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Michael Harris - Bar #30144

ROGERS & HARRIS
520 South Sepulveda Boulevard, Suite 204
Los Angeles, California 90049-3534
(310) 471-3170 FAX (310) 471-3276
rogersharris1@verizon.net
Attorneys for Plaintiff Ivory Education Institution

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

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IVORY EDUCATION INSTITUTE,

a California non profit, unincorporated
association, on behalf of itself and its
participants and the taxpayers of
California who own ivory objects of
historic, artistic, cultural and practical
importance created prior to 1977,

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Plaintiff,
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vs.
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THE STATE OF CALIFORNIA, by and )
through its agency the Department of
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Fish and Wildlife,
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Defendant,
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and
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NATURAL RESOURCES DEFENSE
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COUNCIL, INC., CENTER FOR
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BIOLOGICAL DIVERSITY, THE
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HUMANE SOCIETY OF THE UNITED )
STATES, INTERNATIONAL FUND
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FOR ANIMAL WELFARE, and
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WILDLIFE CONSERVATION
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SOCIETY,
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Intervenors.
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____________________________________)

CASE NO. BC 602 584

NOTICE OF MOTION AND MOTION
FOR SUMMARY JUDGMENT;
POINTS AND AUTHORITIES;
DECLARATIONS OF: GODFREY
HARRIS, GREGG HURWITZ,
CARA MESKAR, BRENDAN
MOYLE, ADOLF P. SHVEDCHIKOV,
DANIEL STILES, DAVID WHITE,

[Filed concurrently herewith are the

Separate Statement of Undisputed Facts
and an Appendix of federal cases and
treaties cited.]

Assigned for All Purposes to the

Honorable William F. Fahey,
Department 69

DATE:
TIME:
DEPT:69

November 8, 2016
9:30 A.M.

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TO DEFENDANTS AND INTERVENORS AND TO THEIR ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE that on November 8, 2016, in Department 69 of the abovereferenced Court at 9:30 A.M., the Plaintiff will move this court for Summary Judgment of the
Complaint filed in this action.

The grounds for the Motion are that there are no material questions of facts relating to

any of the issues in the Complaint and that Summary Judgment is proper on behalf of the

moving Plaintiff in that California Fish & Game Code 2022 is on its face unconstitutional and

is preempted by federal laws and international treaties.

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The Motion will be based on the provisions of California Rules of Court Rule 3.1350 and
C.C.P. 437c.
The Motion will also be based on this Notice, on the attached Points and Authorities, on
the attached Declarations of Godfrey Harris, Gregg Hurwitz, Cara Meskar, Dr. Brendan Moyle,

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Dr. Adolph P. Shvedchikov, Dr. Daniel Stiles, and David White, on the Separate Statement of

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Undisputed Material Facts filed concurrently, and on such further matters or evidence to be

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brought before the Court at the time of the hearing.

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DATED: August ______, 2016.

ROGERS & HARRIS

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By:__________________________________
MICHAEL HARRIS, Attorneys for
Plaintiff Ivory Education Institute

I. SUMMARY OF ARGUMENT

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This suit involves a facial challenge to California Fish & Wildlife Code 2022, the

codified version of Assembly Bill 96 of 2015. This statute is hereinafter most often referred to

as the Law.

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The grounds for the Plaintiffs claims for invalidity and unconstitutionality of the Law
can be summarized as follows:
1.

The Law is concerned with matters and activities outside of the United States

African elephants, other African animals, extinct species found primarily in Russia, and some

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animals such as walrus and whale species that are not found in California waters. (See

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Declaration of Cara Meskar.) The Law therefore violates the exclusive right of the federal

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government to regulate foreign affairs. African elephants and the other animals expressly
protected by the Law are not in California (outside of zoos) and their protection and

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conservation is addressed in the Convention on International Trade in Endangered Species of

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Wild Fauna & Flora (CITES), the U.S. Endangered Species Act, the Elephant Conservation

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Act (ECA), and international programs such as the Elephant Trade Information System

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(ETIS) and the Monitoring of the Illegal Killing of Elephants (MIKE). As a result, the Law
violates the U.S. constitutional requirement that foreign matters are exclusively within the
province of the President and the federal government (U.S. Constitution Article 1 8 Clause 10).
2.

The Law violates Plaintiffs substantive due process rights. In California, a

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citizen may acquire, enjoy, own and dispose of personal property as a civil right. (See, Fuji v.

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Calif, 38 C2d 718; Witkin, 10th Edit. Const. Law 221.)

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The state has the authority under its police powers to regulate the ownership and use of

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property. But where the exercise of such power relates solely to matters of foreign affairs, it
becomes unreasonable and arbitrary as well as a violation of a citizens substantive due process
rights (Witkin, 10th Edit. Const. Law 983), constituting an improper taking without
compensation.
3.

The Law is void for vagueness. The language of the Law specifying the use of

volume calculations to qualify for an exemption, particularly in determining the amount of

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ivory black pigment used in two-dimensional masterpiece oil paintings, is impossible for
purposes of an exemption under the statute (People v. Ribalcava, 23 C4 322).

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Valley v. Mutual Water Co., 242 Cal.App.2d 68). The perfectly legal acquisition and holding of
personal property may not retrospectively render a citizens personal property valueless.

5.

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The Law is invalid because it involves improper retrospective legislation (Bear

The Law violates the dormant commerce clause which prohibits a state from

passing and enforcing legislation that burdens or discriminates against interstate commerce

(Witkin, 10th Edit. Const. Law 1300). The legal sale of ivory objects by a citizen of Alaska (as

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expressly permitted in the Marine Mammal Protection Act) could be fatally impeded because a

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potential buyer in California will be foreclosed from any re-sale rights after a purchase.

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6.

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comprehensive federal statutes and treaties (Man Hing Ivory Imports v. Deukmejian, 702 F2d
760).
7.

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The Law is unconstitutional because it involves more than one subject (Cal.

Constit., Art. IV, 9).

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II. PRINCIPLES OF SUMMARY JUDGMENT APPLY

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Where no triable issues of fact are presented and the sole remaining question is one of

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There is a preemption of the subject by the federal government through

law, a case may appropriately be determined on a Motion for Summary Judgment (Leo F. Piazza

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v. Foundation, 128 Cal.App. 3d 583, 589). The aim of the procedure is to discover through

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declarations whether the parties possess evidence requiring further weighing in a trial or

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whether, as a matter of law, the case can be resolved. (Susma v. Crete, 129 Cal.App. 3d 108,

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113).

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Here, there are no facts which can support any of the defenses made by Defendants
against the Plaintiffs contentions that the Law is invalid and unconstitutional. Accordingly, as a
matter of law, the Plaintiff is entitled to summary judgment (C.C.P. 437c).
III. THE LAW IS IMPROPER BECAUSE ONLY THE FEDERAL
GOVERNMENT MAY DEAL IN FOREIGN AFFAIRS
Federal laws and international treaties now in effect governing the subject of the Law are

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Convention on International Trade in Endangered Species of Wild Fauna and

Flora, 27 U.S.T. 1087 (CITES). The treaty was entered into force on July 1, 1975.

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thereunder relating to African elephants (Loxdonta Africana) 17 CFR Part 17.

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African Elephant Conservation Act (1988), 16 U.S.C. 4201-4245.

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Lacey Act (1900), 16 U.S.C. 3375. The first U.S. law to protect wildlife and

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natural fauna.
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Marine Mammal Protection Act, 16 U.S.C. 1361 (1973), which provides the

federal government exclusivity to deal with marine mammals except as the Secretary of the

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Interior has transferred specific authority to a state to conserve and manage a species in that

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state.

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(Each of these treaties and Acts are provided to the Court concurrently in the Appendix

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filed herewith.)

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The Law is on its face invalid and unconstitutional in that Article 1, Section 8, Clause 10

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of the U.S. Constitution states that the federal government alone has the authority to define and

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punish offences against the Law of Nations. Under California Evidence Code 451 and

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452, and pursuant to the attached declaration of Cara Meskar, the following facts should be
without controversy: There are no animals present in California (other than limited zoo and
aquarium populations) of those specified in the Law. Wild elephants, rhinoceros,

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hippopotamuses, mammoths, mastodons, walruses, warthogs, and narwhals have no current

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presence in California. The whale populations occupying waters off the California coast are, for

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the most part, Grey whales. These whales have baleen filters instead of teeth. Narwhals are an

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Arctic cetacean not seen in California waters. Walrus are found in Siberia and Alaska, but not in

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California, and those creatures are separately protected by the Federal Marine Mammal
Protection Act of 1972 (16 U.S.C. Ch. 31 13611362). Other species of whales that may pass
along Californias coast are for the most part moving well beyond the twelve-mile limit of
Californias territorial waters. Moreover, the leading expert in historic scrimshaw, Dr. Stuart M.
Frank, Senior Curator Emeritus of the New Bedford Whaling Museum, has stated: Not a single
whale has ever been killed to produce scrimshaw. The material of scrimshaw was a byproduct of
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The federal government has long dealt with the problem of trade in ivory and

rhinoceroses horns through multilateral dealings with African and other nations under the

auspices of the CITES treaty and other laws, including the Federal Endangered Species Act.

CITES is a treaty under the auspices of the United Nations to which 181 nations, including the

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United States, are currently a party.

The protection and preservation of ivory-bearing elephants in Africa is therefore a field
clearly involving foreign affairs in which California is expressly prohibited from legislating. See
Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal.App.2d 221, which invalidated a

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California statute as an unconstitutional encroachment upon the federal governments exclusive

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power over foreign affairs and an undue interference with the United States conduct of foreign

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relations.
The Law improperly intrudes upon the federal governments exclusive right to deal with

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foreign nations and their affairs. In the field of foreign affairs, the federal government is entitled

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to exercise exclusive rights (Department of the Navy v. Egan, 484 U.S. 518, 529 (1988); U.S. vs.

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Pink, 315 U.S. 203 (1942)).

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The Law deals with issues relating to conservation and preservation of elephants and
other animals, not in California. While California may have an interest in dealing with the
illegal trade in ivories (as it did with kangaroo skins as provided in Viva! International v. Adidas,

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41 C4 929), it may not do so by means of statutes that affect matters that are governed by

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international treaties.

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IV. THE LAW DEPRIVES PLAINTIFF OF SUBSTANTIVE DUE PROCESS

As stated in Hale v. Morgan, 22 Cal.3d 388:

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The due process shield, while protecting life and liberty, of course, has similar
application in the protection of property. (See, e.g., People v. Western Air Lines, Inc.
(1954) 42 Cal.2d 621, 642 [268 P.2d 723].)
The state Constitution protects the rights of acquiring, possessing, and protecting
property . . . . (Cal. Const., art. I, 1.) Both federal and state Constitutions protect against
deprivation of property without due process of law. An ordinance restrictive of property use will

unreasonable, having no substantial relation to the public health, safety, morals, or general

welfare (Euclid v. Ambler Co. (1926) U.S. 365, 395 [71 L.Ed. 303, 314, 47 S.Ct. 114, 54

A.L.R. 1016]). (See Declaration of Dr. Daniel Stiles.)

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The issue in this case is, therefore, whether the Law is reasonable and rationale or
arbitrary and oppressive (Hale v. Morgan, 22 C3d 388, 398-399), and whether the Law has a
substantial relation to Californias public health, safety, morals, or general welfare.
A.

The Law is unreasonable.

Personal property ownership rights are fundamental, sacred, naturally inherent and

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inalienable under the U.S. Constitution. The Law is premised on the legislative expectation that

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the sale of a California citizens ivory carvings, netsukes, chess sets, jewelry, musical

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instruments, and the like within California, will have a material effect on the poaching of
elephants in Central and Eastern Africa. The connection is not only remote, and unlikely, but has

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never been convincingly demonstrated let alone proven. (See Declarations of Dr. Daniel Stiles

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and David White.)

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The Law includes within its ambit a prohibition of trade in ivory derived from mastodon,
mammoth and fossilized walrus tusks. The trade in ivory derived from these long extinct species
cannot have any demonstrable or substantive relationship to the legislatures concern for
elephant herds in Africa.

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Even the exceptions in the Law are unreasonable.

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The requirements for proof of antique status (2022 (c)(4)) are exceptionally burdensome

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given that there was no incentive or need to generate or keep documentation in the past when
trading ivory objects was perfectly legal. Regardless, the Law raises this burden on Californians

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who own items that incorporate legally imported ivory, stripping them of any monetary value.
Even if documentation could be obtained, the cumulative effects of the various criteria create a
maze of requirements involving importation dates and DNA differentiations that few if any
owners of legal ivory could successfully navigate.
///
B.

The Underpinnings of the law are based on factual misconceptions.

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The disconnect between the problem and the proposed solution under the Law is so great
that it renders the Law arbitrary and capricious. (See Declaration of Godfrey Harris.)

The Law results in unconstitutional taking of legally owned ivory under the Fifth

Amendment and does not fall within the Andrus v. Allard, 444 U.S. 51 (1979) exception

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concerning takings involving only some ownership rights. The Law further lacks any clear nexus
between the purported (and unproven) rationale of the Law stopping African elephant
poaching and its proposed action implementing a virtual ban on all trade in ivory objects
within California. (See Declaration of Daniel Stiles.)
As recently as September 2012, the federal U.S. Fish & Wildlife Service concluded that
[s]ince the vast majority of seizures in the United States were small quantities, we do not
believe that there is a significant illegal ivory trade into this country. Nothing to contradict this
statement has been offered. International and domestic data confirm that poached elephant tusks

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smuggled out of Africa have gone to Asia, and almost none of them has come into the United

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States. This situation demonstrates that the federal laws against importing illegal ivory into the

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United States from tusks taken after 1976 are working on behalf of African elephants as

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intended.
Notwithstanding the success of existing federal law in protecting African elephants,
Californias law goes further in banning almost all domestic ivory trade in products that have no

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relationship to African elephants and in severely constricting existing exemptions for antiques

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containing ivory. Without a reasonable basis for this action with evidence rooted in California,

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the Law is arbitrary and capricious.

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Dr. Daniel Stiles, an elephant and wildlife expert, believes that there is currently no

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demand for newly poached raw ivory in the United States. He further contends that the evidence
is overwhelming that the increase in elephant poaching beginning about 2007 was caused by
East Asian speculator anticipation of rising prices for raw ivory, not by consumer demand for
worked ivory either in the U.S. or abroad. (See Declaration of Dr. Daniel Stiles.)
While the benefits of the Law range from uncertain to counterproductive, the personal
costs to individuals who own, collect, work, or trade legally imported ivory are immediate,

In a flash study of casual ivory ownership, the Ivory Education Institute determined that

some 33 million Americans own one or more personal ivory objects with an estimated value of

$7 billion. (See Declaration of Godfrey Harris.)

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This outrageous disregard for the extensive cost of the Law, when compared to expected
doubtful benefits, is completely inconsistent with the Supreme Courts recent holding in
Michigan v. EPA, 576 U.S. (2015) 135 S.Ct. 2699 (remanding coal regulations to the EPA for the
agencys failure to take costs adequately into account when promulgating its regulations).
Considering the enormous losses innocent Californians will suffer from the Law versus

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the purely speculative value of the Law to the well-being of elephants in Africa, the Law violates

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the due process rights of individual owners of ivory objects, musical instruments, scientific tools,

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and other historic, practical and cultural uses of this material without any demonstrable benefit
to Californias citizens.
Finally, the premise that the Law is necessary because the type and age of an ivory object

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cannot be determined is based on old biases as well as patently untrue. (Declarations of David

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White and Dr. Adolph P. Shvedchikov.)

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C.

The Law Is Too Broad In Scope.

In Edwards v. City, 262 Fed 3rd 856, 863 the court stated that the government has the
burden of demonstrating that the regulation of a protected right must advance a substantial

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governmental interest and it is to be narrowly tailored to prevent no more than the specific evil it

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seeks to remedy. The Law is not narrowly tailored. In fact, it includes a sweeping prohibition on

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trade in many art forms and artistic styles.

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A statute may be invalidated if the law is devoid of any rational connection to a public

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interest objective as the legislature may have conceived them. Eye Dog Foundation v. State
Board of Guide Dogs, 67 C2d 536. As the attached declaration of Daniels Stiles makes apparent,
this Law will have no effect on the problems the Law purports to address, and will likely make
the problem worse by increasing the scarcity of ivory and thereby driving its price up and
making poaching that much more economically attractive.
D.

The Law Is Not Reasonably Related to the Problem it Seeks to Redress.

The case of Andrus v. Allard, 444 U.S. 51 (1979) allowed the prohibition on the trade in

eagle feathers despite the argument it deprived the owners of compensation for a regulatory

taking. In order to avoid being declared an unconstitutional taking under the Fifth Amendment,

the Law presumably leaves undisturbed an ivory owners right of possession, exhibition, and the

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ability to transfer property to heirs.

The case of Andrus vs. Allard acknowledged that [t]he Takings Clause . . . preserves
governmental power to regulate, subject only to the dictates of justice and fairness. Andrus at
65. [Emphasis added.]
In this case, the Law fails to fit within even this broad standard as articulated in Andrus.
The Law is neither just nor fair. It imposes a domestic ivory ban to minimize the role that
California plays in the global market for African elephant ivory notwithstanding the fact that the
California role in that market is acknowledged to be insignificant. (See Declarations of Godfrey

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Harris and Daniel Stiles.) It further violates the Constitutional limits within which a government

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could force innocent citizens individually to bear the costs of the regulations involving

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preservation of African elephants. Without anything more than a hope that a single elephant

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might be saved from poachers, this Law falls outside of Andruss protection and should require
the state to compensate those it injures.
Further, the Andrus principles have been eroded in the later case of Horne v. Department

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of Agriculture, 135 S.Ct. 2419 (2015). In Horne the Court ruled that an improper taking could

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be involved in requiring raisin farmers to give up portions of their crop to stabilize the market

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price for the product. The Court implied that losing physical possession of raisins was not as

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critical as losing the right to market personal property.

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E.

The Police Power Should Not Apply to Save the Law.

The police power as a regulatory right of government is supposed to address local

concerns. Therefore, the use of the police power is only legitimate if it regulates things found
within the jurisdiction involved. A state should have no business attempting to regulate animals
that are only found outside its borders. While the court in Viva! International v. Adidas, 41 Cal
4th 929 primarily relied on Maine v. Taylor, 477 U.S. 131, 151-152 to suggest that wildlife

fish which would harm the local fish. It was not a regulation to protect out of state species in

their habitats. Similarly, the New York case Cresenzi Bird Importers v. NY, 658 F.Supp. 1441

involved the commerce clause and the sale within New York of out-of-state wildlife.

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The Law here is directly intended to effect the indiscriminate killing of elephants and
rhinos in Africa. A laudable objective, but not one anchored in a demonstrably necessary need of
Californians sufficient to allow application of the police power.
V. THE LAW IS VOID FOR VAGUENESS
The Law is uncertain and vague. Section 2(b) holds that it is unlawful to purchase, sell,

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offer for sale, possess with intent to sell, or import with intent to sell ivory. Ivory black

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pigment, used in many old master paintings by such artists as Da Vinci, Caravaggio and

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Rembrandt, as well as by Impressionists (Manet, Monet, Pissaro), and Picasso in the modern era,
meets the definition as it is made from crushed elephant ivory cooked to carbon particles in an

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airtight receptacle before being crushed into camphor oil to provide a desired viscosity. (See

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Declaration of Godfrey Harris.)

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The Law does not explain what less than 20 percent or less than 5 percent by volume
means. Volume, in normal circumstances, is defined as the total capacity of an object taking into
consideration its width, height, and length. The volume of a six-inch tall by one-inch wide by
one-inch deep ivory representational statuette on a three-inch square, two inch tall wooden base

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occupies a total of 24.0 cubic inches. The ivory portion would account for 25% of the overall

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volume of the piece. If, however, the ivory were mounted on an 18-inch long bronze platform

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that was two inches tall and four inches wide, the same piece of ivory would be 4.1% of the total

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volume of the object. How can it make sense to Californias citizens that, all other things being

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equal, one object is banned from commerce for exceeding the five percent (5%) threshold while
the other is acceptable when exactly the same amount of ivory is involved? Such a dictum could
satisfy no California public policy goal by disallowing trade in one artistic rendering, but
permitting it in another, with the only difference between the two being the size of the non-ivory
base chosen to display the object.
More troublesome still is when the five percent by volume standard is applied to old

They cannot be measured by the Laws requirement, yet many old paintings contain copious

amounts of ivory. Take Rembrandts Old Man with a Gold Chain in the Art Institute of

Chicago. It measures 29.8 x 30.3 inches (75.7 cm x 83.1 cm) or approximately 906 square

inches. Ivory black paint, of which approximately 60% is actual ivory particles, is estimated to

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have been used on at least 90% of the painting. (Declaration of Godfrey Harris.)
Even if the legislature did not intend the Law to prohibit trade in paintings containing
ivory black, surely it did not also intend to proclaim that such a painting is worth more to our
culture than an ivory netsuke, ivory chess piece or the decoration inlaid into a Louis XIV desk.

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The point is that restricting any aspect of our culture in favor of another is limiting our

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knowledge of the past and our understanding of the present.

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VI. THE LAW IS INVALID AS RETROSPECTIVE AND EX POST FACTO

Statutes are presumed to operate prospectively and not retrospectively. A retrospective

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law is one that relates back to a previous transaction and gives that transaction a different legal

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effect from that which it had when it occurred (Ware v. Heller, 63 Cal.App.2d 817, 821). The

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Law has the effect of a retrospective law in that it makes ivory holdings, which were perfectly

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legal for sale before July 1, 2016, illegal after that date. Nothing has changed other than the
governments declaration. As a result, this has all the aspects of an ex post facto law.
This law also retrospectively alters the definition of a crime by making the sale of

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something acquired with no restrictions into something that cannot now be sold. (See, People v.

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Grant, 20 C4 150, 158).

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VII. THE LAW VIOLATES THE DORMANT COMMERCE CLAUSE

The commerce clause is an express grant of authority to Congress [t]o regulate

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commerce with foreign nations, and among the several states . . . . (U.S. Const., art. I,
8, cl.3).
This grant of authority includes an implied limitation on the states authority to adopt
legislation that affects that commerce. It is often referred to as the dormant commerce clause.
(Healy v. Beer Institute (1989) 491 U.S. 324, 326, fn. 1 [105 L.Ed.2d 275, 281, 109 S.Ct. 2491].)

A state statute is invalid per se if it discriminates against interstate commerce in favor of

in-state economic interests or if its practical effect is to control conduct beyond the boundaries of

the regulating state. (Healy, supra, 491 U.S. at p. 336.)

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A walrus tusk carver or scrimshander in Alaska, who is legally entitled to produce his
carvings or scrimshaws and who has specific and express protections under the Marine Mammal
Protection Act, may not now sell them in California under the Law. As such, the Law violates
the dormant commerce clause of the U.S. Constitution by prohibiting an activity which is
expressly allowed by the federal government.

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VIII. THE LAW HAS BEEN PREEMPTED BY THE FEDERAL GOVERNMENT

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Federal statutes and regulations with regard to the ivory trade are extensive. (See, for

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example, more than 90 pages of the Federal Register devoted to regulations pertaining to
African elephants under, Section 4(d) of the Endangered Species Act.)
Given the number of federal statutes, the CITES treaty, and the regulations issued

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pursuant to the Endangered Species Act, there can be little doubt that the federal government

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intends to maintain its primacy on the issue of elephants. An argument for preemption is set

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forth in Man Hing Ivory Imports, Inc. v. Deukmejian, 702 F2d 760. That case has a cogent
analysis of why the statute is indeed preempted by the federal government. The Man Hing Ivory
Imports case involved a predecessor of the Law, California Penal Code 653o. The court found

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that the Endangered Species Act of 1973 expressly prevents the states from enforcing laws that

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prohibit activities that are otherwise authorized by that Act. The state statute may not prohibit

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activities what the federal statute or implementing regulations permit. The Endangered Species

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Act and the Section 4(d) Rule for African elephants under the Act allows the sale of antiques,

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and items that contain small amounts of ivory under specific criteria. The Law potentially
prohibits trade in these areas.
The Law itself seeks on the surface to avoid the preemption problem by expressly stating
in section 2022 (c) (2) that an activity that is authorized under federal law is exempt under the
Law. Therefore, the limitations on antiques relating to 5% of an object, and the musical
instrument 20% limitations, as well as the other California differences, are ostensibly

content of objects based on Section (c)(2) of the Law. In effect, therefore, the Law is duplicative

of the federal requirements and as such would be preempted. Legislation which either duplicates

or contradicts a senior authority is preempted (Bravo Vending v. City of Rancho Mirage (16

Cal.App.4th 383, 396).

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Furthermore, the CITES treaty allows more restrictive laws to be enforced by the
member states, but not by non-member local governments such as California. Since the Law
ostensibly seeks more restrictive rules on wildlife than under CITES, the Law is also improper
under CITES with regard to the endangered species listed in the Treaty, and is preempted by it.
(See Declaration of Dr. Brendan Moyle).
To qualify for the antique exemption under Rule 4(d) of the Endangered Species Act, the
item must be 100 years or older and may not have been repaired or modified with an ESA-listed
species since December 27, 1973.
To qualify for an exception based on size the ivory must not account for more than 50%
of its value and the total weight of the ivory components must be less than 200 grams.
The Law goes beyond these requirements and would to that extent be preempted.
However under Paragraph (c)(2) of the Law, federal rules would govern, so that the Law is
clearly duplicative, notwithstanding the confusing differences. Where state regulations or laws
are in addition to, or more restrictive than the federal requirements, the state Law will be deemed
preempted. (Jones v. Roth Packing Co., 430 U.S. 519 (1977)).

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The case of Viva! International v. Adiday, 41 C4 929 involved the importing of athletic

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shoes made from a non-endangered species of kangaroo. The court recognized the doctrine of

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implied preemption but held the State ban was not preempted. The difference here is that

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elephants and rhinos are listed as endangered and are governed by CITES and Rule 4(d) of the
Endangered Species Act, while the kangaroos in Viva! were not endangered, and CITES was not
implicated.
Viva! involved obstacle preemption; this case implicates obstacle, field, and express
preemptions.
In the present circumstance, the Law is more restrictive on the question of ivory than the

antiques, the minor use of ivory for a specific purpose (violin bows) and the use of ivory for

decoration in minor situations. Citizens of California are being treated by the Law more harshly

than citizens of other states in an area where the federal government has unquestioned

responsibility, more resources, and greater overview. Californias law is an obstacle to the

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preservation of our national culture that the federal government recognizes and favors.
Under CITES, member states such as the United States, can adopt stricter domestic
measures (Article XIV of the treaty). But state and local government subdivisions of a member
state are not parties to the Treaty, and may not adopt stricter measures.
The Viva! case involving kangaroos and the recent case of Chinatown v. Harris, 33F
Supp. 3d 1085 (2014) involved California Fish and Game Code Sections 2021 and 2021.5,
which upheld the ban on shark fin commerce in California. These cases seem to involve
superficially similar bans relating to threatened animals. But there is a major distinction. The

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ivory ban attacks trade in cultural, historic and artistic objects comprised of a material used

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before Biblical times. The kangaroo hide involves the trim on shoes and the shark fins are an

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ingredient in soup. Unlike shoe trim and shark fins, the cultural heritage of worked ivory is of

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incalculable value to all of society (Declarations of Godfrey Harris and David White), and the
balance of that value, against the survival of an endangered species, has been addressed by the
federal act and regulations. The California law in its attempt to go further is preempted, and the
upholding of the Law cannot be supported.

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IX. THERE ARE OTHER REASONS THE LAW IS INVALID

A.

The Law violates Article IV, Section 9 of the California Constitution in that the

statute embraces more than one subject. According to Section 1, the Law addresses the

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worldwide concern regarding the plight of elephants and rhinoceroses who are being poached
at alarming rates (Emphasis added.) The stated subject of the Law involves both the
protection of elephant and rhinoceroses. Both are listed as endangered species. Yet the Law
actually embraces more than these two endangered species and provides the same protections for
mammoths and mastodons which dont need protection since they are extinct as well as
for walrus, warthog, hippopotamus, whale, and narwhal.

While it is true that the single-subject rule is not to receive a narrow or technical

construction (San Joaquin Helicopters v. Dept. of Forestry, 110 CA4 1549) the Laws clear

purpose stated in its opening words is the preservation of and protection for elephants and

rhinoceroses. The scope of the Law and its subject matter goes far beyond that to include extinct

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species as well as species not known to be endangered. If the subject of the Law is to ban ivory
sales for the protection of an endangered species then the Law goes beyond that to include
rhinoceroses horn. These horns are not, in fact, horn, but are classified as keratinous material
equivalent to a human fingernails or a horses hooves. It is not ivory, either. Ivory is a dentine
material.
Therefore, if the Laws single subject is protection of endangered species, it goes beyond
that; if it is conservation to protect ivory-bearing animals, it goes beyond that. If it is a catch-all
to protect elephants and rhinoceroses as endangered species, it goes beyond that as well. Its

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subject matter is therefore in excess of the constitutional requirement that a law be limited to one

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subject.

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X. THE AFFIRMATIVE DEFENSES TO PLAINTIFFS ACTION ARE UNTENABLE

None of the Affirmative Defenses pled would bar the summary judgment sought in this
motion. The cause of action for declaratory relief and injunction are proper under C.C.P. 1060,
et al. and Civil Code 3420 and C.C.P. 526. The Complaint is not uncertain, it could not

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violate the Statute of Limitations, the challenge is not premature and the court has already held

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that the statute is ripe for adjudication. Injunctive relief is appropriate for an unconstitutional

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statute. Plaintiff has standing pursuant to C.C.P. 369.5. (Declaration of Godfrey Harris.) The

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presumption that the Law is valid (if such a presumption exists involving a law with no

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connection whatsoever to California animals) is overcome by the principles as set forth in these
points and authorities. Interested parties have been joined as intervenors. There are no
administrative remedies which were necessary to be exhausted, nor are there other judicial
remedies to be exhausted and Plaintiffs attorneys fees, if any, would be considered under C.C.P.
1021.5.
The Law contains a severance clause, and therefore if certain parts of the Law are

rhinoceros), the other parts of the Law involving non-endangered species would arguably not be

affected.

///

///

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XI. CONCLUSION
Elephant poaching decimating large numbers of animals has proven to be a serious
worldwide tragedy. It is proper for the United States, Congress and its citizens to be concerned.

Dealing with the problem, though, requires a sober look at the causes and cures. There is no

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doubt that the root causes lie in Africa (corruption) and Asia (demand); there is also no doubt

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that restricting ownership of antique and existing ivory products including those worked from

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extinct and non-endangered sources, have no bearing on either the cause or the cure. A domestic
ivory ban in California is a public relations solution to a difficult diplomatic and conservation
problem on the international level.
The Law intrudes on the exclusive terrain of federal law and seeks to punish innocent
Californians while diverting attention and resources from dealing with actual poachers and
smugglers half a world away. It is ineffective as well as unconstitutional, and preempted.
Compounding the problem, the Law threatens to destroy antiques and other culturally significant
items by undermining their markets and rendering them valueless. Under this Law, neither

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valuable ivory objects nor endangered species will be preserved for future generations. It is a

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law that not only infringes on the rights of California citizens, it improperly intrudes upon the

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exclusive right of the federal government to deal in matters of foreign affairs; it interferes with

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interstate commerce; it deprives the state of tax revenue, it violates the due process rights of its

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citizens; it is void for vagueness, it is improperly retrospective; and it is preempted by federal

law and regulations which cover the same ground.
The Law will cause great confusion in its enforcement in that by its own terms, it can
prohibit nothing that federal law or rules otherwise allow. In short, the Law is an example of
improper, absolutely unnecessary, and unconstitutional legislating that is little more than an
expensive and showy publicity effort. It is unconstitutional and preempted and this Court should

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rule it to be invalid for the reasons set forth, and an injunction should be issued against any
enforcement of its provisions.
DATED: August ______, 2016.
ROGERS & HARRIS

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By:__________________________________
MICHAEL HARRIS, Attorneys for
Plaintiff Ivory Education Institute