Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals may be the best-known lower court judge in the United States.  He has wide-ranging tastes and accomplishments.  Nearly every lawyer has a favorite Judge Kozinski quote, such as the opening line in Mattel, Inc. v. MCA Records, Inc.:  "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong." 

Today, Chief Judge Kozinski authored the opinion in National Meat Ass’n v. Brown, upholding California’s statute rendering it illegal to slaughter non-ambulatory ("downer") animals against the claim the statute was preempted by the Federal Meat Inspection Act.  The case specifically involved pigs, apparently because cattle in that condition must be labeled "U.S. Condemned" and disposed of outside the food supply. 

The plaintiffs made two claims, one for express preemption and one for preemption by implication.  The court was having none of it.  With regard to express preemption, the statute expressly preempts state laws relating to "premises, facilities and operations."  On the other hand, the statute expressly permitted state regulation of slaughterhouses.  Two other circuit courts had reached the conclusion that regulating the kind of animal that may be slaughtered was not preempted.  In his typical fashion, Chief Judge Kozinski said that the analysis in one case involving horse flesh "made horse sense."  Then, in dealing with the district court’s analysis about how a pig turns into pig meat no matter what its condition before slaughter, he wrote this one word rebuttal:  "Hogwash." 

In dealing with the implied preemption argument, the court concluded that it was physically possible to comply with both the FMIA and the California statute.  Wrote Chief Judge Kozinski,

But these regulations don’t require the slaughter of downer animals; no slaughterhouse operator would be fined by federal authorities if he gave nonambulatory animals medical care and put them up for adoption as pets. 

And less flippantly:

Federal regulations require inspection if downer animals are to be slaughtered . . . .  Whether they may be slaughtered is up to the states. 

(emphasis original).  The court similarly dismissed an argument that release of the animals to be euthanized would require permission from federal officials, because there was nothing in the record to suggest that this permission would not be routinely granted.  Similarly, the claim that euthanized downer animals would need to be inspected by federal officials for disease was met with the fact that the California statute did not prohibit such inspection so long as the animals were not slaughtered for food.

One part of the California statute, Section 599f(e), which deals with the transportation of nonambultaory animals, was found to be preempted.  This was because the federal statute expressly authorized certain means of moving downer animals that were prohibited under the California law.  The court found, however, that no showing of irreparable harm had been demonstrated in the lower court, which was necessary to a preliminary injunction, and thus vacated the injunction in full, without prejudice to a later showing before the lower court of such irreparable harm on this one issue.