Why the Court Got it Right in Upholding California's Shark Fin Law

Credit: Great white shark photo by Hermanus Backpackers, via Creative Commons

Want to nerd out on constitutional law and sharks?  You’ve come to the right place.

As I mentioned yesterday, the U.S. District Court just upheld California’s shark fin ban against a legal challenge in which shark fin merchants claimed the ban was unconstitutional.  My blog post yesterday explained why fin bans are important, what happened in the lead-up to the court’s decision, and what it means for a court to grant a motion to dismiss.  (It also contained an amazingly cute cartoon of Jerry Brown and a shark, which you should check out even if you don’t read the rest of the post...)

Today, I’m going to walk you through the specific claims and issues in the lawsuit, and explain why the court got it right in concluding that the plaintiffs just couldn’t make their case.

If you recall, this lawsuit involved three main claims—violation of the Equal Protection clause of the U.S. Constitution, violation of the dormant Commerce Clause, and federal preemption.  Let’s take them one by one.

Equal Protection

The Equal Protection claim essentially argued that the California Legislature was discriminating against people of Chinese ancestry when it passed the shark fin law.  To win on this claim, it’s not enough to just show that Chinese-Americans were the main ones affected by the California fin ban.  The legal standard established by Equal Protection case law is that the California Legislature had to have known that its action would have a heavy impact on Chinese-Americans, and took the action because of that impact.   Distinguish this from the situation where the California Legislature knew its action would impact people of Chinese ancestry, and went ahead with the action in spite of the impact. The latter is allowed under the Equal Protection clause, whereas the former is not.

In this case, there simply was no evidence showing that the California Legislature intentionally enacted the shark fin ban to impact Chinese-Americans.  Rather, abundant evidence shows that the legislature’s decision to ban shark fins was motivated by conservation, animal welfare, and human health reasons.  They even said as much on paper, in the section of the law declaring its purpose.  Plaintiffs offered a few statements by legislators and supporters of the ban that they believed showed racial bias, but these out-of-context remarks just didn’t add up to much.  So there really wasn’t a viable Equal Protection claim here, and the court was right to toss this claim out.

Dormant Commerce Clause

A dormant Commerce Clause claim is a strange beast.  It’s a claim in which the plaintiffs argue that a state or local law is impeding interstate commerce, and should be struck down.  Not just any law can be struck down, though.  To be vulnerable to a dormant Commerce Clause challenge, a state or local law has to have some kind of troubling aspect—like it messes with other states’ regulatory prerogatives, protects locals at the expense of outsiders, externalizes costs outside the jurisdiction, or arbitrarily shakes down people for money.  If you think about federal, state, and local laws all fitting together like a bunch of gears in a gearbox, dormant Commerce Clause claims are trying to screen out poorly-shaped state and local laws that would disrupt the smooth meshing of the gears.

So long as a law avoids these troubling aspects (like local favoritism, externalizing costs, etc.) that would cause grinding in the gearbox, it will not be vulnerable to a dormant Commerce Clause challenge.  This is true even for laws that directly affect interstate commerce—for example, it’s generally fine for a state to decide that it doesn’t want to allow a certain kind of product to be sold within its borders, even if some of the product comes from interstate commerce.

In the shark fin lawsuit, the court analyzed the California fin ban and concluded correctly that it’s not problematic in any way that would disrupt the gearbox.  In particular, the California fin ban deals with conduct within the state’s borders, and it doesn’t force anyone to behave any particular way outside California borders.  (Note that upstream market effects are okay, like the reduced shark slaughter that will hopefully occur in other jurisdictions due to the reduced demand created by banning fins in California.  It’s only a dormant Commerce Clause problem when a state law directly reaches out and tries to force behavior by actors in other jurisdictions; changed behavior in other jurisdictions due to indirect market incentives are not a problem.)  Furthermore, the California fin ban doesn’t discriminate against outsiders in favor of locals, and it doesn’t represent an arbitrary squeezing of interstate commerce in order to line the state’s coffers.

The shark fin ban is just a garden-variety regulation of commerce, and a minor one at that—a few hundred thousand or million dollars, in the context of California’s $2-trillion economy.  As such, the court was right to dismiss the dormant Commerce Clause claim.


Federal preemption is where a state or local law has to be struck down because it infringes on federal regulatory prerogatives.  Generally speaking, this happens when federal law explicitly tells the states to stay out of an area (express preemption), when federal law is so comprehensive that there’s just no room for state involvement (field preemption), or when there’s some other reason to think that the state regulation is inconsistent with the federal regulatory approach (conflict preemption).

There has been some confusion recently over the preemption status of state shark fin bans, because the National Oceanic and Atmospheric Administration (NOAA) itself got confused and issued a proposed rule saying that state fin bans may be preempted.  The agency later researched the facts and realized this wasn’t necessarily true, and has slowly reversed its position.  I won’t bore you with the details of the NOAA saga; take a look at this blog post if you want to learn more.

Fortunately, yesterday’s court decision provides some good analysis and precedent that should help clarify the issue.  The court started by examining the goals of federal fisheries law, correctly noting that conservation is the primary goal, and concluded that the California fin ban (which also was designed to further conservation goals) was consistent with federal objectives.  Next the court observed that the California fin ban and federal fisheries law regulate separate spheres—the fin ban deals with conduct on land and in the stream of commerce, whereas federal law deals with conduct on the water by fishermen.  Finally, the court recognized that the California law fits together just fine with federal law:  under federal law, fishermen must land sharks with all fins attached, and the California fin ban simply says that if the fin is subsequently detached, it can’t be sold.  So it’s completely possible to comply with both federal and California law simultaneously.

Based on all of this, the court concluded that “Nothing in [federal law] requires a state to allow the possession or trading of shark fin[s],” which is another way of saying that federal law does not preempt state fin bans.  This is the right conclusion, and hopefully it will clear the air around preemption and these kinds of state laws.

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The district court’s order dismissing the case represents the final stage of this lawsuit at the trial court level.  Now plaintiffs’ only option is to appeal to the Ninth Circuit U.S. Court of Appeals.  So sharks and their friends can rest a bit easier, as all this nonsense is one important step closer to being done.