State activism in the movement to conserve sharks: the Ninth Circuit's guidance on preemption and the Magnuson-Stevens Act in Chinatown Neighborhood Ass'n v. Harris.

Author:Ichinaga, Ryan
Position:2015 Ninth Circuit Environmental Review
  1. INTRODUCTION II. HISTORY OF THE MAGNUSON-STEVENS ACT III. SHARK FINNING AND CHINATOWN NEIGHBORHOOD ASS'N V. HARRIS A. Shark Finning and the Shortcomings of Previous State and Federal Laws B. Chinatown Neighborhood Ass'n v. Harris IV. THE NINTH CIRCUIT'S HOLDING THAT THE MAGNUSON-STEVENS ACT DOES NOT PREEMPT STATES FROM REGULATING FISHING RELATED ACTIVITIES WITHIN THEIR BOUNDARIES IN CHINATOWN A. The Doctrine of Preemption B. Express Preemption C. Conflict Preemption 1. The Ninth Circuit Held That of the Many Purposes of the Magnuson-Stevens Act, Conservation is Paramount, and States Are Not Required to Give Equal Weight to the Other Purposes of the Act 2. The Ninth Circuit Held That the Magnuson-Stevens Act Does Not Preempt State Law Simply When a State Law Impedes the Attainment of Optimum Yields D. Field Preemption E. The Ninth Circuit's Decision F. Judge Reinhardt's Dissent V. IMPLICATIONS OF CHINATOWN A. The Ninth Circuit Properly Relied on the Presumption Against Preemption B. Consequences of a Contrary Holding C. The Ninth Circuit's Decision Signals its Approval of State Landing Laws D. What Lies Ahead: States Are Putting the Concerns from National Marine Fisheries Service to Rest VI. CONCLUSION I. INTRODUCTION

    With their monstrous appearance and ferocious reputation, sharks are hardly thought of as animals that need protection. The media often portrays sharks as violent creatures to be feared. In the movie Jaws, (1) the mayor of a town terrorized by a great white shark aptly characterizes this irrational fear of sharks. He says, "it's all psychological. You yell 'barracuda,' everybody says 'Huh? What?' You yell 'shark,' we've got a panic on our hands on the Fourth of July." (2) While there certainly was reason to fear the great white in Jaws, it is actually sharks that should fear people. Because of an irrational fear of sharks, people can easily ignore the fact that sharks represent a fishery in urgent need of conservation. In reality, sharks are not impervious, but vulnerable to overfishing. Indeed, approximately one-quarter of sharks and their relatives are threatened worldwide. (3) Overfishing threatens the survival of sharks, and without adequate protections, many shark species will continue to face rapid declines.

    In a very short period of time, shark populations have plummeted. (4) This decline is largely driven by a growing demand for shark fins used as the signature ingredient in the Chinese delicacy shark fin soup. (5) Shark fin soup is a dish signifying affluence and prestige, and for that it commands a high price. (6) The high selling price of shark fins combined with the limited cargo space on fishing vessels have led to the cruel practice of "shark finning." Shark finning is the practice of catching a live shark, removing its fins and casting the body of the shark back to the ocean. The shark is left to die as it can no longer swim or breathe. (8) Shark finning has accelerated the decline of shark populations. (9)

    The falling shark population is troubling because sharks play an important role in ocean ecosystems. Their health often reflects a healthy ocean environment, while their absence can have devastating effects. For example, in areas where sharks were overfished along the Atlantic coast, entire fisheries have collapsed. (10) In other locations where sharks have been depleted, smaller predators have decimated their herbivore prey, leading to macroalgae overgrowth that can be fatal to coral reefs. (11) Ultimately, when sharks are removed from ocean ecosystems, the lack of diversity leads to an imbalance that can have untold consequences for fisheries, state and. national economies, and the environment. (12)

    Recognizing both the dire consequences of the declining shark population and the inhumane practice of shark finning, Congress and many state legislatures enacted laws prohibiting shark finning on fishing vessels. (13) However, in spite of these laws, tens of millions of sharks continued to die each year for their fins. (14) In response to these findings, several states decided to take a more proactive approach, enacting statewide bans on the possession and sale of shark fins. (15) California's ban was perhaps the most notable and controversial because California has the largest Chinese-American population of any state, and represented approximately 85% of shark fin consumption in the United States. (16) California's law (Shark Fin Law) made it a misdemeanor to possess, sell, trade, or distribute detached shark fins in California. (17)

    In August 2012, several associations with members who previously engaged in commerce involving shark fins made several unsuccessful attempts to enjoin the enforcement of California's Shark Fin Law. (18) In December 2013, the plaintiffs (the Neighborhood Association) filed an amended complaint. (19) However, the district court granted the defendants' motion to dismiss with prejudice, and denied the Neighborhood Association leave to amend. (20) The Neighborhood Association appealed the district court's grant of motion to dismiss and denial of leave to amend. In Chinatown Neighborhood Ass'n v. Harris (Chinatown), the United States Court of Appeals for the Ninth Circuit reviewed the district court's decision. (21)

    The Neighborhood Association contended that the Shark Fin Law conflicted with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (22), which governs fishery regulation at the federal level. (23) The MSA grants the federal government "sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the exclusive economic zone" (EEZ), (24) which spans from the seaward boundary of each coastal state to 200 miles offshore. (25) However, the MSA preserves jurisdiction of the states over fishery management within their boundaries. (26) In California, that boundary is three miles offshore. (27) Therefore, beyond this three-mile distance, the EEZ extends for another 197 miles; that area is subject solely to federal regulation. The Neighborhood Association argued that because the Shark Fin Law affected federal management in the EEZ, the law impermissibly conflicted with the federal government's authority under the MSA. (28) Thus, the central question in Chinatown was whether the MSA preempted the Shark Fin Law.

    The Ninth Circuit held that the MSA did not preempt the Shark Fin Law. (29) This has important implications for not only the states within the Ninth Circuit, but also for the United States as a whole. The Ninth Circuit's decision makes it abundantly clear that the primary goal of the MSA is conservation, (30) as opposed to other values of the MSA. (31) By upholding the Shark Fin Law, Chinatown stands for the proposition that a state law may prioritize one value of the MSA over another, especially if the state law promotes conservation. Because the Shark Fin Law promoted conservation, the Ninth Circuit was unwilling to set aside the law absent a showing of clear intent in the MSA to preempt state law. (32)

    This Chapter examines the Ninth Circuit's preemption analysis and the court's emphasis on the MSA's goal of conservation of fisheries in Chinatown. Part II provides background on the evolution of federal and state control over fisheries and the development of the MSA. Part III demonstrates the importance of sharks and the shortcomings of previous state and federal laws to prevent their decline. Part IV examines the doctrine of preemption and the Ninth Circuit's preemption analysis as it pertains to the MSA. Part V asserts that the Ninth Circuit's decision is a significant step towards conservation of sharks and other fisheries. I argue that Chinatown empowers states by recognizing their ability to use laws regulating conduct on land to conserve fisheries. This recognition affords states the flexibility to take stronger conservation measures to control fisheries. This Chapter concludes that the Ninth Circuit's decision is consistent with the MSA and is promising for shark populations.


    Federal regulation of the United States' fisheries is a relatively recent phenomenon. Traditionally, states controlled ocean fisheries for about three miles away from their shores as part of their police powers (33) without the need for federal government intervention. (34) However, in the years following World War II, state management proved to be inadequate to deal with fishery developments in the United States. (35) Foreign fishing fleets grew and the relatively small domestic fleets struggled to compete with their foreign counterparts. (36) Thus, fishery regulation at the federal level became imperative.

    In 1973, the United Nations convened the Third Conference on the Law of the Sea (UNCLOS III) to settle questions of coastal state jurisdiction and fish stock conservation. (37) UNCLOS III established EEZs in which coastal nations had "sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living." (38) The EEZs extended from a country's seaward boundary to 200 miles offshore. (39) The establishment of EEZs granted these countries exclusive control over their fisheries in areas that were previously part of the international commons. (40)

    However, multilateral treaties and regional fisheries organizations were largely unsuccessful in slowing the depletion of fish stocks. (41) Congress feared that multilateral negotiations were not moving along fast enough to prevent the decimation of offshore fisheries and the U.S. fishing industry. (43) As a result, in 1976 Congress passed the Fishery Conservation and Management Act, (43) now named the MSA. The MSA "was enacted to establish a federal-regional partnership to manage fishery resources." (44) The MSA's policies and purposes not only include the conservation, development, and management of fishery resources, but...

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