394 F.Supp.3d 447
S.D.N.Y.2019Background
- Plaintiffs are trade associations for art and antique dealers who challenge New York Environmental Conservation Law § 11-0535-a (the "State Ivory Law") and DEC licenses restricting ivory trade and in‑store display.
- The State Ivory Law broadly bans sale, offer, purchase, trade or distribution of "ivory articles," subject to narrower exceptions than the federal ESA (e.g., antique exception limited to <20% ivory by volume). DEC issues licenses permitting activity within those statutory exceptions and imposes a license Display Restriction (no physical in‑store display of items not authorized for intrastate sale).
- Plaintiffs seek a declaratory judgment that the State Ivory Law is preempted by the Endangered Species Act (ESA) and an injunction against enforcement; they also allege the Display Restriction violates the First Amendment.
- DEC concedes the State Ivory Law is preempted as applied to federally‑authorized interstate or foreign commerce, but insists it remains enforceable as to purely intrastate commerce.
- On motions, the district court evaluated express, field, and conflict preemption under ESA § 1535(f) and applied Central Hudson intermediate scrutiny to the First Amendment challenge to the Display Restriction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Express preemption under ESA § 1535(f) | §1535(f) preempts any state law that bars what a federal exemption/permit allows; federal antique/de minimis exceptions should bar New York from prohibiting intrastate sale that federal law permits for interstate commerce | §1535(f) by its plain terms applies only to import/export and interstate/foreign commerce and does not reach purely intrastate sales; DEC concedes preemption for federally authorized interstate sales | The court held express preemption does not apply to laws regulating purely intrastate ivory commerce under §1535(f) |
| Field preemption (ESA occupies entire field) | ESA displaces state regulation of ivory trade, precluding state restrictions on sales that undermine federal scheme | ESA expressly contemplates state wildlife laws and limits preemption to specified conflicts; Congress did not intend to occupy entire field | The court held field preemption does not apply; ESA does not displace traditional state wildlife regulation |
| Conflict preemption (impossibility/obstacle) | State law preventing intrastate sales conflicts with federal objectives and may make compliance with federal permits impossible or an obstacle | DEC will permit federally authorized interstate/foreign sales; intrastate regulation does not make dual compliance impossible and any indirect effects do not produce direct conflict with federal goals | The court held conflict preemption does not apply to the State Ivory Law as applied to intrastate commerce |
| First Amendment challenge to Display Restriction | Physical in‑store display of goods is protected commercial speech when it proposes potentially lawful interstate transactions; the Display Restriction is overbroad and not sufficiently tailored | New York has a substantial interest in preventing intrastate ivory sales and the Display Restriction directly advances that interest | The court denied dismissal of the First Amendment claim, finding the TAC plausibly alleges the restriction burdens more speech than necessary; summary judgment was denied without prejudice pending factual development |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading‑stage plausibility standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading‑stage plausibility standard)
- Arizona v. United States, 567 U.S. 387 (presumption against preemption of state police powers)
- Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (interpretation of express preemption clauses)
- Ex parte Young, 209 U.S. 123 (equitable relief against state officers for federal violations)
- Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557 (commercial speech intermediate scrutiny test)
- Marentette v. Abbott Labs., Inc., 886 F.3d 112 (presumption against preemption in areas of traditional state regulation)
- Coalition for Competitive Electricity v. Zibelman (Dynergy II), 906 F.3d 41 (conflict and field preemption principles)