Shark fin ban back on burner

Two Chinese groups in San Francisco Bay Area said they were confident that the Supreme Court will accept their petition for writ of certiorari to reverse an appeals court's decision not to overturn California's ban on sale, distribution and possession of shark fins.

Chinatown Neighborhood Association (CNA) and Asian Americans for Political Advancement (AAPA) sued California in 2012 over claims that the state's ban, which was passed by the legislature in 2011 and went into full effect in 2013, conflicts with a federal law "Magnuson-Stevens Act" (MSA) that protects the "optimum yield" from commercial fishing.

After a Ninth Circuit panel upheld a district court's dismissal of the case in July 2015, the groups brought the case to the Supreme Court in December, which requested a response from the California Attorney General and the Director of the California Department of Fish and Wildlife by Feb 28.

"It's quite significant," Michael Tenenbaum, the lawyer representing the petitioners, told China Daily. "These state defendants had told the Court that they were not going to respond to our petition, which parties often say in the hope that the Court will not find the petition important. But the issue we raised is important enough that the Court wants to hear from the state."

Shark finning is the practice of removing the fins from a living shark. The primary market for shark fins is for making shark fin soup, a traditional Chinese dish. The California legislature passed the ban on the basis that "California is a market for shark fin" that "helps drive the practice of shark finning," which causes "tens of millions of sharks to die each year".

The petitioners argue that it's a huge waste of shark fins as the state law blocks all trade in the most valuable parts of sharks even if the sharks are landed with their fins attached.

"Shark fin soup has been a Chinese cultural tradition for thousands of years. The ban not only causes a waste but also poses an insult to Chinese people," said Taylor Chow, president of AAPA. "We uphold environment conservation, but unfortunately the ban has somehow increased the total landing of sharks in California."

"In response to falling prices caused by state-level shark fin bans such as California's, the National Oceanic and Atmospheric Administration (NOAA) promulgated a final rule on Aug 18, 2015, amending the Fishery Management Plan for the Atlantic and Gulf of Mexico to increase catch limits for sharks from 36 to 55 — to allow fisherman to catch more than 50 percent additional sharks per trip," said the petition.

"That rule increased quotas for several, but not all, shark species, and the bases for NOAA's changed quotas include several factors that are entirely unrelated to state restrictions on the sale of shark fins," said Ralph Henry, director of animal protection litigation at the Humane Society of the United States, which supported passage of the law in 2011 and has joined California in defending the law in court.

"There is no evidence that California's prohibition on the sale of shark fins, or any other state law like it, will produce results opposite of their intended goals. Scientists estimate that more than 70 million sharks are killed for their fins each year, all over the world," Henry told China Daily. "Eliminating demand for shark fin products can do nothing but help address that problem."

Last month, seven fishing associations, including the Sustainable Fisheries Association, Rhode Island Fisherman's Alliance, Long Island Commercial Fishing Association and North Carolina Fisheries Association, filed an amici brief in support of the petition, considering the ban a direct assault on the MSA and lawful businesses.

Supporters of the law hold that California's shark fin sales ban is not a fisheries management regulation and its purposes, implementation and impacts are largely independent of fisheries regulations.

Laws requiring that sharks be landed with fins naturally attached focus on production of shark fin products — the act of shark finning itself, but "California's new prohibition on the sale of shark fins is a different kind of law, focused on the state's market for sale of shark fin products and eliminating the demand that fuels the cruel and unsustainable practice of shark finning," said Henry.

"This kind of market-based regulation is a valuable tool for addressing the conservation and welfare concerns associated with shark finning," he added.