Saher

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

OPINION

Marei von Saher (“Saher”) seeks the return of two paintings alleged to have been looted by the Nazis during World War II. The paintings were purchased in or around 1971 by the Norton Simon Museum of Art in Pasadena, California (“the Museum”), and are now on display there. Saher brought this claim against the Museum under § 354.3 of the California Code of Civil Procedure, which extends the statute of limitations until 2010 for actions for the recovery of Holocaust-era art. The primary issue on appeal is whether § 354.3 infringes on the national government’s exclusive foreign affairs powers. The district court held that it does. We agree, and affirm the district court’s holding that § 354.3 is preempted.

California also has a three-year statute of limitations for actions to recover stolen property. California Code of Civil Procedure § 338. The district court granted the Museum’s Rule 12(b)(6) motion to dismiss Saher’s complaint under that statute without leave to amend. Because it is possible Saher might be able to amend her complaint to bring her action within § 338, we reverse the district court’s dismissal without…

dissenting in part:

I dissent from the majority’s conclusion that California is acting outside the realm of traditional state responsibility, and that field preemption applies. Where a State acts within its “traditional competence,” the Supreme Court has suggested that conflict preemption, not field preemption, is the appropriate doctrine. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 , 420 n. 11, 123 S.Ct. 2374 , 156 L.Ed.2d 376 (2003). Garamendi counsels that field preemption would apply “[i]f a State were simply to take a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility....” Id. That is not the case here.

It is undisputed that property is traditionally regulated by the State. The majority acknowledges that California has a legitimate interest in regulating museums and galleries, and that California Code of *1032 Civil Procedure § 354.3 “addresses the problem of Nazi-looted art currently hanging on the walls of the state’s museums and galleries.” Maj. Op. at 1026. However, the majority goes on to hold that because Section 354.3 applies to any museum or gallery, “California has created a worldwide forum for the…

I. Background

A. Nazi Art Looting in WWII

During World War II, the Nazis stole hundreds of thou- sands of artworks from museums and private collections throughout Europe, in what has been termed the “greatest dis- placement of art in human history.” Michael J. Bazyler, Holo- caust Justice: The Battle for Restitution in America’s Courts 202 (NYU Press 2003).

Following the end of World War II, the Allied Forces embarked on the task of returning the looted art to its country of origin. In July 1945, President Truman authorized the return of “readily identifiable” works of art from U.S. collect- ing points. See, e.g., Presidential Advisory Commission on Holocaust Assets in the United States, Plunder and Restitu- tion: The U.S. and Holocaust Victims’ Assets SR-142 (Dec. 2000) (hereinafter Plunder and Restitution). At the Potsdam Conference, President Truman formally adopted a policy of “external restitution,” under which the looted art was returned 11338 VON SAHER v. NORTON SIMON MUSEUM OF ART to the countries of origin—not to the individual owners. American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas, Report, 148 (1946)…