Feds Argue California’s Shark Fin Ban Is Preempted in Third-Party Litigation

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I'm not sure why anyone is surprised

The amicus brief referred to in the article, as well as the regulations currently proposed by NMFS, seem to have taken a lot of folks in the marine conservation community by surprise.  I'm not sure why that is so.
 
The Magnuson-Stevens Fishery Conservation and Management Act, which governs the harvest of fish in federal waters (generally, 3-200 miles offshore), states that the feds shall have "exclusive fishery management authority" in such waters.  While it is possible to argue that a ban on the possession of fins on land is different from the process of managing the species from which the fins were taken, it's just as possible--and probably easier--to argue that a ban on possession is a de facto management measure that effectively restricts harvest, above and beyond whatever management measures might be imposed by the feds. 
 
When I discussed a similar bill with conservation interests in another state, I mentioned both the federal preemption issue and the possibility that any such bill would be deemed to be an unreasonable restriction on interstate commerce, and thus barred by the Commerce Clause of the US Constitution (e.g., if a longliner legally harvests a mako shark in the North Atlantic, pursuant to provisions of the National Marine Fisheries Service's Highly Migratory Species Fishery Management Plan, and that shark is landed legally in Gloucester, MA, what compelling state interest can the State of California claim which would justify a prohibition on the sale of those fins within the state?  The shark was not caught in California waters, and was harvested and landed legally under applicable law.  So how can the state of California claim that the interests of either it or its citizens were put in peril if the fins were sold and possessed within that state?  The only thing that California could possibly claim was its citizens' general interest in a healthy marine ecosystem, but that is an interest shared by all US citizens, and one that the US government had already addressed when it issued the management plan which allowed the mako's capture.)  However, the person who I spoke with didn't seem to take either possibility seriously, even though there is plenty of federal law which suggests that both arguments could be successful.  It seemed to be wishful thinking, a sort of "we want to get this bill passed, and so we're not going to worry about such things," along with what now seems to be an ironic comment "This didn't come up in Calfornia." 
 
In many ways, this is too bad.  I have real sympathy for the goals of the bill; finning is a wasteful and destructive practice that should be halted.  On the other hand, the folks who spearhead efforts such as the finning ban have access to good legal resources, and should be asking for and obtaining legal advice which lays out the potential pitfalls that might confront such legislation, including such potential obstacles as federal preemption.  Putting a lot of effort into what might well be a doomed effort wouldn't appear to be a wise use of resources.  Of course, there is also the philosophy of "Nothing ventured, nothing gained," and maybe the preemption issue was considered, but they went forward anyone, hoping that courts would be sympathetic--and maybe they will be, although I suspect that, just based on predominating judicial philosophies, the 4th or 5th Circuits, both of which sit in conservative areas with significant shark fisheries, might by more willing to find federal preemption on this issue than would the ninth, which tends to be the most liberal Circuit in the nation. 

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