Bird lovers vs. fox lovers |

Bird lovers vs. fox lovers

“This case pits birdlovers, seeking to protect endangered and threatened species, against foxlovers, seeking to protect predators from inhumane traps.” (Lead sentence in Audubon v. Gray Davis Court Opinion).

PROP 4 Proposition 4 was adopted by California voters in November 1998 to protect wildlife and domestic pets by restricting use of certain kinds of traps, specifically body gripping traps and steel-jawed leghold traps.

Prop 4 also banned the use of poisons to capture or kill wildlife in California.


Two days after passage of Prop 4, the California Department of Fish and Game issued a press release saying that the new law “makes it generally illegal to trap fur-bearing and non-game animals with commonly used traps”. . . and that Fish and Game and other governmental agencies “will now have to use traps other than leghold traps to control predators, including those that prey on threatened and endangered species in California.”


Prior to Prop 4, many private trappers trapped for recreation (for the fun of it?), for interstate commerce in fur, and for safety, often under contracts with state, local and federal governments, in order to protect everything from levees to livestock and endangered species.

Several federal agencies, including the U.S. Fish and Wildlife Service and the U.S. Department of Agriculture had used leghold traps in California to protect livestock and threatened or endangered species – including California clapper rails, western snowy plovers, least terns, salt marsh harvest mice, and harvester owls. Traps were also used to protect a variety of bird species – including herons, egrets, terns, gulls, and other nesting species – pursuant to the Endangered Species Act and the Migratory Bird Treaty Act and the National Wildlife Refuge System Improvement Act and the Animal Damage Control Act.

The Fish and Wildlife Service and the U.S.D.A. took positions against Prop 4, and contributed to ballot arguments against the initiative. After the new law was enacted, U.S.D.A. stopped trapping.


Several Audubon societies, as well as the California Waterfowl Association, filed suit challenging the portion of Prop 4 which bans “the use of any steel-jawed leghold trap” by “any person, including an employee of the federal government.”

They argued that if predator mammals are not trapped, more such mammals will be alive to prey on birds. Audubon claimed that Prop 4 was pre-empted by federal laws including the Endangered Species Act.

Several private trappers and trappers’ associations also sued, claiming Prop 4 violated the Commerce Law, was pre-empted by federal laws, and contained misleading ballot materials.


The federal judge, after deciding that Audubon had “standing” to sue and that the case was “ripe” (like an old melon?) and was not “moot”, ruled that the Supremacy Clause of the U.S. Constitution invalidates state laws that “interfere with, or are contrary to” federal law.

Prop 4 was pre-empted by the Endangered Species Act and the National Wildlife Refuge System Improvement Act. An unintended consequence of Prop 4 (I warned about unintended consequences of Prop 4) is to further endanger species already listed as endangered under the E.S.A. For example, endangered birds suffer with more muskrats, foxes and coyotes, as do levees riddled by muskrats, prairie dogs and other rodents.

The trappers were allowed to prove that Prop 4 was pre-empted by the E.S.A. and the Animal Damage Control Act.

The trappers’ argument that the Prop 4 ballot material was misleading was not found by the Court to be persuasive. While the “Argument in Favor of Proposition 4” was misleading, it was part of an avowed partisan statement and not in the text of Prop 4, and not so misleading that voters could not

recognize the subject of Prop 4. (A liberal standard).

In this case the bird lovers prevailed over the animal lovers. Some of the animal groups that joined in this case against the Audubon Society included several Humane Societies, American Society for the Prevention of Cruelty to Animals, the Fund for Animals, and others.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno.

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