Shark Fin Ban in Calif. Survives Latest Fight

     SAN FRANCISCO (CN) – California’s ban on the possession and sale of shark fins does not conflict with federal laws governing interstate commerce and fisheries management, the Ninth Circuit ruled Monday.
     A three-judge panel rejected claims by dozens of Chinese business owners that the state’s Shark Fin Law is preempted by both the Commerce Clause and the Magnuson-Stevens Act, which controls marine fisheries management in the United States.
     In a July 2012 complaint , the Chinatown Neighborhood Association and Asian Americans for Political Advancement said shark fin soup is a cultural delicacy and a centerpiece in Chinese celebrations as a “traditional symbol of respect, honor and appreciation” served at birthdays, weddings and other festivals.
     The law was sponsored by Chinese Assemblyman Paul Fong, and became effective in 2012.
     U.S. District Judge Phyllis Hamilton refused to block the law in 2013, finding that the groups “made no showing that any member of the Legislature intended to ‘target’ Chinese-Americans.”
     A three-judge panel of the Ninth Circuit declined to overturn Hamilton’s ruling.
     In 2014, U.S. District Judge William Orrick ruled that the ban was not written in a way that violates the constitutional rights of Chinese-Americans, and dismissed the case before it could go to trial.
     On Monday, the Ninth Circuit again waded into the controvery and ruled that the shark fin sellers couldn’t identify any real conflict between the ban and the federal government’s authority under the Magnuson-Stevens Act to regulate shark fishing in the “exclusive economic zone” of the United States, an area that extends 200 miles offshore from each coastal state.
     “To be sure, the California statute restricts certain economically viable uses for sharks that are lawfully harvested from the EEZ and landed in California. But the MSA does not mandate that a given quantity of sharks be harvested from the EEZ-and even if it did, detached fins are not the only viable use for harvested sharks,” Circuit Judge Andrew D. Hurwitz wrote for the panel, adding, “The plaintiffs point to no ‘clear and manifest’ intent of Congress to preempt regulation such as the shark fin law.”
     At oral argument in March before the same 2013 panel – Hurwitz, along with Circuit Judges John Noonan and Stephen Reinhardt – the sellers had also argued that the ban was invalid under the Commerce Clause of the U.S. Constitution because it limits the flow of shark fins through and outside of California.
     But Hurwitz noted that the sellers could not prove that the ban significantly interferes with interstate commerce.
     “The shark fin law does not interfere with activity that is inherently national or that requires a uniform system of regulation. The purpose of the shark fin law is to conserve state resources, prevent animal cruelty, and protect wildlife and public health. There is, accordingly, no significant interference with interstate commerce,” he wrote.
     While Reinhardt agreed that the sellers’ lawsuit failed to point out actual conflict between the ban and federal law, he said in a partial dissent that the plaintiffs should have been given leave to amend their claim because they could have a plausible claim for relief if they went back and added new facts to the complaint.
     Plaintiff attorney Michael Tenenbaum, who also represented opponents of California’s foie gras ban, was unavailable for comment.
     The Humane Society of the United States, which joined in the fight to keep the shark fin ban in place, hailed the Ninth Circuit’s ruling.
     “The Humane Society of the United States and Humane Society International applaud the court for upholding California’s decisive action on this important animal welfare and conservation measure,” said Ralph Henry, deputy director of HSUS’ animal-protection litigation. “The California law and similar laws recently passed in more than a half dozen other states are critical tools in preventing the loss of millions of sharks each year to the cruel practice of finning.”

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