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PALLADIO, INC. v. DIAMOND

November 25, 1970

PALLADIO, INC., Plaintiff,
v.
Henry A. DIAMOND, as Commissioner of the Department of Environmental Conservation of the State of New York, Don J. Wickham, as Commissioner of Agriculture and Markets of the State of New York, John P. Lomenzo, as Secretary of State of the State of New York, Frank S. Hogan, as District Attorney of New York County, and Howard R. Leary, as Police Commissioner of the City of New York, Defendants


Mansfield, District Judge.


The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

It 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. We have come to appreciate the interdependence of different forms of life. We realize that by killing certain species in one area we may sound our own death knell.

 For these reasons ecology has become everyone's business. Like pollution it does not cease to be of vital concern merely because the problem is created at a distant point. These principles are here challenged, at least insofar as they are invoked as a basis for state laws prohibiting the sale of crocodile skins in New York.

 Plaintiff, a Massachusetts corporation, has brought this action against various officials of the State of New York in charge of administering and enforcing its newly-enacted Harris Law, *fn1" and the Mason Law, *fn2" charging that the Mason Law violates the Federal Constitution and that enforcement of the Harris Law in accordance with the provisions of the Mason Law is also unconstitutional to the extent that both laws prevent plaintiff from offering for sale and selling men's shoes made with the skins of species of Alligators, Caimans or Crocodiles of the Order Crocodylia which are not listed on the Endangered Species List promulgated by the Secretary of the Interior of the United States.

 In A.E. Nettleton Company v. Diamond, 27 N.Y. 2d 182, 315 N.Y.S. 2d 625, 264 N.E. 2d 118 (1970), the New York Court of Appeals upheld, under both state and federal grounds, the constitutionality of the laws attacked here today. Plaintiff was not represented in that suit. It argues that New York's highest court was in error, and seeks a temporary injunction against the enforcement of these acts as applied to the importation of Crocodylia skins and the appointment of a three-judge court. For the reasons stated below plaintiff's motion is denied; it has not raised a substantial federal question.

 The Harris bill, n. 1, supra, provides that the protection of endangered species of wildlife is a matter of general state concern, and that the states must assume their responsibility. § 1. Section 2 of that Act amends the state Conservation Law by prohibiting the importation, sale, or possession with intent to sell, of any article made from the skin of any endangered species. An "endangered" species is one designated by the New York Department of Environmental Conservation, by order filed with the Secretary of State.

 The Mason bill, n. 2, supra, is much more explicit and restrictive, providing in pertinent part:

 
"§ 358-a. Sale of certain wild animals or wild animal products prohibited
 
"1. No part of the skin or body * * * of the following species of wild animals * * * may be sold or offered for sale by any individual * * * after the effective date of this section: -- * * * Alligators, Caiman or Crocodile of the Order Crocodylia, * * *" (Emphasis added)

 Concededly the Mason bill damages plaintiff's business operation, which is the importation of shoes from Europe. Most of these shoes are made from the skins of Alligator, Caiman or Crocodiles of the Order Crocodylia (i.e., alligator shoes). Last year plaintiff sold almost $600,000 worth of alligator shoes, and at least 40% of these sales were to New York retailers.

 Prior to New York's enactment of these laws, the Federal Government had in December, 1969, enacted the Endangered Species Conservation Act of 1969, P.L. 91-135, 83 Stat. 275, codified in part in 16 U.S.C.A. § 668aa et seq. (Supp. March, 1970), to deal with the serious problem of the rapid decimation and extinction of various species of animals. This Act forbids importation of species found by the Secretary of the Interior to be "threatened with world wide extinction," 16 U.S.C.A. § 668cc-2 (Supp. March, 1970), as well as interstate transportation of wildlife taken in violation of national, state or foreign laws. 18 U.S.C.A. § 43(a)(2) (Supp. March, 1970). Pursuant to the Act the Secretary of the Interior, after notice and an opportunity to be heard, prepared an "endangered species list" and prohibited the importation into the United States of articles made with the skins of mammals, birds, amphibians, reptiles, and fish threatened with extinction by publishing the names of the species in the Federal Register. See 50 C.F.R. §§ 17.10, 17.11, in 35 Fed. Reg. 8493 (June 2, 1970). The Secretary's current regulations presently list only one species of foreign Crocodylia, Caiman Yacare, the importation of which is barred. He has rescinded the designation of several other foreign species of Crocodylia because adequate notice as to those species had not been given. Compare 35 Fed. Reg. 8491, 8497 App. A (June 2, 1970), with 35 Fed. Reg. 12121-23 (July 29, 1970).

 Plaintiff has no quarrel with the federal law and its regulations. It strongly objects, however, to the new state laws which amplify and are much stricter than the federal law.

 First, plaintiff argues that there were no hearings on the Mason Law (which in effect explicitly forbids the importation of alligator shoes). The New York Court of Appeals' opinion, at 194, 315 N.Y.S. 2d at 634, 264 N.E. 2d at 124, stated:

 
"The minutes of a hearing held prior to the enactment of the Mason Law reveal that the Legislature specifically considered whether the Tiger Vicuna, Red Wolf, Polar Bear, Mountain Lion, Jaguar, Ocelot, Margay, Leopard, Cheetah and Crocodile are subjects of commercial exploitation and are threatened. Thus, it appears that the Legislature rejected the Industry's assumption and ...

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