Filed 4/2/14 certified for publication 4/18/14 (order not available)



            SUPERIOR COURT OF THE STATE OF CALIFORNIA

                       COUNTY OF SAN BERNARDINO

                             APPELLATE DIVISION



THE PEOPLE,                                           Case No: ACRAS 1300083
     Plaintiff and Appellant,                        (Trial Court: MWV 1201986)

v.
                                                       OPINION
HORACIO ROQUE SANTORSOLA,
    Defendant and Respondent.

Appeal from judgment, San Bernardino County Superior Court, Rancho
Cucamonga District, Stephan G. Saleson, Judge. Reversed.

Michael A. Ramos, District Attorney, and Brent J. Schultze for Plaintiff and
Appellant.

Schiff Hardin LLP, Bruce A. Wagman; and Peter A. Brandt for Mercy for
Animals and The Humane Society of the United States as Amici Curiae on
behalf of Plaintiff and Appellant.

The Law Offices of Kirk M. Tarman and Kirk M. Tarman for Defendant and
Respondent.

THE COURT*

                                  FACTS
         On May 25, 2012, defendant and respondent, Horacio Roque

Santorsola, along with others, was charged with nine counts of cruelty to

*
    Alvarez, P. J., West, J., and Yabuno, J.


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an animal in violation of Penal Code section 597, subdivision (b). On April

24, 2013, the complaint was amended to add nine additional counts

charging respondent with having received, improperly held, or improperly

moved a nonambulatory animal in violation of Penal Code section 599f.1

On May 30, 2013, during the trial of this action, the court made a

determination that the charges based on Penal Code section 599f were

preempted by the Federal Meat Inspection Act (FMIA) based on the

decision of the United States Supreme Court in Nat'l Meat Ass'n v. Harris

(2012) __ U.S. __, [132 S.Ct. 965, 181 L.Ed.2d 950]. On June 17, 2013,

plaintiff and appellant, People of the State of California, noticed their

appeal of that determination pursuant to Penal Code section 1466.2

                                         DISCUSSION

        The People contend that the trial court erred in its determination that

section 599f was preempted. “The supremacy clause of the United States

Constitution establishes a constitutional choice-of-law rule, makes federal

law paramount, and vests Congress with the power to preempt state law.”

(Jankey v. Lee (2012) 55 Cal.4th 1038, 1048.) “Congress may exercise
1
         Penal Code section 599f requires “immediate action to humanely euthanize”
nonambulatory animals and provides that “While in transit or on the premises of a stockyard,
auction, market agency, dealer, or slaughterhouse, a nonambulatory animal may not be dragged
at any time, or pushed with equipment at any time, but shall be moved with a sling or on a
stoneboat or other sled-like or wheeled conveyance.” (Pen. Code, § 599f, subd. (d), (e).) Each
count alleged against the respondent charged him with dragging a nonambulatory animal and not
euthanizing it.
2
         “An appeal may be taken from a judgment or order, in an infraction or misdemeanor
case, to the appellate division of the superior court of the county in which the court from which the
appeal is taken is located, in the following cases: (a) By the people: … (2) From an order or
judgment dismissing or otherwise terminating all or any portion of the action….” (Pen. Code, §
1466, subd. (a)(2).)

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that power by enacting an express preemption provision, or courts may

infer preemption under one or more of three implied preemption doctrines:

conflict, obstacle, or field preemption.” (Ibid.) “In both express and implied

preemption cases, whether preemption will be found in a given case

depends foremost on congressional intent.” (Ibid.) “If a statute contains

an express pre-emption clause, our task of statutory construction must in

the first instance focus on the plain wording of the clause, which

necessarily contains the best evidence of Congress‟ pre-emptive intent.”

(Brown v. Mortensen (2011) 51 Cal.4th 1052, 1060, internal quotation

marks omitted.) “Second, [i]n all pre-emption cases, and particularly in

those in which Congress has “legislated … in a field which the States have

traditionally occupied, … we start with the assumption that the historic

police powers of the States were not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress.” (Ibid.,

internal quotation marks omitted.)

      In National Meat Association v. Harris, the United States Supreme

Court invalidated the application of Penal Code section 599f to a

slaughterhouse‟s treatment of nonambulatory animals holding that the

Federal Meat Inspection Act (FMIA), 21 U.S.C. §601 et seq., “expressly

preempts … California law dictating what slaughterhouses must do with

pigs that cannot walk, known in the trade as nonambulatory pigs.” (Nat'l

Meat Ass'n v. Harris (2012) __ U.S. __, [132 S.Ct. 965, 968,181 L.Ed.2d

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950].) The court noted that the FMIA “contains an express preemption

provision….” (Id. at 969.) That provision states, “Requirements within the

scope of this Act with respect to premises, facilities and operations of any

establishment at which inspection is provided under title I of this Act, which

are in addition to, or different than those made under this Act may not be

imposed by any State or Territory or the District of Columbia, except that

any such jurisdiction may impose recordkeeping and other requirements

within the scope of section 202 of this Act, if consistent therewith, with

respect to any such establishment.” (21 U.S.C.S. § 678, emphasis added.)

As respondent notes, “the FMIA's preemption clause covers not just

conflicting, but also different or additional state requirements” and

“therefore precludes California's effort in §§ 599f(b) and (c) to impose new

rules, beyond any the [Food Safety and Inspection Service (FSIS)] has

chosen to adopt, on what a slaughterhouse must do with a pig that

becomes nonambulatory during the production process.” (Nat'l Meat Ass'n

v. Harris, supra, 132 S.Ct. at 971.) However, the FMIA has a savings

clause providing, “This Act shall not preclude any State or Territory or the

District of Columbia from making requirement [requirements] or taking

other action, consistent with this Act, with respect to any other matters

regulated under this Act.” (21 U.S.C.S. § 678.)

      The People argue that section 599f is preempted only to the extent

that it seeks to regulate premises, facilities and operations of

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establishments at which inspections are provided under the FMIA and so

does not preempt the provisions that apply to livestock auctions like those

conducted by respondent, which are contained in subdivisions (d) and (e)

of section 599f. Respondent argues that there is no language in Harris

that specifically singles out auction houses as exempt from the FMIA

contending that the Supreme Court specifically referenced

slaughterhouses only because the petitioner there, National Meat

Association (NMA), was “a trade association representing meatpackers

and processors, including operators of swine slaughterhouses” and “sued

to enjoin the enforcement of §599f against those slaughterhouses….”

(Nat'l Meat Ass'n v. Harris, supra, 132 S.Ct. at 970.)

      In Harris, the Supreme Court noted, “The FMIA regulates a broad

range of activities at slaughterhouses to ensure both the safety of meat

and the humane handling of animals.” (Nat'l Meat Ass'n v. Harris, supra,

132 S.Ct. at 968.) “The regulations implementing the FMIA … prescribe

methods for handling animals humanely at all stages of the slaughtering

process.” (Id. at 969.) “Those rules apply from the moment a truck

carrying livestock „enters, or is in line to enter,‟ a slaughterhouse's

premises.” (Ibid.) Their “scope includes not only „animals that are going to

be turned into meat,‟ but animals on a slaughterhouse's premises that will

never suffer that fate.” (Id. at 973.) In addressing the scope of the FMIA‟s

preemption clause, the Supreme Court noted, the “clause expressly

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focuses on „premises, facilities and operations‟—at bottom, the

slaughtering and processing of animals at a given location.” (Id. at 972.)

      The FMIA provides that “the Secretary shall cause to be made, by

inspectors appointed for that purpose, an examination and inspection of all

amenable species before they shall be allowed to enter into any

slaughtering, packing, meat-canning, rendering, or similar establishment in

which they are to be slaughtered….” (21 U.S.C.S. § 603(a).) Respondent

argues that his auction is a “similar establishment” and so within the

preemptive scope of FMIA, but does not address the statutory language

identifying such establishments as ones in which amenable species are to

be slaughtered. The FMIA states, “For the purpose of preventing the

inhumane slaughtering of livestock, the Secretary shall cause to be made,

by inspectors appointed for that purpose, an examination and inspection of

the method by which amenable species are slaughtered and handled in

connection with slaughter in the slaughtering establishments inspected

under this Act.” (21 U.S.C.S. § 603(b), emphasis added.) The FMIA also

requires “a post-mortem examination and inspection of the carcasses and

parts thereof of all amenable species to be prepared at any slaughtering,

meat-canning, salting, packing, rendering, or similar establishment….” (21

U.S.C.S. § 604.) It provides that “The foregoing provisions shall apply to

all carcasses or parts of carcasses of amenable species, or the meat or

meat products thereof which may be brought into any slaughtering, meat-

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canning, salting, packing, rendering, or similar establishment….” (21

U.S.C.S. § 605.) “The inspectors provided for herein shall be authorized to

give official certificates of the condition of the carcasses and products of

amenable species….” (21 U.S.C.S. § 618, emphasis added.) Respondent

does not identify any part of the FMIA that would require inspection of an

auction where cattle are bought and sold, but are not killed, canned,

salted, packed, or rendered and this court has not found any such

provision.

      Nor do the federal regulations governing the inspections under the

FMIA show an intent to extend the scope of inspections beyond those at

the places where animals are killed and their carcasses processed.

Inspections under those regulations are required at: “Every establishment

… in which any livestock are slaughtered for transportation or sale as

articles of commerce, or in which any products of, or derived from,

carcasses of livestock are, wholly or in part, prepared for transportation or

sale as articles of commerce, which are intended for use as human food;”

those “at which any livestock are slaughtered or any products of any

livestock are prepared, for use as human food solely for distribution within

such jurisdiction;” and those designated as “producing adulterated




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products which would clearly endanger the public health.” (9 C.F.R. §

302.1(a)(1)-(3).)3

        The Code of Federal Regulations requires that “All livestock offered

for slaughter in an official establishment shall be examined and inspected

on the day of and before slaughter unless, because of unusual

circumstances, prior arrangements acceptable to the Administrator have

been made in specific cases by the circuit supervisor for such examination

and inspection to be made on a different day before slaughter.” (9 C.F.R §

309.1(a).) Official establishment is defined as “Any slaughtering, cutting,

boning, meat canning, curing, smoking, salting, packing, rendering, or

similar establishment at which inspection is maintained under the

regulations in this subchapter.” (9 C.F.R § 301.2.)4 “Such ante-mortem

inspection shall be made in pens on the premises of the establishment at

which the livestock are offered for slaughter before the livestock shall be

allowed to enter into any department of the establishment where they are

to be slaughtered or dressed or in which edible products are handled.” (9

C.F.R § 309.1(b).) “When the holding pens of an official establishment are


3
         There are exceptions, not relevant here, to these inspection requirements for animals
killed by the persons who raised them, for custom slaughter for the household use of the owner of
the animal, for operations traditionally conducted in restaurants and retail stores, and in
unorganized Territories. (9 C.F.R. § 303.1(a)-(d).)
4
         Amici note that the Department of Agriculture and the FSIS, in response to regulations
seeking to “ensure more effective and efficient inspection procedures under the Federal Meat
Inspection Act (FMIA), 21 U.S.C. 603, and improved compliance with the humane handling
requirements established pursuant to 21 U.S.C. 603(b)[,]” have stated the “FSIS has no authority
over the handling of cattle at auction markets, stockyards, or in transport vehicles before they
reach official establishments.” (74 Fed.Reg. 11463, 11463-11464.)

                                               8
located in a public stockyard and are reserved for the exclusive use of the

establishment, such pens shall be regarded as part of the premises of that

establishment and the operator of the establishment shall be responsible

for compliance with all requirements of the regulations in this subchapter

with respect to such pens.” (9 C.F.R § 309.1(b).) There is nothing in the

record that would show that respondent‟s auction is a holding pen located

in a public stockyard and reserved for the use of an official establishment,

and so respondent‟s auction is not brought within the preemptive scope of

the FMIA by the regulations governing its enforcement.

      Because respondent‟s auction is not an establishment subject to

inspection under the FMIA, the charges alleged against respondent based

on the violation of Penal Code section 599f, subdivisions (d) and (e) are

not preempted and the judgment of the trial court dismissing those charges

is reversed.

                               DISPOSITION

      The order of the trial court dismissing the charges based on the

violation of Penal Code section 599f is reversed and this matter is

remanded for further proceedings consistent with this opinion.




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