Safari Club International v. Becerra , 702 F. App'x 607 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAFARI CLUB INTERNATIONAL, No. 16-15255
Plaintiff-Appellant, D.C. No.
2:14-cv-01856-JAM-AC
v.
XAVIER BECERRA, Attorney General, in MEMORANDUM*
his official capacity as the Attorney General
of California and CHARLTON H.
BONHAM, in his official capacity as the
Director of the California Department of
Fish and Wildlife,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 14, 2017
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and SANDS,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
Safari Club International challenges California’s prohibition on the
importation, possession, and transportation of mountain lions in the state of
California (the “Mountain Lion Prohibition” or “the Prohibition”). Cal. Fish &
Game Code § 4800 et. seq. Safari Club asserts two issues on appeal: whether the
district court erred by dismissing its dormant Commerce Clause claim, and
whether the district court erred by dismissing its 42 U.S.C. § 1983 claim.
1. Safari Club contends that it adequately alleged a plausible claim under the
dormant Commerce Clause. We analyze dormant Commerce Clause claims under
a two-tiered approach. First, we evaluate whether the law discriminates against or
directly regulates interstate commerce. Pharm. Research & Mfrs. of Am. v. Cty. of
Alameda, 768 F.3d 1037, 1041, 1044 (9th Cir. 2014). Second, under Pike v. Bruce
Church, Inc., 397 U.S. 137 (1970), we consider whether the burden imposed on
interstate commerce is “clearly excessive in relation to the putative local benefits.”
Id. at 142.
While Safari Club makes a number of allegations related to the effect of the
Prohibition on interstate commerce and a small subset of residents in California, it
does not allege that the Prohibition discriminates in favor of in-state interests. See
Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1012 (9th Cir. 1994). Nor
could it make such a challenge. The Prohibition applies equally to in- and out-of-
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state mountain lions, as well as in- and out-of-state residents. The district court
correctly concluded that the Mountain Lion Prohibition is not discriminatory.
Safari Club contends that the Prohibition substantially burdens interstate
commerce because it discourages California residents from traveling to other states
and countries to hunt mountain lions, and it prevents persons who have already
hunted a mountain lion outside of California from shipping the animal’s remains to
California. Safari Club alleged that 140 of its members would make plans to
transport already harvested animals into California, hunt mountain lions outside of
California, or provide services related to mountain lion hunting outside of
California if the Prohibition were lifted.
Although there is no absolute numeric test for determining whether a burden
on interstate commerce is substantial, the survey responses of 100 or so persons in
our view do not provide evidence of a substantial burden on interstate commerce.
See Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1149 (9th
Cir. 2012). Safari Club estimates a burden based on the fact that 3.2% of its
members said they were interested in possessing mountain lions in California—
extrapolating that about 8,000 Californians would be interested in importing
mountain lions hunted outside of California. But Safari Club gives no basis for
why this small percentage of a specialty group is representative of all hunters in
California, so it does not offer sufficient facts to allege a plausible claim.
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Similarly, Safari Club’s projection of the revenue that would be generated from
these interested persons’ ability to possess out-of-state harvested mountain lions
did not allege an undue burden because it is extrapolated from Safari Club’s
unsubstantiated estimate of California hunters’ interest. Nat’l Audubon Soc’y, Inc.
v. Davis, 307 F.3d 835, 858 (9th Cir. 2002), opinion amended on denial of
reh’g, 312 F.3d 416 (9th Cir. 2002). The district court did not err in concluding
that Safari Club failed to allege a substantial burden on interstate commerce.
Accordingly, the district court did not need to conduct a full Pike analysis.
Pharm. Research & Mfrs., 768 F.3d at 1044 (noting that under Pike, a plaintiff
must first show that the statute imposes a substantial burden before the court will
determine whether the benefits of the challenged laws are illusory). Only after
determining that the state law is discriminatory and there is an undue burden on
interstate commerce do we need to undertake a full Pike analysis. Chinatown
Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1147 (9th Cir. 2015), cert. denied,
136 S. Ct. 2448, 195 L. Ed. 2d 263 (2016); see also Nat’l Ass’n of Optometrists,
682 F.3d at 1156. The district court did not err in dismissing Safari Club’s suit for
failure to state a claim.
2. Safari Club contends also that the district court erred by dismissing its
Section 1983 claim based on alleged violations of the dormant Commerce Clause.
Because the district court did not err in dismissing Safari Club’s dormant
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Commerce Clause claim, the district court also did not err in dismissing its Section
1983 claim. West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under §
1983, a plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”).
AFFIRMED.
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