p.Ji Attorneys for Defendant Charlton H Bonham, in …...3 LINDA GANDARA, State Bar No. 194667 ALI A. KARAOUNI, State Bar No. 260849 4 Deputy Attorneys General 1300 I Street, Suite

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1 XAVIER BECERRA, State Bar No. 118517 Attorney General of California

2 RANDY L. BARROW, State Bar No. 111290 Supervising Deputy Attorney General

3 LINDA GANDARA, State Bar No. 194667 ALI A. KARAOUNI, State Bar No. 260849

4 Deputy Attorneys General 1300 I Street, Suite 125

5 P.O. Box 944255 Sacramento, CA 94244-2550

6 Telephone: (916) 210-7795 Fax: (916) 327-2319

7 E-mail: p.Ji .Kgraot1ni(q1doj ,.<;_;a.goy

8 Attorneys for Defendant Charlton H Bonham, in his official capacity as Director of California

9 Department of Fish and Wildl(fe

10 IN THE UNITED STATES DISTRICT COURT

11 FOR THE EASTERN DISTRICT OF CALIFORNIA

12 FRESNO DIVISION

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PETER STAVRIANOUDAKIS, ET AL., 1: 18-cv-01505-LJO-BAM

v.

U.S. DEPARTMENT OF FISH & WILDLIFE, ET AL.,

Plaintiffs, DIRECTOR OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Date: Time:

April 11, 2019 9:00 a.m.

Defendants. Courtroom: 4 Judge:

Trial Date: Action Filed: ------------------'

The Honorable Lawrence J. O'Neill None Set 10/30/2018

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction ( 1: 18-cv-O 1505-LJO-BAM)

Case 1:18-cv-01505-LJO-BAM Document 26 Filed 03/15/19 Page 1 of 32

1 XAVIER BECERRA, State Bar No. 118517 Attorney General of California

2 RANDY L. BARROW, State Bar No. 111290 Supervising Deputy Attorney General

3 LINDA GANDARA, State Bar No. 194667 ALI A. KARAOUNI, State Bar No. 260849

4 Deputy Attorneys General 1300 I Street, Suite 125

5 P.O. Box 944255 Sacramento, CA 94244-2550

6 Telephone: (916) 210-7795 Fax: (916) 327-2319

7 E-mail: Ali.Karaouni@),doj.ca.gQv

8 Attorneys for Defendant Charlton H Bonham, in his official capacity as Director of California

9 Department of Fish and Wildlife

10 IN THE UNIT.ED STATES DISTRICT COURT

11 FOR THE EASTERN DISTRICT OF CALIFORNIA

12 FRESNO DIVISION

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PETER STA VRIANOUDAKIS, ET AL., 1 :18-cv-01505-LJO-BAM

v.

U.S. DEPARTMENT OF FISH & WILDLIFE, ET AL.,

Plaintiffs, DIRECTOR OF CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Date: Time:

April 11, 2019 9:00 a.m.

Defendants. Courtroom: 4 Judge:

Trial Date: Action Filed: ----------------~

The Honorable Lawrence J. O'Neill None Set 10/30/2018

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (I: 18-cv-O 1505-LJO-BAM)


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TABLE OF CONTENTS

Page

INTRODUCTION ........................................................................................................................... 1

FACTUAL AND REGULATORY BACKGROUND .................................................................... 2

I. Falconry Regulation in the United States ................................................................ 2

II. Falconry Regulation in California ........................................................................... 4

A. California's Falconry Regulations .................................. ; ........................... .4

B. 2017 Amendment ......................................................................................... 5

C. Examples of Enforcement ............................................................................ 6

STANDARD OF REVIEW ............................................................................................................. 7

LEGAL ARGUMENT .................................................... -................................................................. 8

I.

II.

Plaintiffs Are Not Likely to Succeed on the Merits ................................................. 8

A. The Unannounced Inspection Provision Is Lawful Under the Fourth

B.

Amendment .................................................................................................. 8

1.

2.

·3.

4.

The Unannounced Inspection Provision Is Lawful On Its Face Because Falconry Is a Closely Regulated Industry Under the Fourth Amendment. ........................................................ 9

a. Regulation of Falconry is Pervasive .................................. 11

b. The Government Has a Substantial Interest in Regulating These Protected Birds ...................................... 12

c. Warrantless Administrative Inspections Are Necessary to Further the Regulatory Scheme .................... 13

d. The Inspection Program Provides a Constitutionally Adequate Substitute for a Warrant. .................................... 15

The Unannounced Inspection Provision is Reasonable on its Face ................................................................................................ 16

Plaintiffs Do Not Meet Their Burden of Asserting a Facial Challenge ....................................................................................... 18

To the Extent Plaintiffs Raise As-Applied Challenges, . Plaintiffs Lack Standing and their Claims Are Unripe .................. 19

The Department's Regulations Do Not Violate the First Amendment Because They Do Not Limit Plaintiffs' Free Speech Rights ....................................................... ; ................................................. 20

The Balance of Equities Tips Sharply in Favor of Denying Injunctive Relief and an Injunction Is Not in the Public Interest. ........................................... 22

conclusion ...................................................................................................................................... 24

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1: 18-cv-01505-LJO-BAM)


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TABLE OF AUTHORITIES

.J

CASES

Amoco Prod. Co. v. Vil!. Of Gambell 480 U.S. 531 (1987) ............................................................... ; ......... : ............. ; ............ : ............. 23

Chandler v. State Farm Mutual Automobile Insurance Co. 598 F.3d 1115· (9th Cir. 2010) ................................................................................................... 20

DISH Network Corp. v. FCC 653 F.3d 771 (9th Cir. 2011) .................................................................................................. 8, 22

Donovan v. Dewey 452 U.S. 594 (1981) .................................................................................................................... 8

Earth Island Inst. v. Carlton 626 F.3d 462 (9th Cir. 2010) ................ ; .................................................................... '. ................ 7

Ex parte Maier 103 Cal. 476 (1894) .................................................................................................................. 13

Friends of Mammoth v. Board of Supervisors 8 Cal. 3d 247 (1972) ................................................................................................................. 13

In re Phoedovius 177 Cal. 238 (1918) .................................................................................................................. 13

Ex parte Kenneke 136 Cal. 527 (1902) ..................................................................................................... ; ............ 13

Lesser v. Espy 34 F.3d 1301 (1994) ............................................................................................ : ............... passim

Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) .......................... : ....................................................................................... 20

Maryland v. Dyson 527 U.S. 465 (1999) .............................................................. : ............................... .' ..................... 9

Maryland v. King 567 U.S. 1 (2010) (Roberts, J., in chambers) ............................................................................ 23

National Audubon Society v. Superior Court 33 Cal. 3d 419 (1983) ............................................................................................................... 13

11

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TABLE OF AUTHORITIES ( continued)

New Motor Vehicle Bd. Of Cal. V Orrin W. Fox Co. 434 U.S. 1345 (1977) ................................................................................................................ 23

New York v. Burger 482 U.S. 691 (1987) ...................... , .......................................... : ......... _ ................................ passim

Nken v. Holdef' 556 U.S. 418 (2009) ..................................................................................................... _-............. 23

People v. Harbor Hut Restaurant 147 Cal. App. 3d 1151 (1983} .................................................................................................. 13

People v. Maikhio 51 Cal. 4th 1074 (20.11) .... .; ... ; ...................................................................................... 12, 13, 16

Reno v. Flores · 507 U.S. 292 (1993) ............................... : .............................................................................. .-... 18

Rhoades v. Avon Products, Inc. 504 F.3d 1151 (9th Cir. 2007) .................................... ; .......................................... _ ................... 20

Rush v. Obledo _ 756 F. 2d 713 (9th Cir. 1985) ............................................................................................. 10, 17

SEC v. Medical Committee for Human Rights _ 404 us 403 (1972) ..................................................................................................................... 20

Soldal v. Cook County 506 U.S. 56 (1992) ........ , ........................................................................................................... 16

US._v. Dang 488 F.3d 1135 (9th Cir. 2007) ...................................................... .-..................................... 18, 19

United States v. Biswell 406 U.S. 311 (1972) ........................................................................... -........................................ 14

United States v. Orozco 858 F.3d 1204 (9th Cir. 2017) ....................................... -........................................................... 10

Valley Forge Christian College v. Americans United for Separation o,fChurch & State, Inc. 454 U.S. 464 (1982) .................................................................................................................. 20

Vernonia School Dist. 47J v. Acton 515 U.S. 646 (1995) .................................................................................................................. 16

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Weinberger v. Romero-Barcelo


456 U.S. 305 (1982) .................................................................................................................. 23

Winter v. Nat. Res. Def Council 555 U.S. J (2008) .......... '. ............................................................................................... 2, 7, 8, 23 ,

STATUTES

7 United States Code §§ 2131-2159 ................. '. ............................................................ '. ............................................. 10

16 United States Code §§ 703-712 ................................. -.. ........................................................................................... 1, 2 § 703(a) ....................................................................................................................................... 2

IV

Director of CA Dept. of Fish and_Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1: l 8-cv-01505-LJO-BAM)


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California Code of R-egulations, Title 14 §509(b) ........................................................................................................................................ 7 § 670 ............................................................................................................. : .................... passim § 670(a)(2) ................................................................................................................................ 11 § 670(b)(12) .............................................................................................................................. 11 §670(c) ..................................................................................................................................... 11 § 670(e)(2)(D) ........................................................................................................................... 12 § 670(e)(3) .................................................................................. : ............................................. 11 § 670(e)(4)(A) ........................................................................................................................... 11 § 670(e)(6)(A)(4) ........................................... : .......................................................................... 11 § 670(e)(6)(A)(5) ...................................................................................................................... 12 § 670(e)(7)(D) ......... : ................................................................................................................. 12 § 670(e)(9) ................................................................................................................................ 12 § 670 (e)(12) ............................................................................................ .' .... , ........................... 12 § 670( e )(B)(2) ............................................................................................................................ 11 § 670(h) ..................................................................................................................................... 11 § 670 G)Cl) ................................................................................................................................ 12 § 670G)(l)(E) ............................................................................................................................. 12 § 670G)C3) ................................................................................................................................. 12 § 670( e )(7)(A)-(C) ..................................................................................................................... 11 § 670( e )(C)(l )-(2) ..................................................................................................................... 11 § 670(g)(8)(A)-(J) ..................................................................................................................... 11 § 670(8)(g)(A)-(J) .................. : .................................................................................................. 14 § 670(e)(2)(D) ............................................................................................................. 1, 4, 15, 17 § 670(e)(6)(A)(4) ...................................................................................................................... 14 § 670(e)(6)(B)(2) ...................................................................................................................... 14 § 670(e)(9) .................................................................................................................................. 4 § 670(e)(l 1) ..................................................................................................... ; ........................ 18 § 670(£) ....................................................................................................................................... 7 § 670(h)(7) .................................................................................................................................. 7 § 670(h)(l3) .......................................................................................................................... 5, 21 § 670(h)(13)(A) ........................................................................................................................... 4 § 670(h)(13)(C) .................... ., ...................................................................................................... 5 § 670G)Cl) ................................................................................................................................. 13 § 670G)C3) ....................................................................................................................... 4, 16, 11 § 670G)(3)(A) .................................................................................................................... passim § 671.l(b)(6) ......................................................................................................................... 5, 22 § 670 (C)(l )-(2) .................................. : ..................................................................................... 14

Fish and Game Code § 37 ......................... : .................................................................................................................. 16. §1700 ....................................................................................................................................... 13

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Fish and Game Code


§ 1801 .................................................... : .................................................................................. 13 § 12000 ..................................................................................................................... : ............... 12

CONSTITUTIONAL PROVISIONS

Californ1a Constitution Article I, § 25 ........................................................................................................................... 12. Article IV,§ 20 ........................................................................................................................ 12. Article X B, §§ 1-16 .............................. : .................................................................................. 12

United States Constitution A1nendment IV ........................................................................................................................... 8 Article III ................................................................ , ................................................................. 20 Article III, § 2, cl. 1 .................................................................................................................. 20

COURT RULES

Federal Rules of Civil Procedure 12(b)(l) .......................................................... ; .......................................................................... 20

OTHER AUTHORITIES

50 Code of FederalRegulations § 21.27 .................................................................................................................................... 3, 5 § 21.29-................................................................................................................................ 2, 3, 7 § 21.29(a)(l) ..................................................................................................................... 4, 6, 11 § 21.29(b)(l)(i) .......................................................................... -................................... 3, 4, 6, 24 § 21.29 (b)(l)(i)-(ii) .................................................................................................................... 6 § 21.29(b)(l)(ii) ............................................................................ '. ....................................... 4, 11 § 21.29(b)(2) .................................................... : .......................................................................... 7 § 21.29(d) ............................................................................................................................ 13, 14 § 21.29( d)(2)(ii) ............................................................................................................... .. passim § 21.29(d)(9) ............................................................................................................................... 3 § 21.29(:f)(i) ................................................................................................................................. 3 § 21.29(:f)(.4) ................................................................................................................................ 3 § 2 l .29(:f)(8) ................................................................................................................................ 3 § 21.29(£)(9) .............................................................................................................................. 21 § 21.29(£)(13) ...................... .-. ...................................................................................................... 3 § 21.29(t) ...................................................................................................................................... 3

72 FederalRegister 69705-01, 69705 (Dec. 10, 2007) ........................................................................................... 3, 5

73 Federal Register 59448-01, 59456 (Oct. 8, 2008) ............................................................................................ 3, 22

VI

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1: 18-cv-O 1505-LJO-BAM)


1 INTRODUCTION

2 Plaintiffs Peter Stavrianoudakis, Katherine Stavrianoudakis, Scott Timmons, Eric Ariyoshi,

3 and American Falconry Conservancy (collectively, Plaintiffs) ask this Court to enjoin the

4 potential future application of two provisions of California's falconry regulations against them.

5 As set forth herein, Plaintiffs' motion should be denied because they are unlikely to prevail on the

6 merits of their claims and the balance of equities tips sharply in favor of the public's interest in

7 protecting the health and safety of raptors used in falconry.

8 Falconry is the sport of hunting wild prey usip.g a trained raptor or bird of prey. Under

9 modern statutes and regulations, it is subject to comprehensive federal and state regulation

1 o because it involves the use of protected wildlife. Specifically, the Migratory Bird Treaty Act, 16

11 U.S.C. §§ 703-712, prohibits anyone from possessing a raptor except as permitted under federal

12 regulations. Federal regulations, in turn, limit ownership of a falconry raptor to those persons

13 meeting detailed requirements who have obtained a permit from the appropriate local authority.

14 The federal reg\llations describe comprehensive minimum standards for falconry permits, but it is

15 the state that issues the permit. The state permitting program may be more restrictive, but may

16 not be less restrictive, than the federal standards.

17 California's falconry licensing program, Cal. Code Regs. tit. 14, § 670 (Section 670), is a

18 comprehensive regulatory scheme that includes a number of provisions designed to protect the

19 health and safety ofthe.raptors used in the sport, as required under federal law. While powerful,

20 falconry raptors are also delicate and require expert care. Regulations governing which types of

21 species can be captured from the wild, how many falconry raptors can be possessed by one

22 licensee, types of facili~ies, types of equipment, and how records must be kept are all critical to

23 . protecting both falconry raptors and wild raptor populations [rom disease and injury.

24 Unannounced ·inspections are a necessary tool for ensuring compliance with this

25 comprehensive regulatory scheme. Accordingly, California's regulations require a person

26 applying for a falconry license to agree that the California Department of Fish and Wildlife

27 (Department) may conduct unannounced inspections of the licensee's falconry facilities. Cal.

28 Code Regs. tit. 14, § 670(e)(2)(D) (Unannounced Inspection Provision); 50 C.F.R. 1



1 § 21.29( d)(2)(ii). Not only is this a required element under the federal scheme, but many types of

2 violations would be easily concealable if the Department were required to give advance notice of

3 every inspection. While Plaintiffs assert the Unannounced Inspection Provision violates the

4 Fourth and Fourteenth Amendments of the U.S. Constitution, these claims fail because the sport

5 of falconry is a closely regulated industry and the provision is reasonable on its face.

6 Section 670 is limite,d to licenses to engage in the sport of falconry. It authorizes the use of

7 falconry raptors in educational and media activities under certain circumstances. Plaintiffs

8 challenge this provision as a violation of the First Amendment, but it does not regulate or restrict

9 speech at all. It does not prohibit a falconer from exhibiting falconry raptors. If a falconer wants

10 to engage in other types of activities, such as commercial exhibition of falconry raptors, then the

11 falconer can apply for the appropriate permit. As such, Plaintiffs' First Amendment claims are

12 unlikely to succeed.

13 Not only is it unlikely Plaintiffs will succeed on the merits of their claims, but the public

14 · interest in protecting the health and safety of falconry raptors weighs strongly against an

15 injunction. A preliminary injunction is "an extraordinary remedy never awarded as of right."

16 Winter v. Nat. Res. Def Council, 555 U.S.~' 23 (2008). Because Plaintiffs have not, and cannot

17 under the circumstances, establish the prerequisites to this extraordinary remedy, Plaintiffs'

18 motion should be denied.

19 FACTUAL AND REGULATORY BACKGROUND

20 I. FALCONRY REGULATION IN THE UNITED STATES

21 Plaintiffs' action challenges federal and state falconry regulations. Falconry is the sport of

22 hunting wild prey using a trained raptor or bird of prey. Declaration of Carie Battistone in

23 Opposition to Plaintiffs' Motion for Preliminary Iajunction (Battistone Deel.),~ 7. Because

24 falconry involves protected wildlife, it is closely regulated. Id.

25 Raptors are protected by the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712. Under the

26 Migratory Bird Treaty Act, no person can possess a raptor, except as permitted under the federal

27 regulations that implement that Act. 16 U.S.C. § 703(a). The federal regulations implementing

28 the Migratory Bird Treaty Act are set out in 50 C.F.R. § 21.29 (Section 21.29). Section 21.29 2



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limits ownership of a bird for use in falconry to those persons who have met detailed

requirements and obtained a permit from the appropriate local authority. Section 21.29 includes

detailed requirements regarding the facilities in which falcons are kept and the equipment a

falconer must maintain. 50 C.F.R. § 2I.29(d)(l), (d)(3). Section 21.29 also requires falconers to

report their acquisition or transfer of any falconry raptor. 50 C.F.R. § 2I.29(t), (f)(4); see also 50

C.F.R. § 21.29(£)(13) (regulations governing disposition of dead raptors). Any person desiring a

falconry license must also agree to unannounced inspection of their falconry raptors, facilities,

and equipment. 50 C.F.R. § 21.29(d)(2)(ii), (9).

While Section 21.29's terms are limited to falconry standards and falconry permits, it also

allows falconers to engage in limited activities associated with falconry. For example, under a

falconry permit, falconers may use their falconry raptors in conservation or education programs

regarding falconry and charge a fee for that program as long as the fee does not exceed the

amount needed to recoup expenses. 50 C.F.R. § 2I.29(f)(8). Additionally, under a falconry

license, falconers may use their falconry raptors to make movies or to create other sources of

information regarding the practice of falconry or the biological and ecological role of falcons. Id.

§ 2I.29(f)(i). However, a falconry license alone is not sufficient to authorize commercial uses of

falcons. Id. For example, falconers need to get a special purpose permit if they wish to use their

falconry raptors for abatement1 or commercial exhibitions. 50 C.F.R. § 21.27; Final Permit

Conditions for Abatement Activities Using Raptors, 72 Fed. Reg. 69705-01, 69705 (Dec. 10,

2007); see also Migratory Bird Permits; Changes in the Regulations Governing Falconry, 73 Fed.

Reg. 59448-01, 59456 (Oct. 8, 2008).

While Section 21.29 sets out the comprehensive requirements for falconry permits, the

federal government no longer issues those permits. Migratory Bird Permits, 73 Fed. Reg. at p.

59448. Instead, falconry permits are now issued by states, in accordance with that entity's own

regulatory program.2 While the state permitting program may be more restrictive than the federal

1 In this context, abatement refers to the training and use of raptors "to flush, haze, or take birds ... to mitigate depredation and nuisance problems ... " Final Permit Conditions for Abatement Activities Using Raptors 72 Fed. Reg. 69705-01, 69705 (Dec. 10, 2007).

2 Tribal authorities and territories may also have permitting programs for raptors. 50 C.F.R. § 2I.29(b)(l)(i).

3 Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs'

Motion for Preliminary Injunction (1: l 8-cv-01505-LJO-BAM)


1 standards, it may not be less restrictive. 50 C.F.R. § 2I.29(b)(l)(ii). All permitting programs

2 must be certified by the U.S. Fish and Wildlife Service as meeting federal standards. 50 C.F.R.

3 § 2 l .29(b )(1 )(i). Absent certification, there can be no state permitting program. And since it is

4 unlawful to possess a falconry raptor unless that possession is authorized by the federal

5 regulations, in the absence of a state permitting program, it is unlawful to practice falconry or

6 possess a raptor for falconry purposes within a state. 50 C.F.R. § 2I.29(a)(l).

7 II. FALCONRY REGULATION IN CALIFORNIA

8 A. California's Falconry Regulations

9 California is one of the states that permits the sport of falconry. The regulations governing

10 California's falconry licenses are at California Code of Regulations, title 14, section 670 (Section

11 670). As required by federal law, Section 670 mirrors the requirements set out in the federal

12 falconry regulations, including provisions authorizing unannounced inspections and educational

13 falGonry exhibiting. 50 C.F.R. § 2I.29(b)(l)(ii); Cal. Code Regs. tit. 14, § 670(h)(13)(A),

14 G)(3)(A).

15 As required by federal law, California's regulations require a person applying for a falconry

16 license to agree that the Department may conduct unannounced inspections of that person's

17 falconry facilities. Cal. Code Regs. tit. 14, § 670(e)(2)(D); 50 C.F.R. § 2I.29(d)(2)(ii). However,

18 unannounced inspections are limited to falconry raptors, indoor or outdoor raptor housing

19 facilities, equipment, and records required to be kept by the licensee under the regulations. Cal.

20 Code Regs. tit. 14, § 670(e)(2)(D), (i)(3). Additionally, the unannounced inspections are further

21 limited because they may only be conducted when the licensee is present and during a reasonable

22 time of the day. Cal. Code Regs. tit. 14, § 670(i)(3)(A). If the licensee refuses to be available to

23 participate in an inspection or to allow an inspection, the Department may suspend or revoke the

24 falconer's falconry li~ense. Id. But any such suspension or revocation would be stayed pending

25 appeal. 3 Cal. Code Regs. tit. 14, § 670(e)(9).

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3 The stay is automatic except where the violation relates to conduct that presents a threat to the state's public, wildlife, agriculture or the welfare of the falconry raptors, and the licensee is a repeat offender of the falconry laws. Cal. Cod~ Regs. tit. 14, § 670(e)(9).



1 Since Section 670 is limited to licenses to engage in the sport of falconry, it does not

2 address activities that may be conducted under other types of restricted species permits. Thus, as

3 a general rule, if a falconer wants to use a raptor for a practice other than falconry, the falc.oner

4 must get the appropriate permit for that activity. For example, if a falconer wants to use a

5 falconry raptor for commercial exhibition in California, that falconer must first obtain a

6 Restricted Species Permit for that activity. Cal. Code Regs. tit. 14, § 671.1 (b )( 6); Declaration of

7 Captain Todd Tognazzini (Tognazzini Deel.), ,r 18, Ex. 1 ( example of a restricted species permit

8 authorizing commercial exhibition of falconry raptors). And while Section 670 allows qualified

9 falconers to receive payment for the use of their falconry raptors in commercial abatement

10 activities, they must first obtain a federal Special Purpose Permit or Restricted Species Permit.

11 Cal. Code Regs. tit. 14, § 670(h)(13)(C); see also 50 C.F.R. § 21.27; Final Permit Conditions, 72

12 Fed. Reg. at 69705.

13 Section 670 does authorize the use of falconry raptors in educational and media activities,

14 as long as the licensee holds the appropriate federal permits, the raptor is primarily used for

15 falconry, "the activity is related to the practice of falconry or biology, ecology or conservation of

16 raptors and other migratory birds," and the activity is not done for profit. Cal. Code Regs. tit. 14,

17 § 670(h)(l 3 ).

18 B. 2017 Amendment

19 California's falconry regulations were last amended by the Fish and Game Commission in

20 2017. The purpose of these amendments was to clarify and update the regulations. Because the

21 Department enforces the regulations, its representatives, including the Director,4 were present at

22 some of the proceedings leading up to amendment of the regulations.

23 The Unannounced Inspection Provision,§ 670G)(3)(A), was retained in the 2017

24 amendment as being necessary to protect the health of the falconry raptors in captivity and

25 California wildlife. While powerful, falcons are also delicate and require expert care. Battistone

26 Deel., ,r 9. Falconry raptors are prone to dietary insufficiencies, disease, and other health issues if

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28 4 The Director of the Department-Charlton H. Bonham-is named as a defendant in his

official capacity and is referred to herein as the 'firector."

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (l:18-cv-01505-LJO-BAM)


1 they are not properly cared for. Battistone Deel.,~~ 9-15. If they escape, there is also a chance

2 that they may spread disease to wildlife. Battistone Deel.,~~ 11, 16.

3 Further, as explained to participants during the regulatory process, federal law requires that

4 . the Department have the ability to conduct unannounced inspections. 50 C.F.R. § 21.29(b)(l)(i),

5 (d)(2)(ii). California cannot have a falconry program unless that program is certified by the U.S.

6 Fish and Wildlife Service as being at least as restrictive as the federal regulations. In the absence

7 of the Unannounced Inspection Provision, California could not issue falconry licenses and

8 falconry would be illegal in this state. See 50 C.F.R. § 21.29(a)(l), (b)(l)(i)-(ii).

9 C. Examples of Enforcement

10 The Department enforces California's falconry regulations. Tognazzini Deel.,~ 6. The

11 Department's ability to conduct unannounced inspections has been a necessary tool to ensure that

12 falconry raptors are properly cared for. Tognazzini Deel.,~ 10. For example, on September 14,

13 2016, an informant notified the Department that a licensed falconer was allegedly caring for and

14 housing falconry raptors in conditions that violated the falconry regulations in Paso Robles,

15 California. Tognazini Deel.,~ 11. Based on that information, the Department arranged with the

16 · licensee to inspect his facilities. 5 Tognazini Deel.,~ 12.

17 However, the Department moved the inspection up one day after it received information

18 from the informant that the licensee was relocating raptors to come into compliance with the

19 falconry regulations in advance of his scheduled inspection. Tognazini Deel., ~~ 13-14. The

20 Department relied ·on the Unannounced Inspection Provision because it believed that surprise was

21 necessary to enable it to see how the licensee regularly maintained his falconry facilities,

22 hopefully before any violations could be concealed. Tognazzini Deel.,~~ 13-14. When the

23 Department arrived at the licensee's home, the licensee was upset but ultimately allowed the

24 Department's inspection of his falconry facilities. Tognazzini Deel.,~ 15. During the inspection,

25

26

27

28

5 In their declarations, Plaintiffs describe numerous alleged inspections, dating back to the 1980s. As explained in the objections to evidence filed herewith, those declarations are based on hearsay, speculation, and in any event are largely irrelevant because the alleged inspections were conducted before the challenged regulations took effect and even outside of California.

6 Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs'

Motion for Preliminary Injunction (1: 18-cv-O 1505-LJO-BAM)


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the Department found approximately 57 falconry raptors in the licensee's backyard. The licensee

was supposed to have 72 falconry raptors. Tognazzini Deel., ,r 15. Many of the falconry raptors

appeared poorly cared for and some had no water. Tognazzini Deel., ,r 15. Further, although all

licensees are required to report the death of a falconry raptor, the licensee had stored dead

falconry raptors in his freezer without reporting them. 6 Cal.· Code Regs. tit. 14, § 670(h)(7);

Tognazzini Deel., ,r 15. The unannounced inspection uncovered other violat~ons of the Falconry

Regulations as well. Tognazzini Deel., ,r 16.

Additionally, the licensee told the Department that he had transferred several falconry

raptors to other falconers without required documentation,7 leading to several unannounced

follow-up inspections to locate and properly document the transferred falcons. Tognazzini Deel.,

,r 16. Because federal and state law prohibits the transfer of falconry raptors without reporting

that transfer to federal and state regulators, the Department followed up on this information,

inspecting the facilities of individuals that received a falco,nry raptor from the licensee.

Tognazzini Deel., ,r 17. Although these inspections were unannounced, when the Department

arrived at the falconers' facilities, each consented to an inspection of those facilities. Tognazzini

Deel., ,r 17. Through these inspections, the Department ensured that the falconry raptors were

properly cared and accounted for.

STANDARD OF REVIEW

Plaintiffs ask this Court to preliminarily .enjoin enforcement of the Unannounced Inspection

Provision and the provision authorizing the use of falconry raptors in educational and media

activities under certain circumstances, pending resolution of their case. A preliminary injunction

is "an extraordinary remedy never awarde_d as ofright." Winter v. Nat. Res. Def Council,. 555

U.S. 7, 23 (2008). It "may only be awarded upon a clear showing that the plaintiff is entitled to

relief." Id. at 22. The moving parties "face a difficult task in proving that they are entitled to this

'extraordinary remedy."' Earth Island Inst. v. Carlton, 626 F.3d 462,469 (9th Cir. 2010). A

6 This licensee subsequently plead no contest to violating the Falconry Regulations pursuant to section 509(b) of title 14 of the California Code ofRegulations.(CCR), for violating the Migratory Bird Treaty Act as adopted into the CCR. Tognazzini Deel., ,r 16 ..

. 7 Both federal and state law .required documentation of any transfer of a falconry raptor. 50 C.F .R. § 2 l .29(b )(2); Cal. Code Regs. tit. 14,,-ft 670(f).

Director of CA Dept. offish and Wildlife's Opposition to Piaintiffs' Motion for Preliminary Injunction (1: 18-cv-01505-LJO-BAM)


1 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,

2 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

3 equities tips in his favor, and that an injunction is in the public interest. See Winter, 555 U.S. at

4 20. Because Plaintiffs have failed to establish these essential elements, their motion should be

5 denied. DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011) (explaining that a

6 plaintiff must prove all four prerequisites for injunctive relief).

7 LEGAL ARGUMENT

8 I. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS,

9 As to California's regulatory scheme, Plaintiffs asse1i the Unannounced.Inspection

10 Provision violates the Fourth and Fourteenth Amendments and the provision authorizing the use

11 of falcomy raptors in educational and media activities under certain circumstances violates the

12 First and Fourteenth Amendments. Because Plaintiffs are not likely to succeed on either of these

13 claims, their preliminary injunction motion should be denied.

14

15

A. The Unannounced Inspection Provision Is Lawful Under the Fourth Amendment.

16 Counts I and II of the First Amended Complaint (Counts I and II) challenge the

17 Unannounced Inspection Provision on its face, under the Fourth and Fourteenth Amendments of

18 the U.S. Constitution. Both of those counts are likely to fail.

19 The Fourth Amendment protects the right of the people to be secure in their "persons,

20 houses, papers, and effects" against umeasonable searches and seizures. U.S. Const. amend. IV.

21 The Fourth Amendment does not preclude all government intrusions; it only protects against

22 umeasonable intrusions. Donovan v. Dewey, 452 U.S. 594,599 (1981). Thus, for facial

23 challenges like Counts I and II to state a claim, the allegations contained therein must

24 demonstrate that the law authorizes umeasonable searches and seizures on its face. Plaintiffs'

25 Fourth Amendment claims fail because the Unannounced Inspection Provision is reasonable in

26 context.

27 The Unannounced Inspection Provision, provides, in pertinent part:

28 8



1 The department may conduct unannounced visits to inspect facilities, equipment, or raptors possessed by the licensee, and may enter the facilities of any licensee when

2 the licensee is present during a reasonable time of the day and on any day of the week. The department may also inspect, audit, or copy any permit, license, book or

3 other record required to be kept by the licensee under these regulations at any time.

4 Cal. Code Regs. tit. 14, § 670G)(3)(A). As described below, this provision is consistent with

5 . other warrantless administrative inspection programs for closely-regulated industries that have

6 been upheld by the courts, and is reasonable on its face. 8

7

8

1. The Unannounced Inspection Provision Is Lawful On Its Face Because Falconry Is a Closely Regulated Industry Under the Fourth Amendment.·

9 While "[t]he Fourth Amendment generally requires [governmen~ agents] to secure a

10 warrant before conducting a search," the Fourth Amendment's general warrant requirements is

11 subject to a few exceptions. Maryland v. Dyson, 527 U.S. 465,466 (1999). One such exception

12 is the "closely regulated industry" exception, which the Supreme Court clarified in New York v.

13 Burger, 482 U.S. 691 (1987).

14 In Burger, the Supreme Court reiterated what prior cases had found: due to the reduced

15 expectation of privacy in a "closely regulated" industry, the Fomth Amendment's traditional

16 standard of reasonableness allows for warrantless administrative inspections if four criteria are

17 . met. Burger, 482 U.S. at 700-02. The first criterion is that the government's regulation of the

18 industry in question must be "pervasive." Id. at 700..,02. Government regulation is "pervasive" if

19 the regulatory presence is so comprehensive and defined that an individual in the industry cannot

20 help but know that their property will be subject to inspections for specific purposes. Id. at 705

21 n.16. This knowledge results in a reduced expectation of privacy which lessens what is required

22 to meet the Fourth Amendment standard ofreasonableness. Id. at 702. If the first criterion is

23 met, a warrantless administrative search will be deemed reasonable if three other criteria are met.

24 First, there must be a substantial government interest that informs the regulatory scheme pursuant

25 to which the inspection is made. Id. Second, the warrantless inspection must be necessary to

26 further the regulatory scheme. Id. at 703. Third, the statute's inspection program must perform

27

'28 8 For the same reasons, the Director is filing a motion to dismiss concurrently with this

opposition. 9



1 the two functions of a warrant: it must advise the owner of the premises that the search is being

2 conducted pursuant to the law and within a properly defined scope; and it must limit the

3 discretion of the inspecting officers. Id.

4 The Ninth Circuit has applied the closely regulated industry exception. See e.g., United

5 States v. Orozco, 858 F.3d 1204, 1210-1211 (9th Cir. 2017); Rush v. Obledo, 756 F. 2d 713, 717-

6 22 (9th Cir. 1985) (holding sufficiently limited warrantless administrative inspections in private

7 residences engaged in closely regulated family day care do not violate the Fourth Amendment).

8 However, the Seventh Circuit's application of the exception to warrantless administrative

9 inspections in Lesser v. Espy, 34 F.3d 1301 (1994) is particularly instructive because it involves

10 closely regulated animals and similar governmental interests.

11 In Lesser, the court applied the closely regulated industry exception to uphold the Animal

12 . and Plant Health Inspection Service's warrantless administrative inspections ofrabbitries that

13 breed and sell rabbits for use in scientific research under the Animal Welfare Act, 7 U.S.C. §§

14 2131-2159. In reaching that holding, the court explained why each of the Burger exception's four

15 criteria was satisfied. First, the comi found that governmental regulation of rabbitries was

16 pervasive because the Animal Welfare Act and its standards regulate many facets of rabbitry,

17 · including: (1) requiring a license and payment of a fee to engage in rabbitry; (2) precluding a

18 rabbitry operator from transporting, purchasing, selling, housing, caring for, or handling rabbits

19 without being subject to the Act; (3) requiring a rabbitry operator to make and maintain records

20 concerning the purchase, sale, transportation, identification, and previous ownership of the

21 rabbits; and (4) making a rabbitry operator subject to the loss of their license, civil penalties, and

22 even criminal penalties for failure to comply with the rabbitry program. Lesser, 34 F.3d at 1306-

23 07. Second, the Lesser court found the government had a substantial interest in regulating

24 rabbitry because ensuring "clean" or healthy animals in scientific research would help advance

25 "knowledge of cures and treatments for diseases and injuries that afflict both humans and animals

26 across the nation." Id. at 1307-08. Third, the Lesser court also found warrantless inspections

27 were necessary to further the regulatory scheme. The court explained that if the government was

28 to be successful in regulating the treatment of animals intended for use in research, it had to be 10

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1 :18-cv-01505-LJO-BAM)


1 allowed to inspect the facilities unannounced because "[i]n rabbit farming many of the potential

2 deficiencies that wouldviolate the Act can be quickly concealed." Id. at 1308. These easily

3 concealable violations included: improper food storage, improper waste disposal, and unsanitary

4 primary enclosures. Id. Finally, the Lesser court also found that the fourth Burger criterion was

5 met because the government's warrantless inspection scheme provid~d a constitutionally

6 adequate substitute for a warrant and was limited in time, place, and scope. In making that

7 finding, the court noted the inspection program alerted licensees that they would be subject to

8 inspections, including warrantless ones; sufficiently defined the scope of inspections; and

9 informed rabbitry dealers which government officials ';"ould conduct the inspections. Id. at 1308.

10 The court also noted the warrantless inspecti9n scheme limited inspections to "business hours"

11 during the week and to subjects required by the Act and its regulations. Id. at 1308-09.

12 The above analysis from Lesser helps to demonstrate why the Unannounced Inspection

13 Provision in this case satisfies Burger's four-part closely regulated industry exception test.

14 a. Regulation of Falconry is P~rvasive.

15 As in Lesser, the first Burger criterion, the pervasiveness of the regulation, is satisfied here.

16 Falconry regulation is "pervasive" because falconry is subject to comprehensive state and federal

17 regulation governing virtually every facet of falconry. The federal Migratory Bird Treaty Act

18 bans falconry and the possession of falconry raptors unless it is done pursuant to a state licensing

19 program that is at lea~t as restrictive as the federal falconry regulations. 50 C.F.R. § 2I.29(a)(l),

20 (b )(1 )(ii). In order to get a falconry license, the falconry regulations require an individual to: pass

21 an exam; get a falconry license every 12 months; pay fees; and abi,de by all hunting laws and

22 regulations to even engage in falconry (e.g., licenses, bag limits, hunting hours). E.g., Cal. Code

23 Reg. tit. 14, § 670(b)(12), (c), (e)(3), (e)(4)(A), (e)(7)(A)-(C). The regulations also require a

24 falconer to keep a falconry license, a valid hunting license, and required stamps within their

25 "immediate possession." Id. § 670(a)(2). The falconry regulations also govern the transporting,

26 purchasing, selling, housing, caring for, and handling of falconry raptors, and limit the number

27 and type of falconry raptors a licensee can possess. E.g., id. § 670(h), (e)(6)(A)(4), (e)(B)(2),

28 ( e )(C)(l )-(2), (g)(8)(A)-(J). The regulations als1 fut falconers on notice that they are required to



1 create and keep various types of falconry records and reports, which are also subject to

2 inspection. Id. § 670 (e)(12) (general falconry record keeping), (f)(2) (hunting reports), (f)(3)

3 (progress reports), (h)(7) (death and escape reports). And, as in Lesser, the falconry regulations

4 also subject a falconry licensee to the loss of their license and civil and criminal penalties for

5 failure to comply with the falconry scheme. Id. § 670(e)(9); Fish and G. Code,§ 12000.

6 Most relevant here, the falconry regulations, including the falconry license application

7 itself, expressly notify falconers that their falconry raptors, facilities, equipment, and records are

8 subject to inspection,' including possible warrantless administrative inspections under the

9 Unannounced Inspection Provision. E.g., id. § 670(e)(6)(A)(5) (facility inspection after falconry

10 exam passed); id. § 670 (j)(l) (facility inspection required prior to license issuing); id.

11 § 670(e)(7)(D) (facility re-inspection after inspection failure); id. § 670(j)(l)(E) (facility

12 inspection if facility moved); id. § 670(j)(3) (unannounced facility inspection of falconry raptors,

13 facilities, equipment, and records); id. § 670(e)(2)(D) (falconry application shall contain signed

14 certification whereby applicant certifies they understand they are subject to the inspections,

15 including unannounced inspections).

16 The above regulation is more than enough to establish that falconry regulation is

17 "pervasive" under Burger.

18

19

b. The Government Has a Substantial Interest in Regulating These Protected Birds.

20 The second Burger criterion is also satisfied because California has a long-recognized,

21 substantial interest in protecting its wildlife, including the subject falconry raptors. The

22 California Supreme Court has acknowledged the state's "great and compelling" interest in

23 protecting and preserving the wildlife of the state for the benefit of all of the public and for future

24 generations. People v. Maikhio, 51 Cal. 4th 1074, 1093-94 (2011). The Maikhio court found that

25 the state has a compelling i~terest to regulate hunting or angling alone, even without the

26 possession and use ofrestricted raptors that is involved in this case. Id. at 1093-94. The Maikhio

27 court noted that the state's interest is longstanding and reflected in a number of constitutional and

28 statutory provisions, as well as many judicial decisions. Id. at 1094, citing e.g., Cal. Const. art. I, 12 ·

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (I: 18-cv-O 1505-LJO-BAM)


1 § 25, art. IV,§ 20, art. X B, §§ 1-16; Fish & G. Code,§§ 1700, 1801; Ex parte Maier, 103 Cal.

2 476, 479-484 (1894); Ex parte Kenneke, 136 Cal. 527, 528-30 (1902); In re Phoedovius, 177 Cal.

3 238, 241-44 (1918).

4 Maikhio is not alone; the California Supreme Court has repeatedly recognized the .

5 importance of the state's goal of preserving and protecting its natural resources, such as falconry

6 raptors possessed by licensed falconers. See e.g., Friends of Mammoth v. Board a/Supervisors, 8

7 Cal. 3d 247,254 (1972); see also National Audubon Society v. Superior Court, 33 Cal. 3d 419,

8 437 (1983) (explaining the state, as trustee of the state's wildlife, has a "duty to exercise

9 continued supervision over the trust" to prevent parties from using the trust in a harmful matter).

10 Indeed, "[i]t is beyond dispute that the State of California holds title to its tidelands and wildlife

11 in public trust for the benefit of the people .... [and] [t]he '"dominant theme'" of this state's

12 obligation as trustee is its '"duty to exercise continued supervision over the trust" to prevent

13 parties from using the trust in a harmful matter. People v. Harbor Hut Restaurant, 147 Cal. App.

14 3d J 151, 1154 (1983), quoting National Audubon Society v. Superior Court, 33 Cal. 3d 419, 437

15 (1983) ( other citations omitted).

16 Indeed, because of this interest, California has regulated falconry since the 1960s.

17 Battistone Deel., ,i 7. Its substantial governmental interest in doing so is not only embodied by

18 the longstanding case law above, but also by the comprehensiveness of the falconry regulations.

19 Accordingly, the Burger exception's requirement for a substantial governmental interest is

20 satisfied in this case.

21

22

c. Warrantless Administrative Inspections Are Necessary to Further the Regulatory Scheme.

23 Warrantless inspections under the Unannounced Inspection Provision are necessary to

24 further the regulatory scheme because, as in Lesser, many violations of the falconry regulations

25 are easily concealable. Tognazzini Deel., ,i 9. For example, falconry facilities are required to

26 meet the housing standards specified in Section 670. Cal. Code Regs. tit. 14, § 670G)(l); 50

27 C.F.R. § 2I.29(d). This includes several housing requirements that,just like in the case of

28 rabbitry in Lesser, could be easily concealed without unannounced inspections. Specifically, 13

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1:18-cv-01505-LJO-BAM)


1 some of the easily concealable violations include: improper waste disposal, unsanitary enclosures,

2 no access to sunlight, no access to clean water, enclosure not large enough area for a raptor to fly

3 and/or spread its wings, a lack of a suitable perch, failure to comply with tethering requirements,

4 no bath container, no scales or balances to weigh raptors. 50 C.F.R. § 21.29(d) (setting forth a

5 long, stringent, list ofrequired housing requirements); Tognazzini Deel., if. 9.

6 That is not all of the easily concealable violations. Without warrantless administrative

7 inspections, it would also be easy for a falconer to conceal a violation of the falconry regulations'

8 limit on the number and types of falconry raptors a falconer can possess. E.g., Cal. Code Regs.

9 tit. 14, § 670(e)(6)(A)(4), (B)(2), (C)(l)-(2), (8)(g)(A)-(J). If a falconer illegally possessed too

10 many raptors or type(s) of raptor(s), those violations could be quickly concealed before any

11 announced inspection took place ( e.g., by moving illegally possessed raptors to a different

12 location or even releasing them).

13 While falcons are powerful, they are also very sensitive. Battistone Deel., ,r 9. As a result,

14 it is vital that these housing requirements are met. Id. ,r,r 9-15. The state's interest is not just

15 limited to the captured falconry raptor, but also extends to wildlife to which an unhealthy escaped .

16 falconry raptor could spread disease. Id. ,r 16.

17 Given the state's interest, the needs of the falconry raptors, and all of these easily

18 concealable violations, it is necessary for the Department to have the ability to conduct

19 unannounced, warrantless inspections under the Unannounced Inspection Provision. At a

20 minimum the authority to conduct unannounced inspections serves as a necessary deterrent in

21 situations involving easily concealable violations such as this. Indeed, the Supreme Court

22 acknowledged the need for surprise administrative inspections where, as here, the risk of easily

23 concealable violations exists because of the deterrent effect the possibility of such inspections

24 have. United States v. Biswell, 406 U.S. 311, 316 (1972). In such cases, if inspection is to be

25 effective and serve as a credible deterrent, unannounced inspections and the element of surprise

26 are essential. "[T]he prerequisite of a warrant could easily frustrate inspection; and if the

27 necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded

28 by a warrant would be negligible." Id. 14

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction ( 1: 18-cv-O 1505-LJO-BAM)


1

2

d. The Inspection Program Provides a Constitutionally Adequate Substitute for a Warrant.

3 The fourth and final Burger criterion is also satisfied here because the falconry inspection

4 program provides a constitutionally adequate substitute for a warrant. The program notifies

5 licensees that they will be subject to inspections; sufficiently defines the scope of those

6 inspections; and informs falconers which government officials were authorized to conduct the

7 inspections. Lesser, 34 F.3d at 1308.

8 Just like the rabbitry inspection program in Lesser, the Unannounced Inspection Provision

9 expressly notifies licensees that the Department may conduct unannounced inspections of their

1 o falconry raptors, facilities, equipment, and inspect, audit, or copy any permit, license, book, or

11 other record required to be kept under the falconry regulations wherever they are located. Cal.

12 Code Regs. tit. 14, § 670(i)(3)(A).

13 The regulations are not the only form of notice licensees receive of possible unannounced

14 inspections. · The falconry license application itself also makes licensees ·aware that they are

15 subject to unannounced inspections. Every falcon application requires licensees to sign the

16 following certification that they understand that they are subject to the Unannounced Inspection

17 Provision:

18 I understand that my facilities, equipment, or raptors are subject to unannounced inspection pursuant to subsection 670(a), Title 14, of the California Code of

19 Regulations.

20 Cal. Code Regs. tit. 14, § 670(e)(2)(D). Thus, a licensed falconer has to know that they are

21 subject to possible unannounced inspections as a result of their authority to possess a falconry

22 raptor and the regulations that come with that.

23 As in Lesser, the falconry regulations also clearly define the scope of unannounced

24 inspections. The Unannounced Inspection Provision, provides, in pertinent part:

25 The department may conduct unannounced visits to inspect facilities, equipment, or rapt ors possessed by the licensee, and may enter the facilities of any licensee when

26 the licensee if present during a reasonable time of the day and on any day of the week. The department may also inspect, audi( or copy any permit, license, book or

27 other record required to be kept by the licensee under these regulations at any time.

28 15

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (1 :18-cv-01505-LJO-BAM)


1 Cal. Code Regs. tit. 14, § 670G)(3)(A), emph. added. The regulations also notify a licensee that

2 the unannounced inspections will be conducted by Department wildlife officers. Fish and G.

3 Code,§ 37; Cal. Code Regs. tit. 14 § 6700)(3).

4 As in Lesser, the Unannounced Inspection Provision reasonably limits the time, place, and

5 scope of unannounced inspections. Specifically, the Unannounced Inspection Provision expressly.

6 limits the time, place, and scope of such inspections by ( 1) requiring the falconer to be present,

7 (2) requiring the inspection to be "during a reasonable time of the day," (3) requiring the

8 inspection to be conducted by Department wildlife officers; and (4) expressly delineating the

9 scope of inspections to be of falconry raptors and falconry facilities, and records and equipment

10 required under the law. Cal. Code Regs. tit. 14, § 670G)(3)(A); Fish & Game Code§ 37;

11 Tognazzini Deel., ~ 8.

12 For all these reasons, the challenged Unannounced Inspection Provision satisfies each of

13 the four criteria for the closely regulated industry exception set forth in Burger and is therefore

14 constitutional on its face.

15 2. The Unannounced Inspection Provision is Reasonable on its Face.

16 As established above, the Unannounced Inspection Provision·satisfies the closely regulated

17 industry exception to the Fourth Amendment's general warrant requirement and is therefore

18 constitutional. However, even if it did not, the Unannounced Inspection Provision would still be

19 constitutional under the Fourth Amendment's ultimate reasonableness standard, which largely

20 depends upon an individual's reasonable expectation of privacy and common sense. Soldal v.

21 Cook County, 506 U.S. 56, 71 (1992) ("Reasonableness is still the ultimate standard under the

22 Fourth Amendment."); Vernonia School Dist. 47Jv. Acton, 515 U.S. 646,652 (1995) ("[T]he

23 ultimate measure of the constitutionality of a governmental search is 'reasonableness."'); (People

24 v. Maikhio, 51 Cal. 4th 1074, 1093-94 (2011) (acknowledging state has compelling interest to

25 regulate hunting or angling alone, even without the possession and use of restricted raptors as in

26 this case). The Unannounced Inspection Provision is a reasonable and necessary compromise

27 between the government's long-recognized substantial interest in protecting wildlife and a

28 falconry licensee's reasonable expectation of privacy. 16

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (l:18-cv-01505-LJO-BAM)


1 Notably, though Count I and II of the Complaint are a facial challenge, Plaintiffs focus only

2 on a single possible application ofthe Unannounced Inspection Provision to argue the

3 Unannounced Inspection Provision constitutes an unreasonable intrusion. Specifically, Plaintiffs

4 focus on the application of the Unannounced Inspection Provision to falconry raptors, facilities,

5 equipment, or records that a falconer knowingly chooses to locate in a part of a home or curtilage. ·

6 Though the question of whether the Unannounced Inspection Provision is constitutional on

7. its face does not turn on one particular application (see Section I.A.3, infra), warrantless

8 inspections of falconry raptors, facilities, equipment, and/or records that a falconer has knowingly

9 decided to locate within an area of a home is reasonable in this context. It is reasonable to expect

10 that when a person seeks and accepts a license to possess a protected raptor species, that is

11 otherwise illegal to even possess, the licensee will be subject to pervasive regulation and, as a

12 result, will have a reduced expectation of privacy. This is especially true wh~re, as here, the

13 licensing regulations and the license application the falconer signs expressly state that the

14 licensee's falconry raptors, facilities,· equipment, and records are subject to unannounced

15 inspections of those things, regardless ofwhei"e they choose to locate them. Cal. Code Regs. tit.

16 14, § 670(e)(2)(D), G)(3). Indeed, in this situation, it is unreasonable for a person, who has notice

1 7 and knowledge of this, to voluntarily accept a falconry license and then expect to avoid an

18 unannounced inspection by locating them in an area of a home.

19 While the home is subject to heighted protection, it is not an absolute shield to reasonable

20 inspections under the Fourth Amendment. Rush v. Obledo, 756 F. 2d 713, 717-22 (9th Cir. 1985)

21 (finding sufficiently limited warrantless administrative searches in private residences engaged in

22 closely regulated family day care do not violate the Fourth Amendment). No one is required to

23 have a falcon, be a falconer, or locate falcons inside their home. Some falconers make an

24 informed choice to do so, knowing the regulation that com.es with it.

25 The reasonableness of the Unannounced Inspection Provision and the falconry inspection

26 program becomes even more apparent when one considers that if a·particular application of the

27 regulation is challenged, any suspension or revoca~ion of a license under the regulations is subject

28 to an appeal provision that would stay any suspension or revocation of pending appeal. Cal. Code 17

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction ( 1: 18-cv-O 1505-LJO-BAM)


1 Regs. tit. 14, § 670(e)(l 1). Therefore, if and when the Unannounced Inspection Provision is

2 actually applied to plaintiffs, and if they contend a specific application is unconstitutional under

3 specific facts, they can appeal the inspection before suffering any penalty.

4 In addition, a person subjected to a particular inspection, which they believe is

5 unconstitutional as applied, could challenge that inspection by bringing an as applied lawsuit.

6 These plaintiffs have not done that here. That is because they do not and cannot allege the

7 Unannounced Inspection Provision has even been applied to them. Tognazzini Deel.,~ 19.

8 Rather, Plaintiffs rely on unsubstantiated allegations about inspections that are alleged to have

9 happened years before the subject Unannounced Inspection Provision even existed. See, e.g.,

10 Complaint at 7: 12-14 (Plaintiff Peter Stavrianoudakis alleges he was subjected to umeasonable

11 search in "approximately 1983 ," over three decades before the Unannounced Inspection Provision

12 was adopted), 9: 11-12 (Plaintiff Scott Timmons alleges Department officers approached him at

13 his mother's property in "1992"-approximately 27. years before the Unannounced Inspection

14 Provision was adopted-to inquire about a red-tailed hawk).

15 3. Plaintiffs Do Not Meet Their Burden of Asserting a Facial Challenge.

16 A facial challenge is the most difficult challenge to mount successfully, since "[t]o bring a

17 successful facial challenge outside of the First Amendment context, 'the challenger must establish

18 that no set of circumstances exists under which the [regulation] would be valid."' US. v. Dang,

19 488 F.3d 1135, 1142 (9th Cir. 2007), citing US. v. Salerno, 481 U.S. 739, 745 (1987); see also

20 Reno v. Flores, 507 U.S. 292, 300-301 (1993). That a law or regulation might operate

21 unconstitutionally under some circumstances is not enough to render it invalid against a facial

22 challenge.

23 As set forth above, Plaintiffs' Fourth Amendment claims lack merit because the

24 Unannounced Inspection Provision is constitutional on its face. Even if there were potential

25 circumstances where an unannounced inspection would not be constitutional, Plaintiffs' facial

26 claims would still fail so long as there is a single constitutional application of the Unannounced

27 Inspection Provision. For example, even if the Court accepted Plaintiffs' assertion that an

28 unannounced inspection of a raptor facility in a home or curtilage could be unconstitutional, 18



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1 Plaintiffs' Fourth Amendment claims should still fail if it were to find that the Unannounced

2 Inspection Provision could constitutionally be applied to falconry raptors, facilities, equipment,

3 and records not located in an area of the home (e.g., where they are located at a school or on

4 private property but not within a home or its curtilage ). Plaintiffs have not argued that application

5 of the Unannounced Inspection Provision in such circumstances would violate the Fourth

6 Amendment. In order for their facial challenge to survive, it is plaintiffs' burden, not the

7 defendants', to establish that no set of circumstances or application exists under which the

8 Unannounced Inspection Provision would be valid/constitutional. US. v. Dang, 488 F.3d 1135,

9 1142 (9th Cir. 2007). Plaintiffs have failed to meet that burden.

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4. To the Extent Plaintiffs Raise As-Applied Challenges, Plaintiffs Lack Standing and their Claims Are Unripe.

12 The allegations supporting Counts I and II do not appear to be as applied challenges as (1)

13 they do not include an allegation that they are challenging the Unannounced Inspection Provision

14 on its face and as applied as other Counts in the Complaint make clear and (2) because they do

15 not contain any factual allegations that the Unannounced Inspection Provision was ever applied

· 16 against Plaintiffs. Rather, the only factual allegations regarding inspections are unsubstantiated

17 allegations regarding inspections allegedly conducted years before the Unannounced Inspection

18 Provision even existed. E.g., Complaint at~ 51 (Plaintiff Peter Stavrianoudakis alleges he was

19 subjected to unreasonable search in "approximately 1983," over three decades before the

20 Unannounced Inspection Provision was adopted), ~ 82 (Plaintiff Scott Timmons alleges

21 Department officers approached him at his mother's property in "1992"-approximately 27 years

22 before the Unannounced Inspection Provision was adopted-to inquire about a red-tailed hawk);

23 see also Declaration of Peter Stavrianoudakis, ~~ 6-10; Declaration of Scott Timmons,~~ 3-7.9

24 However, Plaintiffs' prayer for declaratory relief asks this Court to declare that the Unannounced

25 Inspection Provision violates the Fourth and Fourteenth Amendment on its face and "as applied."

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9 To the extent Plaintiffs' declarations cite to inspections allegedly conducted years before the Unannounced Inspection Provision even existed, and even to inspections allegedly conducted in other states, the statements are irrelevant. See generally Objections to Evidence Offered in Support of Plaintiffs' Motion for Pre\ifinary Injunction.

Director of CA Dept. offish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction ( 1: 18-cv-O 1505-LJO-BAM) ·


1 Complaint at 21 :4-6. To the extent Counts I and II of the Complaint are as-applied challenges,

2 those claims are likely to fail because Plaintiffs lack standing and their claims are unripe.

3 Under Article III of the United States Constitution, federal courts may only adjudicate

4 actual cases or controversies; they may not issue advisory opinions. U.S. Const. art. III, § 2, cl. 1;

5 Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1157 (9th Cir. 2007). Federal courts do not have

6 the power to decide questions of law in a vacuum. SEC v. Medical Committee for Human Rights,

7 404 US 403,407 (1972). To establish a "case or controversy," within the meaning of Article III,

8 a plaintiff must show an "injury in fact" that is concrete and particularized, actual or imminent,

9 not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 555-556 (1992).

10 Article III standing requirements are "rigorous;" those who do not have Article III standing may

11 not litigation in federal court. Valley Forge Christian College v. Americans United for

12 Separation of Church & State, Inc., 454 U.S. 464, 475-476 (1982). Further, the Court's subject

13 matter jurisdiction is limited to matters "ripe" for adjudication, and if a case is not ripe, it should

14 be dismissed. Fed. R. Civ. P. 12(b)(l); Chandler v. State Farm Mutual Automobile Insurance

15 Co., 598 F.3d 1115, 1121-22 (9th Cir. 2010).

16 Because Plaintiffs' pleadings and evidence do not contain any factual allegations that the

17 Unannounced Inspection Provision has ever been applied to plaintiffs, there are no factual

18 allegations upon which to base an as applied challenge. Tognazzini Deel., ~ 19. Therefore, to the

19 extent Counts I and II are as applied challenges, they are unlikely to succeed because they are

20 unripe and Plaintiffs have not suffered an injury in fact. Lujan, 504 U.S. at 555-556; Chandler,

21 598 F.3d at 1121-22.

22 For all of these reasons, plaintiffs are unlikely to prevail on the merits of their claims

23 regarding the Unannounced Inspection Provision.

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B. The Department's Regulations Do Not Violate the First Amendment Because They Do Not Limit Plaintiffs' Free Speech Rights

26 Plaintiffs' First Amendment claims are also unlikely to succeed. Plaintiffs argue that

27 Section 670 violates the First Amendment because it prohibits "falconers from photographing or

28 filming their birds" unless the images will be used in a production related to falcons or falconry. 20



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(Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction (Plaintiffs' Motion), at

19:6-7, see also id. at 21:3-4.) This argument fails because it is based on a misinterpretation of

the falconry regulations. Contrary to Plaintiffs' arguments, Section 670 does not ban any type of

speech. It sets out the range of falconry activities that may be conducted under a falconry license.

If a falconer wants to engage in other types of activities, such as commercial exhibition of

falconry raptors, then the falconer needs to get the appropriate permit. See Tognazzini Deel., in 8

& Ex. 1.

By its plain language Section 670 does not ban any speech. Instead, consistent with the

federal regulations, it lays out the range of educational and exhibiting activities that falconry

raptors can be used for under a recreational falconry license, stating:

Education and Exhibiting. A licensee may use raptors in his or her possession for training purposes, education, field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds. Any fees charged, compensation, or pay received during the use of falconry raptors for these purposes may not exceed the amount required to recover costs. An Apprentice falconer may use the licensee's falconry raptor for education purposes only under the supervision of a General or Master falconer.

17 Cal. Code Regs. tit. 14, § 670(h)(l3); see also 50 C.F.R. § 21.29(f)(9). Thus, Section 670 does

' 18 not prohibit a falconer from exhibit1ng falconry raptors; it simply expands the, types of activities

19 that are authorized by a recreational falconry license. If a falconer wants to use falconry raptors

20 for exhibiting or commercial uses other than those authorized by Section 670, the falconer needs

21 to obtain an appropriate permit for that activity, just like any other person who would like to use a

22 raptor for exhibiting or commercial uses. Cal. Code Regs. tit. 14, § 671.1 (b )( 6). Indeed, one of

23 the plaintiffs had obtained a Restricted Species Permit, allowing him to exhibit falconry raptors

24 commercially, but allowed that permit to lapse. Tognazzini Deel.,, 18 & Ex. 1.

25 The fact that state and federal regulations are not a ban on speech is illustrated by the U.S.

26 Fi~h and Wildlife Service's regulatory notice regarding its 2008 amendments to its falconry

27 . regulations. At that time, some commenters objected that a falconry license should not be

28 sufficient to permit a falconer to exhibit falconry raptors, even in the context of an educational 21 ·



1 presentation. These commenters explained that different permitting requirements are necessary to

2 protect the safety of the birds and public when exhibiting falcons; therefore, all falconers should

3 be required to get a special permit to exhibit falconry raptors, even when the exhibition relates to

4 falconry. Migratory Bird Permits, 73 Fed. Reg. at 59456. The U.S. Fish and Wildlife Service

5 responded that falconers have been permitted to give educational presentations using their

6 falconry raptors, as long as the falconry raptor is used primarily for falconry. Therefore, the

7 Service did "not see that the requirements for another permit type are relevant here, because [the

8 Service is] only allowing a secondary beneficial activity with falconry birds." Id.

9 Thus, Section 670 does not restrict speech. Instead, it expands the scope of activities that

10 falconers can do with falconry raptors under a recreational falconry license. · If a falconer wants to

11 use falconry raptors in other types of activities, such as expanded educational or commercial

12 activities, the Regulation does not prevent them from doing so; they just need to get the proper

13 permit. Accordingly, Plaintiffs are not likely to prevail on their First Amendment claims.

14 Because Plaintiffs have failed to establish likely success on the merits with respect to any of their

15 · claims, their preliminary injunction motion should be denied. See DISH Network Corp. v. FCC,

16 653 F.3d 771, 776 (9th Cir. 2011) (explaining that a plaintiff must prove all four prerequisites for

17 injunctive relief).

18 II. THE BALANCE OF EQUITIES TIPS SHARPLY INF AVOR OF DENYING INJUNCTIVE RELIEF AND AN INJUNCTION IS NOT IN THE PUBLIC INTEREST.

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The balance of equities and public interest also compel denial of Plaintiffs' request for a

preliminary injunction. When ruling on a preliminary injunction, courts "must balance the

competing claims of injury and must consider the effect on each party of granting or withholding

the requested relief." Amoco Prod. Co. v. Vil!. Of Gambell, 480 U.S. 531,542 (1987). ''In

exercising their sound discretion, courts of equity should pay particular regard for the public

consequences in employing the.extraordinary remedy of injunction." Weinberger v. Romero

Barcelo, 456 U.S. 305, 312 (1982). Moreover, assessing the harm to the opposing paity

(balancing the equities) ·and weighing the public "merge when the Government is the opposing

party." Nken v. Holder, 556 U.S. 418,435 (200JJ



1 The balance of equities does not favor an injunction here because Plaintiffs have failed to

2 meet their burden of showing they will likely-not just possibly-suffer immediate, irreparable

3 harm if such extraordinary relief is denied. Winter, 555 U.S. at 20 .. Indeed, Plaintiffs assert they

4 do not need to establish irreparable harm beyond asserting "substantial constitutional claims."

5 Plaintiffs' Motion, 25:9. However, as explained above, Plaintiffs do not allege viable

6 constitutional claims; in fact, their· claims are unlikely to succeed. This alone warrants denial of

7 the motion.

8 In contrast, California stands to suffer irreparable harm if the injunction is granted. Any

9 time a state is enjoined by a court from effectuating its laws, it suffers a form of irreparable

10 injury. New Motor Vehicle Bd. 0/Cal. V. Orrin W Fox Co., 434 U.S. 1345, 1351 (1977)

11 (Rehnquist, Jr., in chambers); see also Maryland v. King, 567 U.S. 1, 2-3 (2010) (Roberts, J., in

12 chambers).

13 California's interest in implementing the regulations is indisputable and overwhelming. As

14 explained above, while powerful, falcons are also delicate and require expert care. Battistone

15 Deel., ,r 9. Without proper care, falconry raptors are prone to dietary insufficiencies, disease, and

16 other health issues. Battistone Deel., ,r 9. The falconry regulations include detailed requirements

17 for facilities, equipment, and record-keeping, to ensure that raptors are safe and healthy.

18 Battistone Deel., ,r,r 12- 15. In addition, it is important to keep falconry raptors secure because

19 most that escape die within a few days of being lost, and those that escape risk spreading disease

20 to other wildlife. Battistone Deel., ,r,r 11, 16. The Department's ability to conduct unannounced

21 inspections has been a necessary tool to ensure that falconry raptors are properly cared for.

22 Battistone Deel., 'i[15; Tognazzini Decl.,'i['i[ 9, 11-17 (describing successful unannounced

23 inspections in 2016).

24 In addition, California has an interest in maintaining falconry in the state. California cannot

25 have a falconry program unless that program is certified by the U.S. Fish and Wildlife Service as

26 being at least as restrictive as the federal regulations. The federal regulations require the

27 Department have the ability to conduct unannounced inspections. See 50 C.F.R. § 21.29(b)(l)(i),

28 23



1 ( d)(2)(ii). Thus, in the absence of the Unannounced Inspection Provision, California could not

2 issue falconry licenses and falconry would be illegal in this state.

3 Thus, an injunction preventing enforcement of the regulations would most certainly not be

4 in the public interest. To the contrary, the public interest demands enforcement of the regulations

5 against all falconers to protect the health of the falconry raptors in captivity, as well as California

6 wildlife, and ensure that falconry can continue in the state.

7 CONCLUSION

8 Because Plaintiffs have not established any of the prerequisites to extraordinary,

9 preliminary injunctive relief, the Court should deny their Motion for Preliminary Injunction.

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Dated: March 15, 2019

SA2018303447 13548166 3.docx

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Respectfully Submitted,

XAVIER BECERRA Attorney General of California RANDY L. BARROW Supervising Deputy Attorney General LINDA GANDARA Deputy Attorney General

Isl Ali A. Karaouni ALI A. KARAOUNI Deputy Attorney General Attorneys for Defendant Charlton H Bonham in his official capacity as Director of California Department of Fish & Wildlife

Director of CA Dept. of Fish and Wildlife's Opposition to Plaintiffs' Motion for Preliminary Injunction (l:18-cv-01505-LJO-BAM)


Documents

p.Ji Attorneys for Defendant Charlton H Bonham, in …...3 LINDA GANDARA, State Bar No. 194667 ALI A. KARAOUNI, State Bar No. 260849 4 Deputy Attorneys General 1300 I Street, Suite