The government has two responses. First, it asserts that the State "has engaged in far less than the total restriction on use of [its] salmon eggs[,]" in that the regulation impacts only upon commercially sold eggs for human consumption. United States' Response at 19. Next, the government asserts that the current regulation is "Significantly less broad than the total ban initially placed in effect in the 1970s." Id. Although not entirely responsive to the defendants' arguments, nonetheless the court sides with the government and finds that the purposes (health, safety and environmental) which this regulation was designed to address "could not be served as well be available nondiscriminatory means." See Maine v. Taylor, 477 U.S. at 138, 106 S. Ct. at 2447.
In the present case, just as in Maine v. Taylor, the government has shown, through the affidavit of Lawrence Skinner, the Department of Environmental Conservation's ("DEC") Section Head for the Environmental Monitoring Section of the Division of Fish and Wildlife, that "since fish length can not be used to predict chemical concentrations in eggs, the only methods to prevent introduction of chemically adulterated fish eggs into food markets is either to chemically test eggs from each individual fish, or to prevent all sales of salmon eggs for human consumption." Skinner Affidavit at P 7. Skinner further opines that "the cost of chemical analysis would be prohibitive." Id. at P 8. He then goes on to detail in his affidavit why that is So. See id. at PP 8-9. Based upon the foregoing, there does not appear to the court to be an alternative means available to insure that the public is protected from consuming contaminated salmon eggs.
The defendants suggest, however, that something short of a complete ban on the commercial sale of New York salmon eggs is available because the cost of such testing would be borne by commercial ventures, as opposed to the State. While it may be feasible for commercial enterprises, such as defendants, to bear the cost of testing for chemical contaminants,
in suggesting that alternative, the defendants are ignoring the government's second and perhaps more convincing point which is that the "imposition of a testing requirement would be practically unenforceable by the State[,]" especially "where the products would be in interstate commerce." Id. at P 10. Consequently, the court concludes that the government has met its burden here, even under a heightened level of scrutiny, and finds that section 37.1 does not violate the Commerce Clause in that it does not amount to an invalid restraint on interstate commerce.
Before leaving the Commerce Clause, the court points out that even if it agreed with the government that section 37.1 only incidentally effects interstate commerce, and as a result applied the Pike test,
in all likelihood it still would uphold this regulation because the current record does not support a finding that "the burdens [section 37.1] imposes on interstate trade are 'clearly excessive in relation to the putative local benefits.'" See Maine v. Taylor, 477 U.S. at 138, 106 S. Ct. 2447 (quoting Pike, 397 U.S. at 142, 90 S. Ct. at 847). Thus, when all is said and done it strikes the court that defendants' argument is nothing more than a fairly transparent attempt to circumvent Maine v. Taylor, which the court cannot endorse. Regardless of how section 37.1 is analyzed, it does not violate the Commerce Clause; and consequently the defendants' motion to dismiss counts one through six of the indictment on that basis is denied.
II. Validity of Section 37.1
Even if the court finds, as it has, that section 37.1 does not violate the Commerce Clause, the defendants argue, alternatively, that the Lacey Act counts still must be dismissed because section 37.1, which is encompassed in those Counts, was not properly promulgated. The defendants offer three separate reasons as to why the court should invalidate that regulation, and, in turn, dismiss counts one through six of the indictment: (1) in promulgating section 37.1, the DEC exceeded the Permissible scope of its regulatory authority; (2) section 37.1 was promulgated in violation of required statutory procedures; (3) the DEC acted in an arbitrary and capricious manner when it promulgated section 37.1. The court will separately address each of these arguments in turn.
Before doing so, though, the court must consider an argument belatedly raised by the government. For the first time, at oral argument the government asserted that in this federal prosecution the defendants may not collaterally attack the predicate state regulation - section 37.
Instead, the proper recourse for these defendants, according to the government, would have been for them to have challenged section 37.1 in some other independent, pre-indictment proceeding. Then, asserts the government, only with a favorable judgment in hand would the defendants now be in a position to attack section 37.1. Because it was not discussed at all in the parties' briefs, the court is somewhat reluctant to delve too far into this issue. On the other hand, the court cannot ignore this point entirely because if it were to accept the government's argument, then the defendants' challenge to the validity of section 37.1 would fall by the wayside.
Case law on the issue of whether it is permissible to collaterally attack a state regulation in a federal Lacey Act prosecution is not plentiful. A fairly recent Ninth Circuit case, United States v. Alexander, 938 F.2d 942 (9th Cir. 1991), provides some guidance however. The defendants in Alexander were convicted for trafficking in herring roe under the Lacey Act. On appeal they argued, among other things, that the underlying state regulations were in conflict with federal law, and thus could not sustain the Lacey Act convictions. The government responded that the defendants could not rely on that asserted conflict to overturn the Lacey Act convictions "because they failed to petition the Board of Fisheries to change its regulations before they went fishing." Id. at 947. In quite picturesque language, the Ninth Circuit flatly rejected this suggestion by the government:
The image of these two defendants driving their beat-up Dodge station wagon to the Board of Fisheries to argue that a small section of the regulations is inconsistent with an obscure phrase in a massive federal statute is a bit incongruous; they are fishermen, not legal scholars. Their only meaningful opportunity to challenge the regulations was at their trial. We will not find their challenge precluded 'unless there is persuasive reason to believe that such was the purpose of Congress.'
Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967)) (footnote omitted) (emphasis added). The Alexander Court was not so persuaded. Thus, for that reason, among others, the Ninth Circuit sanctioned the consideration of the validity of the underlying state regulations in the course of adjudicating the Lacey Act criminal case. Id. at 947-48.
While the defendants in the present case do appear more sophisticated than those in Alexander, they are still not legal scholars. They should not be precluded from challenging the validity of section 37.1 during the course of this prosecution simply because they were, in all likelihood, unaware of what appears to be a little known and evidently seldom invoked regulation buried deep in the New York Code of Rules and Regulations.
Furthermore, as the Alexander Court pointed out in a slightly different context, assuming the availability of another forum for challenging this regulation, the defendants would then be put to the additional expense and delay of another legal proceeding.
If the defendants were successful, and if in the meantime they were convicted of the Lacey Act counts, then they would have to collaterally attack the convictions because the underlying state regulation was declared invalid. As the Alexander Court astutely observed, "the net result would be the same but the delay and number of proceedings would triple." Id. at 948 n. 10.
In addition to the resultant inefficiency from adopting the government's suggested approach, the defendants' challenge to section 37.1 should not be precluded because, as in Alexander, there is no "persuasive reason to believe that such was the purpose of Congress." See id. at 947. A quick perusal of the Lacey Act's legislative history, and the 1981 amendments in particular, does not disclose any clear intent on the part of Congress to preclude a Lacey Act defendant from challenging the validity of the underlying state law or regulation. See generally S. Rep. No. 97-123, 97th Cong., 1st Sess. (1981), reprinted in, U.S. Cong. & Admin. News vol. 3 at 1748 et seq. (1981). Moreover, implicit in that history is the assumption that the underlying state, foreign or federal law is enforceable. See id. at 1751 ("In order to prosecute a case under . . . the current Lacey . . . Act and this revision, it is necessary to first prove that there has been a State, foreign, or another Federal violation."). Thus, it appears to the court that the legislative history to the Act's 1981 amendments does not evince a Congressional intent to bar collateral attacks of underlying state regulations in a Lacey Act prosecution.
Furthermore, there is one practical concern which the court has with respect to the issue of a collateral attack on section 37.1 in this prosecution. If the defendants had not challenged section 37.1 now, and they were later convicted on the Lacey Act counts, they might well appeal on the basis that section 37.1 is invalid. Under those circumstances, the government undoubtedly would argue that the defendants waived their right to raise that issue. In fact, in United States v. Skinna, 931 F.2d 530 (9th Cir. 1991), another Lacey Act prosecution, the Ninth Circuit acknowledged that potential waiver impediment. In attempting to overturn his Lacey Act conviction, defendant Skinna argued on appeal that the underlying state laws, which formed the basis for that conviction, were invalid because they conflicted with federal laws. The Court observed, however, that "the degree to which we can entertain [defendant's] argument is greatly circumscribed by the fact that he never directly presented it to the district court." Id. at 531; see also United States v. Wagner, 989 F.2d 69, 76 (2d Cir. 1993) (citation omitted) (generally "a reviewing court will not consider claims not presented before the district court"). Admittedly, the court is speculating in introducing this scenario, but it simply wants to apprise the parties, and the government in particular, of this concern. The government cannot argue that the defendants are precluded from collaterally attacking section 37.1 in this case, and then, on appeal, argue that the defendants waived their right to challenge the validity of that regulation. For all of these reasons, the court rejects the notion that the defendants are not entitled to challenge the validity of section 37.1 in this Lacey Act prosecution.
A. Scope of DEC's Statutory Authority
Having resolved that subsidiary issue, the court is now free to turn to the substantive issues raised by defendants' attack on the validity of section 37.1.
The defendants believe that section 37.1 exceeds the permissible scope of the DEC's regulatory authority because it purports to regulate the sale of "processed" salmon eggs, and under the ECL the DEC is only authorized to regulate the sale of "raw or unprocessed Pacific salmon eggs"
and "viable eggs of any species of the [salmon] family." See N.Y. Envtl. Conserv. Law §§ 11-0305(14) and 11-1709. Section § 11-0305(14) currently reads as follows:
In addition to the powers and duties provided in other sections of the Fish and Wildlife Law, the department [DEC] shall have the following powers and duties: . . .