forth early on in Johnson, where the court cites Kolender v.
Lawson (1983) 461 U.S. 352, 357–358 for the proposition that a
criminal law is unconstitutionally vague when “it fails to give
ordinary people fair notice of the conduct it punishes, or [is] so
standardless that it invites arbitrary enforcement.” (Johnson,
supra, 135 S.Ct. at p. 2556.) The Supreme Court cited Johnson
for that proposition one year later, without any mention of the
“all its applications” rule. (Welch v. United States (2016) ___ U.S.
___, 136 S. Ct. 1237, 1261–1262.) We believe this iteration best
embodies the view of the United States Supreme Court.
It is unclear whether, setting aside the “vague in all its
applications” rule, that the federal rule differs in any meaningful
way from the remaining portion of the California rule. (Morgan,
supra, 42 Cal.4th at p. 605 [statute must be definite enough to
provide standard of conduct for those within its reach, and a
standard for law enforcement and ascertainment of guilt].) We
need not resolve that issue now. Instead, we assume, without
deciding the issue, that the “vague in all its applications”
standard does not apply. We instead conclude, as set forth post,
that in the context of this facial challenge, section 2022 gives
ordinary people fair notice of the conduct it punishes, is not so
standardless that it invites arbitrary enforcement (Kolender,
supra, 461 U.S. at pp. 357–358), and provides a sufficiently
definite standard of conduct for the public, law enforcement, and
the ascertainment of guilt. (Morgan, supra, 42 Cal.4th at p. 605.)
8
such as dictionary definitions, similar statutes, the common law,
or judicial decisions, or if the words have a common and generally
accepted meaning. (Morgan, supra, 42 Cal.4th at p. 607; In re
J.W. (2015) 236 Cal. App. 4th 663, 671.) “In reviewing a facial
challenge to a statute on vagueness grounds, we ‘construe the
statute in favor of its validity and give it a reasonable and
practical construction in accordance with the probable intent of
the Legislature; a statute will not be declared void for vagueness
or uncertainty if any reasonable and practical construction can be
given its language.’” (People ex rel. Brown v. iMergent, Inc. (2009)
170 Cal. App. 4th 333, 339–340, quoting Schweitzer v. Westminster
Investment (2007) 157 Cal. App. 4th 1195, 1206.)
Finally, a facial void-for-vagueness challenge considers only
the text of the measure itself, ‘“not its application to the
particular circumstances of an individual.’” (Zuckerman v. State
Bd. of Chiropractic Examiners (2002) 29 Cal. 4th 32, 39, quoting
Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069, 1084.) The
plaintiff cannot prevail “‘by suggesting that in some future
hypothetical situation constitutional problems may possibly arise
as to the particular application of the statute.’” (Ibid. quoting
Pacific Legal Foundation v. Brown (1981) 29 Cal. 3d 168, 180.) A
statute is not void just because “‘there may be difficulty in
determining whether some marginal or hypothetical act is
covered by its language.” [Citation.]’” (Morgan, supra, 42 Cal.4th
at p. 606, quoting People v. Ervin (1997) 53 Cal. App. 4th 1323,
1329.)
3. Principles of Statutory Construction
The fundamental rule of statutory construction is to
ascertain the intent of the legislative body in order to effectuate
the purpose of the law. In doing so, we first look to the words of
the enactment and try to give effect to the usual, ordinary import
9
of the language, at the same time not rendering any language
mere surplusage. (Valley Vista Services, Inc. v. City of Monterey
Park (2004) 118 Cal. App. 4th 881, 888 (Valley Vista Services).)
The words must be construed in context and in light of the
nature and obvious purpose of the statute where they appear.
The statute must be given a reasonable and common sense
interpretation consistent with the legislative body’s apparent
purpose and intention. The interpretation should be practical,
not technical, and should result in wise policy rather than
mischief or absurdity. If the language of a statute is clear, we
should not add to or alter it to accomplish a purpose that does not
appear on the face of the statute or from its legislative history.
(Valley Vista Services, supra, 118 Cal.App.4th at pp. 888–889.)
Statutes should be interpreted with reference to the whole
system of law of which they are a part, and sections relating to
the same subject must be read together and harmonized. When
construing a statute, we may consider its legislative history,
including committee and bill reports and other legislative
records. (Valley Vista Services, supra, 118 Cal.App.4th at p. 889.)
4. Section 2022 Is Not Unconstitutionally Vague
The Institute contends that section 2022 is
unconstitutionally vague for two reasons: (1) while it allows for
the sale or import of ivory insofar as it is allowed by federal law,
differences in what federal law allows make it nearly impossible
to tell what would qualify for the exemption provided by section
2022, subdivision (c)(2); and (2) there are no guidelines by which
to determine the permissible volume of ivory in either musical
instruments (§ 2022, subd. (c)(3)) or antiques (§ 2022, subd.
(c)(4)).
4.1 The Federal Law Exemption
The federal Endangered Species Act was Congress’s means
of implementing the United Nations Convention on International
10
Trade in Endangered Species of Wild Fauna and Flora (CITES).
(16 U.S.C. § 1531(4)(F).) Pursuant to the Endangered Species
Act, the United States Fish and Wildlife Service has
implemented a variety of regulations governing the treatment,
import, export, and sale of endangered and threatened species or
their byproducts.
Most relevant here is a regulation promulgated under the
authority of the Endangered Species Act that governs numerous
mammals, including African elephants. (50 C.F.R. § 17.40.)
Under that rule, the interstate and foreign commerce of ivory
from African elephants is prohibited, subject to certain
exceptions. (50 C.F.R. § 17.40(e)(3).) These include handcrafted
or manufactured items containing de minimis amounts of ivory
that do not weigh more than 200 grams or constitute more than
50 percent of the value of the item. (50 C.F.R. § 17.40(e)(3)(iii),
(v), (vi)) Musical instruments containing ivory may be imported
or exported without a special permit if, among other things, the
instrument contains a CITES certificate. (50 C.F.R.
§ 17.40(e)(5)(i)(B).) Antiques containing or consisting of ivory are
not subject to the provisions of the rule and do not require a
special permit. (50 C.F.R. § 17.40(e)(9).)
These rules and others conflict with section 2022, the
Institute contends, making the provision infirm because those
seeking to comply with the statute cannot: (1) determine with
certainty whether a federal law exempts, permits, or authorizes
their conduct; or (2) determine whether more lenient provisions of
federal law will control.
4.2 Existing Federal Law Clarifies Section 2022
The first contention is resolved by application of the rule
that a statute is not vague if its meaning can be determined by
looking at other definable sources of information, including other
statutes. (American Civil Liberties Union v. Board of Education
11
(1963) 59 Cal. 2d 203, 218 (American Civil Liberties Union);
Personal Watercraft Coalition v. Marin County Bd. of Supervisors
(2002) 100 Cal. App. 4th 129, 139 (Personal Watercraft Coalition).)
The plaintiff in American Civil Liberties Union, supra,
59 Cal. 2d 203 sued the Los Angeles Board of Education,
challenging a rule requiring applicants for permits to use school
property for their activities to attest that they would not use the
property for any illegal act. Plaintiff challenged the rule’s
constitutionality on several grounds, including void-for-
vagueness. In reversing the judgment for plaintiff, the Supreme
Court held that the rule was not unconstitutionally vague
because, among other things, it simply incorporated by reference
the definitions of crimes adopted by higher legislative authorities.
(Id. at p. 218.) The court held that a complete definition of what
was prohibited by law could be obtained by reference to the
individual statutes, concluding that “a simple reference to all
such acts in a statute which is not criminal in nature, is not
vague.” (Ibid.)
This rule was applied more recently in Personal Watercraft
Coalition, supra, 100 Cal. App. 4th 129. The plaintiffs there sued
to block a Marin County ordinance that prohibited the use of
personal watercraft (primarily jet skis) on all waters within the
County’s territorial jurisdiction, contending that the ordinance
was unconstitutionally vague. The basis for this contention was
the ordinance’s disclaimer of the intent to intrude on the power of
any regulatory authority having “exclusive jurisdiction” over any
portions of Marin’s shoreline. (Id. at pp. 134, 136.)
Plaintiffs obtained judgment in the trial court on this
ground because the ordinance did not mention unincorporated
areas that would be subject to County control or provide any
geographical reference to understand where those areas would
begin and end. (Personal Watercraft Coalition, supra, 100
12
Cal.App.4th at p. 140.) Instead, the only guideline provided as to
where the ordinance applied was the phrase “as defined by their
natural landmarks,” which did not include any navigational aids
or other boundary markings by which to identify unincorporated
areas. The ordinance also failed to reference buoys, signs, or
general boundary information. (Ibid.)
Characterizing the dispute as a facial challenge to the
ordinance, the Court of Appeal reversed because: (1) despite the
absence of express language limiting the reach of the ordinance
to unincorporated areas, the County’s intent to do so was implicit;
and (2) the absence of specific boundary identification
information was inconsequential given the availability of that
information from various public sources. (Personal Watercraft
Coalition, supra, 100 Cal.App.4th at pp. 140–143.)
The Personal Watercraft Coalition court began by noting “It
should be obvious from the extent and variety of sources that
may be consulted in determining the meaning and content of a
statute that vagueness is not resolved by a simple perusal of
statutory text. A person wondering whether a contemplated
course of conduct is within a statutory prohibition is under a duty
of inquiry to determine whether the latter will reach the
former. . . . That duty does not end with the four corners of the
statute, but extends to consulting ‘other definable sources’ that
may dispel doubt and uncertainty. Difficulty in attempting to
ascertain statutory meaning will neither excuse the failure to
make the attempt, nor will it nullify the statute.” (Personal
Watercraft Coalition, supra, 100 Cal.App.4th at pp. 139–140,
citing Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal. 2d
481, 484; County of Tulare v. City of Dinuba (1922) 188 Cal. 664,
677–678.)
Although the Marin shoreline was a “checkerboard” of
county, state, and federal jurisdictions, there was a County map
13
that delineated some of the jurisdictional boundaries, the
County’s boundary landmarks were set out by statute, and maps
were on file with the State Lands Commission that would show
where any city had incorporated water frontage on the shoreline.
(Personal Watercraft Coalition, supra, 100 Cal.App.4th at pp.
140–142.) Based on the availability of those resources, the court
held the ordinance was not unconstitutionally vague. (Id. at
pp. 140–143.)
We recognize that the Personal Watercraft Coalition court
was applying the pre-Johnson standard that a statute is not
vague unless it is impermissibly vague in all its applications.
(Personal Watercraft Coalition, supra, 100 Cal. App. 4th 129 (See
fn. 5, ante.) Even so, it is particularly useful in both analyzing
how existing federal law clarifies the meaning of section 2022 and
explaining the Institute’s duty of inquiry concerning those laws.
If jet skiers in Marin County were under a duty to locate
and examine statutes and county and state maps to determine
the boundaries of the personal watercraft ordinance in the
Personal Watercraft Coalition case, then it is no reach to conclude
that those wishing to comply with section 2022 are under a
similar duty with regard to any federal laws, exemptions, or
permits that coincide with the scope of that provision. That those
laws exist means they can be found, and the duty to find them
rests with those subject to section 2022. (See Hall, supra,
2 Cal.5th at p. 502 [“The mere fact that defendant is charged
with knowledge of all law that could apply to his situation does
not render the condition unconstitutionally vague”].)
Section 2022 has a single purpose—to prevent the sale or
importation of ivory and rhinoceros horn. Both of those terms are
defined. The Institute has “not demonstrated that attempts to
give substance and meaning” to the three disputed exceptions
“would be fruitless.” (Personal Watercraft Coalition, supra, 100
14
Cal.App.4th at p. 143.) Because federal statutes and other
provisions that might overlap with section 2022 can be
ascertained, the exception for activities authorized by the federal
government is not vague on its face.
4.3 The Institute Improperly Raises Federal
Preemption
The Institute also contends that section 2022 is vague
because it is hard to tell whether the “more lenient” federal rules
will control, given the exception for activities that are exempted,
permitted, or authorized by federal law. (§ 2022, subd. (c)(2).)
On its face, section 2022 states that it does not apply to conduct
approved under federal law. Thus, there is no lack of clarity
concerning the effect of those laws.
At bottom this contention calls on us to examine relevant
federal laws, permits, and exemptions, and determine whether
they are in conflict and, if so, whether they might take
precedence over section 2022. As such, the Institute strays from
the path of void-for-vagueness analysis and veers head-on into
the issue of federal preemption, an issue that it has expressly
waived on appeal.6 We therefore decline to reach this issue.
6 For instance, the Institute cites to the Supremacy Clause
of the United States Constitution (U.S. Const., art. VI, cl. 2) for
the proposition that federal law prevails in case of a conflict with
state law. It also cites to the provision of the Endangered Species
Act that establishes the extent to which that act preempts state
law. (16 U.S.C. § 1535(f).) That section voids any state law that
coincides with the Endangered Species Act to the extent it
permits what the act prohibits, or prohibits what the act has
authorized. However, the federal statute has been interpreted to
allow states to enact more restrictive legislation as to species not
covered by the Endangered Species Act. (H.J. Justin & Sons, Inc.
v. Deukmejian (9th Cir. 1983) 702 F.2d 758, 759–760; Man Hing
15
Even if we were inclined to reach the issue, it would also be
waived because the Institute has directed us to only a handful of
seemingly applicable federal statutes and regulations, and has
failed to cite to relevant case authority or offer any analysis on
the preemption issue. (Orange County Water Dist. v. Alcoa
Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 360.)7
Ivory & Imports, Inc. v. Deukmejian (9th Cir. 1983) 702 F.2d 760,
763.)
As the Institute points out, several species of animal
covered by section 2022 are not covered by the Endangered
Species Act. These include mammoths, mastodons, and
warthogs. (§ 2022, subd. (a)(2).) We note this only to show the
extent to which portions of the Institute’s appellate arguments
implicate the federal preemption issue, as well as to illustrate the
complexities of that issue.
7 Federal preemption is not the only expressly waived issue
that the Institute attempts to raise in its appellate briefs. In
appellate briefing that recounts the history of ivory, with
references that run from the Bible to Emily Post, the Institute
argues that: the law is counter-productive because elephant
populations and their viability differ from country to country
within Africa; ivory bans push prices higher, thereby increasing
the incentive to poach ivory-bearing animals; the basis of the law
is suspect because some studies show that fewer elephants die
from poaching each day than the figure of 96 relied on by the
Legislature; and the law is simply another manifestation of
colonial racism by imposing the values of “California do-gooders”
on sovereign African nations.
Setting aside that none of these assertions is supported by
citation to the record or any supporting authority, we make the
following observations. First, a state may constitutionally
conserve wildlife elsewhere by refusing to accept local complicity
16
4.4 The Antique And Musical Instrument Volume
Exceptions
The Institute also challenges the exceptions for musical
instruments containing less than 20 percent ivory by volume
(§ 2022, subd. (c)(3)) and for antiques containing less than five
percent ivory by volume (§ 2022, subd. (c)(4)). However, its
vagueness challenge is primarily hypothetical.
After stating generally that the law does not explain what
less than 20 percent or five percent by volume means, the
Institute posits a number of hypothetical scenarios: does the bow
of a stringed instrument count as a separate object?; why would
the Legislature bar an ivory figure attached to a small antique
where it constitutes five percent or more of that object, but
permit an exception if the same piece were affixed to a larger
object?; how could the owner of an Old Master’s painting, many of
which used black ivory in the pigments,8 know if the artwork fell
within the volume exception when there is no way to measure the
volume of the ivory?; and how could the heirs of General George
S. Patton know whether they were complying with the law if they
were to sell his famous ivory handled revolvers without knowing
in its destruction. (Viva! Internat. Voice for Animals, supra, 41
Cal.4th at pp. 937–938.) Second, it strikes us as somewhat
absurd to compare section 2022 with the historical heart of
darkness that is the ivory trade.
8 The Institute makes this assertion without citation to any
factual support in the record.
17
the age of the ivory or determining whether the handles exceeded
the five percent minimum.9
However, such hypothetical concerns have no place in a
void-for-vagueness facial challenge. (Zuckerman v. State Board
of Chiropractic Examiners (2002) 29 Cal. 4th 32, 39.) Instead, any
uncertainties that arise in enforcing section 2022 should be
addressed later “in a specific and concrete instance.” (Personal
Watercraft Coalition, supra, 100 Cal.App.4th at p. 143.)
To the extent the Institute contends that the terminology of
percentage by volume is vague on its face, it has supplied the
answer in its opening appellate brief: volume is normally defined
as the capacity of an object based on its shape and size. This
accords with the standard dictionary definition of volume. (See,
e.g., Cambridge Dictionary of the English Language
[volume is defined as “an amount of space
having length, height, and width”].) Because the musical
instruments and antiques exceptions concern physical, tangible
objects that occupy a verifiable amount of three-dimensional
space, the percent of any such objects occupied by ivory can be
readily determined. As a result, the Institute’s facial challenge to
these exceptions also fails.
9At last report, those pistols still resided in the Patton
Gallery of the West Point Museum. ()
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DISPOSITION
The judgment is affirmed. Respondents shall recover their
appellate costs.
CERTIFIED FOR PUBLICATION
MICON, J.*
We concur:
MANELLA, P. J. WILLHITE, J.
*Judge of the Los Angeles County Superior Court assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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