Stanford Law School - Robert Crown Law Library

Filed 7/23/07

IN THE SUPREME COURT OF CALIFORNIA

VIVA! INTERNATIONAL VOICE FOR )
ANIMALS et al.,
Plaintiffs
and
Appellants,
S140064
v.
Ct.App. 1/1 A106960
ADIDAS PROMOTIONAL RETAIL
OPERATIONS, INC., et al.,
City and County of
San
Francisco
Defendants and Respondents. )
Super. Ct. No. 420214

State law prohibits the importation into or sale within California of
products made from kangaroo. (Pen. Code, § 653o.) Defendant adidas
Promotional Retail Operations, Inc., concedes it imports into and sells in
California athletic shoes made from kangaroo hide, but argues Penal Code section
653o is preempted because it conflicts with federal policies intended to influence
Australian kangaroo management practices. As section 653o poses no obstacle to
any current federal policy, we conclude it is not preempted, and we reverse the
Court of Appeal’s contrary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The material facts are undisputed. Defendants adidas Promotional Retail
Operations, Inc., Sport Chalet, and Offside Soccer (collectively Adidas) are
California retailers that sell athletic shoes made from kangaroo leather imported
from Australia. Specifically, Adidas sells athletic shoes made from the hides of
1

---

three kangaroo species: the red kangaroo (Macropus rufus), the eastern grey
kangaroo (Macropus giganteus), and the western grey kangaroo (Macropus
fuliginosus). Kangaroos are indigenous to Australia and New Guinea; the three
species at issue here exist only in Australia.1
Plaintiff Viva! International Voice for Animals is an international nonprofit
organization devoted to protecting animals. Plaintiff Jerold Friedman is a resident
of Los Angeles County. Plaintiffs (collectively Viva) sued Adidas for engaging in
an unlawful business practice by importing and selling athletic shoes made from
kangaroo leather. (Bus. & Prof. Code, § 17200.) Viva alleged the importation and
sale of Adidas’s shoes violated Penal Code section 653o, which regulates trade in
various animal species, including kangaroos.
Both sides sought summary judgment; the trial court denied Viva’s motion
and granted Adidas’s motion. It agreed with Adidas that Penal Code section 653o
was preempted by the Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.)
because it undermined federal actions taken under the act to influence the
Australian state and federal governments to preserve threatened kangaroo species.
The Court of Appeal affirmed. While acknowledging the preemption
question was close, it agreed with the trial court that the “statute as applied to
defendants in this case conflicts with federal law and with substantial federal
objectives of persuading Australian federal and state governments to impose
kangaroo population management programs, in exchange for allowing the
importation of kangaroo products.”
We granted review to resolve this important preemption question.

1
“Kangaroo” is the common name for the indigenous Australian animal of
the scientific superfamily Macropodoidea (or macropods). There are at least 69
species of macropods.
2

---

DISCUSSION
We begin by noting what we are not called upon to decide. The
Commonwealth of Australia is free to manage its indigenous wildlife populations
in any manner it sees fit, subject to international treaty obligations. Likewise,
California is free to regulate within its own borders unless federal law or the
United States Constitution requires otherwise. It is not our role to judge the
wisdom of Australia’s wildlife management practices, which Adidas and amicus
curiae the Government of the Commonwealth of Australia defend and Viva and
amicus curiae the Animal Legal Defense Fund criticize, nor the wisdom of
California’s wildlife rules or the federal government’s statutes and regulations.
The only question before us is whether California’s rules can coexist with federal
law.
I. Preemption Principles
The supremacy clause of the United States Constitution establishes a
constitutional choice-of-law rule, makes federal law paramount, and vests
Congress with the power to preempt state law. (U.S. Const., art. VI, cl. 2;
Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516; Jevne v. Superior
Court (2005) 35 Cal.4th 935, 949.)2 There are four species of federal preemption:

2
We note some controversy over the true source of Congress’s power to
preempt state regulation. (Compare Gade v. National Solid Wastes Management
Assn. (1992) 505 U.S. 88, 108 [preemption doctrine is “derived” from the
supremacy clause], and Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982)
458 U.S. 141, 152 [“The pre-emption doctrine . . . has its roots in the Supremacy
Clause”], with Gardbaum, Congress’s Power to Preempt the States (2005) 33
Pepperdine L.Rev. 39, 49-51 [arguing that the necessary and proper clause, U.S.
Const., art. I, § 8, cl. 18, is the true source of the preemption power], and Dinh,
Reassessing the Law of Preemption (2000) 88 Geo. L.J. 2085, 2091 [arguing
preemption power is pendant to enumerated powers in U.S. Const., art. I, § 8].)
While the source of the power may be subject to question, its existence is not.
3

---

express, conflict, obstacle, and field. (See Bronco Wine Co. v. Jolly (2004) 33
Cal.4th 943, 955.)3
First, express preemption arises when Congress “define[s] explicitly the
extent to which its enactments pre-empt state law. [Citation.] Pre-emption
fundamentally is a question of congressional intent, [citation], and when Congress
has made its intent known through explicit statutory language, the courts’ task is
any easy one.” (English v. General Electric Co., supra, 496 U.S. at pp. 78-79;
accord, Jevne v. Superior Court, supra, 35 Cal.4th at p. 949.) Second, conflict
preemption will be found when simultaneous compliance with both state and
federal directives is impossible. (Hillsborough County v. Automated Medical
Labs. (1985) 471 U.S. 707, 713; Olszewski v. Scripps Health (2003) 30 Cal.4th
798, 815.) Third, obstacle preemption arises when “ ‘under the circumstances of
[a] particular case, [the challenged state law] stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.’ ”
(Crosby v. National Foreign Trade Council, supra, 530 U.S. at p. 373, quoting
Hines v. Davidowitz (1941) 312 U.S. 52, 67; accord, Bronco Wine Co. v. Jolly,
supra, 33 Cal.4th at p. 955.) Finally, field preemption, i.e., “Congress’ intent to
pre-empt all state law in a particular area,” applies “where the scheme of federal

3
“The categories of preemption are not ‘rigidly distinct.’ ” (Crosby v.
National Foreign Trade Council (2000) 530 U.S. 363, 372, fn. 6; accord, Peatros
v. Bank of America (2000) 22 Cal.4th 147, 158, fn. 1 (lead opn. of Mosk, J.).) We
and the United States Supreme Court have often identified only three species of
preemption, grouping conflict preemption and obstacle preemption together in a
single category. (See, e.g., English v. General Electric Co. (1990) 496 U.S. 72,
78-79; Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th
910, 923.) As conflict and obstacle preemption are analytically distinct and may
rest on wholly different sources of constitutional authority, we treat them as
separate categories here. (See, e.g., Dinh, Reassessing the Law of Preemption,
supra, 88 Geo. L.J. at pp. 2102-2105.)
4

---

regulation is sufficiently comprehensive to make reasonable the inference that
Congress ‘left no room’ for supplementary state regulation.” (Hillsborough
County, at p. 713, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218,
230.)
“ ‘[C]ourts are reluctant to infer preemption, and it is the burden of the
party claiming that Congress intended to preempt state law to prove it.’ ”
(Olszewski v. Scripps Health, supra, 30 Cal.4th at p. 815, quoting Elsworth v.
Beech Aircraft Corp. (1984) 37 Cal.3d 540, 548; accord, Bronco Wine Co. v. Jolly,
supra, 33 Cal.4th at pp. 956-957.)
We consider in turn the state and federal law at issue.
II. Penal Code Section 653o and Preemption Presumptions
Penal Code section 653o was enacted in 1970 and expanded to include
kangaroos in 1971. (Stats. 1970, ch. 1557, § 1, p. 3186; Stats. 1971, ch. 1283, § 1,
pp. 2511-2512.) Subdivision (a) of section 653o provides in relevant part: “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
any polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis
lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna,
sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish
lynx, or elephant.” (Italics added.) Section 653o was passed to prevent the
extinction of species the Legislature deemed threatened. (People v. K. Sakai Co.
(1976) 56 Cal.App.3d 531, 536.)
In the trial court and Court of Appeal, Adidas argued unsuccessfully that
Penal Code section 653o should be construed as applying only to those species
currently federally listed as endangered. Each court concluded section 653o’s
plain language dictated a contrary result, as the statute applies to “any . . .
kangaroo” product, without qualification for federal endangered species status.
5

---

Instead, the statute rests on a legislative judgment that the species listed merit
special state concern, without regard to their federal status. Like the Court of
Appeal, we agree the plain language of the statute extends its scope to all
kangaroos and does not depend on the vicissitudes of federal protection.
Penal Code section 653o addresses an area typically regulated by, and
historically within the traditional police powers of, the states—wildlife
management.4 Notwithstanding Adidas’s contrary argument, the scope of this
power has long been recognized as extending even to regulation of foreign
species: “[A] state may constitutionally conserve wildlife elsewhere by refusing
to accept local complicity in its destruction. The states’ authority to establish local
prohibitions with respect to out-of-state wildlife has, since the late nineteenth-
century, been recognized by the courts.” (Cresenzi Bird Importers, Inc. v. State of
N.Y. (S.D.N.Y. 1987) 658 F.Supp. 1441, 1447; see Maine v. Taylor (1986) 477
U.S. 131, 151-152 [upholding import restrictions on out-of-state fish as valid
exercise of state police powers]; A. E. Nettleton Company v. Diamond, supra, 264

4 See
Kleppe v. New Mexico (1976) 426 U.S. 529, 545 (“the States have
broad trustee and police powers over wild animals within their jurisdictions” and
“ ‘may regulate the killing and sale of [wildlife]’ ”); Silz v. Hesterberg (1908) 211
U.S. 31, 39 (state police power extends to wildlife regulation); Geer v.
Connecticut (1896) 161 U.S. 519, 522-527, overruled on other grounds by Hughes
v. Oklahoma (1979) 441 U.S. 322 (tracing history of governmental power to
control private taking of wildlife under Greek, Roman, and English law); Lawton
v. Steele (1894) 152 U.S. 133, 138 (“The preservation of game and fish, however,
has always been treated as within the proper domain of the police power”); People
v. K. Sakai Co., supra, 56 Cal.App.3d at page 536 (“[I]t cannot be argued that the
protection of endangered species of wildlife is not within the ambit of the police
power”); DeHart v. Town of Austin, Ind. (7th Cir. 1994) 39 F.3d 718, 722 (“The
regulation of animals has long been recognized as part of the historic police power
of the States”); A. E. Nettleton Company v. Diamond (N.Y. 1970) 264 N.E.2d 118,
122 (“[I]t is almost axiomatic that wildlife conservation has been a matter
traditionally left to the States”).
6

---

N.E.2d at pp. 121-122 [upholding New York regulation of crocodiles].) This
broad power is justified in part by an increased understanding of the deep
interconnectedness of the global ecosystem, because “ ‘[i]t is now generally
recognized that the destruction or disturbance of vital life cycles or of the balance
of a species of wildlife, even though initiated in one part of the world, may have a
profound effect upon the health and welfare of people in other distant parts.’ ”
(People v. K. Sakai Co., supra, 56 Cal.App.3d at pp. 535-536 [upholding
California regulation of whales], quoting Palladio, Inc. v. Diamond (S.D.N.Y.
1970) 321 F.Supp. 630, 631, affd. (2d Cir. 1971) 440 F.2d 1319.)
There is a presumption against federal preemption in those areas
traditionally regulated by the states: “[W]e start with the assumption that the
historic police powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” (Rice v. Santa Fe
Elevator Corp., supra, 331 U.S. at p. 230; accord, Bates v. Dow Agrosciences LLC
(2005) 544 U.S. 431, 449; Bronco Wine Co. v. Jolly, supra, 33 Cal.4th at p. 974
[in areas of traditional state regulation, a “strong presumption” against preemption
applies and state law will not be displaced “unless it is clear and manifest that
Congress intended to preempt state law”]; Olszewski v. Scripps Health, supra, 30
Cal.4th at p. 815 [presumption against preemption “ ‘provides assurance that the
“federal-state balance” [citation] will not be disturbed unintentionally by Congress
or unnecessarily by the courts’ ”].)
However, Penal Code section 653o and the Endangered Species Act of
1973 also touch on matters implicating foreign affairs. As previously noted, the
entire wild kangaroo population is confined to the Commonwealth of Australia
and Papua New Guinea, and the three species at issue here exist only in Australia.
Additionally, as we shall discuss, the act itself was passed in part to ensure the
7

---

United States could meet its international conservation treaty obligations. (See 16
U.S.C. § 1531(a)(4), (b).)
In Crosby v. National Foreign Trade Council, supra, 530 U.S. 363, the
United States Supreme Court addressed an exercise of a state’s traditional powers
(its spending power) in a manner that touched on foreign affairs. It concluded
Massachusetts’s policy of not purchasing goods and services from persons doing
business with Myanmar (Burma) was preempted by a federal act imposing its own
sanctions on Burma. In doing so, the high court elected to “leave for another day a
consideration in this context of a presumption against preemption. [Citation.]
Assuming, arguendo, that some presumption against preemption is appropriate,”
the court nevertheless concluded “the state Act presents a sufficient obstacle to the
full accomplishment of Congress’s objectives under the federal Act to find it
preempted.” (Id. at p. 374, fn. 8.) Crosby thus left open the possibility that either
no presumption, or a substantially weakened presumption, should apply in such
instances.
In American Ins. Assn. v. Garamendi (2003) 539 U.S. 396, the United
States Supreme Court returned to foreign affairs preemption, this time in the
context of a putative conflict between executive agreements reached with various
foreign nations and a California law regulating insurers who had issued Holocaust-
era insurance policies. The court concluded that under either a field or obstacle
preemption analysis the law was preempted. (Id. at pp. 419-420.) In the course of
its preemption analysis, it neither referenced nor applied any presumptions, instead
concluding under neutral analytical principles there was a “clear conflict” between
state law and federal policy. (Id. at p. 421.)
Taking the most conservative course, we read Crosby v. National Foreign
Trade Council, supra, 530 U.S. 363, and American Ins. Assn. v. Garamendi,
supra, 539 U.S. 396, as implying that, where a traditional state exercise of the
8

---

police power implicates foreign affairs concerns, no particular presumption
applies.5 Instead, we turn to the language of the Endangered Species Act of 1973
and allow the statute’s text to guide us under ordinary principles of interpretation.
(See Goldsmith, Statutory Foreign Affairs Preemption (2000) 2000 S.Ct. Rev.
175, 177 [“When a foreign relations statute touches on traditional state
prerogatives, both canons are implicated, and both lose coherence. The prudent
course is for courts to apply ‘ordinary’ principles of preemption without any
presumption in favor of state or federal law, even when they think the statute
concerns foreign affairs”].)
In every preemption analysis, congressional intent is the “ ‘ultimate
touchstone’ ” (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485; Jevne v. Superior
Court, supra, 35 Cal.4th at p. 949) and the statutory text the best indicator of that
intent (Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 62-63). As a majority of
the current United States Supreme Court has agreed at one time or another, “pre-
emption analysis is not ‘[a] freewheeling judicial inquiry into whether a state
statute is in tension with federal objectives,’ (Gade v. National Solid Wastes
Management Assn.[, supra,] 505 U.S. [at p.] 111 [conc. opn. of Kennedy, J.]), but
an inquiry into whether the ordinary meanings of state and federal law conflict.”
(Bates v. Dow Agrosciences LLC, supra, 544 U.S. at p. 459 (conc. & dis. opn. of
Thomas, J., joined by Scalia, J.); accord, Geier v. American Honda Motor Co.
(2000) 529 U.S. 861, 911 (dis. opn. of Stevens, J., joined by Souter, J., Thomas, J.

5
We need not, and do not, formally decide whether this is so. Even if some
form of a presumption against preemption survives these cases in situations
touching on foreign affairs, it does not affect the outcome here because, as we
shall discuss, even without an antipreemption presumption, we find no basis for
preemption.
9

---

& Ginsburg, J.) [“In my view, however, ‘preemption analysis is, or at least should
be, a matter of precise statutory [or regulatory] construction rather than an exercise
in free-form judicial policymaking’ ”].)
III. The Endangered Species Act of 1973
Responding to rising national and international concern over the impact of
humans on other species, Congress passed the Endangered Species Act of 1973
(16 U.S.C. § 1531 et seq.) (Act), at the time “the most comprehensive legislation
for the preservation of endangered species ever enacted by any nation.” (TVA v.
Hill (1978) 437 U.S. 153, 180.) Congress found that various species of fish,
wildlife, and plants in the United States had been rendered extinct or threatened
with extinction. (16 U.S.C. § 1531(a)(1), (2); H.R.Rep. No. 93-412, 1st Sess., pp.
1-2 (1973).) It identified as the purposes of the Act “to provide a means whereby
the ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such endangered
species and threatened species,” and to effectuate various international
conservation treaties and conventions. (16 U.S.C. § 1531(b).) “The plain intent of
Congress in enacting [the Act] was to halt and reverse the trend toward species
extinction, whatever the cost.” (TVA, at p. 184.)
States were to play an essential role in species preservation. Congress
declared that “encouraging the States . . . through Federal financial assistance and
a system of incentives, to develop and maintain conservation programs which
meet national and international standards is a key to meeting the Nation’s
international commitments and to better safeguarding, for the benefit of all
citizens, the Nation’s heritage in fish, wildlife, and plants.” (16 U.S.C.
§ 1531(a)(5).) In section 6 of the Act (16 U.S.C. § 1535 and its subparts),
Congress defined precisely the respective roles of the federal and state
governments in carrying out these policies. It directed the Secretary of the Interior
10

---

to “cooperate to the maximum extent practicable with the States.” (Id., § 1535(a).)
It further authorized management agreements, pursuant to which the state and
federal governments would manage conservation areas (id., § 1535(b)), and
cooperative agreements, pursuant to which the federal government would assist
states in implementing conservation programs (id., § 1535(c)).
The Act’s legislative history confirms this vision of a joint cooperative
state-federal approach to wildlife preservation. “The Senate believed that a federal
wildlife program should not preempt similar state regulation. The committee
responsible for the Senate bill reported that ‘[w]hile the Federal government
should protect such species where States have failed to meet minimum Federal
standards, it should not preempt efficient programs. Instead[,] it should encourage
these, and aid in the extension or establishment of others, to facilitate management
by granting regulatory authority and making available financial assistance to
approved schemes.’ ” (Cresenzi Bird Importers, Inc. v. State of N.Y., supra, 658
F.Supp. at p. 1444, quoting Sen.Rep. No. 93-307, 1st Sess. (1973), reprinted in
1973 U.S. Code Cong. & Admin. News, pp. 2989, 2991-2992; see also H.R.Rep.
No. 93-412, 1st Sess., supra, p. 7; Note, Federal Preemption of State Commerce
Bans Under the Endangered Species Act (1982) 34 Stan. L.Rev. 1323, 1328-1330
[analyzing language and legislative history of the Act and concluding it “expressly
anticipates and authorizes concurrent state regulation as a key element of the
overall regulatory scheme”].)
With that background in mind, we turn to the Act’s key provision for our
purposes, section 6(f) of the Act, codified at 16 U.S.C. section 1535(f) (hereafter
section 6(f)),6 which expressly spells out the intended preemptive scope of the

6
Where a statute “contains an express pre-emption clause, our ‘task of
statutory construction must in the first instance focus on the plain wording of the

(footnote continued on next page)
11

---

Act: “Any State law or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in, endangered species or
threatened species is void to the extent that it may effectively (1) permit what is
prohibited by this chapter or by any regulation which implements this chapter, or
(2) prohibit what is authorized pursuant to an exemption or permit provided for in
this chapter or in any regulation which implements this chapter.” (§ 6(f), italics
added.) The second half of section 6(f) is a savings clause: “This chapter shall
not otherwise be construed to void any State law or regulation which is intended to
conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit
sale of such fish or wildlife. Any State law or regulation respecting the taking of
an endangered species or threatened species may be more restrictive than the
exemptions or permits provided for in this chapter or in any regulation which
implements this chapter but not less restrictive than the prohibitions so defined.”
Various aspects of the express preemption clause and savings clause are
significant. First, these provisions continue the cooperative framework established
elsewhere in the Act, under which federal and state regulation should be allowed
to coexist to the extent practicable. Where Congress establishes a regime of dual
state-federal regulation, “conflict-pre-emption analysis must be applied sensitively
. . . so as to prevent the diminution of the role Congress reserved to the States
while at the same time preserving the federal role.” (Northwest Cent. Pipeline v.
Kan. Corp. Comm’n (1989) 489 U.S. 493, 515; see also New York Dept. of Social
Services v. Dublino (1973) 413 U.S. 405, 421 [“Where coordinate state and federal

(footnote continued from previous page)
clause, which necessarily contains the best evidence of Congress’ pre-emptive
intent.’ ” (Sprietsma v. Mercury Marine, supra, 537 U.S. at pp. 62-63, quoting
CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664.)
12

---

efforts exist within a complementary administrative framework, and in the pursuit
of common purposes, the case for federal pre-emption becomes a less persuasive
one”].)
Second, section 6(f) demonstrates a congressional intent to preempt only
narrowly. (Man Hing Ivory and Imports, Inc. v. Deukmejian (9th Cir. 1983) 702
F.2d 760, 763 [§ 6(f) “allows full implementation of [Penal Code] section 653o so
long as the state statute does not prohibit what the federal statute or its
implementing regulations permit”]; Cresenzi Bird Importers, Inc. v. State of N.Y.,
supra, 658 F.Supp. at p. 1444 [§ 6(f) “evince[s] a clear Congressional intent to
preempt state wildlife conservation laws only to a very limited extent”].) While
federal law establishes a regulatory floor for listed (i.e., endangered or threatened)
species, “[a]ny State law or regulation respecting the taking of an endangered
species or threatened species may be more restrictive than the exemptions or
permits provided for in this chapter or in any regulation which implements this
chapter.” (§ 6(f), italics added; see also Man Hing Ivory and Imports, Inc., at
p. 763, fn. 3 [the Act was rewritten to “ ‘make it clear that the states would and
should be free to adopt legislation or regulations that might be more restrictive
than that of the Federal government and to enforce the legislation,’ ” quoting
H.R.Rep. No. 93-412, 1st Sess., supra, p. 7]; Cresenzi Bird Importers, Inc., at
p. 1444 [“ ‘[S]tate law is not pre-empted, but is merely subject to the Federal
“floor” of regulations under the Act,’ ” quoting H.R.Rep. No. 93-412, supra,
p. 14].)
Third, with respect to unlisted species, section 6(f) leaves undisturbed the
states’ broad traditional regulatory authority. The text of the section’s savings
clause preserves state power to enact more stringent regulations even with respect
to threatened and endangered species, those species for which federal concern is
greatest. Neither section 6(f)’s preemption clause nor its savings clause mentions
13

---

any impact on state power over unlisted species; by inference, that power is at
least as great or greater than over federally regulated endangered or threatened
species.
The legislative history confirms as much. Discussing the effect of section
6(f), the House Committee on Merchant Marine and Fisheries explained:
“Existing state endangered species programs would, for example, be in a position
to include species which were not on the Federal list. . . . [L]aws already passed
in States such as New York, California and Hawaii, which list additional species
or prohibit such activities as sales within their jurisdiction[,] would be unaffected.”
(H.R.Rep. No. 93-412, 1st Sess., supra, p. 14, italics added; id. at p. 8 [with one
exception, “the State powers to regulate in a more restrictive fashion or to include
additional species remain unimpaired” (italics added)].)
The federal courts that have interpreted the Act agree. Thus, in H.J. Justin
& Sons, Inc. v. Deukmejian (9th Cir. 1983) 702 F.2d 758, a boot manufacturer
sought preemption of Penal Code section 653o with respect to two unlisted
species, including the wallaby kangaroo, and one listed species. The Ninth Circuit
found no preemption of section 653o as it applied to unlisted species; because the
species were neither endangered nor threatened, “section 6(f) of the Act has no
application to state regulations restricting or prohibiting trade in those species.”
(H.J. Justin & Sons, Inc., at p. 759; see also Man Hing Ivory and Imports, Inc. v.
Deukmejian, supra, 702 F.2d at p. 763, fn. 3 [“[T]he legislative history of the
[Act] unequivocally shows that Congress meant for federal law to preempt state
law pursuant to the first sentence of section 6(f) only where the species was listed
as endangered on the federal list”]; id. at p. 765, fn. 4 [“the state is free to prohibit
14

---

entirely trade in . . . unlisted species”]; Cresenzi Bird Importers, Inc. v. State of
N.Y., supra, 658 F.Supp. at pp. 1444-1445.)7
The only exception to this preservation of state power is for activities
specifically authorized by a federal exemption or permit. (§ 6(f) [state may not
“prohibit what is authorized pursuant to an exemption or permit”]; H.R.Rep. No.
93-412, 1st Sess., supra, p. 14 [“The only exception to [unfettered state power
over unlisted species] is contained in the language which expressly prohibits the
state from voiding actions specifically permitted by Federal agencies”]; Man Hing
Ivory and Imports, Inc. v. Deukmejian, supra, 702 F.2d at p. 763; see 16 U.S.C.
§ 1539 [authorizing issuance of federal permits and exemptions].)8
Section 6(f) does not expressly preempt Penal Code section 653o; the Act
does not occupy the field of kangaroo import and sales regulation (see Jevne v.
Superior Court, supra, 35 Cal.4th at p. 950 [inclusion of savings clause in a statute
negates field preemption]); and there is no conflict preemption, as simultaneous
compliance with both federal law, which as a floor matter allows kangaroo trade,
and state law, which imposes a higher standard and prohibits it, is not a “ ‘physical
impossibility’ ” (Hillsborough County v. Automated Medical Labs., supra, 471
U.S. at p. 713, quoting Florida Avocado Growers v. Paul (1963) 373 U.S. 132,
143). Thus, we consider the interplay of section 6(f) and the Act’s implementing

7
Adidas dismisses H.J. Justin & Sons, Inc. v. Deukmejian, supra, 702 F.2d
758, and Man Hing Ivory and Imports, Inc. v. Deukmejian, supra, 702 F.2d 760, as
addressing only express preemption. True enough. But insofar as they construe
the scope of section 6(f), and insofar as the scope of section 6(f) is relevant even to
an implied preemption analysis (see post, pt. IV.A.), the Ninth Circuit’s
conclusions in these cases are instructive and persuasive.
8
As well, states may not purport to authorize what federal law forbids, but
this exception is not implicated here.
15

---

regulations with Penal Code section 653o solely in the context of an assertion of
obstacle preemption.
IV. Obstacle Preemption
A. The Role of an Express Preemption Provision in Implied
Preemption Analysis
We begin with a point overlooked by the Court of Appeal: the central role
of the Act’s express preemption provision even in implied preemption analysis.
A majority of the United States Supreme Court once suggested that where
Congress had enacted an express preemption provision, that provision was the
exclusive and final statement of congressional preemptive intent and thus obviated
any consideration of implied preemption doctrines. (Cipollone v. Liggett Group,
Inc., supra, 505 U.S. at p. 517; id. at pp. 531-532 (conc. & dis. opn. of Blackmun,
J.); see also Medtronic, Inc. v. Lohr, supra, 518 U.S. at p. 484 [“[T]he pre-emptive
language of [the statute] means that we need not go beyond that language to
determine whether Congress intended the [statute] to pre-empt at least some state
law”].)
A slightly more tempered view of the force of express preemption
provisions has since prevailed. In Freightliner Corp. v. Myrick (1995) 514 U.S.
280, the court clarified the relation between express preemption clauses and
implied preemption doctrines, explaining that “an express definition of the pre-
emptive reach of a statute ‘implies’—i.e., supports a reasonable inference—that
Congress did not intend to pre-empt other matters,” but the express clause does not
“entirely foreclose[] any possibility of implied pre-emption.” (Id. at p. 288; see
also id. at p. 289 [“Cipollone supports an inference that an express pre-emption
clause forecloses implied pre-emption; it does not establish a rule”].) This
inference is a simple corollary of ordinary statutory interpretation principles and in
particular “a variant of the familiar principle of expressio unius est exclusio
16

---

alterius: Congress’ enactment of a provision defining the pre-emptive reach of a
statute implies that matters beyond that reach are not pre-empted.” (Cipollone v.
Liggett Group, Inc., supra, 505 U.S. at p. 517.) The Freightliner view is now well
established. (See Sprietsma v. Mercury Marine, supra, 537 U.S. at p. 69;
Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541 [“In these cases our task
is to identify the domain expressly pre-empted, [citation], because ‘an express
definition of the pre-emptive reach of a statute . . . supports a reasonable inference
. . . that Congress did not intend to pre-empt other matters’ ”]; Bronco Wine Co. v.
Jolly, supra, 33 Cal.4th at pp. 988-989 [relying on and applying the inference].)
The Freightliner inference applies here. Congress has expressly identified
the scope of the state law it intends to preempt; hence, we infer Congress intended
to preempt no more than that absent sound contrary evidence. Neither
Freightliner nor any subsequent case has spelled out precisely what force to
accord this inference, and we need not do so here. As we shall discuss, Adidas’s
evidence is insufficient to contradict the inference under any standard.9
B. Preemption by Nonregulation
Here, Adidas asserts preemption by nonregulation. In the absence of any
positive statutory provision or regulation governing kangaroos, Adidas relies on

9
We note as well that “Congress has the power to preclude conflict [and
obstacle] preemption, allowing states to enforce laws even if those laws are in
direct conflict with federal law or frustrate the purpose of federal law” (Dowhal v.
SmithKline Beecham Consumer Healthcare, supra, 32 Cal.4th at p. 924; see Geier
v. American Honda Motor Co., supra, 529 U.S. at p. 872), but it did not exercise
that power here. Section 6(f) expressly preserves preemption of state law that
conflicts with the Act or its enabling regulations and also preempts state law that
stands as an obstacle to federal policies, at least insofar as those polices are
expressed in a positively adopted permit, exemption, or regulation.
17

---

the history of the federal government’s involvement with Australian kangaroo
management practices.
The United States Supreme Court has recognized that even the absence of
federal regulation may give rise to implied preemption. (Sprietsma v. Mercury
Marine, supra, 537 U.S. at p. 66; Freightliner Corp. v. Myrick, supra, 514 U.S. at
p. 286; Arkansas Elec. Coop. v. Ark. Public Serv. Comm’n (1983) 461 U.S. 375,
384.) However, preemption in such circumstances is confined to situations
“ ‘where failure of . . . federal officials affirmatively to exercise their full authority
takes on the character of a ruling that no such regulation is appropriate or
approved pursuant to the policy of the statute.’ ” (Ray v. Atlantic Richfield Co.
(1978) 435 U.S. 151, 178, quoting Bethlehem Co. v. State Board (1947) 330 U.S.
767, 774.) In essence, Congress or federal authorities may preempt without
regulating, but only by affirmatively deciding no state regulation is permitted.
Congress certainly has not done so. Instead, Adidas argues, and the Court
of Appeal agreed, that the United States Fish and Wildlife Service’s (Fish and
Wildlife) historical treatment of red, eastern grey, and western grey kangaroos
demonstrates an affirmative intent to create, with respect to these three species, a
zone free from state regulation. According to Adidas, that history shows Fish and
Wildlife has adopted a “carrot and stick” approach, offering the threat of a ban on
imports as a stick and access to United States markets as a carrot to induce
Australian state and federal governments to conserve kangaroos. Thus, Adidas
reasons, Penal Code section 653o’s ban stands as an obstacle to federal policy by
diminishing the size of the carrot Fish and Wildlife can offer.
We examine the regulatory history mindful of the fact this is an area where
Congress expressly contemplated a cooperative system of state and federal
regulation, and where preemption analysis must remain sensitive to preserving the
respective state and federal roles. (Northwest Cent. Pipeline v. Kan. Corp.
18

---

Comm’n, supra, 489 U.S. at pp. 514-515.) As well, we are especially reluctant to
infer obstacle preemption based on agency actions as opposed to statute. (Bronco
Wine Co. v. Jolly, supra, 33 Cal.4th at p. 992.) Thus, Adidas must show in the
history it relies on an “ ‘authoritative’ message of a federal policy against” state
regulation (Sprietsma v. Mercury Marine, supra, 537 U.S. at p. 67) and “clear
evidence of a conflict” between state and federal goals (Geier v. American Honda
Motor Co., supra, 529 U.S. at p. 885).
C. Federal Regulation—and Deregulation—of Kangaroos
The parties do not dispute the outline of Fish and Wildlife’s treatment of
kangaroos as recited by the Court of Appeal and reflected in the Federal Register.
We draw from these sources in describing that history.
In the 20th century, a commercial market developed in Australia for
kangaroo hides and meat. By the early 1970’s, the kangaroo population had
dropped to the point that the Australian state and federal governments instituted
protective measures such as a ban on exports and species-specific quotas on the
killing of kangaroos for commercial use. (39 Fed.Reg. 11903 (Apr. 1, 1974); 45
Fed.Reg. 40958-40959 (June 16, 1980).)
In April 1974, Fish and Wildlife proposed listing the red, eastern grey, and
western grey kangaroo as endangered species under the Act.10 (39 Fed.Reg.
11903 (Apr. 1, 1974); 45 Fed.Reg. 40958 (June 16, 1980).) In December 1974,
after receiving public input and further considering the Act’s criteria, Fish and
Wildlife instead listed these three species as threatened.11 (39 Fed.Reg. 44990

10
An endangered species is one “in danger of extinction throughout all or a
significant portion of its range.” (16 U.S.C. § 1532(6).)
11
A threatened species is one “likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range.” (16

(footnote continued on next page)
19

---

(Dec. 30, 1974); 45 Fed.Reg. 40959 (June 16, 1980).) Such a listing carries with it
a prohibition on importation of the species, subject to exemptions or permits
issued under the Act. (16 U.S.C. §§ 1538, 1539; 50 C.F.R. §§ 17.21(b), 17.31(a)
(2007).) Fish and Wildlife thereafter formally banned commercial importation of
the three species, as well as their body parts and products made from the bodies of
the species. (45 Fed.Reg. 40959 (June 16, 1980); 60 Fed.Reg. 12888 (Mar. 9,
1995).) The ban was to remain in place until those Australian states commercially
harvesting the three species “could assure the United States that they had effective
management plans for the kangaroos, and that taking would not be detrimental to
the survival of kangaroos.” (60 Fed.Reg. 12905 (Mar. 9, 1995); see 16 U.S.C.
§ 1533(d) [authorizing special species regulations]; 50 C.F.R. §§ 17.21(b),
17.31(a) (2007) [import restrictions apply absent special regulation].)
In 1979, consistent with a provision of the Act requiring periodic
reappraisal (16 U.S.C. § 1533(c)(2)), Fish and Wildlife revisited the listing of
these kangaroo species. (45 Fed.Reg. 40959 (June 16, 1980).) It found all three
remained threatened “because of the susceptibility of these animals to
overexploitation and because of the difficulty in predicting the severity and
damage that might be caused by natural or man-made factors affecting them” (46
Fed.Reg. 23929 (Apr. 29, 1981)), but concluded the four states commercially
harvesting kangaroo—Queensland, New South Wales, South Australia, and
Western Australia—had adopted effective management plans and commercial

(footnote continued from previous page)
U.S.C. § 1532(20).) Listing as a threatened or endangered species depends on
consideration of threatened habitat loss, commercial or other overuse, disease,
predation, the lack of adequate protective regulatory mechanisms, and any other
factor affecting continued existence. (Id., § 1533(a)(1); 50 C.F.R. § 424.11(c)
(2007).)
20

---

killing within the limits the plans established would “not be detrimental to the
survival of the species.” (Ibid.) On that basis, in April 1981 Fish and Wildlife
issued a special final rule, subject to reevaluation after two years, lifting the ban on
commercial importation into the United States of products made from the red,
eastern grey, and western grey kangaroo. (Ibid.; former 50 C.F.R.
§ 17.40(a)(1)(i)(B) (repealed 60 Fed.Reg. 12906 (Mar. 9, 1995)).)
In 1983, Fish and Wildlife reviewed the situation and elected to continue
allowing commercial importation. (48 Fed.Reg. 34757 (Aug. 1, 1983).) It also
proposed delisting the three kangaroo species. (48 Fed.Reg. 15428 (Apr. 8, 1983);
60 Fed.Reg. 12888 (Mar. 9, 1995).) Subsequently, however, new data from the
Australian government showed the severe drought of the summer of 1982-1983
had significantly depleted kangaroo populations. As a result, Fish and Wildlife
withdrew its proposal to delist the species. (49 Fed.Reg. 17555 (Apr. 24, 1984);
60 Fed.Reg. 12888 (Mar. 9, 1995).)
In December 1989, Greenpeace USA, with support from other groups,
petitioned Fish and Wildlife to reinstate the ban on importing the three kangaroo
species and their body parts and products. The petitioners argued that Australia’s
kangaroo management “was inherently flawed and that Australian States did not
have adequate and effective conservation programs that ensured the protection of
the threatened species.” (60 Fed.Reg. 12888 (Mar. 9, 1995).) In response, Fish
and Wildlife sent representatives to Australia to evaluate both population levels
and the Australian states’ implementation of their management programs and to
prepare a report (the Nichols report). (60 Fed.Reg. 12888 (Mar. 9, 1995).)
Fish and Wildlife thereafter published a notice announcing receipt of
Greenpeace USA’s petition and the availability of the Nichols report and seeking
public comment. The Wildlife Legislative Fund of America (Fund) petitioned
Fish and Wildlife to remove the three kangaroo species from the Act’s list of
21

---

threatened species. Relying on the Nichols report, the Fund stressed two grounds
to delist the species: (1) by “conservative estimates” the population of the three
species totaled almost 14 million; and (2) “kangaroo conservation programs exist
within individual range states.” (60 Fed.Reg. 12888 (Mar. 9, 1995).)
After soliciting further comment, Fish and Wildlife published a proposed
rule delisting the three kangaroo species. (58 Fed.Reg. 5341 (Jan. 21, 1993).)
Fish and Wildlife found the four Australian states “had developed and
implemented adequate and effective conservation programs that ensured the
protection of these species, . . . kangaroo populations were high[,] . . . the three
species were protected by appropriate legislation, [they] had their populations
regularly monitored by direct and indirect procedures, and [they] were managed
by a complex licensing system which regulated the extent of the legal harvest.”
(60 Fed.Reg. 12888 (Mar. 9, 1995).)
In March 1995, Fish and Wildlife removed the three kangaroo species from
the Act’s list of endangered or threatened species. (60 Fed.Reg. 12888 (Mar. 9,
1995).) It “delist[ed] these three species of kangaroos on the basis of their
successful recovery because the best scientific and commercial information
available indicates the species are now not likely to become an endangered species
in the foreseeable future throughout all or a significant part of [their] range.” (60
Fed.Reg. 12904 (Mar. 9, 1995); see 50 C.F.R. § 424.11(d)(2) (2007) [authorizing
delisting where a species has recovered].) It characterized the red, eastern grey,
and western grey populations as “abundant.” (60 Fed.Reg. 12889 (Mar. 9, 1995).)
It simultaneously rescinded the special rule allowing kangaroo importation
(former 50 C.F.R. § 17.40(a)(1)(i)(B), repealed Mar. 9, 1995, 60 Fed.Reg. 12906
(Mar. 9, 1995)) and dismissed Greenpeace USA’s petition on procedural grounds;
as Fish and Wildlife explained, it had “no mechanism to reimpose an import ban
on these non-endangered, non-threatened species” (60 Fed.Reg. 12904 (Mar. 9,
22

---

1995)). As required by the Act, Fish and Wildlife also indicated it would monitor
species populations for at least five years. (Id. at pp. 12904-12905; see 16 U.S.C.
§ 1533(g)(1).)
Today, the Australian government permits the commercial use of kangaroos
and the exportation of kangaroo leather and meat, subject to quotas and other
government regulation. According to amicus curiae the Government of the
Commonwealth of Australia, the 2005 population of red, eastern grey, and western
grey kangaroos was just under 25 million. The Australian government still
considers some species threatened or endangered, but not the species at issue
here.12
The parties agree that since the three species have been delisted under the
Act, their importation into the United States is not prohibited by federal law. (See
16 U.S.C. § 1538(a)(1)(A); 50 C.F.R. §§ 17.21(b), 17.31(a) [import ban applies to
listed species]; 60 Fed.Reg. 12888, 12906 (Mar. 9, 1995).)
D. Analysis
This history does not establish any “authoritative” policy against state
regulation. Fish and Wildlife listed the red, eastern grey, and western grey
kangaroo in 1974 based solely on the ecological considerations contained in the
Act. (39 Fed.Reg. 44990 (Dec. 30, 1974); 45 Fed.Reg. 40958-40959 (June 16,
1980); see 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c) (2007).) It thereafter

12
At oral argument, Adidas noted that one subspecies of eastern grey
kangaroo located only on Tasmania, the forester kangaroo (Macropus giganteus
tasmaniensis), remains endangered. (See 50 C.F.R. § 17.11(h) (2007); 60
Fed.Reg. 12906 (Mar. 9, 1995).) But in its separate statement of undisputed facts,
Adidas asserted that it does not make its footwear from federally listed endangered
species, and Viva did not contend otherwise in response. Hence, importation of
forester kangaroo products is not at issue, and we need not address preemption as
it relates to that subspecies.
23

---

reconsidered and retained that listed status, again based solely on the ecological
considerations in the Act. (49 Fed.Reg. 17555 (Apr. 24, 1984); 60 Fed.Reg.
12888 (Mar. 9, 1995).) Finally, it delisted these species in 1995, not as a “carrot”
for Australia, in Adidas’s and the Court of Appeal’s carrot-and-stick metaphor, but
because the three species had, in Fish and Wildlife’s eyes, recovered. (60
Fed.Reg. 12904 (Mar. 9, 1995) [“The [Agency], with this action, delists these
three species of kangaroos on the basis of their successful recovery because the
best scientific and commercial information available indicates the species are now
not likely to become an endangered species in the foreseeable future throughout all
or a significant part of [their] range” (italics added)]; see also id. at p. 12889.) In
short, these species of kangaroos were delisted because they received a clean bill
of health.
Nor is there authoritative evidence that there exists today a federal
kangaroo policy implemented by Fish and Wildlife to which Penal Code section
653o would stand as an obstacle. Delisting brought to an end federal regulation;
Fish and Wildlife rescinded the special rule governing importation. There is no
current federal concern.13 So long as kangaroo populations remain healthy, Fish
and Wildlife possesses neither carrots nor sticks, because it cannot regulate species
that do not meet the Act’s ecological requirements for threatened or endangered

13
As amicus curiae the Government of the Commonwealth of Australia
confirms, the “Australian Government has not received any approach from the
United States Government that would suggest that the United States considers
non-CITES listed kangaroos to be endangered or at risk of becoming endangered.”
The three species at issue here are not listed as endangered under CITES, the
Convention on International Trade in Endangered Species of Wild Flora and
Fauna, March 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249.
24

---

status.14 But the termination of regulation, because federal goals have been met,
does not preempt further state efforts; instead, it leaves the field open for states to
act as they individually see fit.
The Court of Appeal found significant Fish and Wildlife’s 1974 imposition
of an import ban on kangaroo products, subject to development of Australian
species management plans, and its 1981 decision to lift the import ban, as
reflective of a then extant policy to persuade the Australian federal and state
governments to change their kangaroo management practices. Fish and Wildlife’s
actions may well have reflected such a policy (see Defenders of Wildlife, Inc. v.
Watt (D.D.C. 1981) 1981 U.S. Dist. LEXIS 18548, *6-*9 [discussing purported
reasons behind Fish and Wildlife’s actions]), and were we presented with this

14
Fish and Wildlife explained as much at the time of delisting. A commenter
arguing for continued listing asserted: “The ‘threatened’ listing was valuable
because it allowed [Fish and Wildlife] to act as an international watchdog on the
kangaroo industry.” Fish and Wildlife replied: “[Fish and Wildlife] promotes the
international conservation of species and the international enhancement of
biodiversity. [Fish and Wildlife] is obligated to properly classify these species
based on the criteria stipulated in the Act.” (60 Fed.Reg. 12890 (Mar. 9, 1995);
see also id. at p. 12889 [Fish and Wildlife “disagrees that threatened status should
be retained for these abundant and sufficiently managed species, at this time, to
ensure that a primary industry behaves or because one day the threatened status
may somehow be useful in the management of kangaroos. [Fish and Wildlife]
believes the lists of endangered and threatened species should only include those
animals and plants whose current status fit the definitions of the Act”].) In other
words, Fish and Wildlife could not use its power to list or delist as a tool of
international leverage; it was constrained to obey the terms of the Act, which
confined listing criteria to specified ecological considerations. Nowhere in the
delisting decision did Fish and Wildlife express any intent that states be excluded
from regulating on a going-forward basis. (See Bronco Wine Co. v. Jolly, supra,
33 Cal.4th at p. 992 [“ ‘[W]e can expect that [federal agencies] will make their
intentions clear if they intend for their regulations to be exclusive,’ ” quoting
Hillsborough County v. Automated Medical Labs., supra, 471 U.S. at p. 718,
italics omitted].)
25

---

preemption question 20 years ago, we might have found these actions similarly
significant.15 Today, however, they have no relevance. Species management
plans have been adopted; the three species have recovered; the special rule
allowing imports has been rescinded; the species are no longer the subject of
ongoing federal regulation; and the Government of the Commonwealth of
Australia professes to have, and Fish and Wildlife believes it sincerely has, an
independent, strong, ongoing interest in species conservation and in preservation
of a national symbol. (60 Fed.Reg. 12889 (Mar. 9, 1995) [Fish and Wildlife
“believes that the Commonwealth and State governments in Australia have a
sincere interest in the preservation of their native wildlife species and act in a
professional manner to manage these kangaroo species so they will occur in
abundance into perpetuity. [Fish and Wildlife] has no reason to believe that
market pressures will one day insidiously drive conservation activities in
Australia, and notes that the United States and the international community could
act to limit the trade in kangaroo products, should the status of these three
kangaroo species be significantly reduced in the future”].) Fish and Wildlife’s
actions in 1974 and 1981 do not demonstrate any current policy that states must be
excluded from regulating.
The Court of Appeal also found it significant that after delisting, Fish and
Wildlife would continue to monitor the three kangaroo species’ status and could
invoke emergency listing procedures if necessary. However, these are simply

15
Or not. Even in 1983, when Fish and Wildlife extended the lifting of the
import ban, it recognized “[t]he U.S. market has been small (less than 5 percent of
total exported), and has had no effect on kangaroo populations or kill quotas.” (48
Fed.Reg. 34757 (Aug. 1, 1983).) Thus, even then one state’s import ban may have
posed no obstacle to Fish and Wildlife’s overall conservation goals.
26

---

inherent features of the Act; monitoring is mandatory for all delisted species, and
the emergency listing procedures apply to all unlisted species, period. (See 16
U.S.C. § 1533(b)(7), (g)(2) [emergency listing procedures], (g)(1) [monitoring of
delisted species].)16 They do not imply a policy that states must refrain from
regulating such species. Moreover, a reading of these provisions as implying any
such policy would be at odds with section 6(f), which in describing the scope of
the Act’s intended preemptive effect left undisturbed the states’ broad regulatory
authority over unlisted species, and would effectively create field preemption for
delisted or unlisted species, in contravention of the narrow preemption Congress
intended. To the contrary, such species are outside significant present federal
concern and, so long as they remain unlisted, are left exclusively to state
regulation. (See Man Hing Ivory and Imports, Inc. v. Deukmejian, supra, 702
F.2d at p. 765, fn. 4 [“the state is free to prohibit entirely trade in . . . unlisted
species”]; H.J. Justin & Sons, Inc. v. Deukmejian, supra, 702 F.2d at p. 759
[holding the Act does not preempt Pen. Code, § 653o’s import ban as applied to
unlisted kangaroos].)
In the end, Adidas’s preemption argument rests on the assertion that Penal
Code section 653o is an obstacle to federal law because the current state of federal
law allows kangaroo trade. Not so. The key here is the meaning of the word
“authorized” in section 6(f).17 The trial court and Court of Appeal viewed a
“failure to prohibit” as equivalent to “authorization.” But if that were so, there

16
Monitoring in this context primarily involves the passive receipt and review
of reports from the Australian government. (60 Fed.Reg. 12904-12905 (Mar. 9,
1995).)
17
States may not “prohibit what is authorized pursuant to an exemption or
permit provided for in this chapter or in any regulation which implements this
chapter.” (§ 6(f).)
27

---

would be no room for state regulation, despite an evident federal intention that
there be significant room for such regulation. Either an action would be prohibited
by federal law, in which case state regulation would be superfluous, or it would
not be prohibited by federal law, in which case state regulation would be
preempted (in these courts’ views). The express language and legislative history
of section 6(f) preclude this reading. Instead, every action falls within one of three
possible federal categories. An action may be prohibited, it may be authorized, or
it may be neither prohibited nor authorized. Within this last gray category of
actions—a category that at present includes the import of products made from
these three kangaroo species—section 6(f) grants states free room to regulate.
This case is analogous to Bronco Wine Co. v. Jolly, supra, 33 Cal.4th 943.
There, as here, the party arguing preemption contended that state law prohibited
what federal law authorized and was therefore preempted. (Id. at p. 992.) As we
explained in rejecting this argument, “ ‘[t]here is a difference between (1) not
making an activity unlawful, and (2) making that activity lawful.’ In our view it is
more accurate to characterize the state statute as prohibiting . . . what the federal
[regulation] does not prohibit.” (Ibid., quoting Cel-Tech Communications, Inc. v.
Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 183.) So too here:
federal law does not prohibit importation of kangaroo products, while state law
does. That arrangement poses no obstacle to current federal policy.
28

---

DISPOSITION
The Court of Appeal’s judgment is reversed, and this case is remanded to
allow the Court of Appeal to address Adidas’s remaining claims.

WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

29

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Viva! International Voice for Animals v. Adidas Promotional Retail Operations, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 134 Cal.App.4th 133
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S140064
Date Filed: July 23, 2007
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: A. James Robertson II and Ronald Evans Quidachay

__________________________________________________________________________________

Attorneys for Appellant:

Eisenberg, Raisman, Thurston & Wong, Orly Degani; and David Blatte for Plaintiffs and Appellants.

Jonathan R. Lovvorn and Rebecca G. Judd for The Humane Society of the United States as Amicus Curiae
on behalf of Plaintiffs and Appellants.

Morgenstein & Jubelirer and Bruce A. Wagman for Animal Defense Fund as Amicus Curiae on behalf of
Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Thomas Greene, Chief
Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Clifford T. Lee and Tara
L. Mueller, Deputy Attorneys General, for California Department of Fish and Game as Amicus Curiae on
behalf of Plaintiffs and Appellants.

McKenna Long & Aldridge, Ann G. Grimaldi and Eric S. C. Lindstrom for The Government of the
Commonwealth of Australia as Amicus Curiae on behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Davis Wright Tremaine, Martin L. Fineman and Sam N. Dawood for Defendants and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Orly Degani
Eisenberg, Raisman, Thurston & Wong
11601 Wilshire Boulevard, Suite 500
Los Angeles, CA 90025
(310) 235-1400

Martin L. Fineman
Davis Wright Tremaine
500 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
(415) 276-6500

---

California can regulate kangaroo imports under an endangered species statute where federal law does not list kangaroos as endangered species or regulate kangaroo imports.

Opinion Information

Date:	Citation:	Docket Number:
Mon, 07/23/2007	41 Cal. 4th 929, 162 P.3d 569, 63 Cal. Rptr. 3d 50	S140064

Opinion Authors
Opinion	Justice Kathryn M. Werdegar

Disposition
Jul 23 2007	Opinion: Reversed

Dockets
Jan 4 2006	Record requested
Jan 4 2006	Petition for review filed   Viva International Voice for Animals, et al., Plaintiffs and Appellants Orly Degani, Counsel, (40.1(b))
Jan 18 2006	2nd record request
Jan 18 2006	Received Court of Appeal record   1 file jacket, 1 accordion file, 3 briefs, 1 Volume of exhibits
Jan 25 2006	Received:   late answer to petition for review.
Jan 26 2006	Application for relief from default filed   for late answer to petition for review.
Jan 27 2006	Answer to petition for review filed with permission   Adida Promotional Retail Operations, Sport Chalet, Offside Scoccer, Respondents Martin L. Fineman, Counsel
Feb 7 2006	Reply to answer to petition filed   Viva! International Voice for Animals and Jerold Friedman Orly Degani, Counsel
Mar 1 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Mar 1 2006	Letter sent to:   Counsels: re certification of interested entities or persons.
Mar 15 2006	Certification of interested entities or persons filed   Adidas Promotional Retail et al. Martin L. Fineman, Counsel
Mar 16 2006	Certification of interested entities or persons filed   Viva! International Orly Degani, Counsel
Apr 4 2006	Opening brief on the merits filed   Viva! International Voice for Animals and Jerold Friedman, Appellants Orly Degani, Counsel (CRC 40.1b)
May 4 2006	Answer brief on the merits filed   Adidas Promotional Retail Operations, Inc., Sport Chalet and Offside Soccer, Respondents Martin L. Fineman, Counsel
May 26 2006	Application filed to:   file oversized late reply brief on the merits.
May 31 2006	Reply brief filed (case fully briefed)   with permission. Viva! International Voice for Animals and Jerold Friedman Orly Degani, Counsel
Jun 28 2006	Request for extension of time filed   to July 30, 2006, to file amicus curiae Commonwealth of Australia.
Jun 29 2006	Received application to file Amicus Curiae Brief   The Humane Society of the United States in support of plaintiffs.
Jun 30 2006	Received application to file Amicus Curiae Brief   Animal Legal Defense Fund in support of appellants (Viva! International Voice For Animals, et al.) Bruce A. Wagman, counsel
Jul 3 2006	Extension of time granted   to July 30, 2006, to file amicus curiae Commonwealth of Australia.
Jul 3 2006	Permission to file amicus curiae brief granted   The Humane Society of the United States in support of plaintiffs.
Jul 3 2006	Amicus curiae brief filed   The Humane Society of the United States in support of plaintiffs.
Jul 3 2006	Received application to file Amicus Curiae Brief   Califronia Department of Fish and Game in support of plaintiffs.
Jul 7 2006	Permission to file amicus curiae brief granted   Animal Legal Defense Fund in support of appellants. Bruce A. Wagman, counsel
Jul 7 2006	Amicus curiae brief filed   Animal Legal Defense Fund in support of appellants. Bruce A. Wagman, counsel
Jul 7 2006	Permission to file amicus curiae brief granted   Califronia Department of Fish and Game in support of plaintiffs. Tara L. Mueller, Deputy Attorney General
Jul 7 2006	Amicus curiae brief filed   Califronia Department of Fish and Game in support of plaintiffs. Tara L. Mueller, Deputy Attorney General
Jul 27 2006	Request for extension of time filed   to August 22, 2006, respondents to answer to amicus curiea briefs The Animal Legal Defense Fund, the Human Society of the United States, and the California Department of Fish and Game.
Jul 28 2006	Received application to file Amicus Curiae Brief   The Commonwealth of Australia. Ann G. Grimaldi, Counsel
Jul 31 2006	Permission to file amicus curiae brief granted   The Commonwealth of Australia. Ann G. Grimaldi, Counsel
Jul 31 2006	Amicus curiae brief filed   The Commonwealth of Australia. Ann G. Grimaldi, Counsel
Jul 31 2006	Request for judicial notice filed (granted case)   The Commonwealth of Australia. Ann G. Grimaldi, Counsel
Jul 31 2006	Extension of time granted   to August 22, 2006, respondents to answer to amicus curiea briefs The Animal Legal Defense Fund, the Human Society of the United States, and the California Department of Fish and Game. No further extensions will be contemplated.
Aug 1 2006	Request for judicial notice filed (granted case)   Second Judicial Notice The Commonwealth of Australia. Ann G. Grimaldi, Counsel
Aug 16 2006	Request for extension of time filed   to 9-9-06 to file answer to A/C brief of the Commonwealth of Australia VIVA! International Voice for Animals, Jerold Friedman; appellants
Aug 21 2006	Extension of time granted   to September 9, 2006, to respond to amicus cuiae filed by the Commonwealth of Australia.
Aug 22 2006	Response to amicus curiae brief filed   by the Human Society of the United States and The Animal Legal Defense Fund Adidas Promotional Retail operations, Inc. et al., respondents Martin Fineman, Counsel
Aug 22 2006	Response to amicus curiae brief filed   by the Califronia Department of Fish and Game Adidas Promotional Retail operations, Inc. et al., respondents Martin Fineman, Counsel
Aug 25 2006	Change of contact information filed for:   Davis Wright Tremaine LLP
Sep 8 2006	Note: Mail returned (unable to forward)   Joathan Russel Lovvorn, counsel for the Humane Society of the United States
Sep 12 2006	Response to amicus curiae brief filed   Viva! International Voice for Aninals and Jerold Friedman, appellants (CRC 40.1b) Orly Degani, Counsel
Sep 12 2006	Request for judicial notice filed (granted case)   Viva! International Voice for Aninals and Jerold Friedman, appellants Orly Degani, Counsel
Feb 13 2007	Change of contact information filed for:   Orly Degani counsel for appellants, Viva! International Voice for Animals and Jerold Friedman
Apr 3 2007	Case ordered on calendar   to be argued Tuesday, May 1, 2007, at 9:00 a.m., in San Francisco
Apr 5 2007	Received:   Letter from Orly Degani, counsel for appellant Viva! International Voice for Animals, requesting that argument be rescheduled to after May 7, 2007.
Apr 10 2007	Argument rescheduled   to be called and continued to the late May 2007 calendar
Apr 18 2007	Received:   letter from Martin L. Fineman, counsel for respondent Adidas Promotional Retail Operations, Inc., requesting delay of argument beyond the late May calendar.
May 1 2007	Cause called and continued   to the late May 2007 calendar
May 2 2007	Case ordered on calendar   to be argued on Tuesday, May 29, at 9:00 a.m., in San Francisco
May 9 2007	Order filed   This case is set for argument on May 29, 2007, at 9:00 a.m. in San Francisco. Argument shall be limited to the following issue: Is Penal Code section 653o's ban on the importation of and trade in kangaroo or kangaroo products preempted by the federal Endangered Species Act or United States Fish and Wildlife Service regulations? Appellants Viva! International Voice for Animals and Jerold Friedman's request for judicial notice, filed September 12, 2006, is granted. Amicus curiae the Government of the Commonwealth of Australia's first request for judicial notice, filed July 31, 2006, is granted as to Exhibits 1-14 and 17-23 and denied as to Exhibits 15 and 16. Its second request for judicial notice, filed August 1, 2006, is granted.
May 9 2007	Motion to dismiss filed (non-AA)   and supplemental brief. Adidas Promotional Retail Operations, INC., et al., by Martin L. Fineman, counsel.
May 16 2007	Motion denied   Respondent's motion for summary affirmance or, in the alternative, dismissal, filed May 29, 2007, is denied.
May 16 2007	Opposition filed   to respondent's motion to dismiss appeal or for summary affirmance Viva! International Voice for Animals and Jerold Friedman, appellants Orly Degani, Counsel
May 17 2007	Request for Extended Media coverage Filed   by James Gualtieri of the California Channel.
May 17 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed May 17, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
May 29 2007	Cause argued and submitted
Jun 15 2007	Note: Mail returned (unable to forward)   Eric S. Lindstrom
Jul 20 2007	Notice of forthcoming opinion posted
Jul 23 2007	Opinion filed: Judgment reversed   The Court of Appeal's judgment is reversed, and this case is remanded to allow the Court of Appeal to address Adida's remaning claims. -----Opinion by: Werdegar, J. -----Joined by: George, C.J., Kennard, Baxter, Chin, Moreno, Corrigan, J.J.
Aug 23 2007	Remittitur issued (civil case)
Sep 13 2007	Note:   Case record transmitted to C/A (4 vol.)

Briefs
Apr 4 2006	Opening brief on the merits filed
May 4 2006	Answer brief on the merits filed
May 31 2006	Reply brief filed (case fully briefed)
Jul 3 2006	Amicus curiae brief filed
Jul 7 2006	Amicus curiae brief filed
Jul 7 2006	Amicus curiae brief filed
Jul 31 2006	Amicus curiae brief filed
Aug 22 2006	Response to amicus curiae brief filed
Aug 22 2006	Response to amicus curiae brief filed
Sep 12 2006	Response to amicus curiae brief filed

Brief Downloads
Answer to Australia's AC Brief - Final.pdf (56799 bytes)
Australia's AC brief.pdf (1421344 bytes)
RBOM.Final_.645103_1.pdf (97154 bytes) - Plaintiff reply brief on the merits
viva v. adidas OBOM.pdf (135037 bytes) - Plaintiff opening brief on the merits
Viva-AG's Amicus Brief.pdf (2591014 bytes)
Viva-Animal Defense Fund Amicus Brief.pdf (820749 bytes)
Viva-Ans to Amicus of Fish Game (2).pdf (1111909 bytes)
Viva-Ans to HSUS and ALDF Amicus.pdf (251032 bytes)
Viva-Answer Brief on the Merits.pdf (1702395 bytes)
Viva-Humane Society Amicus Brief.pdf (1176448 bytes)
SKMBT_60010051813070.pdf (657256 bytes) - Defendant supplemental brief
SKMBT_60010051813400.pdf (1825568 bytes) - Defendant answer brief on the merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 17, 2010 Annotated by ebfua

ISSUE: Does section 6(f) of the Endangered Species Act of 1973 and the fact that the federal government does not list kangaroos as a threatened or endangered species preempt California Penal Code § 653o, an endangered species protection statute that prohibits both importing and selling products made of kangaroo in California? FACTS: - Viva! International Voice for Animals is an international nonprofit organization devoted to protecting animals. An additional plaintiff is a resident of Los Angeles County. - Adidas is retailer that sells athletic shoes in California made from the hide of three kangaroo species exclusive to and imported from Australia. - The federal government, through the U.S. Fish and Wildlife Services, once listed these three species of kangaroos as endangered species and thus protected under the Endangered Species Act of 1973. U.S. Fish and Wildlife Services has since delisted the kangaroo species at issue. It delisted these kangaroo species because it found that their populations were sufficiently high and that the states harvesting them created and managed adequate and effective conservation programs. - The California legislature currently considers kangaroos as endangered species. KEY LAWS AND OTHER TERMS: - U.S. CONST. art. VI, cl. 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws or any State to the Contrary notwithstanding.” - Express Preemption: Congress explicitly preempts a state law, so the state law is void. - Conflict Preemption: A state and federal law are such that simultaneous compliance is physically impossible, so the state law is void. - Obstacle Preemption: A state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, so the state law is void. - Field Preemption: Congress intends to occupy a particular area and its scheme of regulation in that area is sufficiently comprehensive to make reasonable the assumption that Congress left no room for additional state regulation. - CAL. PENAL CODE § 653o: An endangered species protection statute that prohibits both importing, possessing with an intent to sell, and selling kangaroos or parts of them. The statute lists includes additional animals that the California legislature has deemed endangered. - Endangered Species Act of 1973 § 6(f) (16 U.S.C. § 1535(f)): “Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.” (emphasis added) PROCEDURAL HISTORY: - Trial Court: Both Viva and Adidas moved for summary judgment. The trial court denied Viva’s motion and granted Adidas’ motion, holding that the Endangered Species Act of 1973 preempted Cal. Penal Code § 653o because Cal. Penal Code § 653o undermined federal actions taken under the ESA to influence Australian state and federal governments to preserve threatened kangaroo species. - Court of Appeal: The Court of Appeal affirmed the trial court’s decision. It held that Cal. Penal Code § 653o conflicted with an existing federal objective to persuade Australian state and federal governments to create and manage kangaroo conservation programs in exchange for access to U.S. markets. Due to the conflict, the Court of Appeal held that Cal. Penal Code § 653o was preempted by federal law and thus void. - Review granted to resolve the preemption question. BURDENS AND PRESUMPTIONS: Adidas has the burden of proving that the Endangered Species Act of 1973 preempts Cal. Penal Code § 653o. The California Supreme Court held that no presumption in favor of or against preemption applies in this situation. While Cal. Penal Code §653 regulates wildlife management, an area traditionally within state police powers and awarded a strong presumption against preemption, it implicates foreign affairs concerns. The implication of foreign concerns complicates the matter, and through this court’s interpretation of two U.S. Supreme Court decisions, it found that no presumption applies. For reference, these two U.S. Supreme Court decisions are Crosby v. National Foreign Trade Council, 530 U.S. 363, and American Ins. Assn. v. Garamendi, 539 U.S. 396. HOLDING: Section 6(f) of the Endangered Species Act of 1973 and the fact that the federal government does not list kangaroos as a threatened or endangered species does not preempt California Penal Code § 653o, an endangered species protection statute that prohibits both importing and selling products made of kangaroo in California. REASONING: To resolve the question of preemption, the California Supreme Court looked to the language of the two allegedly conflicting statutes, the Endangered Species Act of 1973 § 6(f) and Cal. Penal Code § 653o. Through its language analysis, the court held that the section 6(f) was a regulatory floor for state regulation which allowed states to enact more restrictive regulations so long as they complied with the statute’s express requirements. The court thus found no express preemption, conflict preemption, or field preemption. The court also held that section 6(f) was silent on state power over unlisted species. Citing the statute’s legislative history and a Ninth Circuit interpretation of the statute, the court held that states were permitted to protect additional unlisted species. For reference, the cited legislative history can be found at H.R. REP. NO. 412, 93rd Cong., 1st Sess. at 8, 14 (1973), and the cited Ninth Circuit case is H.J. Justin & Sons, Inc. v. Deukmejian, 702 F.2d 758 (9th Cir. 1983). To address Adidas’ argument of obstacle preemption, the court held that when the federal government delisted kangaroos from its endangered species list, it erased any federal policy or concern regarding kangaroos. As a result, due to section 6(f) only being a regulatory floor for state regulation, California was free to regulate kangaroo imports. The court additionally held that the fact that the federal government failed to prohibit kangaroo imports was not the same as the federal government authorizing kangaroo imports. If this were the case, the court reasoned, there would be no room for state regulation despite the federal intention for such room to exist. Thus there was no obstacle preemption. In summary, the court found that Cal. Penal Code § 653o neither permitted what the Endangered Species Act of 1973 prohibited, nor prohibited what it authorized, and that the states have the power to regulate over and above the ESA. Consequently, no preemption existed and California could regulate Adidas’ sale of kangaroo products. Annotation by Emmanuel Fua TAGS: Cal. Penal Code 653o, conflict preemption, conservation programs, endangered species, Endangered Species Act of 1973, ESA, express preemption, field preemption, foreign affair concerns, imports, kangaroo, obstacle preemption, preemption, regulatory floor, shoes, state police power, supremacy clause, threatened species, U.S. Constitution Article VI Cl. 2, wildlife management

Related Media	Calif. bans Adidas kangaroo soccer shoes
	Justices uphold kangaroo hide ban