(CN) - California is forcing fishermen to treat shark fins "like plutonium," a lawyer representing dozens of Chinese business owners told the 9th Circuit on Wednesday.
The business owners, of which more than two dozen packed the San Francisco courtroom, claim California's ban on the sale and possession of shark fins places a substantial burden on commerce.
The law was sponsored by Chinese Assemblyman Paul Fong, and became effective in 2012.
"My clients are losing tens of millions of dollars every year because even lawful ones can't come into the state," said Michael Tenenbaum, who represented opponents of California's foie gras ban.
That ban was recently overturned by a federal judge who ruled that it interfered with a federal law regulating poultry products.
While California's prohibition of shark fins was intended to protect sharks, opponents have held that the federal Magnuson-Stevenson Act already prohibits "finning" - catching sharks, cutting off their fins and throwing them back to die - in U.S. waters.
"My clients are not here trying to require, for the purposes of consumptions or anything else, any fins from a shark that is finned at sea. The cruel practice of removing the fin at sea and throwing the shark back into the ocean to die is not something that anybody supports, and we're not here asking to be able to consume those fins," Tenenbaum said. "What we are asking for is to be able to consume a product that is taken from the sea, a shark that is finned lawfully on the shore under full compliance with federal law."
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.
U.S. District Judge Phyllis Hamilton refused to issue an injunction 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 9th 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.
While the shark fin sellers' attorney Joseph Breall argued before the 9th Circuit in 2013 that the law was discriminatory, Tenenbaum did not even touch the subject on Wednesday, instead sticking to the argument that the state could achieve its conservation goals with less restrictions on buyers and sellers.
Wednesday's panel comprised the same jurists from the 2013 hearing - Judges John Noonan, Stephen Reinhardt and Andrew Hurwitz.
"I'm not sure why the state, under any form of analysis, is required to adopt the least restrictive means if it doesn't think it's the most efficient means of achieving its objective," Judge Hurwitz said.
He questioned Tenenbaum on the conflict between the federal law and California's law.
"Why is there a conflict with federal law, because I understand it, federal law is silent on this issue? Tell me where in federal law there is something that says federal law gives you permission to sell shark fins?" Hurwitz asked.
"There is no statement that says you are permitted to sell shark fins for commercial purposes," Tenenbaum said, adding that the permission is implied in the federal definition of commercial fisherman.
That wasn't enough for Hurwitz, who pressed Tenenbaum for an additional example of federal law granting the permission to sell fins.
Tenenbaum conceded, "There is no explicit permission to cut a fin off a shark at shore and sell it."
He said later that the fins are covered under Magnuson Stevenson Act, which says commercially caught fish are intended to enter commerce through sale, barter or trade.
"That's what they're there for, to enter commerce through sale barter or trade, not to sit there on the dock where no one can touch them. Under California law the fisherman arrives, cuts the fin off and then what? No one can touch that fin. He's not even allowed to throw it away under California law. That's the direct conflict," Tenenbaum said. "We want the shark fins that are landed lawfully, humanely, that are harvested, so that the fisherman the dealer and everyone else in the process don't have to treat these things like plutonium."
Since federal law is silent on the shark fin issue, Deputy Attorney General Alexandra Gordon argued, the state is not required to allow shark fins into the market. "There is no command to allow even a legally obtained fin," she said.
She added, "We don't want fin in our market. The market is driving the finning."
"Taking the fins off legally is driving the practice of finning illegally?" Judge Reinhardt asked.
"No, the demand for fin in California is driving the practice of finning," Gordon replied. "Some fin will enter legally but unfortunately its extremely difficult to keep track of the fin that is entering legally, once it's been detached, it becomes an enforcement nightmare."
"Is there a point in time where California's law practically conflicts with federal law even if it doesn't formally conflict with federal law?" Hurwitz asked.
Gordon answered, "Theoretically, yes but not under the state of facts and law that we have here."
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