                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SAFARI CLUB INTERNATIONAL,                      No.    16-15255

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-01856-JAM-AC
 v.

XAVIER BECERRA, Attorney General, in            MEMORANDUM*
his official capacity as the Attorney General
of California and CHARLTON H.
BONHAM, in his official capacity as the
Director of the California Department of
Fish and Wildlife,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                    Argued and Submitted September 14, 2017
                            San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and SANDS,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable W. Louis Sands, United States District Judge for the
Middle District of Georgia, sitting by designation.
      Safari Club International challenges California’s prohibition on the

importation, possession, and transportation of mountain lions in the state of

California (the “Mountain Lion Prohibition” or “the Prohibition”). Cal. Fish &

Game Code § 4800 et. seq. Safari Club asserts two issues on appeal: whether the

district court erred by dismissing its dormant Commerce Clause claim, and

whether the district court erred by dismissing its 42 U.S.C. § 1983 claim.

1.    Safari Club contends that it adequately alleged a plausible claim under the

dormant Commerce Clause. We analyze dormant Commerce Clause claims under

a two-tiered approach. First, we evaluate whether the law discriminates against or

directly regulates interstate commerce. Pharm. Research & Mfrs. of Am. v. Cty. of

Alameda, 768 F.3d 1037, 1041, 1044 (9th Cir. 2014). Second, under Pike v. Bruce

Church, Inc., 397 U.S. 137 (1970), we consider whether the burden imposed on

interstate commerce is “clearly excessive in relation to the putative local benefits.”

Id. at 142.

      While Safari Club makes a number of allegations related to the effect of the

Prohibition on interstate commerce and a small subset of residents in California, it

does not allege that the Prohibition discriminates in favor of in-state interests. See

Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1012 (9th Cir. 1994). Nor

could it make such a challenge. The Prohibition applies equally to in- and out-of-




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state mountain lions, as well as in- and out-of-state residents. The district court

correctly concluded that the Mountain Lion Prohibition is not discriminatory.

      Safari Club contends that the Prohibition substantially burdens interstate

commerce because it discourages California residents from traveling to other states

and countries to hunt mountain lions, and it prevents persons who have already

hunted a mountain lion outside of California from shipping the animal’s remains to

California. Safari Club alleged that 140 of its members would make plans to

transport already harvested animals into California, hunt mountain lions outside of

California, or provide services related to mountain lion hunting outside of

California if the Prohibition were lifted.

      Although there is no absolute numeric test for determining whether a burden

on interstate commerce is substantial, the survey responses of 100 or so persons in

our view do not provide evidence of a substantial burden on interstate commerce.

See Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1149 (9th

Cir. 2012). Safari Club estimates a burden based on the fact that 3.2% of its

members said they were interested in possessing mountain lions in California—

extrapolating that about 8,000 Californians would be interested in importing

mountain lions hunted outside of California. But Safari Club gives no basis for

why this small percentage of a specialty group is representative of all hunters in

California, so it does not offer sufficient facts to allege a plausible claim.


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Similarly, Safari Club’s projection of the revenue that would be generated from

these interested persons’ ability to possess out-of-state harvested mountain lions

did not allege an undue burden because it is extrapolated from Safari Club’s

unsubstantiated estimate of California hunters’ interest. Nat’l Audubon Soc’y, Inc.

v. Davis, 307 F.3d 835, 858 (9th Cir. 2002), opinion amended on denial of

reh’g, 312 F.3d 416 (9th Cir. 2002). The district court did not err in concluding

that Safari Club failed to allege a substantial burden on interstate commerce.

       Accordingly, the district court did not need to conduct a full Pike analysis.

Pharm. Research & Mfrs., 768 F.3d at 1044 (noting that under Pike, a plaintiff

must first show that the statute imposes a substantial burden before the court will

determine whether the benefits of the challenged laws are illusory). Only after

determining that the state law is discriminatory and there is an undue burden on

interstate commerce do we need to undertake a full Pike analysis. Chinatown

Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1147 (9th Cir. 2015), cert. denied,

136 S. Ct. 2448, 195 L. Ed. 2d 263 (2016); see also Nat’l Ass’n of Optometrists,

682 F.3d at 1156. The district court did not err in dismissing Safari Club’s suit for

failure to state a claim.

2.     Safari Club contends also that the district court erred by dismissing its

Section 1983 claim based on alleged violations of the dormant Commerce Clause.

Because the district court did not err in dismissing Safari Club’s dormant


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Commerce Clause claim, the district court also did not err in dismissing its Section

1983 claim. West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under §

1983, a plaintiff must allege the violation of a right secured by the Constitution and

laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.”).

      AFFIRMED.




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