Filed 11/1/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

IVORY EDUCATION INSTITUTE,

Plaintiff and Appellant,

v.

DEPARTMENT OF FISH AND 

WILDLIFE,

 Defendant and Respondent;

NATURAL RESOURCES DEFENSE 

COUNCIL, INC., et al.,

 Interveners and Respondents.

 B282558

 (Los Angeles County

 Super. Ct. No. BC602584)

Appeal from a judgment of the Superior Court of Los 

Angeles County, William F. Fahey, Judge. Affirmed. 

Rogers & Harris and Michael Harris for Plaintiff and 

Appellant.

Xavier Becerra, Attorney General, Robert W. Byrne, 

Assistant Attorney General, Gary E. Tavetian and Carol Ann 

Zimmerman Boyd, Deputy Attorneys General for Defendant and 

Respondent. 
2

Jennifer A. Sorenson and Katherine Desormeau for Natural 

Resources Defense Council, International Fund for Animal Welfare, 

and Wildlife Conservation Society; Brendan Cummings for Center 

for Biological Diversity; and Rebecca Cary for The Humane Society 

of the United States, Respondent-Interveners.

__________________________________________

Plaintiff Ivory Education Institute appeals from the 

judgment entered in favor of defendant and respondent 

California Department of Fish and Wildlife in this action

challenging as unconstitutionally vague on its face a recently 

enacted statute effectively banning the importation and sale of 

ivory and rhinoceros horn. We conclude that the statute is 

facially vague and therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In 2015, the Legislature passed Assembly Bill 96, which 

took effect July 1, 2016 as Fish & Game Code section 2022,

imposing tough new restrictions on the sale and importation of 

ivory and rhinoceros horn.

1 The Ivory Education Institute (the 

Institute) sued the California Department of Fish and Wildlife 

(the Department) to block implementation of the law, alleging 

that it was unconstitutional on a number of grounds, including 

vagueness, federal preemption, the takings clause, and the 

commerce clause.2

 

1 We set forth the applicable portions of that new law as 

part of our Discussion, post.

2 The Institute states that it is a nonprofit association 

dedicated to educating the public about the history and 
3

In April 2016, the trial court allowed the Natural Resources 

Defense Council, the Center for Biological Diversity, the Humane 

Society of the United States, the International Fund for Animal 

Welfare, and the Wildlife Conservation Society to intervene as 

defendants.

In June 2016, the trial court determined that the Institute 

was limited to mounting a facial attack on the provision’s 

constitutionality and directed the parties to prepare and file 

competing dispositive motions. The Institute filed a summary 

judgment motion, while the Department filed a motion for 

judgment on the pleadings. The trial court granted the 

Department’s motion and denied the Institute’s motion, and 

entered judgment for the Department and the intervenors.

On appeal, the Institute has expressly limited its challenge 

to the void-for-vagueness doctrine, thereby abandoning all other 

issues raised below.3

DISCUSSION

1. The History and Text of Fish and Game Code Section 

2022

Since 1970, Penal Code section 653o has prohibited the 

import and sale of the body parts of various dead animals, 

 

appreciation of ivory objects, as well as advancing the interests of 

those who collect or otherwise possess ivory objects, particularly 

objects of historical and cultural importance.

3 The Institute states in its opening appellate brief that 

although it “continues to contend that all of the grounds 

previously stated for the unconstitutionality of the Statute are 

meritorious, it wishes to focus this appeal on why its provisions 

are so vague as to render it unconstitutional on its face.”
4

including elephants. (Viva! Internat. Voice for Animals v. Adidas 

Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936–

937 (Viva! Internat. Voice for Animals).) An uncodified provision 

of that section later exempted elephant ivory imported before 

June 1, 1977, and placed on defendants the burden of proving the 

importation date. (Stats. 1976, ch. 692, § 5, p. 1697; Stats. 2015, 

ch. 475 (A.B. 96), § 2.)

Concerned that difficulties in proving the date of 

importation acted as a loophole to the law, the Legislature in 

2015 enacted Fish and Game Code section 2022 (section 2022). 

(Stats. 2015, c. 475 (A.B. 96), § 2; Assem. Com. on Appropriation 

Analysis, Rep. on Assem. Bill No. 96 (2015-2016 Reg. Sess.) 

March 25, 2015, pp. 4-5.) The Legislature found and declared:

“(a) There is worldwide concern regarding the plight of 

elephants and rhinoceroses, who are being poached at alarming 

rates—an average of 96 elephants per day are killed in Africa.

“(b) Illegal poaching and wildlife trafficking is the fourth 

largest transnational crime and ivory helps fund the military 

operations of notorious terrorist groups. Smuggling gangs move 

tons of tusks to markets thousands of miles away.

“(c) International, federal, and state laws are all being 

strengthened to protect these iconic species from cruelty and 

extinction. The states of New York and New Jersey recently 

enacted strong prohibitions on intra-state ivory and rhinoceros 

horn commerce and the federal government has proposed 

strengthened ivory trade and import regulations. 

“(d) California has prohibited the ivory trade since 1977, 

but a loophole has rendered the law unenforceable—allowing 

illegal sales to flourish. San Francisco and Los Angeles have 

consistently ranked among the top trading markets for illegal 

ivory in the United States.” 
5

In order to address these concerns, section 2022 provides, 

in relevant part, that, with certain specified exceptions, “it is 

unlawful to purchase, sell, offer for sale, possess with intent to 

sell, or import with intent to sell ivory or rhinoceros horn.” 

(§ 2022, subd. (b).) Ivory is defined as “a tooth or tusk from a 

species of elephant, hippopotamus, mammoth, mastodon, walrus, 

warthog, whale or narwhal, or a piece thereof, whether raw ivory 

or worked ivory, and includes a product containing, or advertised 

as containing, ivory.” (§ 2022, subd. (a)(2).) Rhinoceros horn is 

defined as “the horn, or a piece thereof, or a derivative such as 

powder, of a species of rhinoceros, and includes a product 

containing, or advertised as containing, rhinoceros horn.” 

(§ 2022, subd. (a)(3).) 

The three exceptions to section 2022 at issue here are: 

“(2) An activity that is authorized by an exemption or 

permit under federal law or that is otherwise expressly 

authorized under federal law.

“(3) Ivory or rhinoceros horn that is part of a musical 

instrument, including, but not limited to, a string or wind 

instrument or piano, and that is less than 20 percent by volume 

of the instrument, if the owner or seller provides historical 

documentation demonstrating provenance and showing the item 

was manufactured no later than 1975.

“(4) Ivory or rhinoceros horn that is part of a bona fide 

antique and that is less than five percent by volume of the 

antique, if the antique status is established by the owner or seller 

of the antique with historical documentation demonstrating 

provenance and showing the antique is not less than 100 years 

old.” (§ 2022, subd. (c).)4

 

4 Other specified exemptions include state and federal law 

enforcement activities (§ 2022, subd. (c)(1)) and sale or possession 
6

2. The Void-For-Vagueness Doctrine

A party making a facial challenge to a statute’s 

constitutionality must meet ‘“exacting”’ standards. (Gerawan 

Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 

3 Cal.5th 1118, 1138 (Gerawan Farming).) Under the strictest 

test, the challenger must show that the statute inevitably poses a 

present total and fatal conflict with the constitution. Under the 

more lenient standard, we ask whether the statute is 

unconstitutional in the generality or great majority of cases. 

(Ibid.)

The void-for-vagueness doctrine is a component of the 

constitutional requirement of due process of law. (U.S. Const., 

5th & 14th Amends.) The doctrine prevents the government 

“from enforcing a provision that ‘forbids or requires the doing of 

an act in terms so vague’ that people of ‘common intelligence 

must necessarily guess at its meaning and differ as to its 

application.’ [Citations.]” (People v. Hall (2017) 2 Cal.5th 494, 

500 (Hall), quoting Connally v. General Construction Co. (1926) 

269 U.S. 385, 391.)

Under the void-for-vagueness doctrine, a criminal statute 

must be definite enough to provide both a standard of conduct for 

those whose conduct falls within the statute’s reach, and a 

standard for law enforcement and the ascertainment of guilt. 

(People v. Morgan (2007) 42 Cal.4th 593, 605 (Morgan).) There is 

a strong presumption that statutes must be upheld unless their 

unconstitutionality is clear, positive, and unmistakable. (Ibid.) 

 

for educational or scientific purposes by bona fide educational 

and scientific institutions. (§ 2022, subd. (c)(5).)
7

Only a reasonable degree of certainty is required. (Hall, supra, 2 

Cal.5th at p. 503.)5

 

5 In addition to holding that a criminal statute must 

provide a definite standard of conduct for the public, law 

enforcement, and the ascertainment of guilt, the Morgan court 

also said that a statute is not unconstitutional if it is vague in 

some of its applications, but must instead be vague in all of its 

applications. (Morgan, supra, 42 Cal.4th at pp. 605–606.) The 

genesis of this standard seems to lie in Hoffman Estates v. 

Flipside, Hoffman Estates (1982) 455 U.S. 489, 497, which was 

cited for that proposition in Evangelatos v. Superior Court (1988) 

44 Cal.3d 1188, 1201, and then cited in turn by Morgan, supra, at 

pages 605–606.

The Institute contends that the “vague in all its 

applications” standard is no longer good law in light of Johnson v. 

United States (2015) 576 U.S. ___, 135 S.Ct. 2551 (Johnson). 

Johnson was the fourth time the Supreme Court considered the 

“residual clause” of the Armed Career Criminal Act (18 U.S.C. 

section 924(e)(2)(B) (ACCA)), which imposes increased penalties 

for those with three or more violent felony convictions that 

presented a serious potential risk of physical injury to others.

Previous decisions had interpreted the residual clause 

based on the elements of the underlying offense, not on how a 

particular defendant might have committed that offense. Based 

on its repeated attempts and failures to craft an objective 

standard for the residual clause, the Johnson court held that the 

statute was unconstitutionally vague. As part of its holding, the 

court appears to have rejected the “vague in all its applications” 

approach. Even though it had used that formulation in the past, 

Justice Scalia wrote that the “supposed requirement of vagueness 

in all applications is not a requirement at all, but a tautology: If 

we hold a statute to be vague, it is vague in all its applications 

(and never mind the reality).” (Johnson, supra, 135 S.Ct. at 

p. 2561.)
8

Statutory language is not impermissibly vague if its 

meaning can be fairly ascertained by reference to other sources, 

 

The Institute contends that this new formulation means 

that a statute is unconstitutionally vague so long as it is vague in 

any of its applications, and urges us to adopt it. The Department 

distinguishes Johnson on its facts and urges us not to follow it.

That part of Johnson concerning the “vague in all 

applications” rule does not, by itself, proscribe a standard of 

review in void-for-vagueness cases. We believe that standard is 

set forth early on in Johnson, where the court cites Kolender v. 

Lawson (1983) 461 U.S. 352, 357–358 for the proposition that a 

criminal law is unconstitutionally vague when “it fails to give 

ordinary people fair notice of the conduct it punishes, or [is] so 

standardless that it invites arbitrary enforcement.” (Johnson, 

supra, 135 S.Ct. at p. 2556.) The Supreme Court cited Johnson

for that proposition one year later, without any mention of the 

“all its applications” rule. (Welch v. United States (2016) ___ U.S. 

___, 136 S.Ct. 1237, 1261–1262.) We believe this iteration best 

embodies the view of the United States Supreme Court. 

It is unclear whether, setting aside the “vague in all its 

applications” rule, that the federal rule differs in any meaningful 

way from the remaining portion of the California rule. (Morgan, 

supra, 42 Cal.4th at p. 605 [statute must be definite enough to 

provide standard of conduct for those within its reach, and a 

standard for law enforcement and ascertainment of guilt].) We 

need not resolve that issue now. Instead, we assume, without 

deciding the issue, that the “vague in all its applications” 

standard does not apply. We instead conclude, as set forth post, 

that in the context of this facial challenge, section 2022 gives 

ordinary people fair notice of the conduct it punishes, is not so 

standardless that it invites arbitrary enforcement (Kolender, 

supra, 461 U.S. at pp. 357–358), and provides a sufficiently 

definite standard of conduct for the public, law enforcement, and 

the ascertainment of guilt. (Morgan, supra, 42 Cal.4th at p. 605.)
9

such as dictionary definitions, similar statutes, the common law, 

or judicial decisions, or if the words have a common and generally 

accepted meaning. (Morgan, supra, 42 Cal.4th at p. 607; In re 

J.W. (2015) 236 Cal.App.4th 663, 671.) “In reviewing a facial 

challenge to a statute on vagueness grounds, we ‘construe the 

statute in favor of its validity and give it a reasonable and 

practical construction in accordance with the probable intent of 

the Legislature; a statute will not be declared void for vagueness 

or uncertainty if any reasonable and practical construction can be 

given its language.’” (People ex rel. Brown v. iMergent, Inc. (2009) 

170 Cal.App.4th 333, 339–340, quoting Schweitzer v. Westminster 

Investment (2007) 157 Cal.App.4th 1195, 1206.)

Finally, a facial void-for-vagueness challenge considers only 

the text of the measure itself, ‘“not its application to the 

particular circumstances of an individual.’” (Zuckerman v. State 

Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39, quoting 

Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) The 

plaintiff cannot prevail “‘by suggesting that in some future 

hypothetical situation constitutional problems may possibly arise 

as to the particular application of the statute.’” (Ibid. quoting 

Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180.) A 

statute is not void just because “‘there may be difficulty in 

determining whether some marginal or hypothetical act is 

covered by its language.” [Citation.]’” (Morgan, supra, 42 Cal.4th 

at p. 606, quoting People v. Ervin (1997) 53 Cal.App.4th 1323, 

1329.)

3. Principles of Statutory Construction

The fundamental rule of statutory construction is to 

ascertain the intent of the legislative body in order to effectuate 

the purpose of the law. In doing so, we first look to the words of 

the enactment and try to give effect to the usual, ordinary import 
10

of the language, at the same time not rendering any language 

mere surplusage. (Valley Vista Services, Inc. v. City of Monterey 

Park (2004) 118 Cal.App.4th 881, 888 (Valley Vista Services).)

The words must be construed in context and in light of the 

nature and obvious purpose of the statute where they appear. 

The statute must be given a reasonable and common sense 

interpretation consistent with the legislative body’s apparent 

purpose and intention. The interpretation should be practical, 

not technical, and should result in wise policy rather than 

mischief or absurdity. If the language of a statute is clear, we 

should not add to or alter it to accomplish a purpose that does not 

appear on the face of the statute or from its legislative history. 

(Valley Vista Services, supra, 118 Cal.App.4th at pp. 888–889.)

Statutes should be interpreted with reference to the whole 

system of law of which they are a part, and sections relating to 

the same subject must be read together and harmonized. When 

construing a statute, we may consider its legislative history, 

including committee and bill reports and other legislative 

records. (Valley Vista Services, supra, 118 Cal.App.4th at p. 889.)

4. Section 2022 Is Not Unconstitutionally Vague

The Institute contends that section 2022 is 

unconstitutionally vague for two reasons: (1) while it allows for 

the sale or import of ivory insofar as it is allowed by federal law, 

differences in what federal law allows make it nearly impossible 

to tell what would qualify for the exemption provided by section 

2022, subdivision (c)(2); and (2) there are no guidelines by which 

to determine the permissible volume of ivory in either musical 

instruments (§ 2022, subd. (c)(3)) or antiques (§ 2022, subd. 

(c)(4)).

4.1 The Federal Law Exemption

The federal Endangered Species Act was Congress’s means 

of implementing the United Nations Convention on International 
11

Trade in Endangered Species of Wild Fauna and Flora (CITES). 

(16 U.S.C. § 1531(4)(F).) Pursuant to the Endangered Species 

Act, the United States Fish and Wildlife Service has 

implemented a variety of regulations governing the treatment, 

import, export, and sale of endangered and threatened species or 

their byproducts.

Most relevant here is a regulation promulgated under the 

authority of the Endangered Species Act that governs numerous 

mammals, including African elephants. (50 C.F.R. § 17.40.) 

Under that rule, the interstate and foreign commerce of ivory

from African elephants is prohibited, subject to certain 

exceptions. (50 C.F.R. § 17.40(e)(3).) These include handcrafted 

or manufactured items containing de minimis amounts of ivory 

that do not weigh more than 200 grams or constitute more than 

50 percent of the value of the item. (50 C.F.R. § 17.40(e)(3)(iii), 

(v), (vi)) Musical instruments containing ivory may be imported 

or exported without a special permit if, among other things, the 

instrument contains a CITES certificate. (50 C.F.R. 

§ 17.40(e)(5)(i)(B).) Antiques containing or consisting of ivory are 

not subject to the provisions of the rule and do not require a 

special permit. (50 C.F.R. § 17.40(e)(9).) 

These rules and others conflict with section 2022, the 

Institute contends, making the provision infirm because those 

seeking to comply with the statute cannot: (1) determine with 

certainty whether a federal law exempts, permits, or authorizes 

their conduct; or (2) determine whether more lenient provisions of 

federal law will control.

4.2 Existing Federal Law Clarifies Section 2022

The first contention is resolved by application of the rule 

that a statute is not vague if its meaning can be determined by 

looking at other definable sources of information, including other 

statutes. (American Civil Liberties Union v. Board of Education
12

(1963) 59 Cal.2d 203, 218 (American Civil Liberties Union); 

Personal Watercraft Coalition v. Marin County Bd. of Supervisors

(2002) 100 Cal.App.4th 129, 139 (Personal Watercraft Coalition).)

The plaintiff in American Civil Liberties Union, supra,

59 Cal.2d 203 sued the Los Angeles Board of Education, 

challenging a rule requiring applicants for permits to use school 

property for their activities to attest that they would not use the 

property for any illegal act. Plaintiff challenged the rule’s 

constitutionality on several grounds, including void-forvagueness. In reversing the judgment for plaintiff, the Supreme 

Court held that the rule was not unconstitutionally vague

because, among other things, it simply incorporated by reference 

the definitions of crimes adopted by higher legislative authorities. 

(Id. at p. 218.) The court held that a complete definition of what 

was prohibited by law could be obtained by reference to the 

individual statutes, concluding that “a simple reference to all 

such acts in a statute which is not criminal in nature, is not 

vague.” (Ibid.)

This rule was applied more recently in Personal Watercraft 

Coalition, supra, 100 Cal.App.4th 129. The plaintiffs there sued 

to block a Marin County ordinance that prohibited the use of 

personal watercraft (primarily jet skis) on all waters within the 

County’s territorial jurisdiction, contending that the ordinance 

was unconstitutionally vague. The basis for this contention was 

the ordinance’s disclaimer of the intent to intrude on the power of 

any regulatory authority having “exclusive jurisdiction” over any 

portions of Marin’s shoreline. (Id. at pp. 134, 136.)

Plaintiffs obtained judgment in the trial court on this 

ground because the ordinance did not mention unincorporated 

areas that would be subject to County control or provide any 

geographical reference to understand where those areas would 

begin and end. (Personal Watercraft Coalition, supra, 100 
13

Cal.App.4th at p. 140.) Instead, the only guideline provided as to 

where the ordinance applied was the phrase “as defined by their 

natural landmarks,” which did not include any navigational aids

or other boundary markings by which to identify unincorporated 

areas. The ordinance also failed to reference buoys, signs, or 

general boundary information. (Ibid.)

Characterizing the dispute as a facial challenge to the 

ordinance, the Court of Appeal reversed because: (1) despite the 

absence of express language limiting the reach of the ordinance 

to unincorporated areas, the County’s intent to do so was implicit; 

and (2) the absence of specific boundary identification 

information was inconsequential given the availability of that 

information from various public sources. (Personal Watercraft 

Coalition, supra, 100 Cal.App.4th at pp. 140–143.)

The Personal Watercraft Coalition court began by noting “It 

should be obvious from the extent and variety of sources that 

may be consulted in determining the meaning and content of a 

statute that vagueness is not resolved by a simple perusal of 

statutory text. A person wondering whether a contemplated 

course of conduct is within a statutory prohibition is under a duty 

of inquiry to determine whether the latter will reach the 

former. . . . That duty does not end with the four corners of the 

statute, but extends to consulting ‘other definable sources’ that 

may dispel doubt and uncertainty. Difficulty in attempting to 

ascertain statutory meaning will neither excuse the failure to 

make the attempt, nor will it nullify the statute.” (Personal 

Watercraft Coalition, supra, 100 Cal.App.4th at pp. 139–140, 

citing Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 

481, 484; County of Tulare v. City of Dinuba (1922) 188 Cal. 664, 

677–678.)

Although the Marin shoreline was a “checkerboard” of 

county, state, and federal jurisdictions, there was a County map 
14

that delineated some of the jurisdictional boundaries, the 

County’s boundary landmarks were set out by statute, and maps 

were on file with the State Lands Commission that would show 

where any city had incorporated water frontage on the shoreline. 

(Personal Watercraft Coalition, supra, 100 Cal.App.4th at pp. 

140–142.) Based on the availability of those resources, the court 

held the ordinance was not unconstitutionally vague. (Id. at 

pp. 140–143.)

We recognize that the Personal Watercraft Coalition court 

was applying the pre-Johnson standard that a statute is not 

vague unless it is impermissibly vague in all its applications. 

(Personal Watercraft Coalition, supra, 100 Cal.App.4th 129 (See 

fn. 5, ante.) Even so, it is particularly useful in both analyzing 

how existing federal law clarifies the meaning of section 2022 and 

explaining the Institute’s duty of inquiry concerning those laws.

If jet skiers in Marin County were under a duty to locate 

and examine statutes and county and state maps to determine 

the boundaries of the personal watercraft ordinance in the 

Personal Watercraft Coalition case, then it is no reach to conclude 

that those wishing to comply with section 2022 are under a 

similar duty with regard to any federal laws, exemptions, or

permits that coincide with the scope of that provision. That those 

laws exist means they can be found, and the duty to find them 

rests with those subject to section 2022. (See Hall, supra,

2 Cal.5th at p. 502 [“The mere fact that defendant is charged 

with knowledge of all law that could apply to his situation does 

not render the condition unconstitutionally vague”].)

Section 2022 has a single purpose—to prevent the sale or 

importation of ivory and rhinoceros horn. Both of those terms are 

defined. The Institute has “not demonstrated that attempts to 

give substance and meaning” to the three disputed exceptions 

“would be fruitless.” (Personal Watercraft Coalition, supra, 100 
15

Cal.App.4th at p. 143.) Because federal statutes and other 

provisions that might overlap with section 2022 can be 

ascertained, the exception for activities authorized by the federal 

government is not vague on its face.

4.3 The Institute Improperly Raises Federal 

Preemption

The Institute also contends that section 2022 is vague 

because it is hard to tell whether the “more lenient” federal rules 

will control, given the exception for activities that are exempted, 

permitted, or authorized by federal law. (§ 2022, subd. (c)(2).) 

On its face, section 2022 states that it does not apply to conduct 

approved under federal law. Thus, there is no lack of clarity 

concerning the effect of those laws.

At bottom this contention calls on us to examine relevant 

federal laws, permits, and exemptions, and determine whether 

they are in conflict and, if so, whether they might take 

precedence over section 2022. As such, the Institute strays from 

the path of void-for-vagueness analysis and veers head-on into 

the issue of federal preemption, an issue that it has expressly 

waived on appeal.6 We therefore decline to reach this issue.

 

6 For instance, the Institute cites to the Supremacy Clause 

of the United States Constitution (U.S. Const., art. VI, cl. 2) for 

the proposition that federal law prevails in case of a conflict with 

state law. It also cites to the provision of the Endangered Species 

Act that establishes the extent to which that act preempts state 

law. (16 U.S.C. § 1535(f).) That section voids any state law that 

coincides with the Endangered Species Act to the extent it 

permits what the act prohibits, or prohibits what the act has 

authorized. However, the federal statute has been interpreted to 

allow states to enact more restrictive legislation as to species not 

covered by the Endangered Species Act. (H.J. Justin & Sons, Inc. 

v. Deukmejian (9th Cir. 1983) 702 F.2d 758, 759–760; Man Hing 
16

Even if we were inclined to reach the issue, it would also be

waived because the Institute has directed us to only a handful of 

seemingly applicable federal statutes and regulations, and has 

failed to cite to relevant case authority or offer any analysis on 

the preemption issue. (Orange County Water Dist. v. Alcoa 

Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 360.)7

 

Ivory & Imports, Inc. v. Deukmejian (9th Cir. 1983) 702 F.2d 760, 

763.)

As the Institute points out, several species of animal 

covered by section 2022 are not covered by the Endangered 

Species Act. These include mammoths, mastodons, and 

warthogs. (§ 2022, subd. (a)(2).) We note this only to show the 

extent to which portions of the Institute’s appellate arguments 

implicate the federal preemption issue, as well as to illustrate the 

complexities of that issue.

7 Federal preemption is not the only expressly waived issue 

that the Institute attempts to raise in its appellate briefs. In 

appellate briefing that recounts the history of ivory, with 

references that run from the Bible to Emily Post, the Institute 

argues that: the law is counter-productive because elephant 

populations and their viability differ from country to country 

within Africa; ivory bans push prices higher, thereby increasing 

the incentive to poach ivory-bearing animals; the basis of the law 

is suspect because some studies show that fewer elephants die 

from poaching each day than the figure of 96 relied on by the 

Legislature; and the law is simply another manifestation of 

colonial racism by imposing the values of “California do-gooders” 

on sovereign African nations.

Setting aside that none of these assertions is supported by 

citation to the record or any supporting authority, we make the 

following observations. First, a state may constitutionally 

conserve wildlife elsewhere by refusing to accept local complicity 
17

4.4 The Antique And Musical Instrument Volume 

Exceptions

The Institute also challenges the exceptions for musical 

instruments containing less than 20 percent ivory by volume 

(§ 2022, subd. (c)(3)) and for antiques containing less than five 

percent ivory by volume (§ 2022, subd. (c)(4)). However, its

vagueness challenge is primarily hypothetical. 

After stating generally that the law does not explain what 

less than 20 percent or five percent by volume means, the 

Institute posits a number of hypothetical scenarios: does the bow 

of a stringed instrument count as a separate object?; why would 

the Legislature bar an ivory figure attached to a small antique

where it constitutes five percent or more of that object, but 

permit an exception if the same piece were affixed to a larger 

object?; how could the owner of an Old Master’s painting, many of 

which used black ivory in the pigments,8 know if the artwork fell 

within the volume exception when there is no way to measure the 

volume of the ivory?; and how could the heirs of General George 

S. Patton know whether they were complying with the law if they 

were to sell his famous ivory handled revolvers without knowing 

 

in its destruction. (Viva! Internat. Voice for Animals, supra, 41 

Cal.4th at pp. 937–938.) Second, it strikes us as somewhat 

absurd to compare section 2022 with the historical heart of 

darkness that is the ivory trade. 

8 The Institute makes this assertion without citation to any 

factual support in the record.
18

the age of the ivory or determining whether the handles exceeded 

the five percent minimum.9

However, such hypothetical concerns have no place in a 

void-for-vagueness facial challenge. (Zuckerman v. State Board 

of Chiropractic Examiners (2002) 29 Cal.4th 32, 39.) Instead, any 

uncertainties that arise in enforcing section 2022 should be 

addressed later “in a specific and concrete instance.” (Personal 

Watercraft Coalition, supra, 100 Cal.App.4th at p. 143.)

To the extent the Institute contends that the terminology of 

percentage by volume is vague on its face, it has supplied the 

answer in its opening appellate brief: volume is normally defined 

as the capacity of an object based on its shape and size. This 

accords with the standard dictionary definition of volume. (See, 

e.g., Cambridge Dictionary of the English Language 

<https://dictionary.cambridge.org/dictionary/

english/volume> [volume is defined as “an amount of space 

having length, height, and width”].) Because the musical 

instruments and antiques exceptions concern physical, tangible 

objects that occupy a verifiable amount of three-dimensional

space, the percent of any such objects occupied by ivory can be 

readily determined. As a result, the Institute’s facial challenge to 

these exceptions also fails. 

 

9At last report, those pistols still resided in the Patton 

Gallery of the West Point Museum. (<https://www.foxnews.com/

science/colt-45-revolver-owned-by-patton-fetches-75g-at-auction>)
19

DISPOSITION

The judgment is affirmed. Respondents shall recover their 

appellate costs. 

CERTIFIED FOR PUBLICATION

MICON, J.*

We concur:

MANELLA, P. J. WILLHITE, J.

*Judge of the Los Angeles County Superior Court assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.