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20200228 – NPPC AFBF Prop 12

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20200228 – NPPC AFBF Prop 12 1 MAYER BROWN LLP TIMOTHY S. BISHOP (IL 6198062) (pro hac vice) 2 [email protected] 71 S. Wacker Drive 3 Chicago, Illinois 60606 Telephone: (312) 782-0600 4 Facsimile: (312) 701-7711 5 MAYER BROWN LLP C. MITCHELL HENDY (SBN 282036) 6 [email protected] 350 South Grand Avenue 25th Floor 7 Los Angeles, California 90071-1503 Telephone: (213) 229-9500 8 Facsimile: (213) 625-0248 Attorneys for Plaintiffs National Pork 9 Producers Council & American Farm Bureau Federation 10 (continued on following page) 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 12 NATIONAL PORK PRODUCERS No. 3:19-cv-02324-W-AHG 13 COUNCIL & AMERICAN FARM BUREAU FEDERATION, PLAINTIFFS’ OPPOSITION TO 14 MOTIONS TO DISMISS AND Plaintiffs, FOR JUDGMENT ON THE 15 PLEADINGS v. 16 NO ORAL ARGUMENT KAREN ROSS, in her official capacity PURSUANT TO LOCAL RULE 17 as Secretary of the California Department of Food and Agriculture, 18 Date: March 23, 2020 SONIA ANGELL, in her official Courtroom: 3C capacity as Director of the California 19 Judge: Hon. Thomas J. Whelan Department of Public Health, and Trial Date: None set XAVIER BECERRA, in his official 20 Action Filed: Dec. 5, 2019 capacity as Attorney General of California, 21 Defendants, 22 THE HUMANE SOCIETY OF THE 23 UNITED STATES; ANIMAL LEGAL DEFENSE FUND; ANIMAL 24 EQUALITY; THE HUMANE LEAGUE; FARM SANCTUARY; 25 COMPASSION IN WORLD FARMING USA; and COMPASSION 26 OVER KILLING, 27 Defendants-Intervenors. 28 PLAINTIFFS’ OPP. TO MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS CASE NO. 3:19-cv-02324-W-AHG 1 Additional Counsel for Plaintiffs 2 MAYER BROWN LLP DAN HIMMELFARB (D.C. 978889) (pro hac vice) 3 COLLEEN M. CAMPBELL(D.C. 219082) (pro hac vice) [email protected] 4 [email protected] 1999 K. Street NW 5 Washington, D.C. 20006 Telephone: (202) 263-3000 6 Facsimile: (202) 263-3300 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i PLAINTIFFS’ OPP. TO MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS CASE NO. 3:19-cv-02324-W-AHG 1 TABLE OF CONTENTS Page 2 TABLE OF AUTHORITIES ........................................................................ iii 3 INTRODUCTION ....................................................................................... 1 BACKGROUND ......................................................................................... 2 4 A. Proposition 12 ........................................................................... 2 5 B. Implementation Of Proposition 12 ............................................... 3 6 C. The Pork Supply Chain............................................................... 4 D. Sow Housing Practices ............................................................... 5 7 E. Procedural History ..................................................................... 6 8 LEGAL STANDARD .................................................................................. 7 9 ARGUMENT .............................................................................................. 7 I. PLAINTIFFS HAVE STATED A CLAIM THAT PROPOSITION 12 10 UNCONSTITUTIONALLY PROJECTS CALIFORNIA’S REGUL- ATORY REGIME INTO OTHER STATES. .......................................... 9 11 A. Proposition 12 Violates The Extraterritoriality Principle 12 Because It Controls Commerce Outside Of California’s Borders................................................................................... 10 13 1. Proposition 12 substantially affects sales of pork meat between non-California parties. ........................................ 11 14 2. Proposition 12 substantially affects transactions among 15 market participants that have nothing to do with California....................................................................... 11 16 3. Proposition 12 cannot be enforced without California intruding deeply into farm operations in other states. ........... 13 17 4. Proposition 12 unlawfully balkanizes hog production. ......... 14 18 5. The huge costs of complying with Proposition 12 exacerbate its extraterritorial effects. ................................. 16 19 B. Defendants Misconstrue Or Ignore Plaintiffs’ Well-Pled 20 Allegations.............................................................................. 19 II. PLAINTIFFS HAVE STATED A CLAIM THAT PROPOSITION 12 21 UNCONSTITUTIONLLY BURDENS INTERSTATE COMMERCE. .... 21 22 III. PLAINTIFFS’ ALLEGATIONS DIFFER FROM THOSE IN NAMI. ...... 23 CONCLUSION ......................................................................................... 25 23 24 25 26 27 28 ii PLAINTIFFS’ OPP. TO MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS CASE NO. 3:19-cv-02324-W-AHG 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................. 7 5 Ass’n for Accessible Meds. v. Frosh, 6 887 F.3d 664 (4th Cir. 2018).................................................................... 25 7 Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013)............................................................... 23, 24 8 Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 9 476 U.S. 573 (1986) ...................................................................... 9, 19, 21 10 C. & A. Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) ................................................................................. 8 11 Daniels Sharpsmart, Inc. v. Smith, 12 889 F.3d 608 (9th Cir. 2018).................................................................... 19 13 Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) ............................................................................... 15 14 Duncan v. Becerra, 15 366 F. Supp. 3d 1131 (S.D. Cal. 2019) ...................................................... 22 16 Edgar v. MITE Corp., 457 U.S. 624 (1982) (plurality opinion)............................................ 8, 10, 25 17 Granholm v. Heald, 18 544 U.S. 460.......................................................................................... 15 19 Gregg v. Haw. Dep’t of Pub. Safety, 870 F.3d 883 (9th Cir. 2017)...................................................................... 7 20 Healy v. Beer Inst., Inc., 21 491 U.S. 324 (1989) ........................................................................ passim 22 Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981) ................................................................................. 9 23 Legato Vapors LLC v. Cook, 24 847 F.3d 825 (7th Cir. 2017)............................................................. passim 25 N. Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016).................................................................... 25 26 NAMI v. Becerra, 27 2019 WL 6253701, No. 2:19-8569-CAS (C.D. Cal. Nov. 22, 2019) .......... 6, 23 28 iii PLAINTIFFS’ OPP. TO MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS CASE NO. 3:19-cv-02324-W-AHG 1 NAMI v. Becerra, 2020 WL 919153, No. 2:19-8569-CAS (C.D. Cal. Feb. 24, 2020)........ 6, 23, 24 2 Nat’l Ass’n of Optometrists & Opticians v. Harris, 3 682 F.3d 1144 (9th Cir. 2012) .................................................................. 17 4 Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of Or., 511 U.S. 93 (1994) ................................................................................... 7 5 Pac. Nw. Venison Prods. v. Smitch, 6 20 F.3d 1008 (9th Cir. 1994).................................................................... 21 7 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ........................................................................ passim 8 Publius v. Boyer-Vine, 9 237 F. Supp. 3d 997 (E.D. Cal. 2017) ....................................................... 24 10 In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir. 2017) .................................................................... 7 11 Raymond Motor Transp., Inc. v. Rice, 12 434 U.S. 429 (1978) ............................................................................... 21 13 Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) ....................................................... 20, 23, 24 14 Sam Francis Found. v. Christies, Inc., 15 784 F.3d 1320 (2015) ............................................................................. 25 16 Statutes, Rules and Regulations 17 An Act to Prevent Cruelty to Farm Animals, 2016 Mass. Acts 333 .............................................................................. 15 18 Cal. Health & Saf. Code § 25990 .................................................................... 3 19 Cal. Health & Saf. Code § 25991 ....................................................... 2, 3, 6, 14 20 Cal. Health & Saf. Code § 25993(a) ................................................................ 3 21 Cal. Bus. & Prof. Code § 17200 ...................................................................... 3 22 Ohio Admin. Code 901:12-8-02(G)(4), (5) ..................................................... 15 23 Other Authorities 24 CDFA, Draft Article 5. Certification and Accredited Certifiers (Dec. 25 23, 2019), https://www.cdfa.ca.gov/ahfss/pdfs/ Article5Certification DRAFT12232019.pdf ...................................... 4, 13, 14 26 Pew Comm’n on Industrial Farm Animal Production, Putting Meat on 27 the Table: Industrial Farm Animal Production in America (2008) ................ 22 28 U.S. Const. art. I, § 8, cl. 3 ............................................................................. 7 iv PLAINTIFFS’ OPP.
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