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Cresenzi Bird Importers, Inc. v. New York

Citation: 17 ELR 20996
No. No. 86 Civ. 8146 (WCC), 658 F. Supp. 1441/(S.D.N.Y., 04/28/1987)

The court holds that the New York Wild Bird Law, which bans the sale of wild birds within the state, is not preempted by the Endangered Species Act (ESA) or federal quarantine law and does not impose an unconstitutional burden on interstate commerce. The court first rules that the ESA does not preempt state bans on retail sales of endangered species. Nothing in the legislative history indicates that Congress intended to prevent states from protecting wildlife by restricting sales of endangered species within their jurisdiction, so long as they do not interfere with interstate shipments of products. The court holds that the Wild Bird Law does not violate ESA §6(f), which precludes a state from prohibiting what is authorized pursuant to a permit issued under the ESA. Defendants' importer licenses, which grant permission to engage in the general business of importing or exporting wildlife, are not permits within the meaning of ESA §6(f). The court next holds that New York's law is not preempted by the federal quarantine system for imported wild birds. The law does not render plaintiffs' quarantine stations located in New York obsolete, since it does not ban the importation of wild birds into New York. Birds imported through New York can still be sold as long as the transaction occurs outside the state. Moreover, it is not clear that the state ban would conflict with congressional purposes even if the law makes it economically impossible for plaintiffs to continue operating their quarantine stations.

The court holds that the law does not impose an unconstitutional burden on interstate commerce. The state has a legitimate interest in eliminating from its local market commerce that the legislature has found might lead to the extinction of many species. Moreover, New York has chosen the least discriminatory means of implementing the legislature's desire to withdraw from the wild bird market by requiring that breeders maintain records of birds bred in captivity and place leg bands on captive birds sold in New York. The court holds that the Wild Bird Law does not unconstitutionally impinge on plaintiffs' commercial free speech, since a state may prohibit advertising where the underlying sale is illegal.

The court holds that the Eleventh Amendment bars plaintiffs' claims against the commissioner of the New York Department of Environmental Conservation, since they are based on state law. The court abstains from deciding plaintiffs' constitutional claims concerning vagueness and equal protection under the Pullman doctrine. Both claims might be mooted by determinations of state law. Since no New York court has yet interpreted the Wild Bird Law, there is no basis on which the federal court can predict how the New York courts would rule.

Counsel for Plaintiffs
Jane Bilus Gould
Lovett & Gould
180 E. Post Rd., White Plains NY 10601
(914) 428-8401

Counsel for Defendants
Robert Abrams, Attorney General; Ezra I. Bialik, Ass't Attorney General
Department of Law
State Capitol, Albany NY 12224
(518) 474-7330