U.S. Department of Justice Says California Shark Fin Ban is Unconstitutional

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San Francisco– Representatives and advocates for the Chinese community today announced some optimism that a new California law which bans the possession and sale of shark fins will be struck down as unconstitutional after the U.S. Department of Justice filed an amicus brief in support of their position.

The Justice Department filed an amicus brief in the United States Court of Appeals for the Ninth Circuit in late July. In its brief, the Justice Department took the position that California’s law violates the Supremacy Clause of the United States Constitution. The brief stated that, on a number of levels, California’s new law was preempted by existing federal law.

“The United States has a strong interest in the proper application of preemption principles,” according to the Justice Department’s brief. “California’s law obstructs the use of fishery resources lawfully obtained in federal waters,” and “the District Court failed to appreciate the conflict presented by California’s ban on possession and sale of shark fins from sharks caught in federal waters.”

“Here, California’s law goes too far by banning all possession and sale of shark fins from sharks caught in federal waters, when federal law allows for possession and sale so long as the shark is landed in compliance with federal law,” the Justice Department stated. “Consequently, the court below erred in finding that the California Shark Fin Ban was not preempted.”

“We are very pleased that the U.S. Justice Department has expressed its view and supports the Chinese community’s position that California’s ban on the possession of shark fins in unconstitutional,” said Pius Lee, advocate for the Chinese community. “We are hopeful that we will soon be able to resume our humane tradition that our culture has practiced for centuries since the Ming Dynasty.”

Chinatown Neighborhood Association and Asian Americans for Political Advancement filed a lawsuit against the State of California after it enacted a law banning the possession and sale of shark fins. It is an ancient Chinese cultural tradition to eat shark fin soup as a ceremonial centerpiece of traditional banquets as well as celebrations of weddings and birthdays of one’s elders.

The Chinatown Neighborhood Association and Asian Americans for Political Advancement appeal of the District Court’s denial of the preliminary injunction will be heard before the Ninth Circuit Court of Appeals at 9:30 a.m. Wednesday Aug. 14 at 95 Seventh St., San Francisco, Courtroom 1, 3rd Floor. Chinatown Neighborhood Association et al. v. Edmund G. Brown, Jr., et al., Case Number 13-15188

“California’s law is not only culturally offensive, but according to the Justice Department, it is unconstitutional and should be struck down,” added Mr. Lee. “The Chinese community agrees that finning a shark is inhumane and wrong. But under federal law, sharks are caught legally and humanely and there is no reason to discard the fin. In fact, dumping the fin constitutes environmental waste. That is why we use the entire shark, and stand with the environmental community in strong support of the existing federal legislation that bans the inhumane treatment of sharks.”

President Clinton signed the federal Shark Finning Prohibition Act in 2000, and President Obama strengthened the finning ban in 2010 by signing the Shark Conservation Act. California’s law, which took effect on July 1, 2013, goes further by banning the possession and sale of a shark fins, including fins from legally and humanely fished sharks. Both the Chinese communities and the Justice Department believe California’s law to be unconstitutional.

“California’s ban violates the Supremacy Clause because it is preempted by federal laws regulating federal waters,” said Joe Breall, attorney for the Chinese community organizations. “The State’s misguided attempt to target the “market” for fins does not address the inhumane treatment of sharks on the high seas and is also unconstitutional. With the federal government’s official brief now on record, we are hopeful that the Ninth Circuit will reverse the District Court and issue a preliminary injunction against California’s law.”

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