State of Missouri, et al v. Harris

Filing 102

ORDER signed by Judge Kimberly J. Mueller on 10/1/14 ORDERING that defendants and defendant-intervenors' motions to dismiss for lack of standing are GRANTED without leave to amend. Plaintiffs' first amended complaint is dismissed with prejudice. The Clerk is directed to close this action. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STATE OF MISSOURI, et al.,

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No. 2:14-cv-00341-KJM-KJN

Plaintiffs,

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v.

ORDER

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KAMALA D. HARRIS, et al.,

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Defendants.

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This case raises constitutional challenges to California legislation governing the

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sale of shell eggs. The legislation, scheduled to take effect on January 1, 2015, bans the sale of

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shell eggs within California by producers or handlers if the eggs are the product of an egg-laying

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hen that was confined in an enclosure that fails to comply with certain animal care standards.

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Plaintiffs are six states who challenge the legislation as unconstitutional, saying it violates the

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Commerce and Supremacy Clauses of the United States Constitution.
On August 11, 2014, the court heard the separate motions to dismiss brought by

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defendants Kamala Harris and Karen Ross (“defendants”) and defendant-intervenors the

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Association of California Egg Farmers (“ACEF”) and the Humane Society of the United States

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(“HSUS”). John Hirth and Peggy Whipple appeared for plaintiffs; Susan Smith appeared for

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defendants; Brian Boynton appeared for defendant-intervenor ACEF; and Bruce Wagman and

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Rebecca Cary appeared for defendant-intervenor HSUS.1

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After carefully considering the parties’ papers and arguments, defendants’ motions

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to dismiss are GRANTED for lack of standing, without leave to amend.

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I.

PROCEDURAL HISTORY

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On February 3, 2014, the State of Missouri initiated this action asserting two

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alternative causes of action under the federal Commerce and Supremacy Clauses. Compl., ECF

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No. 2 (relying on U.S. CONST. art. I, § 8, cl. 3 and U.S. CONST. art. VI, cl. 2).

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On March 5, 2014, a first amended complaint was filed by the State of Missouri,

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the State of Nebraska, the State of Oklahoma, the State of Alabama, the Commonwealth of

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Kentucky and Terry Branstad, the Governor of the State of Iowa (collectively “plaintiffs”). First

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Am. Compl. (“FAC”), ECF No. 13.

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HSUS and ACEF filed motions to intervene on March 26, 2014 and April 8, 2014,

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respectively. ECF Nos. 27, 33. On June 3, 2014, following the parties’ briefing on the motions

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to intervene, the court granted HSUS’s alternative motion for permissive intervention and

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ACEF’s motion to intervene as of right. ECF No. 57.

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On April 9, 2014, defendants filed a motion to dismiss. ECF No. 36. HSUS

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moved to dismiss plaintiffs’ first amended complaint on March 26, 2014, ECF No. 27-2, and

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ACEF moved to dismiss or alternatively for judgment on the pleadings on April 25, 2014, ECF

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No. 45. Plaintiffs filed a combined opposition to all three motions to dismiss on May 16, 2014.

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ECF No. 54. Defendants and defendant-intervenors HSUS and ACEF filed separate replies on

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June 5, 2014. ECF Nos. 58–60.

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Amici I and Amici II filed motions for leave to file amicus curiae briefs on April

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22, 2014 and June 10, 2014, respectively. ECF Nos. 44, 63. On July 1, 2014, the court granted

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The court notes the following parties were identified as present in the audience and
observing the August 11, 2014 hearing: Edward Johnson and Jonathon Townsend were present
for amici Animal Legal Defense Fund, Compassion Over Killing, Inc. and Farm Sanctuary, Inc.
(collectively “Amici I”) and Paige Tomaselli was present for amici Center For Food Safety,
Consumers Union, Food & Water Watch, Food Animal Concerns Trust, Healthy Food Action, the
Institute for Agriculture and Trade Policy and Public Justice, P.C. (collectively “Amici II”).
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the motions. ECF No. 70. On July 2, 2014, both amici filed briefs in support of the outstanding

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motions to dismiss. ECF Nos. 71, 72. On July 15, 2014, plaintiffs responded to the amici briefs,

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ECF No. 75, and on July 22, 2014, ACEF and Amicis I and II filed a response thereto. ECF Nos.

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76, 77.

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On July 25, 2014, amicus Missouri Liberty Project filed a motion for leave to file

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an amicus curiae brief in opposition to defendants’ motion to dismiss, which was granted by the

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court on July 28, 2014. ECF Nos. 82, 84. Amicus Missouri Liberty Project filed its brief on July

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29, 2014. ECF No. 88.

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II.

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

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Plaintiffs allege as follows in their first amended complaint. The California

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Legislature passed AB 1437, “which requires egg farmers in other states to comply with

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behavior-based enclosure standards identical to those in [Proposition] 2 if they want to continue

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selling their eggs in California.”2 FAC ¶ 5. As a result, “[e]gg producers in Missouri, Nebraska,

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Oklahoma, Alabama, Kentucky, and Iowa face a difficult choice”: “[e]ither they can incur

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massive capital improvement costs to build larger habitats for some or all of their egg-laying

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hens, or they can walk away from the largest egg market in the country.” Id. ¶ 6. “[T]he people

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most directly affected by California’s extraterritorial regulation—farmers in our states who must

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either comply with AB 1437 or lose access to the largest market in the United States—have no

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representatives in California’s Legislature and no voice in determining California’s agricultural

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policy.” Id. ¶ 7.
Plaintiffs bring this action and assert standing under the parens patriae doctrine3

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because each plaintiff state “has quasi-sovereign interests in protecting its citizens’ economic

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health and constitutional rights as well as preserving its own rightful status within the federal

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system.” Id. ¶¶ 10, 17, 22, 27, 32. All plaintiffs posit each state’s “economy and status within the

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As explained below, Proposition 2 (“Prop 2”) addresses the use of conventional cagesystems for housing egg-laying hens. See FAC ¶¶ 56–57.
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The parens patriae doctrine is defined as: “A doctrine by which a government has
standing to prosecute a lawsuit on behalf of a citizen, esp. on behalf of someone who is under a
legal disability to prosecute the suit.” BLACK’S LAW DICTIONARY 1221 (9th ed. 2009).
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federal system will be irreparably injured if the California Legislature—who were not elected by,

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and are not answerable to, the people of [each plaintiff state]—is allowed to regulate and increase

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the cost of egg production in [each plaintiff state].” Id. ¶¶ 13, 19, 24, 29, 34. With regard to the

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State of Missouri, “[a]lmost one third of [the] eggs” produced by Missouri’s farmers are sold in

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California. Id. ¶ 12. With regard to the State of Iowa, it is the “number one state in egg

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production” and “[a]pproximately 9.1% of [the state’s] eggs . . . are sold in California.” Id.

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¶¶ 37–38, 53-54. “The cost to Iowa farmers to retrofit existing housing or build new housing that

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complies with [AB 1437] would be substantial.” Id. ¶ 41. The increased cost of production “will

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have a detrimental impact upon and cause irreparable harm to Iowa’s economy.” Id. ¶ 43. The

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States of Nebraska and Alabama are among the top fifteen largest egg producers in the United

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States. Id. ¶¶ 18, 23. The States of Kentucky and Oklahoma produced 1.037 billion and 700

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million eggs in 2012, respectively. Id. ¶¶ 28, 33. “Precise figures on the number of eggs

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imported into California from other states are scarce, but University of California Poultry

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Specialist Don Bell identifies Alabama, Nebraska, and Kentucky among the states whose eggs

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account for another 5.6% of total California imports.” Id. ¶ 55.

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In 2008, California voters approved Prop 2 “‘to prohibit the cruel confinement of

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farm animals’ within California.” Id. ¶ 56 (quoting FAC Ex. A, ECF No. 13-1). Starting in 2015,

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Prop 2 will prohibit California egg producers from housing egg-laying hens in enclosures that

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prevent them from standing, lying down, turning around and fully extending their limbs,

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effectively banning the use of conventional cage-systems. Id. ¶ 57. The cost of complying with

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Prop 2 “would have placed California egg producers at a significant competitive disadvantage

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when compared to egg producers in Missouri and other states.” Id. ¶ 61. “Faced with the

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negative impact Prop 2 would have on California’s egg industry,” the California Legislature

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passed AB 1437 in 2010, which requires out-of-state egg farmers to comply with the same

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requirements set forth in Prop 2. Id. ¶¶ 63–64. The California Department of Food and

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Agriculture promulgated regulations establishing minimum dimensions, set forth in section 1350

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of title 3 of the California Code of Regulations (“section 1350”). Id. ¶ 65. Prop 2 provides

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“California egg farmers 2,249 days to come into compliance with its mandate” and AB 1437
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provides plaintiffs’ “egg farmers only 1,640 days” to comply. Id. ¶ 67. “The stated purpose of

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AB 1437 is ‘to protect California consumers from the deleterious, health, safety, and welfare

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effects of the sale and consumption of eggs derived from egg-laying hens that are exposed to

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significant stress that may result in increased exposure to disease pathogens including

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salmonella.’” Id. ¶ 68. Plaintiffs allege the purpose of AB 1437 “was not to protect public health

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but rather to protect California farmers from the market effects of Prop 2 by ‘leveling the playing

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field’ for out-of-state egg producers.” Id. ¶ 70.

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Even assuming AB 1437 serves a legitimate public health purpose within

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California by limiting the methods of production of California-bound eggs outside California,

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plaintiffs allege the statute is “expressly and implicitly preempted by the Federal Egg Products

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Inspection Act,” 21 U.S.C. § 1031, because one of its express purposes “is to protect human

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health in connection with the consumption of shell eggs.” Id. ¶¶ 76–81.

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AB 1437 “imposes a substantial burden on interstate commerce by forcing

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Plaintiffs’ farmers either to forgo California’s markets altogether or accept significantly increased

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production costs just to comply with California law.” Id. ¶ 84.

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Those higher production costs will increase the price of eggs
outside California as well as in. Because demand for eggs varies
greatly throughout the year, egg producers in other states cannot
simply maintain separate facilities for their California-bound eggs.
In high-demand months, Plaintiffs’ farmers may not have enough
eggs to meet California demand if only a fraction of their eggs are
produced in compliance with AB1437. In low-demand months,
there may be insufficient California demand to export all compliant
eggs, forcing Plaintiffs’ farmers to sell those eggs in their own
states at higher prices than their competitors. Given those
inefficiencies, Plaintiffs’ egg farmers must choose either to bring
their entire operations into compliance with AB1437 so that they
always have enough supply to meet California demand, or else
simply leave the California marketplace.

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Id. ¶ 85. The “necessary capital improvements” to comply with AB 1437 and section 1350

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(collectively “shell egg laws”) “will cost Plaintiffs’ farmers hundreds of millions of dollars.” Id.

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¶ 86. Even choosing to forgo the California market will impose a substantial burden on interstate

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commerce because plaintiffs’ farmers would produce a surplus of eggs resulting in a decrease in

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the price of eggs “and potentially forcing some [of plaintiffs’ egg] producers out of business.” Id.

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¶ 88.

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Plaintiffs’ action is ripe for review because “the injury to Plaintiffs’ farmers is

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certainly impending” as “any of [plaintiffs’] farmers who continue to export their eggs to

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California will face criminal sanctions beginning January 1, 2015 unless they take action now to

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come into compliance by the law’s effective date.” Id. ¶ 89 (quotations and citation omitted).

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“Whichever path they follow, an incorrect choice spells doom for their businesses. Coming into

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compliance will necessarily increase productions [sic] costs; if the law is eventually struck down,

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the farmer will not be able to compete with egg producers still using cage-systems.” Id. ¶ 92.

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With regard to a violation of the Commerce Clause, plaintiffs allege (1) AB 1437

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and section 1350 “are protectionist measures intended to benefit California egg producers at the

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expense of Plaintiffs’ egg producers by eliminating the competitive advantage [their] producers

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would enjoy once Prop 2 becomes effective;” (2) the provisions “have the purpose and effect of

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regulating conduct” outside California; and (3) they “impose a substantial burden on interstate

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commerce by forcing Plaintiffs’ egg producers either to increase their production costs . . . or

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forgo the largest market in the United States” with no legitimate state purpose. Id. ¶¶ 96–101.

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With regard to plaintiffs’ alternative Supremacy Clause claim, plaintiffs allege

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even if the court finds AB 1437 and section 1350 serve a legitimate, non-discriminatory purpose,

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“the statute and regulations would be in conflict with the express terms of 21 U.S.C. § 1052(b).”

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Id. ¶ 103. “[B]ecause Congress evidenced its intention to occupy the entire field of regulations

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governing the quality and condition of eggs by imposing uniform national standards, the Federal

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Egg Products Inspection Act . . . implicitly preempts” AB 1437 and section 1350. Id. ¶ 104.

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III.

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THE SHELL EGG LAWS
A.

Section 1350
California’s shell egg food safety regulation provides for the implementation of

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specified requirements “to assure that healthful and wholesome eggs of known quality are sold in

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California . . . .” FAC Ex. H, ECF No. 2-8; see also Cal. Code Regs. tit. 3, § 1350. Under
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section 1350(c), egg producers or handlers shall incorporate three specified provisions aimed at

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the prevention of Salmonella contamination in shell eggs:

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(1) Implement Salmonella enterica serotype Enteritidis (SE)
prevention measures in accordance with the Food and Drug
Administration, Department of Health and Human Services’
requirements for the production, storage, and transportation of shell
eggs as specified in 21 CFR Part 118;

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(2) Implement a SE environmental monitoring program . . .; and

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(3) Implement and maintain a vaccination program to protect
against infection with SE . . . .

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Cal. Code Regs. tit. 3, § 1350(c)(1)–(3).

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Section 1350 also provides for specific confinement specifications for egg-laying
hens:

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(d) Commencing January 1, 2015, no egg handler or producer may
sell or contract to sell a shelled egg for human consumption in
California if it is the product of an egg-laying hen that was confined
in an enclosure that fails to comply with the following standards.
For purposes of this section, an enclosure means any cage, crate, or
other structure used to confine egg-laying hens:

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(1) An enclosure containing nine (9) or more egg-laying
hens shall provide a minimum of 116 square inches of floor
space per bird. Enclosures containing eight (8) or fewer
birds shall provide a minimum amount of floor space per
bird as follows, using formula 322+[(n-1) x 87.3]/n, where
“n” equals the number of birds:

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Number of Birds Square Inches Per Bird
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322
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205
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166
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146
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135
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127
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121
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117

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Id. § 1350(d).

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B.

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Assembly Bill 1437
Assembly Bill 1437 was approved by the Governor of California on July 6, 2010.

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FAC Ex. D, ECF No. 13-4; see also CAL. HEALTH & SAFETY CODE § 25995. The legislative

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findings and declarations regarding treatment of egg-laying hens read as follows:

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(a) According to the Pew Commission on Industrial Farm
Production, food animals that are treated well and provided with at
least minimum accommodation of their natural behaviors and
physical needs are healthier and safer for human consumption.
(b) A key finding from the World Health Organization and Food
and Agricultural Organization of the United Nations Salmonella
Risk Assessment was that reducing flock prevalence results in a
directly proportional reduction in human health risk.
(c) Egg-laying hens subjected to stress are more likely to have
higher levels of pathogens in their intestines and the conditions
increase the likelihood that consumers will be exposed to higher
levels of food-borne pathogens.
(d) Salmonella is the most commonly diagnosed food-borne illness
in the United States.
(e) It is the intent of the Legislature to protect California consumers
from the deleterious, health, safety, and welfare effects of the sale
and consumption of eggs derived from egg-laying hens that are
exposed to significant stress and may result in increased exposure
to disease pathogens including salmonella.

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CAL. HEALTH & SAFETY CODE § 25995. Beginning on January 1, 2015, “a shelled egg shall not

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be sold or contracted for sale for human consumption in California if the seller knows or should

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have known that the egg is the product of an egg-laying hen that was confined on a farm or place

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that is not in compliance with animal care standards set forth in Chapter 13.8 (commencing with

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Section 25990).” Id. § 25996. The prohibitions set forth in Chapter 13.8, titled “Farm Animal

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Cruelty,” state:

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In addition to other applicable provisions of law, a person shall not
tether or confine any covered animal, on a farm, for all or the
majority of any day, in a manner that prevents such animal from:
(a) Lying down, standing up, and fully extending his or her limbs;
and
(b) Turning around freely.

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CAL. HEALTH & SAFETY CODE § 25990. An “egg-laying hen” is defined as “any female

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domesticated chicken, turkey, duck, goose, or guinea fowl kept for the purpose of egg

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production.” Id. § 25991(c). “Enclosure” is defined as “any cage, crate, or other structure
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(including what is commonly described as . . . a ‘battery cage’ for egg-laying hens) used to

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confine a covered animal.” Id. § 25991(d). “Farm” is defined as “the land, building, support

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facilities, and other equipment that are wholly or partially used for the commercial production of

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animals or animal products used for food or fiber; and does not include live animal markets.” Id.

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§ 25991(e).

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A violation of the law constitutes a misdemeanor and is punishable with a fine of

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not more than $1,000 or imprisonment for not more than 180 days or both. Id. § 25997. The

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regulation states the provisions “are in addition to, and not in lieu of, any other laws protecting

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animal welfare, including the Penal Code. This chapter shall not be construed to limit any state

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law or regulation protecting the welfare of animals, nor shall anything in this chapter prevent a

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local governing body from adopting and enforcing its own animal welfare laws and regulations.”

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Id. § 25997.1.

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IV.

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LEGAL STANDARDS FOR A MOTION TO DISMISS FOR LACK OF STANDING
The jurisdiction of the federal courts is limited to resolving cases and

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controversies. U.S. CONST. art. III, § 2, cl. 1; Warth v. Seldin, 422 U.S. 490, 499 (1975).

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Because of this limited jurisdiction, cases lie outside the jurisdiction of the court unless proven

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otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376–78 (1994). There are a

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number of “doctrines that cluster about Article III,” including standing and ripeness, that may

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support a challenge to subject matter jurisdiction raised by either party or sua sponte by the court.

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Allen v. Wright, 468 U.S. 737, 750 (1984) (quotations and citation omitted); Fed. R. Civ. P.

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12(b)(1). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227

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F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). In a facial attack, as in this action, the

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complaint is challenged on its face as failing to support federal jurisdiction, whereas, in a factual

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attack, the challenger provides evidence, through affidavits or otherwise, that an alleged fact is

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false resulting in a lack of subject matter jurisdiction. See Safe Air for Everyone v. Meyer, 373

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F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, allegations in the complaint are taken as true

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and construed in the light most favorable to a plaintiff.

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V.

ANALYSIS
A.

Standing Under The Parens Patriae Doctrine

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Plaintiffs bring this action in their capacity as parens patriae, asserting they have

The Parties’ Arguments

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standing because each plaintiff State “has quasi-sovereign interests in protecting its citizens’

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economic health and constitutional rights as well as preserving its own rightful status within the

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federal system.” FAC ¶¶ 10, 17, 22, 27, 32. Defendants challenge plaintiffs’ standing to pursue

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their Commerce Clause and Supremacy Clause claims as parens patriae, arguing they fail to

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allege an “interest apart from the private egg producers.” ECF No. 36 at 13. Defendants assert

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plaintiffs fail to allege a quasi-sovereign interest because the first amended complaint does not

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properly allege an injury to a sufficiently substantial segment of the plaintiff states’ populations.

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Id. at 14 (quoting Table Bluff Reservation (Wiyot Tribe) v. Philip Morris, Inc. (Table Bluff), 256

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F.3d 879, 885 (9th Cir. 2001)).

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HSUS and ACEF also move to dismiss plaintiffs’ first amended complaint for lack

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of standing. HSUS argues, in part, plaintiffs cannot bring this case “on behalf of an unspecified

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number of unnamed egg producers from their states.” ECF No. 27-2 at 11–13. Similarly, ACEF

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argues “to the extent the complaint alleges any injury at all, . . . it is limited to the economic harm

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that would allegedly befall some unspecified egg farmers residing within their borders who may

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intend to sell eggs in California after January 1, 2015 . . . .” ECF No. 45-1 at 16 (noting “for all

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their emphasis on the egg producers within their territories, [p]laintiffs never disclose how many

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companies belong in this limited group”).

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Plaintiffs oppose, arguing they have “sufficiently alleged injury to quasi-sovereign

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interests” because they “have alleged an effort to restrain interstate commerce by imposing higher

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costs on [their] producers if they want to compete in California.” ECF No. 54 at 21. Plaintiffs

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further argue, “California’s disruption of the egg supply and the fluctuation of egg prices that

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disruption will cause in [p]laintiff States are ‘matter[s] of grave public concern . . . .’” Id. at 22

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(quoting Pennsylvania v. West Virginia, 262 U.S. 553, 591 (1923)). Plaintiffs also rely on Alfred

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L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez (Snapp), 458 U.S. 592 (1982), in support of
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their argument “challeng[ing] the violation of [their] citizens’ right under the Commerce Clause

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to the free flow of goods across state lines without undue burdens imposed by individual states.”

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ECF No. 54 at 22.

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During the hearing on the motions to dismiss, plaintiffs averred they are not

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bringing this action on behalf of the egg industry alone, but rather on behalf of each state’s

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residents, explaining “all of the quantifiable things that we could allege in the complaint will

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affect the production of eggs . . . [b]ut our claim is larger than . . . simply harm to the egg

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producers.” Hr’g Tr. at 3, ECF No. 91.4 Plaintiffs argued “this case is actually about . . . one

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state’s decision to protect its farmers from competition by closing its borders to its sister states

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unless they submit to regulation without representation.” Id. at 4. Plaintiffs posited during the

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hearing “that the California egg laws that [they] are challenging effectively remove from the

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people of Missouri the ability to set public policy themselves regarding agricultural regulations.

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And -- if they want to participate in the California marketplace.” Id. at 4–5. Plaintiffs offered

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Snapp as their best authority in support of their argument, explaining that in this action, “we are

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talking about a statute that effectively blocks, at the California border, eggs from out of state that

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don’t comply with California’s own notions of proper animal husbandry.” Id. at 7. In that regard,

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plaintiffs argued non-residents do not have “political recourse” if they disagree with the policy.

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Id. at 8. Plaintiffs further clarified the issue they raise in this action is “the right of the people to

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participate in the laws that govern them.” Id. Plaintiffs provided the following analogy to best

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explain their position:

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[I]magine that the State of Missouri decides to enact legislation that
requires all grapes to be harvested by people with Bachelor’s
degrees or greater in horticulture or viticulture and, in addition to
that, passes a law that says you can’t sell the product of a grape
unless it was harvested by someone with a Bachelor’s degree or a
Master’s degree in Missouri.

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References to the motion hearing transcript use the transcript page number, not the
corresponding ECF page number.
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So if you had a California farmer or a California wine producer
who sells a third of its wine into Missouri . . . what does that person
do? Do they -- they have several options. They can reduce their
production . . . [t]hey can lower all of their prices . . . [o]r they can
acquiesce to Missouri’s regulations.

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....

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The problem there is because they cannot -- they have no way -that vintner has no way of challenging Missouri law in a political
process, the only thing they can do is urge their own legislature to
retaliate.

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Id. at 9–10. Plaintiffs argued AB 1437 is “an attempt by California to say in Missouri you have to

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follow this set of procedures so that when your eggs show up at the border, we will let them in.”

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Id. at 37. Plaintiffs pointed to paragraphs seven and thirteen of the first amended complaint in

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support of their standing argument.5 Id. at 40. Plaintiffs argued they cannot point to “how much

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money our folks have lost because the law hasn’t gone into effect yet,” but they have sufficiently

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alleged “we have to make a choice now” and “it would cost about 120 million dollars in capital

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improvements.” Id. at 41–42. Plaintiffs explained to the court the egg producers in their states

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already “have gambled one way or another,” either choosing to come into compliance with

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California’s law or choosing not to come into compliance. Id. at 43. Finally, plaintiffs argued,

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“the other issue here with having no voice in the law is if our folks spend 120 million dollars to

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Paragraph seven alleges:
By conditioning the flow of goods across its state lines on the
method of their production, California is attempting to regulate
agricultural practices beyond its own borders. Worse, the people
most directly affected by California’s extraterritorial regulationfarmers in our states who must either comply with AB1437 or lose
access to the largest market in the United States-have no
representatives in California’s Legislature and no voice in
determining California’s agricultural policy.

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FAC ¶ 7. Paragraph thirteen alleges:

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Missouri’s economy and status within the federal system will be
irreparably injured if the California Legislature-who were not
elected by, and are not answerable to, the people of Missouri-is
allowed to regulate and increase the cost of egg production in
Missouri.

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FAC ¶ 13.
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come into compliance, and then next year the California legislature amends the law again, well,

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then we’d have to go through the whole process, and we have no political way of blocking that

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law from being changed.” Id. at 44.

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ii.

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“Whether a party has a sufficient stake in an otherwise justiciable controversy to

Legal Standards

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obtain judicial resolution of that controversy is what has traditionally been referred to as the

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question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972). “[A] plaintiff

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must demonstrate standing for each claim he seeks to press” and “separately for each form of

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relief sought.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (citations omitted). In

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Supreme Court defined “the

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irreducible constitutional minimum of standing.” First, there must be an invasion of plaintiffs’

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legally protected interest, an injury-in-fact, which is both concrete and particularized and actual

13

and imminent; second, there must be a causal connection between the injury and the challenged

14

conduct; and third, it must be likely that the injury will be redressed by a decision in plaintiffs’

15

favor. Id. at 560–61; see also Cigarettes Cheaper! v. State Bd. of Equalization, No. 2:11–CV–

16

00631–JAM–EFB, 2011 WL 2560214, at *1 (E.D. Cal. June 28, 2011). It is plaintiffs’ burden to

17

establish their standing to sue. Lujan, 504 U.S. at 560.

18

“The Supreme Court has recognized that ‘States are not normal litigants for the

19

purposes of invoking federal jurisdiction,’ and have interests and capabilities beyond those of an

20

individual by virtue of their sovereignty.” Oregon v. Legal Servs. Corp., 552 F.3d 965, 970 (9th

21

Cir. 2009) (quoting Massachusetts v. EPA, 549 U.S. 497, 518 (2007)).

22

Under the doctrine of parens patriae, a State cannot establish standing if it is “only

23

a nominal party without a real interest of its own.” Snapp, 458 U.S. at 600. “Rather, to have such

24

standing the State must assert an injury to what has been characterized as a ‘quasi-sovereign’

25

interest, which is a judicial construct that does not lend itself to a simple or exact definition.” Id.

26

at 601. “Although the Supreme Court has never clearly defined what constitutes a quasi-

27

sovereign interest, it does not include ‘sovereign interests, proprietary interests, or private

28

interests pursued by the State as a nominal party.’” Dep’t of Fair Emp’t & Hous. v. Lucent
13

1

Techs., Inc., 642 F.3d 728, 737 n.2 (9th Cir. 2011) (quoting Snapp, 458 U.S. at 602). Rather, it

2

“consist[s] of a set of interests that the State has in the well-being of its populace.” Snapp,

3

458 U.S. at 602. “A quasi-sovereign interest must be sufficiently concrete to create an actual

4

controversy between the State and the defendant.” Id. In other words, “‘[p]arens patriae’

5

standing allows a sovereign to bring suit on behalf of its citizens when the sovereign ‘allege[s]

6

injury to a sufficiently substantial segment of its population,’ ‘articulate[s] an interest apart from

7

the interests of particular private parties,’ and ‘express[es] a quasi-sovereign interest.’” Table

8

Bluff, 256 F.3d at 885 (quoting Snapp, 458 U.S. at 607). While such interests are “a matter for

9

case-by-case development,”

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

[t]hese characteristics fall into two general categories. First, a State
has a quasi-sovereign interest in the health and well-being-both
physical and economic-of its residents in general. Second, a State
has a quasi-sovereign interest in not being discriminatorily denied
its rightful status within the federal system.
Snapp, 458 U.S. at 602. As the Ninth Circuit has explained:
Generally, a state has been granted standing under the parens
patriae doctrine in situations involving the abatement of public
nuisances, such as global warming, flooding, or noxious gases. See
Massachusetts, 549 U.S. 497, 127 S. Ct. 1438 (2007)
(Massachusetts had standing to sue the EPA for failing to issue
rules regarding the emission of greenhouse gases); North Dakota v.
Minnesota, 263 U.S. 365, 44 S. Ct. 138, 68 L. Ed. 342 (1923)
(North Dakota had standing to sue Minnesota for allegedly creating
conditions leading to flooding of farmland); Georgia v. Tenn.
Copper Co., 206 U.S. 230, 27 S. Ct. 618, 51 L. Ed. 1038 (1907)
(Georgia had standing to sue for an injunction to prevent the
defendant copper companies from discharging noxious gases over
Georgia’s territory). In other cases, states have been granted
standing to represent the economic interests of their residents. See
Snapp, 458 U.S. 592, 102 S. Ct. 3260 (Puerto Rico had standing to
sue defendant apple farmers for subjecting its workers to conditions
more burdensome than those established for temporary foreign
workers in violation of the Wagner–Peyser Act); Georgia v. Pa. R.
Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945) (Georgia
had standing to bring suit against railroads for conspiracy to fix
freight rates in a manner that discriminated against Georgia
shippers in violation of federal antitrust law); Pennsylvania v. West
Virginia, 262 U.S. 553, 43 S. Ct. 658, 67 L. Ed. 1117 (1923)
(Pennsylvania had standing to sue for an injunction preventing
West Virginia from giving other states a preferential right of
purchase and curtailing the supply of gas carried to Pennsylvania).
As the Supreme Court noted in Snapp, the common thread among
these cases is each state’s quasi-sovereign interest in the health and
14

1
2

well-being of its residents and a quasi-sovereign interest in “not
being discriminatorily denied its rightful status within the federal
system.” 458 U.S. at 607 . . . .

3

Oregon, 552 F.3d at 970–71. Before establishing these requirements, plaintiffs “still must allege

4

injury in fact to the citizens they purport to represent as parens patriae.” Table Bluff, 256 F.3d at

5

885.
iii.

6

Analysis
a. Injury in Fact to Citizenry

7

With regard to the threshold requirement, that plaintiffs “must allege injury in fact

8
9

to the citizens they purport to represent as parens patriae,” id., plaintiffs fail to allege how the

10

citizens of each state are in fact injured by AB 1437. While plaintiffs allege the egg farmers in

11

each state may suffer an injury in the form of increased costs of production, this injury does not

12

affect the citizens plaintiffs purport to represent. See, e.g., Hr’g Tr. at 4 (explaining during oral

13

argument plaintiffs are “appearing as parens patriae in the interest of [their] citizens”). In fact, as

14

plaintiffs allege, AB 1437 applies only to egg producers, not plaintiffs’ residents in general. FAC

15

¶ 5 (alleging California passed AB 1437, “which requires egg farmers in other states to comply

16

with behavior-based enclosure standards identical to those in Prop 2 if they want to continue

17

selling their eggs in California”); see also id. ¶ 61 (alleging AB 1437 requires out-of-state egg

18

farmers to comply with the same requirements set forth in Prop 2). To the extent plaintiffs argue

19

the implementation of AB 1437 may result in an increase in the cost of eggs, which may injure

20

their citizens who are egg consumers, this argument is without merit. First, the allegations in

21

plaintiffs’ complaint point to a potential decrease in the cost of eggs, FAC ¶ 88, which may

22

benefit plaintiffs’ citizens rather than injure them. Second, even assuming plaintiffs’ citizens may

23

be faced with an increase in the cost of eggs, this speculative argument alone does not satisfy the

24

requirement of showing an injury in fact. Table Bluff, 256 F.3d at 885 (citing with approval the

25

reasoning in Hise v. Philip Morris, Inc., 46 F. Supp. 2d 1201, 1209–10 (N.D. Okla. 1999), “that

26

no constitutional injury occurs when a manufacturer passes on higher costs in the form of price

27

increases”).

28

/////
15

1

With regard to whether plaintiffs have sufficiently alleged interests apart from

2

those of private parties, see Table Bluff, 256 F.3d at 885, the allegations in the first amended

3

complaint amount only to generalized grievances on behalf of plaintiffs’ egg farmers and

4

potential injuries the farmers face as a result of the shell egg laws. Other than plaintiffs’

5

conclusory allegation that each plaintiff State “has quasi-sovereign interests in protecting its

6

citizens’ economic health and constitutional rights as well as preserving its own rightful status

7

within the federal system,” FAC ¶¶ 10, 17, 22, 27, 32, plaintiffs fail to set forth any allegations

8

that support a finding they are bringing this action to protect their citizens’ economic health or the

9

well-being of each state’s populace. Snapp, 458 U.S. at 602. Rather, the allegations throughout

10

the first amended complaint specifically focus on the impact of AB 1437 on plaintiffs’ egg

11

farmers. See, e.g., FAC ¶ 7 (“the people most directly affected by California’s extraterritorial

12

regulation [are the] farmers in our states”). If there were any doubt, plaintiffs clarify in their

13

opposition brief that “[p]laintiffs here have alleged an effort to restrain interstate commerce by

14

imposing higher costs on our producers if they want to compete in California.” ECF No. 54 at 21.

15

A finding that plaintiffs are not bringing this action on behalf of a substantial

16

segment of their populations is further bolstered by plaintiffs’ representations to the court during

17

oral argument, that not all of their egg farmers have chosen to forgo compliance with AB 1437.

18

Hr’g Tr. at 43–44 (“All of the producers in our states have gambled one way or another. They’ve

19

-- if they have not come into compliance, they have gambled that the law will be struck down . . .

20

. If they have come into compliance, they have gambled that the statute will be upheld because

21

they would have invested hundreds of millions of dollars in the bringing their -- their facilities

22

into compliance . . . . And because of the lag time, I think a lot of them have made the choice one

23

way or the other.”). In other words, a fair construction of the complaint is that plaintiffs bring this

24

action on behalf of only those egg farmers who have not brought their farming procedures into

25

compliance with California’s laws and regulations. A subset of plaintiffs’ egg farmers is not

26

tantamount to the citizenry of plaintiffs’ states and the court “cannot accept such a claim as ‘an

27

interest apart from the interests of particular private parties.’” Oregon, 552 F.3d at 974 (quoting

28

Snapp, 458 U.S. at 607); see also Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 335 (1st
16

1

Cir. 2000) (parens patriae “is a judicially created exception that has been narrowly construed”).

2

The court concludes plaintiffs have not brought this action on behalf of their interest in the

3

physical or economic well-being of their residents in general, but rather on behalf of a discrete

4

group of egg farmers whose businesses will allegedly be impacted by AB 1437. Plaintiffs are

5

therefore only nominal parties without real interests of their own. Snapp, 458 U.S. at 600.

6
7

b. Quasi-Sovereign Interests
With regard to whether plaintiffs have sufficiently articulated quasi-sovereign

8

interests, see Table Bluff, 256 F.3d at 885, they argue “[a]s in [Georgia v. Pa. R. Co.], . . .

9

Plaintiffs here have alleged an effort to restrain interstate commerce by imposing higher costs on

10

our producers if they want to compete in California.” ECF No. 54 at 21. Further, plaintiffs state

11

that, similar to Georgia, these restraints will shackle each state’s industries and relegate the states

12

to an inferior economic position compared to states unaffected by California’s shell egg laws. Id.

13

Plaintiffs also claim, as in Pennsylvania, 262 U.S. at 592, the health, comfort, and welfare of

14

plaintiffs’ citizens are “seriously jeopardized by the threatened [disruption of] the supply of [a

15

vital commodity] in the interstate stream.” Id. at 22 (alterations in original). Finally, plaintiffs

16

argue “[t]he gravamen of the Amended Complaint is that California is attempting to regulate

17

conduct that occurs in [plaintiffs’ states],” and, consequently, plaintiffs’ citizens have been left

18

“at the mercy of legislators they did not elect and cannot vote out of office.” Id. In response to

19

this attempted regulation in violation of the Commerce Clause, plaintiffs claim they “assert the

20

same quasi-sovereign interest identified by Puerto Rico in Alfred L. Snapp & Son—preserving

21

our rightful place as co-equal sovereigns in our federal system.” Id.

22

Plaintiffs’ analogies are inapt. In Georgia, the plaintiff set forth numerous

23

allegations concerning the general effects the defendants’ conduct would have on the state’s

24

citizens and economy, including “limit[ing] in a general way the Georgia economy to staple

25

agricultural products, . . . restrict[ing] and curtail[ing] opportunity in manufacturing, shipping and

26

commerce, and . . . prevent[ing] the full and complete utilization of the natural wealth of the

27

State.” Georgia, 324 U.S. at 444. Unlike the extensive allegations made in Georgia, plaintiffs

28

here have presented no allegations concerning the effects of California’s shell egg laws on the
17

1

states’ general populations beyond fluctuating egg prices that may in fact result in lower egg

2

prices for consumers in the Midwest. ECF No. 13 at 20. As already noted, plaintiffs’ remaining

3

allegations exclusively concern plaintiffs’ farmers, which plaintiffs have not demonstrated are a

4

“sufficiently substantial segment” of their populations. Snapp, 458 U.S. at 607. Far from

5

“shackling” plaintiffs’ industries, plaintiffs have alleged nothing to suggest California’s shell egg

6

laws will detrimentally affect anyone outside of an identifiable group of individual egg farmers.

7

Plaintiffs also attempt to equate the withdrawal of gas in Pennsylvania to a

8

potential “disruption” in the supply of eggs within plaintiffs’ borders. However, Pennsylvania

9

concerned the total withdrawal of gas by West Virginia from the Pennsylvania market; gas was a

10

vital commodity used and depended upon by millions of citizens. Pennsylvania, 262 U.S. at 553.

11

To change to another fuel source would have cost more than $100 for each domestic consumer

12

and more than $100 million in 1923 dollars between the plaintiff states of Pennsylvania and Ohio.

13

Id. Plaintiffs here allege nothing to suggest eggs are a vital commodity necessary to preserve

14

plaintiffs’ citizens’ health, comfort and welfare. Even if plaintiffs had alleged such additional

15

facts, plaintiffs fundamentally allege only potential “disruptions” in the supply of eggs, not the

16

total withdrawal of this commodity from the plaintiff states. As noted, potential changes in

17

supply and demand could result in price fluctuations that may even benefit the majority of

18

plaintiffs’ citizens at times. These allegations do not establish an inability for citizens to obtain a

19

vital resource or purchase a substitute good.

20

Similarly, plaintiffs’ comparison to Snapp is premised on defendants’ alleged

21

violation of the Commerce Clause. However, in Snapp, the Commonwealth of Puerto Rico

22

established parens patriae standing to “pursue the interests of its residents in the

23

Commonwealth’s full and equal participation in the federal employment service scheme

24

established pursuant to the Wagner-Peyser Act and the Immigration and Nationality Act of

25

1952.” Snapp, 458 U.S. at 609. The Commonwealth brought its claim based on allegations of a

26

violation of certain federal acts that guaranteed employment benefits. Id. at 609–10. Here,

27

plaintiffs do not assert a quasi-sovereign interest in assuring their residents benefit from

28

identifiable federal legislation. Cf. Maryland v. Louisiana, 451 U.S. 725, 737–39 (1981) (finding
18

1

Maryland maintained a quasi-sovereign interest in securing benefits of the Natural Gas Act for its

2

residents). Indeed, as noted above, plaintiffs bring this action on behalf of egg farmers, not the

3

general populace of their states. Plaintiff states’ conclusory allegation that each has a quasi-

4

sovereign interest in “preserving its own rightful status within the federal system,” FAC ¶¶ 10,

5

17, 22, 27, 32, without more, is insufficient to establish parens patriae standing.

6

Finally, plaintiffs argue that if their egg farmers choose to withdraw from the

7

California egg market, resulting in a flood of the “markets in the remaining 49 states with surplus

8

eggs while artificially driving up the price of eggs in California,” this would “negatively impact

9

anyone employed in egg production or sales” in plaintiffs’ states. ECF No. 54 at 25; see also

10

Hr’g Tr. at 39–40 (arguing other people such as egg transporters and distributers are affected by

11

the price of eggs). Plaintiffs continue that while the number of egg producers in one plaintiff

12

state may be small, “the number of egg consumers in each state numbers in the millions” and

13

those consumers are affected by California’s shell egg laws. ECF No. 54 at 25 (emphasis

14

omitted).

15

To the extent plaintiffs argue the first amended complaint establishes a quasi-

16

sovereign interest based on each state’s egg consumers’ economic well-being, this argument fails.

17

As noted, the first amended complaint does not allege an injury to consumers as a result of the

18

shell egg laws but rather an injury to plaintiffs’ egg farmers. The section of the first amended

19

complaint where plaintiffs address a potential increase in the price of eggs focuses on the impact

20

of a potential increase on plaintiffs’ egg farmers, alleging the higher production costs may

21

ultimately “forc[e] Plaintiffs’ farmers to sell those eggs in their own states at higher prices than

22

their competitors,” FAC ¶ 85, which “will cost Plaintiffs’ farmers hundreds of millions of

23

dollars,” id. ¶ 86. At the same time, plaintiffs allege a decrease in the market price of eggs, which

24

would presumably benefit plaintiffs’ consumers, that will potentially force some of plaintiffs’ egg

25

producers out of business. Id. ¶ 88. These allegations fail to establish a quasi-sovereign interest

26

in the economic well-being of plaintiffs’ egg consumers but rather assert an interest in plaintiffs’

27

egg farmers’ businesses. In sum, plaintiffs fail to articulate how this action would benefit

28

plaintiffs’ residents in general as egg consumers. See, e.g., Ohio v. GMAC Mortg., LLC, 760 F.
19

1

Supp. 2d 741, 784 (N.D. Ohio 2011) (noting “[t]he fact that the State chose to act on behalf of a

2

group of residents . . . does not, by itself, automatically turn the action into an action that benefits

3

all Ohio consumers” (quotations omitted)). Plaintiffs therefore lack standing to pursue their

4

claims in this action under the parens patriae doctrine. Oregon, 552 F.3d at 974.

5

B.

Justiciability

6

1.

7

Plaintiffs argue their complaint “presents a case or controversy ripe for review,”

Arguments and Relief Requested

8

FAC at 21, because California’s shell egg laws “have already caused ‘concrete, particularized,

9

and actual’ injury to Plaintiffs, and additional injury is ‘clearly impending.’” ECF No. 54 at 23.

10

Plaintiffs claim that, “[a]bsent some additional action by . . . this Court, any of our farmers who

11

continue to export their eggs to California will face criminal sanctions beginning January 1, 2015

12

unless they take action now to come into compliance by the law’s effective date.” FAC ¶ 89.

13

They argue at least 1.5 billion eggs were exported by plaintiffs’ farmers to California in 2012 and,

14

thus, “it is hardly speculative for Plaintiffs to allege that a similar number would be shipped to

15

California again in 2015.” ECF No. 54 at 23. Further, plaintiffs argue it is not speculative “to

16

allege that the vast majority of eggs produced in Plaintiff States . . . do not comply with AB1437

17

and §1350.” Id. Rather, plaintiffs claim “[i]f history is any predictor of future events, it is

18

eminently reasonable for the court to infer that egg producers in Plaintiffs [sic] States would

19

continue to ship 1.5 billion eggs to California per year but for AB1437 and §1350.” Id. at 23

20

(emphasis omitted). Plaintiffs also make reference to the criminal provisions of AB 1437, noting

21

the law “provides that a violation of § 25996 shall constitute a misdemeanor punishable by up to a

22

$1,000 fine and 180 days in county jail.” FAC ¶ 64. Finally, plaintiffs contend it is not

23

“speculative that AB1437 and §1350 will become effective on January 1, 2015 or that Defendants

24

will carry out their oaths to enforcement [sic] them.” ECF No. 54 at 23.

25

Plaintiffs seek declaratory and injunctive relief based on the Declaratory Judgment

26

Act. FAC ¶ 105. The Act provides in “a case of actual controversy within its jurisdiction, . . .

27

any court of the United States, upon the filing of any appropriate pleading, may declare the rights

28

and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a).
20

1

However, “[t]he mere existence of a statute, which may or may not ever be applied to plaintiffs, is

2

not sufficient to create a ‘case or controversy’ within the meaning of Article III, and is thus

3

insufficient to satisfy the ‘actual controversy’ requirement of the Declaratory Judgment Act.” W.

4

Mining Council v. Watt, 643 F.2d 618, 627 (9th Cir. 1981).

5

When questioned during the hearing regarding any imminent injury flowing from

6

AB 1437, plaintiffs argued they do not have an affidavit itemizing which egg farmers intend to

7

sell eggs in California; but the court “should take everything that we allege as true and then

8

decide whether there is a -- whether we’ve stated a claim.” Hr’g Tr. at 23. Plaintiffs referred the

9

court to egg sales from last year, arguing the court can infer, for example, Missouri egg farmers

10

will continue to sell one third of their eggs in California. Id. Finally, plaintiffs argued:

11

The -- if we were required, in order to bring this claim, to predict in
advance the harm that will occur next year in a quantifiable
number, you know, if -- and, in fact, to some extent I have done that
by saying 120 million dollars is the cost of doing this. That is one
potential harm. But there are also harms related to the loss of sale
[sic]. Those are things that have not happened but they are clearly
impending.

12
13
14
15

Id. at 44.

16

2.

17

Regarding questions of justiciability, “[w]hether framed as an issue of standing or

18

ripeness, the inquiry is largely the same: whether the issues presented are ‘definite and concrete,

19

not hypothetical or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010)

20

(quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)).

21

“Where a dispute hangs on future contingencies that may or may not occur, it may be too

22

impermissibly speculative to present a justiciable controversy.” In re Coleman, 560 F.3d 1000,

23

1005 (9th Cir. 2009) (citation and internal quotations omitted). “[W]hile it is well-established

24

that an individual need not await prosecution under a law or regulation before challenging it, we

25

require a genuine threat of imminent prosecution and not merely an imaginary or speculative fear

26

of prosecution.” Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 772–73 (9th Cir. 2006)

27

(citation and internal quotations marks omitted).

28

/////

Analysis

21

1
2

When evaluating whether a claimed threat of prosecution is genuine, we
consider:

3

(1) whether the plaintiff has articulated a concrete plan to violate
the law in question; (2) whether the prosecuting authorities have
communicated a specific warning or threat to initiate proceedings;
and (3) the history of past prosecution or enforcement under the
challenged statute.

4
5
6

Wolfson, 616 F.3d at 1058 (citing San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121,

7

1126–28 (9th Cir. 1996)). “Plaintiffs bear the burden of showing that the [law in question] is

8

actually being enforced. A specific warning of an intent to prosecute under a criminal statute may

9

suffice to show imminent injury and confer standing,” but “a general threat of prosecution is not

10

enough to confer standing.” San Diego, 98 F.3d at 1127 (citation omitted). Further, allegations

11

amounting to a “chilling effect” on plaintiffs’ desire and ability to engage in conduct prohibited

12

by the law in question “are not an adequate substitute for a claim of specific present objective

13

harm or a threat of specific future harm.” Id. at 1129 (quoting Laird v. Tatum, 408 U.S. 1, 13–14

14

(1972)).

15

As noted, plaintiffs’ argument as to harm focuses on the potential harm plaintiffs’

16

egg farmers will face. See, e.g., Hr’g Tr. at 44. Plaintiffs allege nothing additionally to suggest

17

their claimed threat of prosecution is genuine. Plaintiff states fail to articulate any concrete plan

18

by their egg farmers to violate California’s shell egg laws. Plaintiffs allege in conclusory fashion

19

their “farmers who continue to export their eggs to California will face criminal charges,” FAC

20

¶ 89, but plaintiffs allege nothing to indicate any of their egg farmers will or intend to continue to

21

export their eggs to California. Further, that plaintiffs’ farmers would likely prefer exporting

22

their eggs to California as they have done in the past or that their enclosures do not currently

23

comply with California’s shell egg laws does not amount to a “concrete plan to violate the law[s]

24

in question.” Wolfson, 616 F.3d at 1058 (citing San Diego, 98 F.3d at 1126–28). Indeed,

25

plaintiffs assume some of their egg farmers have chosen to comply with AB 1437. Hr’g Tr. at

26

43–44. Though California’s shell egg laws may create a “chilling effect” in that plaintiffs’ egg

27

producers must “[e]ither . . . incur massive capital improvement costs . . . or . . . walk away from

28

the largest egg market in the country,” FAC ¶ 6, rather than violate California law by supplying
22

1

California with eggs that do not meet required standards, this generalized effect does not amount

2

to a threat of specific future harm. As the Ninth Circuit has recognized, “[e]very criminal law, by

3

its very existence, may have some chilling effect on personal behavior. That was the reason for

4

its passage.” San Diego, 98 F.3d at 1129 (alteration in original) (quoting Doe v. Duling, 782 F.2d

5

1202, 1206 (4th Cir. 1986)).

6

Plaintiffs also do not identify any threat to initiate proceedings made against their

7

egg farmers. Within their complaint, plaintiffs reference only the language of AB 1437 itself.

8

This is far from a specific warning of an intent to prosecute. Plaintiffs also reference defendants’

9

“oaths,” but, as noted above, “a general threat of prosecution is not enough to confer standing.”

10

San Diego, 98 F.3d at 1127. Lastly, as California’s shell egg laws have not yet gone into effect,

11

there is no history of past prosecution or enforcement under the challenged statute. Defendants

12

are correct in arguing “[t]he court can thus make no reasonable inference that any of the states or

13

their producers would suffer prosecution.” ECF No. 36 at 16.

14

To the extent plaintiffs argue their claims are brought on behalf of the residents of

15

their states in general because they do not have a “voice in the law,” Hr’g Tr. at 44, this argument

16

also fails. Plaintiffs’ arguments focus on the potential harm each state’s egg farmers face. The

17

alleged imminent injury, however, does not involve an injury the citizens of each state face but

18

rather a potential injury each state’s egg farmers face when deciding whether or not to comply

19

with AB 1437. Nothing before the court supports the conclusion this action is brought by

20

plaintiffs because their residents face imminent injury as a result of California’s shell egg laws, or

21

that their residents in general intend to or are even capable of violating California’s shell egg

22

laws. Plaintiffs also point to nothing to show the threat of prosecution of their egg farmers is

23

imminent.

24
25
26

Plaintiffs’ claims are not justiciable.
C.

Leave to Amend
In light of the arguments presented by plaintiffs during oral argument, the

27

undersigned has carefully considered whether plaintiffs can amend their complaint to state a

28

claim over which this court would have subject matter jurisdiction. “Valid reasons for denying
23

1

leave to amend include undue delay, bad faith, prejudice, and futility.” Cal. Architectural Bldg.

2

Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake

3

Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that,

4

while leave to amend shall be freely given, the court does not have to allow futile amendments).

5

For the reasons discussed below, leave to amend would be futile and will therefore not be

6

granted.

7

To the extent plaintiffs argue their claims are brought on behalf of the general

8

populace of their states because California’s law “effectively remove[s] from the people of

9

Missouri the ability to set public policy themselves regarding agricultural regulations,” Hr’g Tr. at

10

4, this argument is unavailing. As noted above, plaintiffs’ first amended complaint, their

11

opposition papers and their arguments during the court’s hearing all focus on how California’s

12

legislation affects or may affect each state’s egg farmers. During oral argument, plaintiffs made

13

arguments to strengthen this conclusion. They argued, “we are talking about a statute that

14

effectively blocks . . . eggs from out of state,” id. at 7, and the issue here is “the right of the

15

people to participate in the laws that govern them,” id. at 8. Plaintiffs further argued California’s

16

regulations are “an attempt by California to say in Missouri you have to follow this set of

17

procedures so that when your eggs show up at the border, we will let them in.” Id. at 37.

18

Plaintiffs noted “the other issue here with having no voice in the law is if our folks spend 120

19

million dollars to come into compliance . . . we have no political way of blocking that law from

20

being changed.” Id. at 44. These arguments all clearly rest on the plaintiff states’ egg farmers

21

purportedly not having a voice during the process leading to passage of a California law that

22

governs their egg farming procedures, and potentially having to expend resources to comply with

23

it; these concerns are not those of each state’s residents in general.

24

As discussed above, AB 1437 does not regulate the general populace of plaintiffs’

25

states. See, e.g., FAC ¶¶ 5, 61. The residents of each state are not participating in the egg market

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such that their eggs must comply with AB 1437 when they “show up at [California’s] border.”

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Hr’g Tr. at 37. Plaintiffs’ arguments characterize the issue before the court as the right of citizens

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to “participate in the laws that govern them,” Hr’g Tr. at 8, arguing these citizens will have to
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1

spend 120 million dollars to comply with a law whose passage they could not affect, id. at 44.

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The only citizens who may have to spend 120 million dollars to comply with California’s

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legislation are the egg farmers who intend to participate in California’s egg market. Likewise, the

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only citizens who may be “govern[ed]” by California’s legislation are egg producers and handlers

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who intend to sell eggs in California.

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Plaintiffs’ own grape legislation analogy squarely supports this conclusion.

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Plaintiffs hypothesize that if Missouri passed legislation requiring “all grapes to be harvested by

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people with Bachelor’s degrees or greater in horticulture or viticulture . . .,” Hr’g Tr. at 9, a

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California “vintner has no way of challenging Missouri law in a political process,” id. at 10

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(emphasis added). It is patently clear plaintiffs are bringing this action on behalf of a subset of

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each state’s egg farmers and their purported right to participate in the laws that govern them, not

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on behalf of each state’s population generally. In light of the nature of the allegations in

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plaintiffs’ first amended complaint and the arguments made at hearing, leave to amend would be

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futile, as plaintiffs lack standing to bring this action on behalf of each state’s egg farmers.

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Oregon, 552 F.3d at 974.

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VI.

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CONCLUSION
For the foregoing reasons, defendants and defendant-intervenors’ motions to

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dismiss for lack of standing are GRANTED without leave to amend. Plaintiffs’ first amended

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complaint is dismissed with prejudice. The Clerk of the Court is directed to close this action.

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DATED: October 1, 2014.

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UNITED STATES DISTRICT JUDGE

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