United States District Court, N.D. California
Filed March 24, 2014
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Re: Dkt. Nos. 58, 59.
For Chinatown Neighborhood Association, a nonprofit corporation, Asian Americans for Political Advancement, a political action committee, Plaintiffs: Joseph M. Breall, LEAD ATTORNEY, Jill L. Diamond, Breall & Breall, LLP, San Francisco, CA.
For Kamala Harris, Attorney General of the State of California, Charlton H. Bonham, Director, California Department of Fish and Game, Defendants: Alexandra Robert Gordon, LEAD ATTORNEY, CA Dept of Justice, Attorney Generals Office, San Francisco, CA.
For The Humane Society of the United States, Monterey Bay Aquarium Foundation, Asian Pacific American Ocean Harmony Alliance, Intervenor Defendants: Bruce Andrew Wagman, LEAD ATTORNEY, Schiff Hardin LLP, San Francisco, CA; Ralph E. Henry, PRO HAC VICE, Washington, DC.
For Natural Resources Defense Counsel, Amicus: Seth Lindsey Atkinson, LEAD ATTORNEY, Natural Resources Defense Council, San Francisco, CA.
ORDER GRANTING MOTIONS TO DISMISS
WILLIAM H. ORRICK, United States District Judge.
The State of California has made it " unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin." Cal. Fish & Game Code § § 2021 and 2021.5 (the " Shark Fin Law" ). The official findings of the California legislature cite environmental, humanitarian, and health reasons in support of the Shark Fin Law. Plaintiffs Chinatown Neighborhood Association and Asian Americans for Political Advancement challenge the Shark Fin Law because it allegedly discriminates against Chinese Californians since shark fins are a significant part of Chinese culture, and contend that it is unconstitutional because it denies them equal protection of the law, violates the Commerce Clause, is preempted by the federal Magnuson Stevens Act (" MSA" ), 16 U.S.C. § § 1801 et seq., and deprives them of their constitutional rights under color of state law.
Defendants Kamala Harris, Attorney General of the State of California, and Charlton H. Bonham, Director of the California
Department of Fish and Wildlife (collectively, " defendants" ), who are responsible for enforcing the California Fish and Game Code, and intervenor-defendants Humane Society of the United States, Monterey Bay Aquarium Foundation, and Asian Pacific American Ocean Harmony Alliance (collectively, " intervenors" ) move to dismiss the First Amended Complaint (" FAC" ). Because none of the claims is plausibly alleged, and the plaintiffs have no unpleaded facts that would change my analysis, I GRANT the motions to dismiss without leave to amend.
The Shark Fin Law makes it " unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin" in California. Cal. Fish & Game Code § § 2021(b). Although the law contains limited exceptions, a violation of the Shark Fin Law is a misdemeanor and may be punished by up to six months' imprisonment and a fine up to $1000. See Cal. Fish & Game Code § 12000. Before the Shark Fin Law was enacted, " California law already banned the practice of shark finning by prohibiting, subject to limited exceptions," the trading or possession on any commercial fishing vessel of " any shark fin or shark tail or portion thereof that has been removed from the carcass." FAC ¶ 19 (citing Cal. Fish & Game Code § 7704(c)).
In enacting the law, the California legislature made official findings included as part of the Shark Fin Law, including that: (a) sharks are critical to the health of the ocean ecosystem; (b) sharks are susceptible to population decline; (c) the loss of sharks threatens the ocean ecosystem and biodiversity; (d) the practice of shark finning causes tens of millions of sharks to die each year; (e) data show a decline in shark populations worldwide; (f) California is a market for shark fin and this demand helps drive shark finning and its attendant declines in shark population; and (g) shark fin contains high amounts of mercury, which is dangerous to human health. Intervenor Mot. 4 (citing Cal Stats. 2011, Ch. 524 (A.B. 376) § 1(a)-(g)). The California Assembly and Senate bill analyses of the law are consistent with these official findings. Intervenor Mot. RJN Ex. A & B.
Shark fins, which are primarily used to make shark fin soup, are a significant part of Chinese culture. See FAC ¶ ¶ 9-12. They are a " traditional symbol of respect, honor, and appreciation," and are a " ceremonial centerpiece of traditional Chinese banquets" and holidays. FAC ¶ ¶ 9-11. Before the Shark Fin Law was enacted, the shark fins traded and consumed in California were harvested from sharks caught by fishers both within California and in other jurisdictions, including federal waters. FAC ¶ 13.
The plaintiffs  allege that although the proponents of the Shark Fin Law ostensibly
sought to address shark finning (the specific practice of cutting a shark's fin off and discarding the remainder of the shark at sea), shark population endangerment, and mercury consumption by people, those justifications were a ruse. FAC ¶ ¶ 25-29. They also allege that the National Oceanic and Atmospheric Administration Fisheries Service said that the notion that sharks are an endangered species is a " MYTH."  FAC ¶ 26. Shark finning was already illegal under federal law; sharks are not truly endangered and the proposed law did not ban shark fishing generally or other shark products; the proposed law did not ban consuming other parts of sharks; and the proposed law did not distinguish between shark fins harvested sustainably and humanely and shark fins from unknown sources. See FAC ¶ ¶ 25-29.
On the contrary, " Lawmakers and proponents of the Shark Fin Law have clearly and repeatedly articulated that the intent of the Law was to target the Chinese market for shark fins and to end the Chinese tradition of consuming shark fins." FAC ¶ 30. For example, California Assemblyman Paul Fong, a co-sponsor of the law, compared the consumption of shark fin soup to Chinese feet-binding on women. FAC ¶ 30. Peter Knights, Executive Director of a nonprofit organization that promoted the law, WildAid, noted that it is easier to " regulate [ ] something [that] is happening in Chinatown here" than " something that's going out on a boat in Indonesia in the middle of the ocean." FAC ¶ 30.
The plaintiffs allege that the Shark Fin Law has the effect of " prevent[ing] Chinese Californians from engaging in ceremonial and cultural traditions that they have practiced for centuries." FAC ¶ 31. It prevents shark fins from passing through California in the stream of commerce with entities outside the state and attempts to regulate the fishing industry outside the state. FAC ¶ ¶ 32-33. They further claim that the law infringes on the federal government's authority to regulate federal waters and commercial and recreational fishing, and conflicts with federal laws, regulations, policies, and plans. FAC ¶ ¶ 34-36.
The plaintiffs filed this action on July 18, 2012. Dkt. No. 1. On August 9, 2012, the plaintiffs moved for a preliminary injunction to enjoin enforcement of the Shark Fin Law. Dkt. No. 9. The Honorable Phyllis J. Hamilton denied the motion, Chinatown Neighborhood Ass'n v. Brown, No. 12-cv-3759 PJH, 2013 WL 60919 (N.D. Cal. Jan. 2, 2013) (" Brown I " ), and the United States Court of Appeals for the Ninth Circuit affirmed that decision on August 27, 2013, Chinatown Neighborhood Ass'n v. Brown, 539 F.App'x 761 (9th Cir. 2013) (" Brown II " ).
On June 27, 2013, this action was transferred to me. Once the mandate was returned from the Ninth Circuit, the defendants filed a motion to dismiss. Dkt. No. 47. The plaintiffs then filed the FAC. Dkt. No. 50. The defendants and intervenors filed separate motions to dismiss.
Dkt. Nos. 58, 59. I held a hearing on the motions on March 19, 2014.
The plaintiffs bring the following causes of action: (1) violation of the Equal Protection Clause under the Fourteenth Amendment to the United States Constitution; (2) violation of the Commerce Clause, Article I, Section 8, Clause 3 of the United States Constitution; (3) violation of the Supremacy Clause, Article VI, Clause 2 of the United States Constitution; (4) violation of 41 U.S.C. § 1983; and (5) injunctive relief. They seek a declaration that the Shark Fin Law ...