Bird law


WILLIAM C. CONNER, District Judge.

Plaintiffs, Cresenzi Bird Importers, Inc. (“Cresenzi”), Novak’s Tropical Aviary, Inc. (“Novak”) and Supreme Exotic Birds, Inc. (“Supreme”) (collectively, the “Importers”) brought this action against defendants, the State of New York, the New York State of Department of Environmental Conservation (“DEC”), and Henry Williams, as Commissioner of DEC (collectively, the “State”), challenging the validity of New York’s Wild Bird Law, New York Environmental Conservation Law § 11-1728 (1. 1984, ch. 981), and the regulations promulgated thereunder, 6 N.Y.C.R.R. § 174.1-174.10. The Importers allege that the Wild Bird Law (1) is preempted under the supremacy clause, U.S. Const. art. VI, cl. 2, by the Endangered Species Act, 16 U.S.C. § 1531-1543 and 50 C.F.R. Parts 17 and 23, and the federal quarantine laws, 21 U.S.C. § 102-105, 111, 114, and 134, and 9 C.F.R. Part 92; (2) places an unconstitutional burden on interstate commerce, U.S. Const. art. I, § 8; (3) hampers commercial speech in violation of U.S. Const. amend. I; (4) deprives Cresenzi and Novak of their property without due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6, by rendering unrecoverable the funds which they expended to obtain their quarantine facilities; (5) is so vague as to deprive plaintiffs of due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6; (6) delegates legislative authority to DEC, a cabinet-level agency of the State of New York, in violation of N.Y. Const. art. III, § 1; (7) has been incorrectly interpreted by DEC to exclude Cresenzi and Novak as exempt “State, Federal, or local agencies”; and (8) if interpreted to exempt Cresenzi and Novak, violates Supreme’s right to equal protection of the law, U.S. Const. amend. XIV.

The State has moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, and Fed.R.Civ.P. 12(b)(1), on the ground that the Court lacks jurisdiction over the subject matter, since plaintiffs’ claims are barred by the eleventh amendment, U.S. Const., and the doctrine of abstention.


Each of the three plaintiffs is engaged in the business of importing and selling live wild birds within the State of New York. Each plaintiff is licensed by the Department of the Interior “to engage in business as an importer or exporter of wildlife.” 50 C.F.R. § 14.91. Cresenzi and Novak operate three of the five wildlife quarantine stations in the State of New York. These stations are approved and monitored by the federal government as part of a federal statutory and regulatory scheme to control the introduction and spread of contagious disease among the poultry and animal populations of the the United States. 21 U.S.C. § 102-105, 111, 114, and 134, and 9 C.F.R. Part 92.