Lawsuit now moot over surprise inspections for California falconers

FRESNO, Calif. (CN) — A change in the rules for falconers about unannounced and warrantless inspections mooted a case against the federal government, a judge ruled Monday.

Individuals and the American Falconry Conservancy filed suit in 2018 over what they saw as a violation of their Fourth Amendment rights. Obtaining a falconry license requires submitting to inspections of their property and records, which they called an unconstitutional condition.

The plaintiffs faced a setback in 2022, when a lower court judge found they lacked standing and dismissed the case. An appellate panel reversed, finding they had standing on their unconstitutional conditions claim, but not an Article III unconstitutional inspections claim.

That set the stage for U.S. District Judge Jennifer Thurston’s ruling Monday. She noted that after the Ninth Circuit decision the U.S. Fish and Wildlife Department changed the certification language for falconers and struck the language about unannounced inspections.

“CDFW now moves to dismiss the case, arguing that the amended certification effectively moots plaintiffs’ sole remaining unconstitutional conditions claim,” Thurston wrote.

She agreed, citing the reasons for siding with the government.

According to the judge, the plaintiffs’ main argument hinged on the code section in question remaining in effect. But Thurston said the language plaintiffs point to was deleted.

“The amended certification now only requires an applicant to agree to ‘all conditions of this license’ — and plaintiff has advanced no persuasive argument as to how ‘conditions of this license’ incorporates [the code section],” she wrote.

Thurston also discarded an argument that the code section allowed the department to suspend a falconer’s license if they refuse an inspection. She wrote that discretionary permission for an unannounced inspection doesn’t equate to a falconer consenting to those inspections to get their license. Additionally, she noted the Ninth Circuit already rejected that argument.

Turning to the argument of voluntary cessation, Thurston found a defendant can’t moot a case by stopping its unlawful acts. Instead, they must show that behavior can’t reasonably happen again.

The conservancy argued the government has the power to restore the prior language on falconers, forcing them to accept inspections. That argument overlooked the bureaucratic steps required to change certification language. It’s the state Fish and Game Commission, which isn’t a party to the suit, that has the power over the regulations.

“The court therefore disagrees with plaintiffs’ attempt to characterize the amended certification as something that may be easily reversed on a whim,” the judge wrote. “Rather, the court finds the existence of substantial ‘procedural safeguards insulating the new state of affairs from arbitrary reversal.’”

Thurston also shut down a conservancy argument that the language change was a strategic move to avoid an adverse-merits ruling. She called that a cynical view, noting she must presume government actions are performed in good faith.

The conservancy also argued the department might face a requirement to reverse the changed language. That’s because its licensing authority relies on regulations being consistent with federal standards.

Thurston wrote a series of speculative events would have to occur for that outcome to happen. The federal government would have to threaten decertification of the state’s licensing structure because of the particular language. Also, state departments would have to comply and change the language, instead of letting the federal government run its own falconry licensing program in California.

“The standing jurisprudence does not permit the court to make such assumptions and logical leaps, not without further evidence,” the judge wrote.

Attorney Austin Waisanen with Pacific Legal Foundation — which represented the plaintiffs — told Courthouse News that he believes the language change is merely cosmetic and that the threat of warrantless searches remains.

“It’s the same forced choice the Ninth Circuit held to be a forced injury,” he added.

The U.S. Fish and Wildlife Department couldn’t be reached for comment.