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Shark Fin Ban Argued Before 9th Circuit; Feds Step In

By William Peacock, Esq. | Last updated on

The facts of the case aren't too complicated. California, with conservation in mind, banned the sale, possession, and distribution of shark fins within the state. Why? Because most shark fins are obtained via "finning," where a shark is caught, fin removed, and the still-alive shark is dumped in the water to die. The fins also contain mercury, so public heath also factored into the discussion, reports the San Francisco Chronicle.

Shark fin soup, however, is a Chinese delicacy and is often consumed at significant cultural events, such as Chinese New Year celebrations. The Chinatown Neighborhood Association and Asian Americans for Political Advancement sued, seeking an injunction against the ban, but were denied by the district court.

If Not Intent, Discriminatory Effect?

The attorneys for the Chinatown Association argued that the law had both a discriminatory purpose and effect. Though, on its face, the law is completely neutral, one lawmaker remarked, "we can't police the seas, but we can police Chinatown."

Judge Andrew Hurwitz, according to the Chronicle, didn't buy the argument, suggestively asking whether deference to the lower court's findings, after hearing the same evidence, was required.

Beyond intent, the law also only effects the Chinese community, as they are the only known consumers of shark fins. The lower court held that the twin purposes of conservation and public health outweighed any discriminatory effect.

Federal Preemption

Oddly enough, the Obama administration jumped into the case late last month, filing tardy written arguments that the state's law was preempted by federal law, which prohibits the practice of "finning" in federal waters but does not regulate trade in fins, nor does it regulate shark fishing.

According to Courthouse News, Judge Jurwitz questioned the government's standing to make arguments, as they were not a party to the original action.

California Not Alone

Both the discrimination and the preemption arguments could have far-reaching effects. The New York Times notes that after New York passed a ban similar to California's law last month, now eight states have such bans.

Though the Ninth Circuit's holding would only apply to a handful of western states, the persuasive value of the precedent could carry over into other circuits or give other states pause before passing similar laws.

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