Fish and Game Chapter 524: The Ecology and Controversy of Shark-Fin Soup

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Fish and Game
Chapter 524: The Ecology and Controversy of Shark-Fin
Soup
Rebecca Tatum
Code Sections Affected
Fish & Game Code § 2021 (new).
AB 376 (Fong & Huffman); 2011 STAT. Ch. 524.
Companion Bill:
Fish & Game Code § 2021.5 (new).
AB 853 (Fong); 2011 STAT. Ch. 525.
I. INTRODUCTION
Born in China, California State Assembly Member Paul Fong grew up in
1
Northern California. On very special occasions, his family served an extravagant
2
traditional delicacy: shark-fin soup. He recalls its unique texture and remembers
3
the excitement of trying a taste. Nevertheless, Fong introduced controversial
legislation, the California Shark Protection Act, which will essentially prevent
him, other Chinese-Americans, or anyone else from ever legally tasting shark-fin
4
soup in California again.
1. California State Assembly Democratic Caucus, Biography: Paul Fong, http://asmdc.org/members/a22/
biography?layout=item (last visited Jan. 15, 2012) (on file with the McGeorge Law Review); Claudia Cruz,
Local Politician Takes on Shark-Fin Soup in Restaurants, LOS ALTOS PATCH (Feb. 25, 2011),
http://losaltos.patch.com/articles/local-politician-takes-on-shark-fin-soup-in-restaurants (on file with the
McGeorge Law Review).
2. Shark-fin soup is a traditional Chinese delicacy served at wedding banquets and other special
occasions. Ancient Chinese culture includes the soup as one of the “four treasures” of Chinese cuisine. Today,
many Chinese and Chinese-Americans consider that the ability to serve the soup at special occasions reflects
well upon their family’s social status. Patricia Leigh Brown, Soup Without Fins? Some Californians Simmer,
N.Y. TIMES (Mar. 5. 2011), http://www.nytimes.com/2011/03/06/us/06fin.html?_r=2&ref=todayspaper (on file
with the McGeorge Law Review); Peter Fimrite & Jessica Kwong, Calif. Shark Fin Bill Would Ban Chinese
Delicacy, S.F. CHRON. (Feb. 15, 2011), http://articles.sfgate.com/2011-02-15/news/28536314_1_sharkfin-shark-population-sharks-fall (on file with the McGeorge Law Review).
3. YouTube: Assembly Member Fong’s California Shark Protection Act, http://www.
youtube.com/watch?v=CnZCaE-ukGE (last visited Jan. 15, 2012) (on file with the McGeorge Law Review).
4. Michelle Woo, California Proposes to Ban Shark’s Fin Soup—Is It Anti-Chinese?, O.C. WEEKLY
BLOG (Mar. 9, 2011, 7:01 AM), http://blogs.ocweekly.com/stickaforkinit/2011/03/california_sharks_
fin_soup_ban.php (on file with the McGeorge Law Review). Fong’s co-author is Assembly Member Jared
Huffman. Id.
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Fong attributes his change of heart to discovering the effect that demand for
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the soup is having on shark populations and ocean ecosystems. Approximately
one-third of shark species worldwide are in danger of extinction, and most
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remaining shark species are in stunning decline. Researchers agree that the
escalating demand for fins for shark-fin soup is driving this downward trend;
recent data shows that fishermen kill as many as seventy-three-million sharks for
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their fins alone each year. When Fong became aware of this practice and the
decline of sharks, he stopped eating the soup and started to consider ways to
reduce California’s contribution—as the biggest market for shark fins outside of
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Asia—to this global problem.
Federal and California regulations already ban the practice of shark-finning,
which typically entails slicing off the fins and tail and throwing the living,
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paralyzed shark overboard to die slowly. Fong describes finning as “a horrific
scene,” and acknowledges that the cruelty of the practice is one factor that
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motivated him to introduce shark-protective legislation. The extraordinary value
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of the fins, up to $2,000 per pound, incentivizes this wasteful practice. In
contrast, shark-meat dealers can only sell the sharks’ meat for around $1 per
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pound, and the meat of most shark species is not palatable. As a result, there
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exist very few commercial shark-meat fisheries. Additionally, the sharks’
bodies take up valuable cargo space aboard ships that the fishermen could
otherwise use to transport the pricey fins, encouraging them to throw back the
14
practically valueless meat and retain only the fins. According to Fong, with the
market for fins so lucrative, anti-finning regulations are and will continue to be
5. Fimrite & Kwong, supra note 2.
6. Krista Mahr, Shark-Fin Soup and the Conservation Challenge, TIME (Aug. 9, 2010), http://www.time.
com/time/health/article/0,8599,2009391,00.html [hereinafter Mahr, Shark-Fin Soup] (on file with the
McGeorge Law Review); Brown, supra note 2.
7. Shelley C. Clarke et al., Global Estimates of Shark Catches Using Trade Records From Commercial
Markets, 9 ECOLOGY LETTERS 1115, 1115 (2006); Fimrite & Kwong, supra note 2.
8. Fimrite & Kwong, supra note 2; Anne Marie Houppert, California Bans Shark Fin Trade, NAT’L
GEOGRAPHIC DAILY NEWS (Oct. 11, 2011), http://newswatch.nationalgeographic.com/2011/10/11/californiabans-shark-fin-trade/ (on file with the McGeorge Law Review).
9. Krista Mahr, A Happier Year in Store for America’s Sharks?, TIME (Dec. 21, 2010),
http://ecocentric.blogs.time.com/2010/12/21/a-happier-year-in-store-for-america’s-sharks [hereinafter Mahr, A
Happier Year] (on file with the McGeorge Law Review); Fimrite & Kwong, supra note 2.
10. Brown, supra note 2.
11. Rosanna Xia, Chinese American Food Purveyors Object to Law Banning Shark Fins, L.A. TIMES
(Oct. 10, 2011), http://www.latimes.com/news/local/la-me-shark-fin-ban-react-20111010,0,1918974.story (on
file with the McGeorge Law Review).
12. Telephone Interview with Michael Sutton, Vice President, Ctr. for the Future of the Oceans,
Monterey Bay Aquarium, Professor, Vermont Law Sch. and Comm’r, Cal. Fish & Game Comm’n (Oct. 5,
2011) [hereinafter Sutton Interview] (notes on file with the McGeorge Law Review).
13. Id.
14. OCEANA, THE INTERNATIONAL TRADE OF SHARK FINS: ENDANGERING SHARK POPULATIONS
WORLDWIDE (Mar. 2010), available at http://na.oceana.org/sites/default/files/reports/OCEANA_international
_trade_shark_fins_english.pdf [hereinafter OCEANA REPORT] (on file with the McGeorge Law Review).
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ineffective: he believes the only solution lies in Chapter 524’s ban of shark fin
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possession or sale.
II. LEGAL BACKGROUND
As recognition of the extent and ramifications of shark overfishing grows,
nations across the world have begun enacting laws aimed at reducing the
16
problem. Any legal solution to reduce shark overfishing requires global
implementation to be effective: the problem involves markets and suppliers in
both hemispheres, trade ricocheting between the continents, and a group of
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animals at stake whose voyages respect no national boundaries. Shark-finners
not only fish sharks in international waters, but also in the national waters of
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virtually every nation with an ocean border. The market for their fins is equally
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international. Scientists have called for a coordinated international effort to
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reduce shark overfishing. Chapter 524 joins an increasingly stringent network of
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national and international laws and agreements regarding shark fishing.
A. International Shark Agreements
The international community has implemented a number of independent
22
agreements intended to curtail shark overfishing. Several factors limit their
23
collective effectiveness. Chief among these are the lack of implementation and
15. Press Release, Assembly Member Paul Fong, Assembly Members Fong and Huffman Fighting To
Save Sharks (Feb. 14, 2011), available at http://asmdc.org/members/a22/news-room/press-releases/item/
2972-assemblymembers-fong-and-huffman-fighting-to-save-sharks [hereinafter Fong Press Release] (on file
with the McGeorge Law Review). Note that Chapter 525, discussed infra Parts III and IV.E, amends Chapter
524 to clarify some limited circumstances in which people may possess shark fins. CAL. FISH & GAME CODE
§ 2021.5 (enacted by Chapter 525); Juliet Eilperin, California Adopts Shark Fin Ban, WASH. POST (Sept. 7,
2011), http://www.washingtonpost.com/national/health-science/california-adopts-shark-fin-ban/2011/09/06/gIQ
ACgsD9J_story.html (on file with the McGeorge Law Review).
16. See generally Mahr, A Happier Year, supra note 9 (discussing the hopeful reduction in shark-finning
due to international responses).
17. Letter from Oceana to Nat’l Marine Fisheries Service 20 (Aug. 1, 2011), available at
http://na.oceana.org/sites/default/files/Shark_Conservation_Act_Import_Restrictions_Identification_of_Nations
_Aug_1_2011.pdf (on file with the McGeorge Law Review).
18. MARY LACK & GLENN SANT, TRAFFIC INTERNATIONAL & PEW ENVIRONMENT GROUP REPORT,
THE FUTURE OF SHARKS: A REVIEW OF ACTION AND INACTION (Jan. 2011), available at http://www.
traffic.org/home/2011/1/27/shark-populations-dwindle-as-top-catchers-delay-on-conservat.html (on file with the
McGeorge Law Review).
19. OCEANA REPORT, supra note 14.
20. News Release, Int’l Union for Conservation of Nature, Third of Open Ocean Sharks Threatened with
Extinction (June 25, 2009), available at http://www.iucn.org/about/work/programmes/species/?3362/Third-ofopen-ocean-sharks-threatened-with-extinction (on file with the McGeorge Law Review).
21. See generally id. (providing information on international efforts to stop shark endangerment).
22. Holly Edwards, Comment, When Predators Become Prey: The Need for International Shark
Conservation, 12 OCEAN & COASTAL L.J. 305, 305, 307 (2007).
23. Id. at 305.
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enforcement by member nations, the existence of the thriving black market in
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shark fins, and the agreements’ incomplete coverage of shark species.
1. IPOA-Sharks
The United Nations’ Food and Agricultural Organization (FAO) promulgated
25
its shark program, IPOA-Sharks, in 1999. The FAO designed this voluntary
measure to “ensure the conservation and management of sharks and their
26
long-term sustainable use.” It asks nations whose citizens “contribute to fishing
mortality” of sharks to participate in managing the shark species involved by
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developing “Shark-plans” to regulate harvests down to sustainable levels.
IPOA-Sharks gives shark-fishing states suggestions for developing their own
Shark-plans, monitoring the plans’ effectiveness, and reporting regularly to the
28
29
FAO. The FAO itself retains only an advisory and reporting role. With
IPOA-Sharks’ lack of enforcement “teeth” or incentives to participate, few
30
nations have bothered to prepare a Shark-plan. Further, the few that have
written a Shark-plan are likely presenting inaccurate data to the FAO as a result
of research funding shortfalls and a nearly complete failure to report illegal black
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market catches.
2. CITES
The parties to the world’s largest conservation agreement, the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES)
adopted a shark resolution, “Status of International Trade in Shark Species,” in
32
33
1994. CITES restricts international trade in “endangered” species. Regulation
stringency varies with the level of endangerment (and the likelihood of
24. Id.
25. U.N. FOOD & AGRIC. ORG., INTERNATIONAL PLAN OF ACTION FOR THE CONSERVATION AND
MANAGEMENT OF SHARKS (Nov. 1999), available at http://www.fao.org/docrep/006/x3170e/x3170e03.htm (on
file with the McGeorge Law Review).
26. Id. at 12–13.
27. See id. at 13 (stating that nations who contribute to shark mortality include those who allow fishing
in their national waters or whose fishermen catch sharks on the high seas of international waters).
28. Id. at 13–15.
29. Id. at 15.
30. Edwards, supra note 22, at 308.
31. Id. at 308–09.
32. Id. at 319; What Is CITES?, CITES, http://www.cites.org/eng/disc/what.php (last visited Apr. 17,
2012) (on file with the McGeorge Law Review) (noting that there are currently 175 member nations of CITES,
including the U.S.).
33. The CITES Appendices, CITES, http://www.cites.org/eng/app/index.php (last visited Apr. 16, 2012)
(on file with the McGeorge Law Review) (defining “endangered” as being in danger of extinction); Edwards,
supra note 22, at 328–30.
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extinction). The frequency of trading in each species factors into its level of
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regulation as well. CITES’ regulations are binding on member nations unless a
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nation expressly elects to exclude itself from regulation as to a specific species.
CITES, however, regulates only three shark species out of the approximately
400 shark species in existence and lacks a centralized body to enforce its
37
regulations. Many of the top shark-fishing nations have opted out of regulation
38
as to the three covered species. While member nations may enforce CITES
through trade sanctions in certain circumstances, lack of funding to help member
nations control their endangered species trade means that developing nations are
39
often unable to comply. Finally, the black market in endangered animals is, by
40
its very nature, outside CITES’ (or its member nations’) sphere of control.
3. Convention on the Conservation of Migratory Species of Wild Animals
Multiple nations, not including the United States, became parties to the
Convention on the Conservation of Migratory Species of Wild Animals (CMS) in
41
1979. An intergovernmental treaty under the United Nations Environment
Programme, CMS covers endangered species as well as those whose
42
conservation status indicates a potential for endangerment. CMS requires strict
43
protection for endangered species. As to potentially endangered species, CMS
requires member states to enter into agreements among themselves for those
44
species’ benefit. A non-legally binding Memorandum of Understanding (Shark
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MOU), entered into in 2010, protects shark species listed under either category.
46
The total number of shark species listed by CMS, however, is only seven.
34. Id. at 329.
35. Id.
36. Id. at 331.
37. Id. at 333; Our Fear of and Fascination with Sharks, NOAA MAGAZINE (June 3, 2002),
http://www.magazine.noaa.gov/stories/mag36.htm (on file with the McGeorge Law Review).
38. Edwards, supra note 22, at 333.
39. Id. at 335–36.
40. Id. at 337.
41. CMS currently includes 116 member parties. The United States is a not a member but is a shark
“Memorandum of Understanding” signatory. About CMS: Introduction to the Convention on Migratory Species,
CMS, http://www.cms.int/about/intro.htm (last visited Oct. 11, 2011) [hereinafter About CMS] (on file with the
McGeorge Law Review); National Participation, CMS, http://www.cms.int/about/all_countries_eng.pdf (last
visited Oct. 11, 2011) (on file with the McGeorge Law Review).
42. About CMS, supra note 41.
43. Id.
44. Id.
45. CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS, MEMORANDUM
OF UNDERSTANDING ON THE CONSERVATION OF MIGRATORY SHARKS 2 (Feb. 12, 2010), available at
http://www.cms.int/species/sharks/MoU/Migratory_Shark_MoU_Eng.pdf (on file with the McGeorge Law
Review).
46. Id. at 10.
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The parties signing the Shark MOU, including the United States, have agreed
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to adopt a collective Shark Conservation Plan. Goals of the plan will include
increasing research and monitoring, ensuring that shark fisheries are sustainable,
48
and protecting shark habitats. The signatories also agreed to enforce
anti-shark-finning laws, or where lacking, to enact legislation prohibiting
49
shark-finning. Finally, signatories have agreed to develop Shark-plans as
50
directed by IPOA-Sharks. Although the Shark MOU went into effect only a
year ago, its parties have already decided to permanently ban fishing for three
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shark species.
B. Foreign Shark Regulations
Shark-finning is increasingly illegal on a global basis; since 2004, at least
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sixty nations have banned the practice. The President of the island nation Palau
created the world’s first shark sanctuary in 2009, outlawing all commercial
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shark-fishing in Palau’s national waters. Honduras followed suit in 2010, and in
June 2011, Mexico placed a seasonal moratorium on all shark-fishing in its
54
federal waters. Further, in October 2011, the Republic of the Marshall Islands
created a 768,547-square-mile shark sanctuary encompassing the entirety of its
55
national waters. Although China has not banned shark-fishing or finning, in
early 2011, a group of Chinese legislators proposed that the Chinese National
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People’s Congress pass a law banning the shark-fin trade.
47.
48.
49.
50.
51.
Id. at 5.
Id.
Id. at 6.
Id.; see also supra Part II.A.1 (discussing IPOA-Sharks’ directives to create shark-plans).
INT’L UNION FOR THE CONSERVATION OF NATURE, SHARK SPECIALIST GROUP, CONVENTION ON
MIGRATORY SPECIES, http://www.iucnssg.org/index.php/convention-on-migratory-species (last visited Oct. 12,
2011) (on file with the McGeorge Law Review).
52. Juan Forero, Hidden Cost of Shark Fin Soup: Its Source May Vanish, N.Y. TIMES (Jan. 5, 2006),
http://www.nytimes.com/2006/01/05/international/americas/05sharks.html (on file with the McGeorge Law
Review).
53. Alexandra Cheney, Sanctuary to Counter Shark Fin Soup Market, N.Y. TIMES BLOG (Oct. 8, 2009,
9:23 AM), http://green.blogs.nytimes.com/2009/10/08/sanctuary-to-counter-shark-fin-soup-market/ (on file
with the McGeorge Law Review).
54. Renee Schoof, Palau and Honduras: World Should Ban Shark Fishing, MCCLATCHY NEWSPAPERS
(Sept. 22, 2010), http://www.mcclatchydc.com/2010/09/22/100993/palau-and-honduras-world-should.html (on
file with the McGeorge Law Review); Analia Murias, Shark Fishing Banned in Mexican Waters, FISH INFO. &
SERVICES (June 7, 2011), http://www.fis.com/fis/worldnews/worldnews.asp?l=e&country=0&special=
&monthyear=&day=&id=43394&ndb=1&df=0 (on file with the McGeorge Law Review).
55. Marshall Islands Creates World’s Largest Shark Sanctuary, ENV’T NEWS SERVICE (Oct. 7, 2011),
http://www.ens-newswire.com/ens/oct2011/2011-10-07-01.html (on file with the McGeorge Law Review).
56. Ma Shukun & Cao Guochang, Chinese Billionaire Lawmaker Urges Legislation Against Shark Fin
Trading, XINHUA NEWS (Mar. 9, 2011), http://news.xinhuanet.com/english2010/china/2011-03/09/c_
13769494.htm (on file with the McGeorge Law Review).
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C. Federal Shark Regulations
In the United States, federal law has prohibited the practice of shark-finning
57
since 2000. However, because importing the fins remained legal, this legislation
58
appears to have had a limited effect on the worldwide trade. One flaw in the
federal law’s enforcement was a loophole allowing boats to transport shark fins,
as long as the fishermen did not fin the sharks aboard that vessel; enforcement
59
essentially required catching fishermen in the act of finning. In an attempt to
correct this oversight, President Obama signed the Shark Conservation Act of
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2010 into law on January 4, 2011. This Act prohibits United States vessels from
carrying shark fins without the corresponding number of still-attached shark
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carcasses onboard.
Several limitations hamper the effectiveness of the federal regulatory
62
scheme, however. Federal law bans finning on United States registered vessels
63
in United States waters, but has no impact on foreign ships. Federal law fails to
64
regulate any aspect of the fin trade on land. Further, United States law does not
govern the unregulated “high seas” of international waters, where most
65
shark-finning occurs.
D. State Shark Regulations
66
Until 2010, no state statutes banned the possession or sale of shark fins.
Instead, with legislation similar to California’s Fish and Game Code section
67
7704(c), states attempted to cut down on finning by banning the practice. In
2010, Hawaii became the first U.S. state to move beyond its statute banning the
act of shark-finning in order to outlaw the mere possession, trade, or sale of shark
68
fins. The Governor of the United States territory, Guam, signed a shark-fin ban
57. Shark Finning Prohibition Act of 2000, 16 U.S.C. § 1857(1)(P) (2000) (banning the practice of
shark-finning); Mahr, A Happier Year, supra note 9.
58. Brown, supra note 2.
59. Id.
60. 16 U.S.C.A. § 1857(1)(P) (West 2011) (as amended by H.R. 81).
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Jessica Spiegel, Even Jaws Deserves to Keep His Fins: Outlawing Shark Finning Throughout Global
Waters, 24 B.C. INT’L & COMP. L. REV. 409 (2001); see Mahr, Shark-Fin Soup, supra note 6 (explaining that in
2010, Hawaii became the first U.S. state to ban the possession or sale of shark fins).
67. California’s anti-finning legislation passed in 1995. Timothy J. Moroney, Environmental Protection;
Commercial Fishing, 27 PAC. L.J. 718, 719 (1996).
68. HAW. REV. STAT. § 188-40.7 (West 2011); Mahr, Shark-Fin Soup, supra note 6.
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in March 2011. Washington state followed in May 2011, and Oregon in August
70
2011.
III. CHAPTER 524
The California Shark Protection Act, Chapter 524, makes it “unlawful for
71
any person to possess, sell, offer for sale, trade, or distribute a shark fin.”
Excluded from the ban are those who possess a license from the Department of
Fish and Game (DFG) to catch and possess whole “sharks for recreational or
72
commercial purposes.” The law also exempts those holding DFG licenses to
73
take sharks for scientific, educational, or propagational purposes. Chapter 525,
the companion bill, clarifies that parties so licensed may also receive fins in
74
donation from DFG-licensed fishermen. In addition, Chapter 524, as modified
by Chapter 525, allows restaurants to prepare and sell, through July 2013, any
75
shark fins in stock on or before January 1, 2012. Finally, Chapter 525 modifies
Chapter 524 to require that the Ocean Protection Council provide a report to the
76
legislature each year detailing any certified-sustainable shark species.
IV. ANALYSIS
A. Ocean Ecology
Recent research estimates that shark hunters kill, solely for their fins, as
77
many as seventy-three-million sharks each year. The scientific community
agrees that this rate of harvest is driving many shark species toward swift
78
extinction. Unlike other fish, the shark’s biology makes it extremely difficult for
69. Press Release, Humane Society Int’l, HSI Applauds Guam Governor for Signing Shark Protection
Bill (Mar. 9, 2011), http://www.hsi.org/news/press_releases/2011/03/guam_sharkfin_ban_030911.html (on file
with the McGeorge Law Review).
70. S.S.B. 5688, 62d Leg., Reg. Sess. (Wash. 2011); H.B. 2838, 76th Leg. Assemb., Reg. Sess. (Or.
2011).
71. CAL. FISH & GAME CODE § 2021(a)–(b) (enacted by Chapter 524) (“‘[S]hark fin’ means the raw,
dried, or otherwise processed detached fin [or] tail, of an elasmobranch.”).
72. Id. § 2021(b), (d) (enacted by Chapter 524).
73. Id.
74. Id. § 2021.5(a)(1) (enacted by Chapter 525).
75. Id. § 2021(e) (enacted by Chapter 524); id. § 2021.5(a)(2) (enacted by Chapter 525).
76. Id. § 2021.5(b) (enacted by Chapter 525); CAL. PUB. RES. CODE § 35550 (explaining that the Ocean
Protection Council must use internationally accepted standards that meet or exceed the FAO’s Guidelines for
the Ecolabeling of Fish and Fishery Products from Marine Capture Fisheries in developing this list).
77. Brown, supra note 2.
78. See, e.g., Taylor Chapple et al., A First Estimate of White Shark, Carcharodon Carcharias,
Abundance off Central California, 7 ROYAL SOC’Y BIOLOGY LETTERS 581 (Aug. 23, 2011) (estimating that
there remain just 219 white sharks off the coast of Central California); Julia Baum et al., Collapse and
Conservation of Shark Populations in the Northwest Atlantic, 299 SCI. 389, 389 (2003) (finding all northwest
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their populations to rebound from overfishing. Many shark species’ life cycles
are surprisingly similar to humans’: most sharks do not reach reproductive age
until their teens, and many bear only a small number of live young after as long
80
as two years of gestation. The result is that the recovery of a collapsed shark
81
population is a lengthy and uncertain process.
The decline of the shark, a top ocean predator, threatens dire circumstances
82
for the ocean ecosystem as a whole. The shark is an apex predator, meaning that
83
it is at the top of the food chain and has few or no natural predators itself. Apex
84
predators like sharks keep populations of their prey species in check. Sharks
serve a crucial role in keeping the ecosystem balanced: when an apex predator
disappears from a system, its prey species reproduce wildly, decimating their
food sources in the process, leading to population crashes and out-of-balance
85
ecology. Relying primarily on the strength of this argument, the Monterey Bay
Aquarium, a major marine science and conservation institute, led a coalition of
86
groups in supporting Chapter 524’s journey through the legislative process.
B. Chinese-American Opposition
Because Senator Leland Yee was one of only two California senators in 2010
to receive perfect scores from all three major environmental voting scorecards,
some commentators found it surprising that he served as the major voice of
Atlantic shark populations have declined by at least fifty percent); Julia Baum & Ransom Myers, Shifting
Baselines and the Decline of Pelagic Sharks in the Gulf of Mexico, 7 ECOLOGY LETTERS 135, 141 (2004)
(finding whitetip and silky sharks in the Gulf of Mexico have declined by ninety-nine and ninety percent,
respectively). “It has become increasingly clear that the international demand for shark fins is the driving force
behind most shark fisheries today.” MERRY D. CAMHI ET AL., THE CONSERVATION STATUS OF PELAGIC
SHARKS AND RAYS: REPORT OF THE IUCN SHARK SPECIALIST GROUP PELAGIC SHARK RED LIST WORKSHOP,
IUCN SPECIES SURVIVAL COMMISSION SHARK SPECIALIST GROUP 30 (2009), available at http://cmsdata.
iucn.org/downloads/ssg_pelagic_report_final.pdf (on file with the McGeorge Law Review).
79. ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE, COMMITTEE ANALYSIS OF AB 376, at 2
(Mar. 22, 2011).
80. Shark Tidbits, NOVA, http://www.pbs.org/wgbh/nova/sharkattack/tidbits.html (last updated May
2002) (on file with the McGeorge Law Review).
81. See ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE, COMMITTEE ANALYSIS OF AB 376,
at 2 (Mar. 22, 2011) (describing the difficulty of trying to recover collapsed shark populations).
82. SHARK CONSERVATION, FLORIDA MUSEUM OF NATURAL HISTORY, http://www.flmnh.ufl.edu/
fish/education/questions/Conservation.html (last visited July 1, 2011) (on file with the McGeorge Law Review);
see also CRISTINA EISENBERG, THE WOLF’S TOOTH: KEYSTONE PREDATORS, TROPHIC CASCADES, AND
BIODIVERSITY 32–33, 158–62 (2011) (discussing the importance of apex predators for the health of an entire
ecosystem).
83. SHARK BIOLOGY, FLORIDA MUSEUM OF NATURAL HISTORY, http://www.flmnh.ufl.edu/fish/
education/questions/Biology.html (last visited July 1, 2011) (on file with the McGeorge Law Review).
84. Id.
85. EISENBERG, supra note 82, at 23; SENATE COMMITTEE ON NATURAL RESOURCES AND WATER,
COMMITTEE ANALYSIS OF AB 376, at 2–3 (June 24, 2011).
86. See generally SENATE COMMITTEE ON NATURAL RESOURCES AND WATER, COMMITTEE ANALYSIS
OF AB 376 (June 24, 2011) (describing the bill’s support).
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87
opposition to Chapter 524. Some journalists characterized the debate as
environmentalism versus Chinese-American culture and portrayed Yee as taking
88
the side of his Chinese heritage. However, this overly simplistic dualism
89
probably misrepresented the issue. First, Yee and the members of the
opposition, mainly composed of Chinese-American citizens, restaurateurs,
market-owners, and seafood importers, tended not to disagree with Chapter 524’s
90
motivation. They simply felt that Californians could find a better way to save
sharks from overfishing while also protecting livelihoods dependent on the
91
shark-fin trade. In addition, opponents expressed concern that Chapter 524
could harm California’s fin dealers to no real conservation effect, since the
California market represents such a small proportion—less than one percent—of
92
the global demand for shark fins.
An open question remains whether the punishment for fin possession—no
more than $1,000 or one year in jail—is strong enough to dissuade illegal
93
marketers. Potentially, a thriving black market for shark fins could take over all
94
or part of the current volume of the legal fin trade. Criminal fin traders filling
87. See Brown, supra note 2 (describing opposing views of Yee and Fong); YEE—ONE OF TWO
SENATORS TO RECEIVE PERFECT SCORES ON EVERY ENVIRONMENTAL SCORECARD, CALIFORNIA STATE
SENATE (Feb. 14, 2011), http://dist08.casen.govoffice.com/index.asp?Type=B_PR&SEC=%7BEFA496BCEDC8-4E38-9CC7-68D37AC03DFF%7D&DE=%7B8A611E56-2B1F-491F-BEC5-BEA5441968DF%7D (on
file with the McGeorge Law Review). Yee received perfect scores for voting pro-environment on several bills
tracked by the Sierra Club, Clean Water Action, and the League of Conservation Voters. Id.
88. Brown, supra note 2; see also, e.g., John Upton, Sen. Yee Harpoons Shark Fin Bill, BAY CITIZEN
(Apr. 24, 2011, 6:10 PM), http://www.baycitizen.org/politics/story/leland-yee-opposes-shark-fin-bill/ (on file
with the McGeorge Law Review) (editorializing that “[t]he mayoral candidate backs Chinese cultural practices
over environmental goals”).
89. See Upton, supra note 88 (describing Yee’s reaction to his opposition of AB 376).
90. See, e.g., Heather Knight, Leland Yee, Opponent of Shark Fin Ban, Voted for Foie Gras Ban, CITY
INSIDER (May 8, 2011, 9:27 AM), http://www.sfgate.com/cgi-bin/blogs/cityinsider/detail?entry_id=88300 (on
file with the McGeorge Law Review).
91. Shark Fin Ban Proposal Stirs Controversy in San Francisco, HUFFINGTON POST (Mar. 21, 2011,
6:50 PM), http://www.huffingtonpost.com/2011/05/07/shark-fin-ban-san-francisco_n_858915.html (on file with
the McGeorge Law Review). One opposition spokesman, Michael Kwong, claimed that thousands of California
businesses would be forced to close if they could no longer profit from shark fins. He predicted upwards of $70
million in lost sales statewide. Shark Fins: Hearing on AB 376 Before the Senate Committee on Natural
Resources and Water, 2011–2012 Leg. Sess. (Cal. June 28, 2011) [hereinafter Senate NR&W Hearing]; Ray
Kwong, California Goes Soup Nazi: No Shark Fin Soup for You!, FORBES (Sept. 6, 2011, 9:01 AM),
http://www.forbes.com/sites/raykwong/2011/09/06/california-goes-soup-nazi-no-shark-fin-soup-for-you/
(on
file with the McGeorge Law Review).
92. Opposition arguments presented by Chinese-American seafood business owners. Senate NR&W
Hearing, supra note 91. However, California is the largest market for fins outside of Asia and represents
eighty-five of the total U.S. market for fins. Judy Ki, Comment to Man Eats Shark: With California on Its Way
to Banning Shark Fin, Will Washington Follow Suit?, N.W. ASIAN WEEKLY (Mar. 31, 2011, 8:49 PM),
http://www.nwasianweekly.com/2011/03/man-eats-shark-with-california-on-its-way-to-banning-shark-fin-willwashington-follow-suit-3/ (on file with the McGeorge Law Review).
93. ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 376, at 2–3 (Apr. 6,
2011).
94. Senate NR&W Hearing, supra note 91; Edwards, supra note 22, at 337.
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the vacuum after law-abiding businesses leave the fin market is not a desirable
95
outcome. Additionally, the DFG might not receive the necessary funds to
96
effectively enforce the ban. Perversely, Chapter 524 could encourage a bigger
97
California market for shark fins than that which currently exists. A situation
may develop in which the law’s low deterrence might subvert the goal of the
98
legislation. Driving trade in animal parts into the black market can send the
99
prices even higher. This can mean that lawbreakers become more willing to risk
100
the potential punishment. If enforcement and penalties for violating Chapter
524 prove inadequate, California’s fin market could continue to contribute to the
101
shark’s decline.
C. Chinese-American Proponents
Opinions about the proposed fin ban among the Chinese-American
community in California were divided along generational lines; older people
tended to oppose a ban on the shark-fin trade while younger Chinese-Americans
102
supported it. Chinese-American advocates of Chapter 524 argued that the
media and the opposition mischaracterized the issue as environmentalists versus
103
Chinese culture. First, they argued that shark-fin soup was never a major part of
104
mainstream Chinese culture, but is more akin to a recent fad. Historically, the
soup was virtually unknown among the vast majority of the Chinese population,
as only the elite Chinese citizenry could afford shark-fin soup for special
105
occasions. The rising prosperity and increasing disposable income of the
Chinese and Chinese-American middle classes, accompanied by a desire to
indulge in the delicacies of the wealthy, may have driven the recent increase in
106
fin soup’s popularity. Christopher Chin stated that “shark populations have
95. Senate NR&W Hearing, supra note 91.
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, ASSEMBLY ANALYSIS OF AB 376, at 2–3 (Apr.
6, 2011) (describing opposition arguments).
102. Brown, supra note 2. But see infra note 109 and accompanying text (suggesting that the vast
majority of all Chinese-Americans in California supported shark conservation and a ban on the trade in shark
fins).
103. “Making [shark fins] a civil-rights issue trivializes civil rights.” Senate NR&W Hearing, supra note
91 (quoting Judy Ki). Additionally, several high-profile Chinese and Chinese-Americans, including legislators,
supported banning shark fin soup. Ki, supra note 92.
104. Ki, supra note 92.
105. Senate NR&W Hearing, supra note 91.
106. Id.; Mike Sweeney, Reality (of Shark Finning) Bites, S.F. GATE (May 5, 2011, 7:58 AM),
http://blog.sfgate.com/msweeney/2011/05/05/reality-of-shark-finning-bites/ (on file with the McGeorge Law
Review).
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declined dramatically over the last few decades as a result of human greed and
107
lack of understanding.”
Second, a recent opinion poll in California showed that more than two-thirds
108
of California Chinese-American voters supported a complete ban on shark fins.
As Assembly Member Fong stated, “Chinese-Americans are environmentally
109
conscious. . . . They believe in harmony with nature.” Even citizens of Hong
Kong, the hub of the world fin trade, supported a fin ban there: “85 percent of
Hong Kong consumers strongly or moderately supported a ban on the import of
shark fins to Hong Kong, and 78 percent accepted having no shark fin soup at
110
wedding banquets—the most popular venue for serving the dish.”
Finally, Chinese-American advocates compared shark-finning to the custom
of female foot-binding: a cruel practice that the culture could choose to grow
111
beyond. They saw Chapter 524 as attacking a wasteful practice and a “major
112
cause of shark mortality,” not a culture. Chapter 524 “is about saving sharks
from the cruel fate of shark finning and protecting ocean ecosystems. Cruelty has
113
no place in any culture . . . .”
D. The Necessity for a Complete Ban
Might more stringent enforcement of the existing anti-finning regulations
bring levels of shark-finning down to sustainable levels, allowing shark
populations to rebound without banning fin sales altogether? This idea held some
appeal as Senators and Chapter 524’s authors worked through potential
114
compromises. Citing the global complexity of the shark-fin import-export
business as well as the shadowy source of much of the supply, Chapter 524’s
supporters argued that enforcement of anti-finning laws would continue to be
115
116
challenging.
Increased enforcement requires increased expenditures.
107. Eilperin, supra note 15 (quoting Christopher Chin, Executive Director of the Center for Oceanic
Awareness, Research and Education).
108. Press Release, Monterey Bay Aquarium, Poll: California’s Chinese Americans Overwhelmingly
Support Ban on Shark Fin Trade (May 6, 2011), available at http://www.montereybayaquarium.org/aa/
pressroom/web/PressRelease_view.aspx?enc=Rlaw2TQ8bY2/WdsO/NKENQ== [hereinafter Aquarium Press
Release] (on file with the McGeorge Law Review).
109. Piyawan Rungsuk, Assemblyman Paul Fong Defends His Support of the Ban on Shark Finning,
MOUNTAIN VIEW PATCH (May 20, 2010), http://mountainview.patch.com/articles/assemblymanpaul-fong-defends-his-support-of-the-ban-on-shark-finning (on file with the McGeorge Law Review).
110. Aquarium Press Release, supra note 108.
111. Assembly Member Fong spoke about this at a committee hearing. Senate NR&W Hearing, supra
note 91; Ki, supra note 92.
112. Eilperin, supra note 15 (quoting Christopher Chin, Executive Director of the Center for Oceanic
Awareness, Research and Education); Cruz, supra note 1.
113. Ki, supra note 92.
114. Potential compromises included one allowing limited legal shark fin sales while increasing
enforcement of existing anti-finning laws. Senate NR&W Hearing, supra note 91.
115. Id.; Sutton Interview, supra note 12.
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California’s fiscal priorities and the legislature’s recent reductions to DFG’s
budget suggested a low potential for stricter enforcement of existing anti-finning
117
laws.
Further, the international community’s experience indicates that trade bans
118
are the most effective way to end unsustainable trade. Outlawing the markets
for the parts has successfully curtailed international trade in high-value animal
119
parts such as elephant ivory and tiger paws. Laws banning the removal of the
parts made little difference due to the relatively scant enforcement balanced
120
against the large fortunes to be made. The shark-fin market is comparable to
the ivory trade: in both cases, one part of the animal has disproportionate value,
and hunters typically remove only this part and then discard the rest of the
121
animal, dead or dying. In both cases, enforcement of a ban on removing
high-value parts failed because the forbidden practice occurred in unregulated or
practically unregulatable territory, or because enforcement was not economically
122
feasible. The source of the problem in both cases is not only the taking of the
123
animals, but the very high value of, and market demand for, ivory and fins.
Because regulating the supply side of the ivory trade failed for the reasons
explained above, the international community chose to reduce demand by closing
124
down the market for ivory. Chapter 524 will chart a similar course for the
125
shark-fin trade in California.
E. Legislative Journey
While Chapter 524 passed the Assembly by an overwhelming majority with
only minor amendments, it underwent stricter scrutiny in the Senate
126
committees. Its first hurdle was a packed, controversial hearing before the
Senate Committee on Natural Resources and Water, after which the bill stalled
127
for two weeks. The committee members delayed their vote while they awaited
116. Senate NR&W Hearing, supra note 91.
117. Id.
118. See Sweeney, supra note 106 (discussing international endangered species trade bans).
119. Id.; Informational Handout, AB 376 Background Materials, Conservation Strategy Working Group
(2011) [hereinafter AB 376 Background] (on file with the McGeorge Law Review).
120. Sweeney, supra note 106.
121. AB 376 Background, supra note 119; see also Sweeney, supra note 106 (discussing international
ivory trade ban).
122. Sutton Interview, supra note 12.
123. Id.
124. Id.
125. Fong Press Release, supra note 15.
126. The major Assembly amendment was to insert a grace period giving businesses an extra year to
comply. CAL. FISH & GAME CODE § 2021(e) (enacted by Chapter 524). This was later extended in the Senate a
further six months by Fish and Game Code section 2021.5. Id. § 2021.5 (enacted by Chapter 525).
127. Senate NR&W Hearing, supra note 91.
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128
further input from the public. One suggestion, ultimately rejected, was to allow
limited fin sales, perhaps from whole sharks legally caught in California
129
waters. However, such a partial trade ban would likely violate international
130
trade agreements. Senators Doug LaMalfa and Lois Wolk indicated that they
would like to see Chapter 524 edited to reflect negotiations between its sponsors
131
and opponents before a final Senate vote.
Although the committee passed the bill on to the Senate Appropriations
Committee, in the final meetings before the full Senate vote, senators asked the
132
bill’s authors and sponsors to introduce some flexibility. The parties reached
133
Fong incorporated a number of amendments into
some compromises.
134
Assembly Bill 853, introduced as a companion bill to Chapter 524.
Assembly Bill 853 clarified that properly licensed commercial or recreational
135
fishermen may possess shark fins for purposes of consumption or taxidermy.
They may also donate them to those licensed under Fish and Game Code section
136
1002 to possess shark fins. A further amendment, intended to ease businesses’
transition away from dependency on shark-fin income, included an extended
137
“grace” period during which fins may be possessed and traded. This gives
businesses an extra six months, until July 1, 2013, to sell off stocks of fins on
138
hand as of January 1, 2012. Finally, Assembly Bill 853 introduced a provision,
not intended to bind any parties beyond its reporting requirement, obligating the
Ocean Protection Council to provide the legislature each year with a list of
139
certified-sustainable shark species.
One sticking point throughout the Senate debate on Chapter 524 was the
opposition’s argument that because California represents less than one percent of
140
the world fin trade, any shark-fin ban in this state would be merely symbolic.
128. Ki, supra note 92.
129. Senate NR&W Hearing, supra note 91.
130. Id. (Statement of Assembly Member Jared Huffman); General Agreement on Trade and Tariff art.
XX (preventing member countries, such as the U.S., from passing laws discriminating against products of other
countries to the benefit of domestic producers).
131. Sutton Interview, supra note 12.
132. Id.
133. Id.
134. See id. (AB 853 is now Chapter 525).
135. CAL. FISH & GAME CODE § 2021.5(a) (enacted by Chapter 525).
136. Id. § 2021.5(a)(1) (enacted by Chapter 525); see supra Part III (discussing the mechanics of
Chapter 525).
137. Sutton Interview, supra note 12.
138. FISH & GAME § 2021.5(a)(2) (enacted by Chapter 525).
139. Id. § 2021.5(b) (enacted by Chapter 525); CAL. PUB. RES. CODE § 35550 (explaining that the Ocean
Protection Council must use internationally accepted standards that meet or exceed the FAO’s Guidelines for
the Ecolabeling of Fish and Fishery Products from Marine Capture Fisheries in developing this list); Sutton
Interview, supra note 12.
140. Senator Anthony Cannella raised this argument in a controversial Natural Resources and Water
committee hearing. Senate NR&W Hearing, supra note 91.
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California, however, comprises the vast majority of the U.S. fin trade, and
California has the largest Chinese markets—and the largest markets for shark
141
fins—outside Asia. Due to California’s large population of Chinese-Americans,
142
Asian political leaders may likely pay attention to developments here. And it is
not insignificant that the western United States and most United States Pacific
Islands are now virtually off-limits to shark fins: what the United States does,
143
other nations may follow. The Senate passed both Chapter 524 and its
144
companion bill with strong majorities. The Assembly concurred in the
amendments added by Assembly Bill 853, and with a message of unequivocal
support for Chapter 524’s environmental goals, Governor Edmund G. Brown, Jr.
145
signed both bills into law on October 7, 2011.
V. CONCLUSION
In enacting Chapter 524, California joins a growing global effort to stem the
146
catastrophic loss of sharks from our oceans. California can make a real impact
on the world fin market, not only by virtually closing down the United States to
the fin trade, but also by making a statement that may influence Asian leaders as
147
they consider shark-protective legislation for their own countries. More than
148
just a shark-fin consumer, California is also a world thought-leader. A broad,
bipartisan coalition of California citizens hopes that the passage of Chapter 524
149
will inspire a new, sustainable, more hopeful chapter in the story of the shark.
141. Ki, supra note 92; Houppert, supra note 8.
142. Sutton Interview, supra note 12. Over one million Chinese-Americans live in California. Chinese
American Demographics, AMERIDIA, http://www.ameredia.com/resources/demographics/chinese.html (last
visited Apr. 17, 2012) (on file with the McGeorge Law Review).
143. Senate NR&W Hearing, supra note 91 (citing Senator Fran Pavley, Committee Chair).
144. See Complete Bill History of AB 376, http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0351
-0400/ab_376_bill_20111007_history.html (last visited Oct. 11, 2011) (on file with the McGeorge Law Review)
(showing twenty-five votes for, and nine votes against, Chapter 524); Complete Bill History of AB 853,
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0851-0900/ab_853_bill_20111007_history.html (last visited
Oct. 11, 2011) (on file with the McGeorge Law Review) (showing twenty-eight votes for, and eight votes
against, Chapter 525).
145. Governor Brown expressed his support for Chapter 524: “The practice of cutting the fins off of
living sharks and dumping them back in the ocean is not only cruel, but it harms the health of our oceans.
Researchers estimate that some shark populations have declined by more than 90 percent, portending grave
threats to our environment and commercial fishing. In the interest of future generations, I have signed this bill.”
Press Release, Office of Governor Edmund G. Brown, Jr., Governor Brown Acts to Protect Oceans and
Environment (Oct. 7, 2011), available at http://gov.ca.gov/news.php?id=17264 (on file with the McGeorge Law
Review). AB 853 was chaptered as Chapter 525. Id.
146. See supra Part II.A (discussing the international efforts to protect the extinction of sharks).
147. California represents seventy percent of the fin market outside of Asia. Fisheries Commodities
Production and Trade 1976-2008, FAO FISHERIES & AQUACULTURE STATISTICS & INFO. SERVICE (2010),
http://www.fao.org/fishery/statistics/software/fishstat/en (on file with the McGeorge Law Review).
148. Sweeney, supra note 106.
149. Brown, supra note 2.
681