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United States v. Approximately 64,695 Pounds of Shark Fins
520 F.3d 976 (9th Cir. 2007)

Tai Loong Hong Marine Products, Ltd. (TLH) appealed a decision by the district court entering judgment of forfeiture for shark fins seized by the United States Coast Guard (Coast Guard) from a vessel chartered by TLH. The district court held that TLH's boat was a fishing vessel as a matter of law under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)[1] and that the fins were subject to forfeiture because they were taken in violation of the Shark Finning Prohibition Act (SFPA). The Ninth Circuit reversed the district court, holding neither the SFPA nor applicable regulations provided fair notice to TLH that its chartered craft would be considered a fishing vessel under the Magnuson Act. The court remanded the case to the district court for further proceedings.


Hong Kong company TLH chartered the King Diamond II (KD II), a U.S.-registered vessel owned by an American company, to purchase shark fins from foreign fishing vessels at sea and transport the fins to Guatemala for resale. In 2002, Coast Guard officials boarded the KD II approximately 250 miles off the Guatemala coast and found more than thirty-two tons of shark fins but no carcasses on board. After the Coast Guard detained the KD II and escorted it to San Diego, the United States filed a civil complaint for forfeiture of the shark fins, alleging that the fins were taken or retained in violation of the SFPA and its implementing regulations.[2]


The SFPA, which amended the Magnuson Act, was intended to eliminate the practice of shark finning.[3] The relevant portion of the SFPA makes it unlawful to possess shark fins aboard a "fishing vessel" without the corresponding carcasses.[4] Section 1802(18)(B) of the Magnuson Act defines a fishing vessel as any vessel that is used for "aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing."[5]


The district court ruled that the KD II met the statutory definition of "fishing vessel" because it aided or assisted other vessels at sea in the performance of fishing-related activities.[6] Consequently, it granted the government's motion for summary judgment and entered a judgment of forfeiture on the stipulated fair market value of the fins. TLH appealed, arguing that the KD II was not a "fishing vessel" within the meaning of the statute and that the application of the SFPA to the KD II violated due process.


The Ninth Circuit began its analysis by noting that due process requires an agency to provide "fair notice of what conduct is prohibited before a sanction can be imposed."[7] The court explained that to provide sufficient notice, a statute or regulation must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly."[8] Looking at the plain language of the statute and regulations, the court held that a reasonable owner or operator of a vessel engaged in at-sea purchase and transport of shark fins would not have fair notice that its craft could be deemed a fishing vessel under section 1802(18)(B). It thus held that the district court's application of the SFPA to the KD II as a fishing vessel violated due process. Accordingly, the Ninth Circuit reversed the decision and remanded for further proceedings.


In reaching its holding, the Ninth Circuit first examined the plain language of the statute and found nothing that would provide notice to the owner or operator of the KD II that its activities would render it a fishing vessel. The Ninth Circuit rejected the district court's reasoning that purchasing shark fins at locations designated by the foreign vessels constitutes an act of aiding or assisting the foreign vessels. Utilizing the dictionary definition of "aiding" and "assisting," the Ninth Circuit rejected the district court's finding that the purchase, storage, and transport of shark fins aided and assisted the foreign fishing vessels at sea in the performance of fishing-related activities. The dictionary definitions of "aiding" and "assisting" generally connote performing an act for the benefit of another.[9] The court concluded that TLH was at all times acting for its own commercial benefit, not for the benefit of the foreign fishing vessels from which it purchased the shark fins. Consequently, the KD II could not have aided or assisted the foreign fishing vessels. Furthermore, because the statute did not list "purchasing" as one of the acts that constitutes aiding and assisting, the statutory provision prohibiting "aiding or assisting any activity relating to fishing" does not give fair notice that purchasing, storing, and transporting shark fins is prohibited.


The Ninth Circuit also rejected the district court's reasoning that at-sea purchase of the fins constituted aiding and assisting because the purchase allowed the foreign vessels to continue fishing for longer than otherwise would have been possible. Focusing on the idea that a purchaser is doing no more than furthering its own business interests, the Ninth Circuit explained that the district court's assumption that the seller would benefit from the location of particular sales was irrelevant.


Having found nothing in the plain language of the statute that would provide notice to TLH that the possession prohibition applied to its activities, the Ninth Circuit turned to the implementing regulations of the SFPA to determine if they provided notice. Pursuant to the SFPA, the National Marine Fisheries Services promulgated regulations making it unlawful, in relevant part, to possess shark fins without the corresponding carcasses while on board a U.S. fishing vessel[10] and to "land" shark fins without the corresponding carcasses.[11] The district court, in support of its conclusion that the regulations make clear the KD II was a fishing vessel, relied on the regulation prohibiting the landing of shark fins. That regulation explicitly provides that a cargo vessel that "lands" shark fins after an at-sea transfer is considered a fishing vessel.[12] The Ninth Circuit rejected this reasoning, noting that the applicable regulation, the one prohibiting possession of shark fins, includes no such provision.[13] Where an agency includes language in one section of the regulation and omits it in another, it is reasonable to presume that an agency acted intentionally in forgoing the language.[14] The court thus concluded that the regulation prohibiting possession does not define vessels that engage in at-sea transfer of shark fins as "fishing vessels." Consequently, the court held that the regulations could not have provided the KD II with notice that its activities would render it a fishing vessel under section 1802(18)(B).


In conclusion, the Ninth Circuit held that the district court's application of the possession prohibition to the KD II violated due process because a reasonable person would not have fair notice from the statute and regulations that the KD II's activities would render it a fishing vessel under the statute. The district court's decision to grant a judgment of forfeiture was reversed and the case was remanded for further proceedings.


 




[1] 16 U.S.C. §§ 1801-1883 (2006).


[2] The prohibition on possession of shark fins aboard a fishing vessel under 16 U.S.C. § 1857(1)(P)(ii)and its implementing regulation at 50 C.F.R. § 600.1203(a)(2)is referred to as the "possession" prohibition.


[3] 16 U.S.C. § 1857(1)(P) (2006) (codifying section 3 of the Shark Finning Prohibition Act, Pub.L. No. 106-557, 114 Stat. 2772 (2000)).


[4] Id.


[5] Id. § 1802(18)(B) (emphasis added).


[6] United States v. Approximately 64,695 Pounds of Shark Fins, 353 F. Supp. 2d 1095, 1101 (S.D. Cal. 2005).


[7] Stillwater Mining Co. v. Fed. Mine Safety & Health Review Comm'n, 142 F.3d 1179, 1182 (9th Cir. 1998).


[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).


[9] The Ninth Circuit noted that the American Heritage Dictionary of the English Language defines "to assist" as "[t]o give help or support to, especially as a subordinate or supplement; aid." American Heritage Dictionary of the English Language 109 (4th ed. 2000).Similarly, it defines "to aid" as "[t]o help or furnish with help, support, or relief." Id. at 36.


[10] 50 C.F.R. § 600.1203(a)(2) (2007).


[11] Id. § 600.1203(a)(3).


[12] Id. § 600.1204(c).


[13] See id. § 600.1204(b).


[14] Cf. Bates v. United States, 522 U.S. 23, 29-30 (1997) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").




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