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Chinatown Neighborhood Ass'n v. Harris

United States Court of Appeals, Ninth Circuit

July 27, 2015

CHINATOWN NEIGHBORHOOD ASSOCIATION, a nonprofit corporation; ASIAN AMERICANS FOR POLITICAL ADVANCEMENT, a political action committee, Plaintiffs-Appellants,
v.
KAMALA HARRIS, Attorney General of the State of California; CHARLTON H. BONHAM, Director, California Department of Fish and Game, Defendants-Appellees, HUMANE SOCIETY OF THE UNITED STATES; MONTEREY BAY AQUARIUM FOUNDATION; ASIAN PACIFIC AMERICAN OCEAN HARMONY ALLIANCE, Intervenor-Defendants-Appellees

Argued and Submitted March 18, 2015, San Francisco, California

Page 1137

[Copyrighted Material Omitted]

Page 1138

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:12-cv-03759-WHO. William Horsley Orrick III, District Judge, Presiding.

SUMMARY [*]

Civil Rights

The panel affirmed the district court's dismissal of plaintiffs' amended complaint challenging California's " Shark Fin Law," which makes it " unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin" in the state.

The panel rejected plaintiffs' claim that the Shark Fin Law is preempted by the Magnuson-Stevens Fishery Conservation and Management Act. The panel held that plaintiffs failed to identify any actual conflict between federal authority under the Magnuson-Stevens Act to manage shark fishing in the ocean off the California coast and the California Shark Fin Law. The panel further held that the district court did not abuse its discretion by failing to sua sponte grant plaintiffs leave to amend so they could plead additional facts to support the preemption claim. The panel held that even assuming that plaintiffs preserved the argument for appeal, leave to amend would be futile.

The panel rejected plaintiffs' claim that the Shark Fin Law is per se invalid under the Commerce Clause because it interferes with the interstate commerce in shark fins. The panel held that even when state law has significant extraterritorial effects, it passes Commerce Clause muster when, as here, those effects result from the regulation of in-state conduct. The panel further determined that the Shark Fin Law does not interfere with activity that is inherently national or that requires a uniform system of regulation, and that, accordingly, there is no significant interference with interstate commerce.

Judge Reinhardt dissented in part because he believes that plaintiffs must be granted leave to amend the complaint with respect to their preemption claim.

Michael Tenenbaum (argued), The Michael Tenenbaum Law Firm, Santa Monica, California; Joseph M. Breall, Breall & Breall LLP, San Francisco, California, for Plaintiffs-Appellants.

Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Alexandra Robert Gordon (argued), Deputy Attorney General, San Francisco, California, Attorneys for Defendants-Appellees.

Bruce A. Wagman, Schiff Hardin LLP, San Francisco, California; Ralph E. Henry (argued), The Humane Society of the United States, Washington, DC, Attorneys for Intervenors-Defendants-Appellees The Humane Society of the United States, Monterey Bay Aquarium Foundation, and Asian Pacific Americans for Ocean Harmony Alliance.

Seth L. Atkinson, Natural Resources Defense Council, San Francisco, California, for Amicus Curiae Natural Resources Defense Council.

Before: Stephen Reinhardt, John T. Noonan, and Andrew D. Hurwitz, Circuit Judges.

OPINION

Page 1139

Andrew D. HURWITZ, Circuit Judge

California's " Shark Fin Law" makes it " unlawful for any person to possess, sell, offer for sale, trade, or distribute a shark fin" in the state. Cal. Fish & Game Code § 2021(b). The plaintiffs in this action claim that the Shark Fin Law violates the Supremacy Clause by interfering with the national government's authority to manage fishing in the ocean off the California coast, and the dormant Commerce Clause by interfering with interstate commerce in shark fins. The district court dismissed the plaintiffs' amended complaint with prejudice, and we affirm.

I.

A.

The Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ), 16 U.S.C. § § 1801-1884, " was enacted to establish a federal-regional partnership to manage fishery resources." Nat'l Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 749, 341 U.S.App.D.C. 119 (D.C. Cir. 2000). Under the MSA, the federal government exercises " sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone" (" EEZ" ), 16 U.S.C. § 1811(a), which extends from the seaward boundary of each coastal state to 200 miles offshore,[1] id. § 1802(11); City of Charleston v. A Fisherman's Best, Inc., 310 F.3d 155, 160 (4th Cir. 2002). The MSA expressly preserves the jurisdiction of the states over fishery management within their boundaries. See 16 U.S.C. § 1856(a)(1).

To manage fishing in the EEZ, the MSA calls for the creation of regional Fishery Management Councils (" FMCs" ), composed of state and federal officials and experts appointed by the Secretary of the National Marine Fisheries Service (" NMFS" ). 16 U.S.C. § 1852(b)(1)-(2). With the cooperation of " the States, the fishing industry, consumer and environmental organizations, and other interested persons," id. § 1801(b)(5), the NMFS and FMCs develop and promulgate Fishery Management Plans (" FMPs" ) to " achieve

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and maintain, on a continuing basis, the optimum yield from each fishery," id. § 1801(b)(4).[2] In the MSA, " optimum yield" means the amount of fish that " will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems." Id. § 1802(33); see also 50 C.F.R. § 600.310(e)(3).

B.

Shark finning is the practice of removing the fins from a living shark. The primary market for shark fins is to make shark fin soup, a traditional Chinese dish.

Even before the Shark Fin Law was passed, federal and state law prohibited finning in the waters off the California coast. In 1995, the California legislature made it " unlawful to sell, purchase, deliver for commercial purposes, or possess on any commercial fishing vessel . . . any shark fin or shark tail or portion thereof that has been removed from the carcass." Cal. Fish & Game Code § 7704(c); see 1995 Cal. Legis. Serv. ch. 371, § 1 (S.B. 458). In 2000, Congress added finning prohibitions to the MSA, which, as amended in 2011, make it unlawful to remove the fins from a shark at sea, possess detached fins aboard fishing vessels, transfer them from one vessel to another, and land them onshore. See 16 U.S.C. ยง ...


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