California Shark Fin Ban Ducks Call for Injunction

     SAN FRANCISCO (CN) – California can ban the possession and sale of shark fins, despite their cultural and religious importance to Chinese-American groups, a federal judge ruled.
     California’s ban on shark “finning” took effect last year, though full implementation is set for July 1, 2013. The practice involves catching a shark, removing its fins and dumping the carcass back into the water.
     Chinatown Neighborhood Association, which is a nonprofit, filed a federal complaint over the law along with Asian Americans for Political Advancement, a political action committee.
     The groups claim that the law unfairly targets people of Chinese ancestry by banning their unique cultural practice – infringing the equal protection clause of the 14th Amendment, as well as the commerce and supremacy clauses of the U.S. Constitution.
     Shark fin soup, a cultural delicacy, dates back to the Ming Dynasty. The groups say it is a centerpiece in Chinese celebrations of special occasions, a “traditional symbol of respect, honor and appreciation” served at birthdays, weddings and other festivals.
     Federal law already prohibits finning in U.S. waters, but the groups claim that California’s ban supersedes it by allowing 95 percent of the shark to be used for oil and meat and requiring the discard of the remaining 5 percent, the shark’s fins.
     They wanted a preliminary injunction, but U.S. District Judge Phyllis Hamilton refused to enter such relief Wednesday.
     “Plaintiffs have provided no evidence that the law was enacted for the purpose of discriminating against Chinese-Americans,” Hamilton wrote. “They cite to some anecdotal evidence that is unconnected to the reasons the Legislature passed the law, but have made no showing that any member of the Legislature intended to ‘target’ Chinese-Americans. Plaintiffs’ own evidence shows that only a small percentage of Chinese-Americans eat shark fin soup regularly, and that approximately half of Chinese-Americans actually support the Shark Fin Law; and further, one of the law’s sponsors in the Legislature (Assemblyman Paul Fong) is Chinese-American, and enactment of the Law was supported by at least one Asian-American organization.” (Parentheses in original.)
     Impact from the law on some Chinese-Americans is not enough to show disparate treatment, according to the ruling.
     The Legislature’s reasoning cushions the shark fin ban constitutionally, Hamilton said.
     “The law is based on legislative findings that sharks occupy the top of the marine food chain and their decline constitutes a serious threat to the ocean ecosystem and biodiversity; that the practice of shark finning causes the death of tens of millions of sharks every year; and that by eliminating an important end market (sales in California), and thereby impacting the demand for shark fins, California can help ensure that sharks do not become extinct,” Hamilton wrote. “The stated conservation and public health purposes are legitimate state interests, and prohibiting the possession, sale, and trade of shark fins is rationally related to that purpose. Because the California Legislature has articulated a plainly legitimate purpose for enacting the law, and because it is undisputed that the Shark Fin Law is facially neutral, any facial challenge fails, because it essentially rests on the speculation that at some future time the application of the statute will result in constitutional violations.” (Parentheses in original.)
     Hamilton also rejected the commerce clause claims.
     “Given that the Shark Fin Law is facially neutral, and treats all shark fins the same regardless of their origin, plaintiffs have not shown (and cannot show) that the Shark
     Fin Law either regulates extraterritorially, or discriminates in favor of in-state interests,” she wrote (parentheses in original). “Thus, in order to prevail on this claim, plaintiffs will have to establish that any incidental burdens on interstate commerce caused by the Shark Fin Law are clearly excessive in relation to the putative local benefits.”
     She added: “Plaintiffs have identified no cognizable burden on interstate commerce, notwithstanding that they have asserted that the law places an excess burden in relation to any putative benefits because it is overbroad and duplicative of existing legislation.”
     In this case, public interest trumps the groups’ civil rights claims, the court found.
     “Plaintiffs have not shown that the future inability to obtain shark fins by the relatively small percentage of the population that actually wants to do so, or the loss of profits by a small group of merchants, importers, or restaurateurs, outweighs the interests of the Legislature in protecting the marine ecosystem by eliminating a product that drives the pernicious practice of finning,” Hamilton wrote.
     “It is clear … that there is support for the Shark Fin Law within the Chinese community,” she added. “In addition, the evidence shows strong public interest bases for the law, including conservation (protection of declining shark populations, including populations of shark species vulnerable to shark finning), animal welfare (reducing the economic motivation for shark finning, which leaves sharks unable to swim and causes death by starvation), and public health (bioaccumulation of contaminants such as methyl mercury in shark fins) interests.” (Parentheses in original.)

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