UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2021

(Argued: March 4, 2022 Decided: November 13, 2024)

Docket No. 21-569

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THE ART AND ANTIQUE DEALERS LEAGUE OF AMERICA, INC., THE NATIONAL ANTIQUE AND ART DEALERS ASSOCIATION OF AMERICA, INC.,

Plaintiff-Appellants,

v. BASIL SEGGOS, in his official capacity, as the Commissioner of the New York State Department of Environmental Conservation,

Defendant-Appellee,

and

THE HUMANE SOCIETY OF THE UNITED STATES, CENTER FOR BIOLOGICAL DIVERSITY, NATURAL RESOURCES DEFENSE COUNCIL, INC., WILDLIFE CONSERVATION SOCIETY,

Intervenor-Defendant-Appellees. *

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* The Clerk of Court is respectfully directed to amend the caption to the form above, so as to reflect the correct name of the National Antique and Art Dealers Association of America, Inc., as well as the correct party status of the Humane Society of the United States, Center for Biological Diversity, Natural Resources Defense Council, Inc., and Wildlife Conservation Society as Intervenor-Defendant-Appellees, as above.

1 Before:

LEVAL, SULLIVAN, and PÉREZ, Circuit Judges.

In their suit challenging New York State Environmental Conservation Law § 11-0535-a (the “State Ivory Law”), Plaintiffs The Art and Antique Dealers League of America, Inc. and The National Antique and Art Dealers Association of America, Inc. appeal from the judgment of the United States District Court for the Southern District of New York (Schofield, J.) in favor of Defendant Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation. The district court dismissed Plaintiffs’ claim that the State Ivory Law is preempted by the federal Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and its implementing regulations, and granted summary judgment for Defendant on Plaintiffs’ claim that the State Ivory Law violates free speech rights guaranteed by the First Amendment, while denying Plaintiffs’ motion for summary judgment on the First Amendment claim. We AFFIRM the dismissal of the preemption claim. On the other hand, we REVERSE the grant of summary judgment on the constitutional claim and direct the district court to grant summary judgment in favor of Plaintiffs.

JUDGE SULLIVAN dissents in a separate opinion.

CALEB R. TROTTER, Pacific Legal Foundation, Sacramento, CA (James M. Manley, Pacific Legal Foundation, Phoenix, AZ, Alan E. Sash, McLaughlin & Stern, LLP, New York, NY, on the brief), for Plaintiff-Appellants.

GRACE X. ZHOU, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for Defendant- Appellee.

2 RALPH E. HENRY (Rebecca A. Cary, on the brief), The Humane Society of the