9th Circuit Looks for Bias in Calif. Shark Fin Ban

By DAVE TARTRE, Courthouse News Service,
Thursday, August 15, 2013

(CN) – California’s ban on shark fins stems from racism against Chinese-Americans by lawmakers, one of whom is also Chinese-American, a lawyer told the 9th Circuit.
The Shark Fin Law, codified as Sections 2021 and 2021.5 of California Fish and Game Code, became effective in 2012 with the purported aim of promoting shark conservation and health interests.
Lawmakers pointed to the fact that shark finning, a practice in which sharks are caught, their fins cut off, and the carcasses dumped back into the water, causes tens of millions of sharks to die each year.
Though the law also spoke of health concerns related to human ingestion of mercury-filled shark fin, Chinese-American groups claimed that the law was a pretext to discriminate against them.
In a July 2012 complaint, the Chinatown Neighborhood Association and Asian Americans for Political Advancement said shark fin soup is a cultural delicacy and a centerpiece in Chinese celebrations as a “traditional symbol of respect, honor and appreciation” served at birthdays, weddings and other festivals.
U.S. District Judge Phyllis Hamilton refused to issue an injunction in January, finding that the groups “made no showing that any member of the Legislature intended to ‘target’ Chinese-Americans.”
That order noted how only a small percentage of Chinese-Americans regularly eat shark fin soup, and that roughly half the Chinese-American population actually supports the law.
Indeed one of the law’s sponsors, Assemlyman Paul Fong, is Chinese-American.
On appeal to the 9th Circuit, Joseph Breall of Breall & Breall said Hamilton used the wrong legal standard.
Circuit precedent required the court to give weight to indirect evidence of discriminatory purpose behind the law, he argued before a three-judge appellate panel Wednesday.
One such piece of evidence Breall cited includes Assemblyman Fong minimizing the importance of shark fin soup by pointing out that “Chinese culture used to promote foot binding on women.”
Fong said shark fin soup should follow that practice “into the dustbin of history,” Breall told the court.
Judge Andrew Hurwitz asked whether the lawyer was saying that would otherwise be fine with the new law, “but some of the people who sponsored it said bad things and therefore it violates equal protection.”
Breall responded that the intent of the sponsors along with the law’s disproportionate impact on a protected class combined to show discriminatory purpose.
The brief Breall filed with the federal appeals court also argued that California’s ban misrepresents “the Chinese cultural practice of consuming shark fin soup and, by implication, the segment of the Chinese community that is represented by plaintiffs-appellants … as cruel, inhumane and anti-environment.”
California Deputy Attorney General Alexandra Gordon insisted at the hearing that “there’s no evidence anywhere that the legislation enacted the shark fin prohibition for any other purpose that to stop finning and to protect the health of the ocean and the public health and safety.”
“It targets the practice of finning,” Gordon wrote. “It does not target any subgroup or group of people, and plaintiffs have made no showing otherwise.”
The ramifications of this law on the subgroup of Chinese-Americans who eat shark fin soup do not make it unconstitutional, she added.
“I don’t doubt that it’s difficult not to be able to use shark fin for cultural practices, but in order to prove discriminatory purpose you need to show that the Legislature enacted the ban because it would have a disparate effect on this subgroup,” Gordon said.
Judge Andrew Hurwitz meanwhile tried to understand the scope of a new claim that the Justice Department raised in an amicus brief.
The brief says California’s ban steps on federal toes and is superseded by federal law, since the United States has “exclusive authority to manage fisheries in federal waters pursuant to the Magnuson-Stevens Fishery Conservation and Management Act.”
The government did not present an argument Wednesday, but Hurwitz characterized the government’s position from its briefs as “narrow,” and he questioned to what extent it had standing since it was not a party to the complaint or the order denying a preliminary injunction.
Hurwitz said he did not think the government’s brief laid a claim that federal law occupied the entire legal space in which California’s ban operates, but that the federal government could possibly say that taking sharks off the coast in extraterritorial waters is good for the shark fishery, and that fisherman would have nowhere to sell their catch without a market in California.
California’s Gordon responded that, even if the government had such a clear purpose, which she said she doubts, “You cannot shut down a duly enacted state law on pre-emption grounds because the federal government opines that something bad could happen in the future.”

Source: Courthouse News Service


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