STATE OF MAINE, APPELLANT V. ROBERT J. TAYLOR AND UNITED STATES OF AMERICA No. 85-62 In the Supreme Court of the United States October Term, 1985 On Appeal From the United States Court of Appeals for the First Circuit Brief for the United States as Appellee Supporting Appellant TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Summary of argument Agrument I. This Court has appellate jurisdiction under 28 U.S.C. 1254(2) since a state statute has been held unconstitutional by a federal court of appeals A. The plain language of 28 U.S.C. 1254(2) establishes this Court's appellate jurisdiction B. The State of Maine has standing to maintain this appeal although the United States did not appeal II. The State of Maine has demonstrated the legitimate local purpose of the statute and the lack of less discriminatory alternatives, and therefore the statute is valid under the Commerce Clause A. The court of appeals disregarded the appropriate standard of review by reevaluating Maine's substantial scientific evidence B. The court of appeals did not sufficiently consider the serious consequences to Maine's ecology of invalidating the challenged statute Conclusion OPINIONS BELOW The opinion of the court of appeals (J.S. App. A1-A14) is reported at 752 F.2d 757. The opinion of the district court (J.S. App. D1-D9) is reported at 585 F. Supp. 393. The recommended decision of the magistrate (J.S. App. E1-E12) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 18, 1985. A petition for rehearing was denied on April 10, 1985, as corrected by order of April 11, 1985 (J.S. App. C1-C2). The State of Maine filed a notice of appeal to this Court on May 13, 1985 (J.S. App. F1), and the jurisdictional statement was filed on July 9, 1985. On November 4, 1985, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(2). /1/ See discussion at pages 11-14, infra. QUESTIONS PRESENTED 1. Whether, pursuant to 28 U.S.C. 1254(2), this Court has appellate jurisdiction to review the constitutional question presented in this case. 2. Whether the State of Maine's blanket statutory ban against importation into Maine of "any live fish * * * commonly used for bait fishing" is invalid under the Commerce Clause of the United States Constitution, thus necessitating dismissal of a federal indictment charging a violation of the Maine statute as assimilated by Section 3(a)(2)(A) of the Lacey Act Amendments of 1981, 16 U.S.C. 3372(a)(2)(A). STATEMENT 1. A Maine statute, Me. Rev. Stat. Ann. tit. 12, Section 7613 (1981), prohibits importation into Maine of "any live fish * * * commonly used for bait fishing in inland waters." Section 3(a)(2) and (A) of the Lacey Act Amendments of 1981, 16 U.S.C. 3372(a)(2) and (A), "assimilates" Maine's statute by making it a federal crime "to import, * * * transport, sell, receive, acquire, or purchase in interstate * * * commerce * * * any fish * * * taken, possessed, transported, or sold in violation of any law * * of any State." The United States, an appellee in this Court (see Sup. Ct. R. 10.4), initiated this federal prosecution against appellee Robert J. Taylor, a resident of Maine who produces and sells live bait fish. /2/ On February 24, 1984, a grand jury in the District of Maine returned a two-count indictment charging that Taylor had imported, and had conspired to import, into Maine golden shiners, which are commonly used for bait fishing (J.S. 4; J.S. App. D1 & n.2, E1). The federal indictment specified that Taylor's conduct, by breaching the state ban against importing live bait fish, violated the Lacey Act and also violated the federal conspiracy statute, 18 U.S.C. 371. /3/ Taylor moved to dismiss the indictment, contending that the State's import ban placed an impermissible burden on interstate commerce in violation of the Commerce Clause. J.S. 4; J.S. App. D1-D2. Thereafter, pursuant to 28 U.S.C. 2403(b), the district court allowed the State of Maine, the appellant here, to intervene in support of its statute's constitutionality. 2. A hearing on Taylor's motion to dismiss was held before a magistrate. The key issues were whether the exclusion of out-of-state bait fish served a legitimate local purpose, unrelated to economic protectionism, and whether less restrictive methods short of a complete ban could accomplish that same purpose. Three scientific experts testified for the prosecution, and one scientific expert testified for the defense. Maine's three experts were Peter Walker, the State fish pathologist since 1979; Dr. W. Harry Everhart, a Professor of Zoology at the University of Maine; and Dr. John Plumb, an Associate Professor in the Department of Fisheries at Auburn University in Alabama. The defendant's expert was Dr. Robert C. Summerfelt, Chairman of the Department of Animal Oncology at Iowa State University. /4/ The prosecution experts demonstrated that Maine's small and unique wild fish population, including its own indigenous golden shiners, /5/ would be placed at risk by three types of parasites prevalent in bait fish found outside of Maine. /6/ Indeed, two such parasites were found in the out-of-state golden shiners comprising Taylor's confiscated shipment (J.S. App. D4). As Walker testified, none of these parasites are common to the wild fish population in Maine (Tr. 15, 19, 21), and their introduction to the State could have a detrimental impact on Maine's fish (Tr. 21). For example, in discussing the impact that Bothriocephalus opsalichthydis (as Asian tapeworm) could have on the domestic fish population, Walker noted that (ibid.) "this worm has no host specificity, it has no preference as to what kind of fish it (a)ffects * * * (and) if it were to become established in Maine * * * it would have an adverse effect upon (Maine's) wild fish populations * * *." The prosecution also produced evidence demonstrating the adverse impact that exotic species, i.e., non-native species commingled with shipments of live bait fish, could have on Maine's ecology. Specifically, the experts cited the effect of rivalry from exotic species on Maine's unique landlocked salmon population and its limited food resources and habitat for native fisheries (Tr. 71, 72). /7/ As Walker explained (Tr. 23-24): (T)he Maine fish communities are rather unique among the eastern states. The state of Maine during the ice age was pretty much scoured clean of ice and glaciers where golden shiners resided. The state was recolonized by the comparatively small number of fish. In the state of Maine we have very pure and clean waters in most of our lakes -- this differs from lakes further south -- and they were populated by a rather delicate community of just a few species of fish * * *. We had a balance of just a few fish species which are not able to compete with other fish species * * *. Similarly, Dr. Everhart explained (Tr. 69) that "we are dealing with a limited productivity and any introduction of a competitor in any way would be enough to upset the ecosystem or the total environment." The prosecution experts further testified that there is currently no scientifically accepted procedure to inspect incoming shipments of live bait fish for disease organisms or for commingled exotic species. The minute size of the bait fish (70 specimens per pound) prevents inspection of each fish in a shipment; indeed, a single shipment may contain hundreds of thousands of fish. /8/ Even apart from the problem of size, the bait fish could not survive the ordeal of individual inspection: the fish must be killed to be tested for parasite infestation. Moreover, there are no scientifically accepted sampling procedures that would permit the selection of a representative number of fish in a shipment for testing. /9/ A disease-free certification program at the out-of-state point of origin would be equally unworkable, because the same unsound testing and sampling procedures would have to be used. J.S. App. D8-D9, E9; Tr. 45, 46. The district court accepted the magistrate's report and recommendation to deny Taylor's motion to dismiss and issued an opinion upholding the constitutionality of the Maine statute (J.S. App. D1-D9). The district court held that, although the Maine statute was facially discriminatory (as Maine and the United States conceded), it still met the requirements of Hughes v. Oklahoma, 441 U.S. 322 (1979). /10/ The court reasoned that the statute was a permissible burden on interstate commerce because (1) the United States and the State of Maine demonstrated a legitimate and substantial purpose in prohibiting the importation of live bait fish, /11/ and (2) the expert evidence presented by the government demonstrated the lack of less discriminatory alternatives (J.S. App. D7-D9). /12/ After his motion to dismiss was denied, Taylor entered a conditional plea of guilty (Fed. R. Crim. P. 11(a)(2)), and the district court fined him $3,000 on each of the two counts (J.A. 6). 3. The court of appeals concluded that the Maine statute violates the Commerce Clause; it therefore reversed and remanded the case with directions to dismiss the indictment (J.S. App. A1-A14). First, the court questioned -- but did not decide -- the legitimacy of the local purpose and Maine's characterization of its statute as a wildlife protection law. Although it did not rest its decision on this ground, the court suggested that the State's real purpose was economic protectionism (id. at A7-A8). /13/ Even assuming that the statute serves a legitimate local purpose, however, the court held that Maine did not meet its burden of proving the lack of less discriminatory alternatives (id. at A8-A10). The court also rejected Maine's contention that the state statute was validated by congressional consent as evidenced by passage of the Lacey Act Amendments of 1981, 16 U.S.C. (& Supp. II) 3371 et seq. (J.S. App. A10-A14). SUMMARY OF ARGUMENT 1. This case falls within this Court's appellate jurisdiction under 28 U.S.C. 1254(2) because a state statute has been invalidated as unconstitutional by a federal court of appeals. The plain language of Section 1254(2) encompasses this case, even though it is a criminal case in which the validity of a federal indictment turns on the constitutionality of a state statute. While other statutes that invest this Court with appellate jurisdiction are expressly limited to civil actions (28 U.S.C. 1252, 1253), the appellate jurisdiction conferred by Section 1254(2) contains no such restriction and there is no reason to construe it to apply only to civil actions. In addition, the State of Maine has standing to pursue an appeal in the absence of a separate appeal by the United States. Reversal of the decision below would result in an automatic reinstatement of the indictment and the conviction since appellee Taylor's guilty plea was conditioned only on the reservation of his challenge to the constitutionality of the Maine statute. It would be contrary to the purpose of 28 U.S.C. 2403(b), the provision under which Maine intervened to defend the constitutionality of its statute, to preclude Maine from seeking appellate review in the circumstances of this case. 2. On the merits, the United States submits that the court of appeals erred, first, in failing to apply the correct standard of appellate review. The court of appeals erroneously reexamined the trial court's findings of fact on the lack of less discriminatory alternatives -- findings that were based on substantial evidence showing that Maine's statute is constitutional. It was only by disregarding the appropriate standard of review (the clearly erroneous standard) that the court of appeals reached its decision to reverse. Moreover, the court of appeals did not sufficiently consider -- as it was required to do -- the serious consequences to Maine's environment and ecology of invalidating the challenged statute. Where, as here, the state has presented substantial scientific evidence demonstrating the reasons for its fears of ecological harm, it should not be required to bear the unnecessary risk that could result from the importation of live bait fish. ARGUMENT I. THIS COURT HAS APPELLATE JURISDICTION UNDER 28 U.S.C. 1254(2) SINCE A STATE STATUTE HAS BEEN HELD UNCONSTITUTIONAL BY A FEDERAL COURT OF APPEALS A. The Plain Language Of 28 U.S.C. 1254(2) Establishes This Court's Appellate Jurisdiction Maine invokes the appellate jurisdiction of this Court under 28 U.S.C. 1254(2). That Section provides as follows: Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: * * * * * By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented(.) This case fits comfortably within the plan language of Section 1254(2) since Maine seeks review of the court of appeals' judgment that Me. Rev. Stat. Ann. tit. 12, Section 7613 (1981), violates the Commerce Clause. We note, however, that Section 1254(2), which has seldom been construed, is unique among the statutes defining this Court's appellate jurisdiction. In particular, the other statutes that invest this Court with appellate jurisdiction to review the judgments of lower federal courts (28 U.S.C. 1252, 1253) are limited, by their terms, to "civil actions." Thus, one leading treatise has stated the general rule that, ever since the Criminal Appeals Act, 18 U.S.C. 3731, was revised in 1970, this Court's jurisdiction in federal criminal cases "has been confined to review by certiorari of the decisions of the courts of appeals." R. Stern & E. Gressman, Supreme Court Practice Section 2.11, at 82 (5th ed. 1978). In contrast to civil cases involving the constitutionality of a federal statute, the authors observe that this limitation holds true even if the "dismissal of an indictment or information is premised on the invalidity or unconstitutionality of the federal statute upon which the indictment or information is based." Id. at 81 (footnote omitted). This case is unusual, however, and does not seem to fit within that general rule. Although the case is a federal criminal prosecution, the only issue before this Court is the constitutionality of a state statute. There is no indication that Congress contemplated this remarkable situation. Accordingly, the consideration given by Congress to the proper mode of review in federal criminal cases involving the constitutionality of federal statutes (see R. Sterm & E. Gressman, supra, Section 2.11, at 79-82) would seem to have no applicability to this case. In these circumstances, the Court should be guided by the plain language of Section 1254(2), which does not limit jurisdiction to "civil actions." Notwithstanding the general rule that statutes authorizing appeals to this Court are to be strictly construed (see, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 246-247 (1984)), we can see no occasion for reading into Section 1254(2) words of limitation (i.e., "civil actions") that are conspicuously absent from the statute. /14/ Where Congress has sought to impose such a limitation (e.g. 28 U.S.C. 1252, 1253), it knows how to say so and has expressed the restriction in the statutory language. Moreover, a literal reading of Section 1254(2) does not result in a situation where "the sense of the statute and the literal language are at loggerheads." Heckler v. Edwards, No. 82-874 (Mar. 21, 1984), slip op. 8. In Heckler v. Edwards, which arose under Section 1252, the Court observed that "to give the surface literal meaning to a jurisdictional provision would confer upon this Court a jurisdiction beyond what 'naturally and properly belongs to it.'" Slip op. 8. A literal reading of Section 1252 would have given a party the right to a direct appeal to this Court from any district court judgment in a case involving the constitutionality of a federal statute, even if the constitutional question was not decided in the judgment or raised on appeal. The Court concluded -- with abundant support in the legislative history -- that such a result was contrary to the "commonsense view that the constitutional holding must be at issue for direct review in this Court to lie" (slip op. 9). /15/ In contrast to the situation in Heckler v. Edwards, it is evident that the Court's jurisdiction under Section 1254(2) is limited to the constitutional question at issue. No inference could be drawn from Section 1254(2) that Congress intended to confer independent jurisdiction on this Court for issues collateral to statutory unconstitutionality, thereby expanding the Court's mandatory jurisdiction. Therefore, there would appear to be no need for the Court to construe Section 1254(2) to preclude review by appeal of a decision in a federal criminal case invalidating a state statute as unconstitutional. See 2A N. Singer, Sutherland Statutory Construction Section 46.05, at 92 (C. Sands 4th ed. 1984). Indeed, applying Section 1254 (2) to such a case would be consonant with the Section's evident purpose of assuring a right to appellate review by this Court of federal court decisions invalidating state statutes. B. The State Of Maine Has Standing To Maintain This Appeal Although The United States Did Not Appeal Yet another jurisdictional peculiarity is presented by this case. Although this is a federal criminal prosecution, the sole appellant in this Court is the State of Maine, an intervenor in the district court. /16/ Because the Acting Solicitor General determined that other cases were entitled to priority in selecting the limited number of cases the government would ask this Court to review, the United States chose not to appeal in this case (see United States v. Mendoza, 464 U.S. 154, 160-161 (1984); International Union, United Automobile Workers, Local 283 v. Scofield, 382 U.S. 205, 214 (1965)). In these unusual circumstances, there is a question as to Maine's standing to appeal. 1. It is, of course, not unknown for a party that has intervened in the lower court to be the sole party seeking appellate review. E.g., Bryant v. Yellen, 447 U.S. 352, 365-368 (1980); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 193-194 (1972); International Union, United Automobile Workers, Local 283 v. Scofield, 382 U.S. at 214; Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 280, 281-283 (1936); International Union of Mine Workers, Locals Nos. 15, 17, 107, 108, & 111 v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 338 (1945); cf. United States v. California Cooperative Canneries, 279 U.S. 553, 559 (1929). Where Maine's statute has been declared unconstitutional, thereby adversely affecting the state's efforts to protect its environment, it clearly was "sufficiently aggrieved" (INS v. Chadha, 462 U.S. 919, 930 (1983)) and has a "sufficient stake in the outcome of the controversy to afford (it) standing to appeal" (Bryant v. Yellen, 447 U.S. at 368). Any other result would make Section 2403(b) a trap for the unwary. A state whose statute is subject to constititional challenge in federal court and which has accepted the statutory invitation to participate, subject to applicable law, with "all the rights of a party" (28 U.S.C. 2403(b)), could find that the entry of an adverse judgment leaves it without any opportunity for further review. Yet, the state would face the collateral consequences of a judgment in a case in which it had participated as a party. Thus, even though the case did not involve a state prosecution, "when confronted with such an opinion by a federal court, state officials would no doubt hesitate long before disregarding it." Gunn v. University Committee to End the War in Viet Nam, 399 U.S. 383, 390 (1970). Faced with that potential trap, states might deem it prudent to decline the invitation to intervene under Section 2403(b) and to wait for an occasion to defend the same statute in later litigation, in which it would be assured of an opportunity to seek appellate review. Federal court challenges to the constitutionality of state legislation would then proceed in cases like the present one, but without the chief benefit Section 2403(b) was intended to provide: the participation of the party best able to explain and defend the state statute. We are not unmindful that the United States could find itself in a situation analogous to Maine's posture in this case. Section 2403(a) affords to the United States a similar opportunity to enter private litigation in which the constititionality of a federal statute is drawn in question. We do not believe that Section 2403(a) permits an interpretation that could produce the unseemly circumstance of a lower court holding that a federal statute is unconstitional while the government is left powerless to obtain appellate review. See, e.g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982) (plurality opinion). Nor does Subsection (b) abide a construction that would place a state in the same hapless straits. 2. The fact that this is a federal criminal prosecution adds one further complication. If a reversal of the decision below would necessitate further action on remand, such as retrial, Maine obviously could not take over the role of the prosecution and proceed on the remand in the absence of the United States. The basis for the state's appeal might therefore be undermined if the United States had determined to discontinue the prosecution. In the present case, however, appellee Taylor entered a guilty plea conditioned only on the reservation of his challenge to the constititonality of the Maine statute. Accordingly, reversal of the decision below would result in automatic reinstatement of the indictment and Taylor's conviction. /17/ As in Director, OWCP v. Perini North River Associates, 459 U.S. 297, 302-305 (1983) (presence of injured employee as a party respondent in this Court ensures necessary adversity for Article III purposes, even if Director's standing to petition for a writ of certiorari is in doubt), the presence of the United States, even in the capacity of an appellee supporting the appellant, satisfies the requirement that there be a live controversy before this Court concerning reinstatement of the conviction. Moreover, the role of the United States here serves to distinguish this case from those in which the prosecuting party has absented itself from further proceedings but an intervenor seeks nonetheless to pursue an appeal. In Princeton University v. Schmid, 455 U.S. 100 (1982), the State of New Jersey declined to take a position before this Court on the merits of a university regulation held unconstitutional in the course of a state criminal proceeding. The Court concluded that New Jersey's "presence," without a position on the merits, "does not provide a sound jurisdictional basis." 455 U.S. at 102. Here, the United States has not only supported Maine's jurisdictional statement, but its position on the merits as well. Two additional factors distinguish this case from Princeton University v. Schmid. First, in that case the controversy was moot because the regulation at issue was no longer in force; the university could implement its new regulations unimpeded by the judgment. Maine, however, has not amended its environmental prohibition, so the statute's validity is very much a live issue. And finally, since the appellant is a sovereign state seeking to defend its statute, this case does not implicate the principle that a private party 'lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see 455 U.S. at 103. II. THE STATE OF MAINE HAS DEMONSTRATED THE LEGITIMATE LOCAL PURPOSE OF THE STATUTE AND THE LACK OF LESS DISCRIMINATORY ALTERNATIVES, AND THEREFORE THE STATUTE IS VALID UNDER THE COMMERCE CLAUSE A. The Court Of Appeals Disregarded The Appropriate Standard Of Review By Reevaluating Maine's Substantial Scientific Evidence Maine's experts presented ample scientific evidence in the trial court supporting the statutory ban on importing live bait fish. In reversing the judgment, the court of appeals exceeded the proper scope of appellate review and erroneously chose to retry the last two factors of the test described in Hughes v. Oklahoma, i.e., legislative intent and the availability of less discriminatory alternatives. In Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 176 (1983) (quoting Norton Co. v. Department of Revenue, 340 U.S. 534, 538 (1951) (emphasis added)), the Court stated: (I)n constitutional cases, we have power to examine the whole record to arrive at an independent judgment as to whether constitutional rights have been invaded, but that does not mean that we will re-examine, as a court of first instance, findings of fact supported by substantial evidence. Similarly, here, the court of appeals should have upheld the findings of the district court regarding the lack of less discriminatory alternatives, because substantial evidence was presented at the trial level to demonstrate that the Maine statute satisfies the Hughes test. In essence, the court of appeals reevaluated the credibility of the three prosecution experts and the specific evidence and reached its own "scientific" conclusions that are neither supported by the evidence nor adequately explained in the court's opinion. /18/ Only by disregarding the standard of review as to findings of fact supported by substantial evidence did the court of appeals reach the conclusion that Maine's statute is unconstitutional. In its memorandum and order denying rehearing, the court of appeals stated that the question whether Maine's statute meets the Hughes requirement of no less discriminatory alternative, is a mixed question of law and fact (J.S. App. B2). This, however, does not mean that an appellate court owes no deference to the trial court's findings with respect to the factual components of that mixed question. The court of appeals nevertheless concluded that it "was free to examine carefully the factual record and to draw its own conclusions" (ibid.). In support of this proposition, the court cited two cases, Bacchus Imports, Ltd. v. Dias, No. 82-1565 (June 29, 1984) (rejecting Hawaii's argument that okolehao and pineapple wine do not compete with other products sold by liquor wholesalers), and Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318 (1977) (rejecting state court's holding that transfer tax on securities transactions was not discriminatory). Those cases, however, do not govern here. In neither case did this Court fail to accept findings of underlying fact that were supported by the evidence. The court of appeals' holding here, however, was squarely premised on a reevaluation of the scientific evidence produced at trial concerning the lack of less discriminatory alternatives. Only by discrediting this scientific evidence was the court of appeals able to conclude that less discriminatory alternatives exist. In order to support that conclusion, the court reasoned that, because Maine has established inspection and certification procedures for freshwater fish (trout and salmon or eggs), the same procedures could be adopted for live bait fish (J.S. App. A8-A9). However, Maine's expert demonstrated that, unlike freshwater fish, out-of-state bait fish are not grown in small, controlled environments (J.S. App. E9) susceptible to a system of out-of-state certification. Thus, disease-free certification for live bait fish is an unworkable alternative. Similarly, the court of appeals erred in supposing (J.S. App. A9) that inspection procedures offer a feasible alternative. The evidence showed that there are no scientifically accepted inspection procedures for live bait fish. /19/ According to the expert testimony, "at the present time we do not have any established procedures for the inspection of these particular diseases of particular concern." Tr. 31. The court of appeals therefore had no license to substitute instead its own assumption that "Maine has (not) searched for and found the least discriminatory alternative." (J.S. App. A10). /20/ The court's doubts cannot displace the concrete evidence and findings of fact compiled in the district court. This Court's recent decision in Anderson v. Bessemer City, No. 83-1623 (Mar. 19, 1985), rendered after the court of appeals' decision in this case, reaffirms the importance of proper adherence by reviewing courts to the "clearly erroneous" standard. In reiterating this standard in Anderson, the Court stated, slip op. 8: /21/ "(A) finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it would have decided the case differently. With particular reference to the findings of a district court sitting without a jury, the Court noted that appellate courts must remember that "'their function is not to decide factual issues de novo'" (ibid., quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969)). As the Court observed, among the reasons for deferring to the trial court's findings of fact are: (1) the trial judge's experience in making determinations of fact and in evaluating the credibility of witnesses; and (2) the fact that the parties have already expended their energy and resources in "persuading the trial judge that their account of facts is the correct one." Anderson, slip op. 9. "(O)nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief of what is said." Anderson, slip op. 10. In the present case, most of the evidence offered to the trial judge was submitted by experts (three for the prosecution and one for the defense). In such circumstances, deference to the trial court's findings is particularly appropriate. As this Court explained in Graver Tank & Mfg. Co. v. Linde Co., 336 U.S. 271, 274 (1949), aff'd on reh'g, 339 U.S. 605 (1950): To no type case is * * * (the clearly erroneous standard) more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific (evidence). Finally, it bears mention that the sole defense expert's testimony was discredited on the basis of his lack of familiarity with Maine's wild fish population or cold-water fish. /22/ In sum, there was no credible expert factual foundation for the court of appeals' revision of the evidence. Had it correctly deferred to the trial court's findings of fact, it could not have concluded that Maine's statute was unconstitutional for failure to incorporate a less intrusive alternative. B. The Court Of Appeals Did Not Sufficiently Consider The Serious Consequences To Maine's Ecology Of Invalidating The Challenged Statute It is of course well established that "the commerce clause is not a guaranty of the right to import into a state whatever one may please * * * regardless of the effects of the importation upon the local community." Robertson v. California, 328 U.S. 440, 458 (1946). See Hughes v. Oklahoma, 441 U.S. at 338-339 (states are not powerless to promote the legitimate purpose of "protect(ing) and conserv(ing) wild animal life within their borders"). This Court's Commerce Clause cases emphasize the importance of considering the "ultimate consequences" to a state if it is not allowed to regulate the activity or commerce in the "questioned" manner. In contrast, the court of appeals utterly failed to consider the significant risk and ultimate consequences to Maine, demonstrated in the record, if it is not allowed to regulate the importation of live bait fish in the "questioned" manner. As this Court noted in Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 373 (1976) (citation omitted), if a state demonstrates a substantial interest (as Maine has -- the protection of its environment and ecology), a further inquiry is necessary to determine whether: adequate and less burdensome alternatives exist * * * since any "'realistic' judgment" whether a given state action "unreasonably" trespasses upon national interests must, of course, consider the "consequences to the state if its own action were disallowed." /23/ As a consequence of its rejection of the scientific evidence presented by Maine's experts, the court failed to give adequate consideration to the significant risk to Maine's ecology if its statute cannot be enforced. Maine provided compelling evidence demonstrating the statute's legitimate purpose as the elimination of that risk, i.e., diseased fish and exotic fish that could seriously harm Maine's aquatic environment. Moreover, the court of appeals imposed an overly stringent burden of proof on the State of Maine, not warranted by the Hughes test, by requiring the State to negate all impermissibly discriminatory economic purposes and conceivable nondiscriminatory alternatives. /24/ After all, Hughes does not require automatic invalidation of a statute because some less restrictive alternative may be divined subsequently. Rather, Hughes is concerned with the practical availability of options and speaks of an alternative that is "'adequate to preserve the local interests at stake'" (441 U.S. at 336, quoting Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 353 (1977)). Only alternatives that promote the local purpose equally "as well" as the challenged statute are relevant. 441 U.S. at 336. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Nor should Maine have been required to prove again in the court of appeals the facts that led both the state legislature and the district court properly to determine that Maine's ecology could not be protected effectively by any means short of a total ban on importing live bait fish. /25/ Accordingly, the court of appeals erred in holding that the Constitution requires the State to bear the inordinate risk that could result from the importation of live bait fish when the overwhelming scientific evidence demonstrated the reasons for the State's fears. /26/ We note, finally, that this case is a good example of why greater deference is sometimes appropriate for a statute, such as this one, that bans imports for health and environmental reasons, than would be appropriate for a similar statute that bans exports. /27/ In prohibiting the importation of live bait fish, Maine is seeking to ensure the protection of its fisheries from parasitic-infested or exotic predatory fish. The experts testified that the inadvertent importation of even two such specimens in a shipment of live bait fish could multiply to hundreds and adversely affect Maine's ecology (Tr. 36; J.S. App. E9 n.7). As this Court stated in Philadelphia v. New Jersey, 437 U.S. 617, 628-629 (1978) (citation omitted): certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. So, here, the absence of scientifically accepted testing procedures to minimize a substantial risk of infestation puts this case within the narrow category where a total ban on importation passes constitutional muster. On the present record Maine has established that out-of-state live bait fish "are more likely to possess the evils of (parasitic infestation) * * * than their homegrown counterparts" and that "outright prohibition of entry, rather than some intermediate form of regulation, is the only effective method of protecting against the presumed evils." Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 43 (1980). CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JERROLD J. GANZFRIED Assistant to the Solicitor General DONALD A. CARR DIRK D. SNEL MARGARET A. HILL Attorneys DECEMBER 1985 /1/ The United States filed a protective notice of appeal to this Court on May 10, 1985 (J.A. 311-312). Thereafter, the Acting Solicitor General determined not to pursue the appeal, and the court of appeals granted the United States' motion to dismiss its appeal on July 16, 1985 (J.A. 315). /2/ Taylor had previously been convicted in state court for a prior violation of the Maine statute. No. 15571 (Me. 9th Dist. Ct. Feb. 8, 1979). He was fined $500, the maximum fine permitted under state law. In 1980, Taylor approached the state legislature urging repeal of the live bait fish law (Tr. 149). /3/ The United States Attorney brought this Lacey Act prosecution as a felony. Subsequent to the commencement of this action, the Justice Department revised its United States Attorneys' Manual regarding Lacey Act felony charges. The current policy, rooted in concern for oversight of the elevation of state misdemeanors to federal felonies, requires prior review at the Department level. Congress plainly intended that, where interstate commercial transactions above a certain threshold are concerned, certain state law violations should be charged as felonies in appropriate cases. However, it is the policy of the Department of Justice that prosecutorial discretion must be very carefully and consistently exercised in such cases to ensure that the sanction sought is in proportion to the facts and circumstances underlying the offense committed. /4/ Walker testified that he has a certificate of advanced study in fish pathology (Tr. 9); Dr. Everhart has been a professor of zoology for 19 years and at one time was the Chief of Fisheries for the Maine Department of Inland Fisheries and Game (Tr. 65); and Dr. Plumb is an expert in infectious diseases in fish (Tr. 92-94). The defense expert, Dr. Summerfelt, stated that he is not a certified fish pathologist (Tr. 104) and that he is not familiar with Maine's fisheries (Tr. 131). /5/ Expert testimony at the hearing indicated that Maine's golden shiner is biologically different from its southern counterpart. Tr. 18. /6/ The three parasites, prevalent in bait fish from the southeastern United States, are Capillaria catastomi, a small round worm that can kill the fish; Pleistophera ovariae, a disease organism that destoys the ability of a female fish to reproduce; and Bothriocephalus opsalichthydis, an Asian tapeworm that can kill the fish (J.S. App. A3, D3-D5). The defense expert opined that these and other organisms associated with warm-water bait fish are not considered as serious as disease organisms found in cold-water fish. As the district court noted (J.S. App. D7), however, the opinion of the defense expert was based on studies of hatchery fish, not wild fish (the focus of Maine's concern), nor did it involve, "to any significant degree," studies of cold-water fish. The district court also found that the defense expert was unacquainted "with the wild fish population of Maine or the northeast" (ibid.). /7/ Dr. Everhart testified that the introduction of non-native exotic species could result in either competition for food or the destruction of a species if an exotic fish is a new predator. Tr. 71, 72. /8/ Taylor's confiscated shipment contained 158,000 fish (J.S. App. E9 n.7). /9/ As Dr. Plumb noted (Tr. 97), although there are accepted testing procedures for salmonid fish, there are no scientifically accepted techniques for testing live bait fish, and therefore, "the comparison between the two is sort of apples and oranges." /10/ In Hughes, 441 U.S. at 336, this Court adopted the following test to be applied to state statutes alleged to violate the Commerce Clause: (1) whether the challenged statute regulates even-handedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. See Also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978); Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Once a statute is determined to be discriminatory, the state has the burden of justifying the local benefits and the lack of less discriminatory alternatives. Hughes, 441 U.S. at 336. /11/ This Court has already recognized a state's interest in preserving its environment as a legitimate local purpose. In Hughes, the Court acknowledged that Oklahoma's interest in preserving the ecological balance in its waters by restricting the removal of large numbers of minnows might well qualify as a legitimate local purpose. The Court characterized a state's interest in conservation and protection of wild animals as similar to the interest in protecting the health and safety of its citizens. Hughes, 441 U.S. at 337. /12/ The district court rejected Maine's alternative argument that the Lacey Act Amendments automatically validate state laws enacted for the protection or conservation of wildlife. The court agreed with the magistrate's conclusion that the legislative history of the Lacey Act Amendments did not demonstrate a clear and express congressional intent to insulate such state legislation from attack under the Commerce Clause. J.S. App. D2 n.3, E11. /13/ To support its view that the legitimacy of Maine's local purpose was in doubt, the court of appeals relied on one line from a statement prepared by one of Maine's experts in 1981 in connection with a proposed repeal of the prohibition on the importation of live bait fish. The statement (J.S. App. A4), suggesting that more could be done to promote a local bait fishery industry, was interpreted by the court of appeals as evidence of economic protectionism. However, the court of appeals quoted the statement out of context. The magistrate, on the other hand, examined the entire document of which the statement was but a minor part and concluded that, in context, the statement was made to "counter the argument that inadequate bait supplies in Maine require(d) acceptance of the environmental risks of imports." Id. at E5-E6 n.4. See J.A. 294-310. In addition, expert testimony at the hearing before the magistrate revealed that Maine's statute was originally enacted in the late 1950's in response to the State's fear of parasite disease in smelts that were being imported from New Hampshire (J.S. App. E6; Tr. 66-67). /14/ Another anomaly to be noted here is that neither the Rules of this Court nor the United States Code specifies any time limit for the filing of a notice of appeal in a criminal case invoking jurisdiction under Section 1254(2). See 28 U.S.C. (& Supp. I) 2101. Again, this fact suggests that Congress did not contemplate the situation presented by this case; it does not, in our view, furnish grounds for concluding that appellate jurisdiction is lacking. Maine filed its notice of appeal within 30 days (exclusive of a final weekend) of the court of appeals' denial of rehearing. Since there is no category of cases requiring the filing of a notice of appeal in less than 30 days, Maine's notice should be deemed timely. /15/ The legislative history of Section 1254(2) provides little enlightenment for the present case. But the history of its statutory predecessor, Section 240(b) of the Act of Feb. 13, 1925 (Judges Act), ch. 229, Section 1, 43 Stat. 938, demonstrates that some members of Congress were concerned that the Judges Act (in its draft form) would provide for direct appeal of a state's highest court decision sustaining the constitutionality of a state statute, but only for discretionary review by write of certiorari when a federal court of appeals' decision invalidated a state statute. 66 Cong. Rec. 2755 (1925) (remarks of Sen. Copeland). To overcome this objection, the predecessor of Section 1254(2) was amended in a fashion that is consistent with the present statute. 43 Stat. 939. See 66 Cong. Rec. 2919 (1925) (remarks of Sen. Cummins). /16/ Maine intervened in the district court pursuant to 28 U.S.C. 2403(b), which provides that: In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constititonality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. /17/ There is, of course, an exception to the rule that a government-intervenor should always be entitled to appeal from a judgment holding one of its statutes unconstitutional -- if the parties have entirely "composed their difference" and the case is settled. Ruotolo v. Ruotolo, 572 F.2d 336, 339 (1st Cir. 1978). This arguably could arise here if the United States were to announce that it would affirmatively seek to dismiss the indictment even in the event that Maine prevails in this Court. The United States, however, disavows any such intention. Even if the case were to become moot, moreover, the proper procedure would be for this Court to vacate the judgment below (United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)), which would effectively remove from the state the burden of an adverse judgment. /18/ What is more, the court of appeals manifestly overstepped its role in giving any credence (J.S. App. A9-A10) to the suggestion by respondent's counsel at oral argument that Maine could feasibly, and with less burden on commerce, send its inspectors to hatcheries in other states and require the exporter to pay the cost. /19/ Other state statutes are also restrictive in their regulation of live bait fish. For example, Washington prohibits the use of live fish for bait, thus removing the incentive for importing them. Wash. Admin. Code R. 232-12-144 (1981). Minnesota issues permits only for the transportation of minnows (bait fish) "into or through" the State for a period of 12 hours. Minn. Stat. Ann. Section 101.42, subd. 6 (West 1977). Similarly, other states grant authority to either a game commission or a commissioner to prohibit the importation of certain birds, animals and fish; see Nev. Rev. Stat. 503.310 (1983); Ala. Code Section 9-2-13 (1980); Mich. Stat. Ann. Section 13-1586(5a) (Callaghan 1981); N.C. Gen. Stat. Section 113.160 (1983). /20/ In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., No. 82-1005 (June 25, 1984), the Court deferred to the Administrator of the Environmental Protection Agency's decision to use a plantwide definition for programs designed to improve air quality pursuant to the Clean Air Act. The Court reasoned that the EPA Administrator's "interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference. The regulatory scheme is technical and complex * * *." Slip op. 26. Similarly, in this case the appellate court should have deferred to the state legislature's conclusion that less discriminatory alternatives are not available in view of the scientific evidence presented at trial by the State's witnesses and the district court's findings. /21/ While the present case, unlike Anderson, is a criminal case, "there is general agreement that the 'clearly erroneous' test should be applied (to issues other than guilt) and that it has the same meaning in criminal cases as it has in civil cases." 2 C. Wright, Federal Practice and Procedure Section 374, at 316 (1982) (footnote omitted). An appellate court's power to review the whole record and make an independent judgment in constitutional cases is, of course, wholly consistent with the proper scope of the clearly erroneous standard of Rule 52, Fed. R. Civ. P. As the Court stated in Bose Corp. v. Consumer Union of United States, Inc., No. 82-1246 (Apr. 30, 1984), slip op. 13, "Rule 52(a) never forbids (an independent) examination, and indeed our seminal decision on the rule expressly contemplated a review of the entire record, stating that 'a finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite, and firm conviction that a mistake has been committed'" (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948) (emphasis in original)). The Court has recently applied the clearly erroneous standard in a case in which the constitutionality of municipal ordinances was in question. See Hillsborough County v. Automated Medical Laboratories, Inc., No. 83-1925 (June 3, 1985), slip op. 13. /22/ See pages 4-5, supra. /23/ In observing that this additional inquiry is needed, the Court in Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. at 372 n.6, also quoted the following passage from Justice Stone's dissent in Di Santo v. Pennsylvania, 273 U.S. 34, 44 (1927): (I)t seems clear that those interferences (with interstate commerce) not deemed forbidden are to be sustained * * * because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effects on the flow of commerce, leads to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across the lines. /24/ Hughes involved an Oklahoma statute prohibiting the export of three dozen minnows. It is significant that in Hughes, Oklahoma presented the statute's purported legitimate purpose (an effort to maintain the State's ecological balance) for the first time in this Court. As this Court noted, "(t)he late appearance of this argument and the total absence of any record support for the questionable factual assumptions that underlie it give the flavor of a post hoc rationalization." 441 U.S. at 338 n.20 (emphasis in original). By contrast, the trial record here provides ample evidence to support Maine's justification for it statute. /25/ The absence of an accepted testing procedure for live bait fish makes this case unusual. Ordinarily, one would expect that tests could be used to bar only diseased animals from entry (e.g. Asbell v. Kansas, 209 U.S. 251 (1908); Reid v. Colorado, 187 U.S. 137 (1902)). But that assumption is misplaced here. As the experts testified, the only way to detect the presence of threatening parasites in bait fish is to kill the specimen. That, of course, would destroy the fish's value as "live" bait. Moreover, since Maine does not ban dead bait fish, the test would render the statutory restriction redundant. /26/ Although we support Maine's principal argument, we do not agree with its alternative submission (J.S. 12-13) that the invalidation of Maine's statute "flies directly in the face of (the) * * * Lacey Act Amendments of 1981" (id. at 12). Rather, we agree with the court of appeals (J.S. App. A13) that the Lacey Act Amendments, although evincing congressional intent to strengthen the enforcement of valid state laws enacted for the protection of wildlife, cannot be interpreted as "clear congressional intent to uphold all state laws that discriminate against interstate commerce in fish and wildlife." See, e.g., South-Central Timber Development, Inc. v. Wunnicke, No. 82-1608 (May 22, 1984), slip op. 7-10. Maine's contrary argument is at odds with prior decisions of this Court. See, e.g., South-Central; Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 960 (1982); New England Power Co. v. New Hampshire, 455 U.S. 331, 343 (1982); Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 49 (1980). /27/ Taylor is an in-state seller of live bait fish. Thus, the effect of the statutory ban is not limited to out-of-state persons. As this Court noted in a case where the challenge to a state statute came primarily from domestic firms, "(t)he existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 473 n.17 (1981), citing South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 178 (1938).