Chinese-Americans Challenge Shark Fin Ban in California
By WILLIAM DOTING, Courthouse News Service
Thursday, July 19, 2012
SAN FRANCISCO (CN) – California’s ban on possession and sale of shark fins is discriminatory and unconstitutional, the Chinatown Neighborhood Association claims in Federal Court.
Joining the nonprofit Chinatown Neighborhood Association as plaintiff is Asian Americans for Political Advancement, a political action committee. They sued California’s governor, attorney general and the director of the state Department of Fish and Game.
The groups claim Assembly Bills 376 and 853, passed in October 2011 and set to go into effect on July 1, 2013, violate the Commerce Clause, the Supremacy Clause, and the 14th Amendment. Violation of the law is punishable by up to 6 months imprisonment and a $1,000 fine.
The bills amended California Fish and Game code to make the possession, sale, trade and distribution of shark fin illegal without a permit.
“The shark fin ban is unconstitutional under the United States Constitution. It is a violation of Section I of the Fourteenth Amendment (the ‘Equal Protection Clause’) because it discriminates against people of Chinese origin by targeting and banning a cultural practice unique to people of Chinese national origin,” the complaint states.
“The shark fin ban is also unconstitutional under Article I, Section 8, Clause 3 of the United States Constitution (the ‘Commerce Clause’) because it interferes with the power of the United States Congress to regulate interstate commerce.
“The shark fin ban is also unconstitutional under Article VI, Clause 2 of the United States Constitution (the ‘Supremacy Clause’) because it unlawfully preempts federal law.”
Shark fin soup, a cultural delicacy, dates back to the Ming Dynasty. It is a centerpiece of special occasions in Chinese culture, a “traditional symbol of respect, honor and appreciation,” served at birthdays, weddings and other festivals, according to the complaint.
The groups say California’s shark fin ban supersedes federal law, which already prohibits “finning” – catching sharks, cutting off their fins and throwing them back to die – in U.S. waters.
They claim that the law allows 95 percent of a legally caught shark to be used for shark oil, meat, skin and other uses, but the remaining 5 percent – the fins – must be discarded.
“Under the shark fin ban, it is now illegal for plaintiffs’ members to acquire any new shark fins and will be illegal for them to possess, sell, offer for sale, trade or distribute any shark fins as of July 1, 2013,” the groups say.
“The sponsors of the shark fin ban promoted the legislation under false pretenses that shark finning … is an ongoing and current practice in U.S. waters. The sponsors argued the ban would prevent this practice of shark finning and the decline of the shark population, and included these purported purposes in the language of AB 376 even though they knew this practice was illegal under federal law.”
The groups cite language in AB 376: “‘California is a market for shark fin and this demand helps drive the practice of shark finning. The market also drives shark declines. California can help ensure that sharks do not become extinct as a result of shark finning.’ AB 376(f). However, shark finning is completely illegal under federal law pursuant to the MSA [Magnuson Stevens Act] and the Lacey Act. The shark fin ban does not impose any further restrictions on the fishing of sharks, aside from the prohibition on the use of the fin, so it does not serve to prevent decline of the shark population.”
The groups seek declaratory judgment and an injunction.
“Absent a judicial declaration that the shark fin ban violates the United States Constitution, plaintiffs’ members face potential criminal sanctions for the ancient traditional use of shark fin soup in cultural ceremonies and celebrations. Plaintiffs’ members also face potential criminal sanctions for ongoing business activities which they have legitimately pursued for years and in which they have invested substantially,” the groups say.
They are represented by Joseph Breall and Jill Diamond, with Breall and Breall.
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Source: Courthouse News Service