Chinatown Neighborhood Assn v. Kamala Harris

of the states over fishery management REINHARDT, Before: STEPHEN within their boundaries. See 16 U.S.C. NOONAN, JOHN T. D. ANDREW 1856(a)(1). § HURWITZ, Circuit Judges. manage EEZ, To fishing in the the MSA Opinion by HURWITZ; Judge Dissent calls for the regional creation of Fishery

by Judge REINHARDT. Management (“FMCs”), Councils com- posed of state and federal officials and OPINION experts appointed by Secretary of the HURWITZ, Judge: Circuit National Marine Fisheries Service (“NMFS”). 1852(b)(l)-(2). California’s § “Shark Fin Law” U.S.C. makes “unlawful any person for possess, sell, cooperation States, With the of “the sale, trade, offer for fishing industry, distribute a shark and environ- consumer fin” in the Cal. organizations, state. Fish & Game mental Code and other interested 2021(b). § § The persons,” 1801(b)(5), action id. this the NMFS and claim that the Fin Shark Law develop violates the FMCs promulgate Fishery and- Supremacy (“FMPs”) Clause interfering the Management with Plans to “achieve California, 1. In Game, the seaward boundary is three Dep’t Am. v. Cal. &Fish miles offshore. (N.D.Cal.1993). Vietnamese Fishermen F.Supp. Ass’n finning basis, finding after shark maintain, In continuing on a tens of continued to fishery,” “cause[] nonetheless from each id. optimum yield year,” to die each there- 1801(b)(4).2 MSA, millions of sharks “optimum In the § of the by threatening a critical element that “will the amount of fish yield” means is a ecosystem, and that “California ocean overall benefit to provide greatest “helps fin” that drive market shark Nation, respect to food particularly Legis. finning,” 2011 Cal. practice of shark opportunities, recreational production and (f) (A.B.376), 1(d), § ch. protection of Serv. taking into account Fin 1802(33); legislature passed Shark § see California ecosystems.” Id. marine 600.310(e)(3). Law, makes it a misdemeanor which also 50 C.F.R. trade, sell, or distribute detached

possess, B. California, Fish & fins in see Cal. shark 2021(b), §§ Game Code of remov- finning practice is the Shark living fins from a shark. ing the C. fins is to make market for shark primary are associations whose dish. soup, fin a traditional Chinese shark engaged in cultural previously members was Even before the Shark involving and commerce practices prohibited and state law passed, federal Fin Law They claim that the Shark fins. finning in the waters off the California it inter- by the MSA because preempted is 1995, legislature In the California coast. management of shark feres with sell, purchase, deliver made “unlawful EEZ, in the and with the federal fishing on purposes, possess commercial prerogative to balance the government’s any ... any fishing vessel commercial statutory objectives of the MSA. various portion fin or tail or thereof shark claim the law runs afoul of the Thеy also removed from the carcass.” that has been by interfering dormant Commerce Clause 7704(c); § see Fish & Game Code Cal. in commerce shark fins between Cali- (S.B. 371, § ch. 1 Legis. 1995 Cal. Serv. states, stemming other fornia and 458). 2000, finning Congress In added through of shark fins the flow MSA, which, to the as amend- prohibitions country.3 into the rest of 2011, in make it unlawful to remove the ed 2012; sea, plaintiffs moved the August In possess fins from a shark at detached enjoin the vessels, preliminarily court to fishing transfer them district fins aboard another, of the Shark Law. and land them enforcement from one vessel to motion, and 1857(1)(P); court denied the we § district onshore. See 16 USC Con- affirmed, Sharks, agreeing that the had servation of Pub.L. No. 124, (2011); of success on 103(a)(1), 3668, failed to show a likelihood § Stat. 3670 dor- Act, preemption of their Pub.L. No. the merits Finning Shark Prohibition (2000). 3,114 claims.4 See Chi- 106-557, § mant Commercе Clause Stat. 2772 See, pre- government raised tentative e.g., Fishery Management Plan for U.S. 4.The federal 2. untimely amicus brief Highly Migratory emption concerns in an Coast Fisheries for West appeal Fishery Management while the Species, Council with this Court Pacific filed 2011), injunction (July http://www.pcouncil. preliminary was available at the denial of the .pdf. Neighborhood org/wp-content/uploads/HMS-FMP-Jull 1 Chinatown before us. See 761, Brown, (9th Fed.Appx. 763 v. Ass’n (mem.). Cir.2013) part in That brief relied 3. The also claimed below that rulemaking— proposed an NMFS notice of Equal Fin Law violates the Protection Shark Clause, regulations have not proposed they which abandoned this claim at oral but adopted suggesting that under certain argument. been — Brown, Neighborhood (2012).5 natown v. Ass’n 539 L.Ed.2d 351 In assessing the (9th 761, Cir.2013) Fed.Appx. 762-63 preemptive force stаtute, of a federal (mem.). 9, 2013, On plain December purpose Congress, as “discerned from tiffs filed amended complaint. The dis language of the pre-emption statute granted trict court the defendants’ motion and the statutory framework surrounding to dismiss with prejudice on March it,” is the “ultimate touchstone.” Med tronic, Lohr, Inc. v. 470, 485-86, 518 U.S. 116 S.Ct. (1996) 135 L.Ed.2d 700 II. omitted). (quotation marks jurisdiction We ‍​​​‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‍have ap over this A presumption against

peal preemp under 28 U.S.C. 1291. We review a applies tion generally, but is especially grant district court’s of a motion to dismiss when, strong here, novo, “Congress legis de has Lockyer, Cousins v. (9th lated a field which the Cir.2009), states have tradi the denial of tionally occupied.” leave to McDaniel v. discretion, amend for Wells abuse Invs., LLC, Fargo Airlines, Inc., Toth v. F.3d Trans World Cir.2013); 1381, 1385 Cir.1988). Bayside see also F.2d Fish Flour Co. Gentry, 297 U.S.

III. (1936) 80 L.Ed. 772 (explaining the historiс control of waters); states over fish state The MSA does not have an ex N.Y. State press Trawlers preemption Jorling, Ass’n provision. Even absent (2d Cir.1994) (“The such 1309-10 provision, however, a federal stat ute interest of a state in preemptive has regulating taking effect if it conflicts with state its fish and law. This can wildlife occur when “com resources has been established.”). pliance long Thus, with both federal and regula the California tions a physical statute cannot be impossibility,” set Fla. Lime aside absent “clear Growers, Paul, & Avocado evidence” of a Inc. v. conflict. 373 U.S. Geier v. Am. Hon 132, 142-43, Co., 1210, 861, 885, 83 S.Ct. 10 Motor L.Ed.2d da 529 U.S. 248 120 S.Ct. (1963), 1913, or when a 914.(2000); state law “stands 146 L.Ed.2d see also obstacle to the accomplishment and execu McClellan v. Corp., 1035, I-Flow (9th Cir.2015) tion of purposes (“[T]he the full objectives of 1039 historic police — Congress,” States, Arizonа v. United of powers the States not super were to be -, 2492, 2501, U.S. 132 S.Ct. 183 seded that unless was the clear and mani- circumstances, preempt the MSA would did not file an amicus brief in connection laws that have the effect regulating fishing of with the present motion to dismiss or the within Magnuson-Stevens the EEZ. appeal, See Act but the defendants have submitted Provisions; Implementation correspondence of the Shark stating from the NMFS 2010, 25,- Conservation Act of Fed.Reg. 78 the Shark preempted by Fin Law “is not 685, 25,687 2, 2013). (May Act, Magnuson-Stevens We declined to as amended.” In below, government’s light consider the federal of our position on conclusions we need not preemption determining rely position. in on this whether the dis- trict court had deny- abused its discretion in ing preliminary injunctive relief because that preemption,” 5. Under the doctrine “field of position presented untimely was first in an preempted regulates state law is if it “conduct appeal, amicus brief on but said that Congress, in a field acting within its government federal argu- proper authority, “rais[e] could these reg- has determined must be permanent injunction ments in the proceed- Arizona, by governance.” ulated its exclusive ings.” Ass’n, Neighborhood Chinatown 539 plaintiffs 132 S.Ct. at 2501. The have aban- Fed.Appx. at government any The doned claim preemption. of field

1142 (alteration preemption. See sumption against Congress.” of purpose fest Marine, omitted)). 537 U.S. Mercury v. Sprietsma 51, 67, 154 L.Ed.2d 123 S.Ct. A. (2002) in the ab- (finding preemption no argue the an “authoritative Although plaintiffs sence of conflict with Dep’t the federal P.R. Congress); Fin Law interferes with message” Shark of authority the MSA to Corp., under Petrol. government’s Isla Consumer Affairs EEZ, they fishing in the do manage shark L.Ed.2d S.Ct. between identify any (1988) Lime, “actual conflict (same); at 373 U.S. Fla. regulation.” Fla. (same).6 the two schemes 83 S.Ct. Lime, 1210. To 83 S.Ct. 373 U.S. sure, statute restricts

be the California B. economically viable uses for sharks certain emphasize that even when EEZ lawfully harvested from the that are a con- overlap, purposes state and federal in But the MSA and landed California. achieving pur- those flict in the method of quantity a given not mandate that does setting aside poses grounds can be harvested from the EEZ —and sharks be Arizona, 132 S.Ct. at 2505 state law. See did, fins are not the even if it detached (“[C]onflict fully as technique in can be sharks. As only viable use for harvested system Congress enacted disruptive to the recognize, ap use of “[t]he They in discern policy.”). as conflict overt any legally fished proximately 95% balancing competing ob- the MSA meat, oil, shark shark for shark and a cor- jectives fishery management skin, permitted” etc. is still under Cali pre- intent responding congressional regime. plaintiffs point to no fornia promotes one of legislation clude state Congress intent “clear and manifest” objectives oth- these —conservation—over regulation such as the Shark preempt See, (finding state law e.g., ers. id. McClellan, 1039; rather, Law, 776 F.3d at interfering “with the care- preempted from alleged nothing more than the they have with re- Congress ful balance struck impediment” gen of a “modest prospect of un- spect employment” to unauthorized purposes, eral federal Pharm. Research & workers). documented Walsh, Am. 538 U.S. Mfrs. of (2003). recognizes various The MSA indeed 155 L.Ed.2d 889 pre- comрeting values. U.S.C. does ‍​​​‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‍not suffice to overcome the This gill proposition banning the use of upon by relied 6. The cases Gardner, EEZ); regulations with effects on 716 invalidate state Bateman v. nets in fishing unpersuasive 595, because (S.D.Fla.1989) in the EEZ are (finding F.Supp. 597-98 case, regulations ei- in each the invalidated fish preempted a Florida statute that banned directly proscribed what federal law af- ther ing portions the EEZ where federal law in Best, allowed, firmatively see A Fisherman’s (11th it), aff'd, F.2d 847 Cir. allowed 922 (Fourth find- 310 F.3d at Circuit case 173-76 1990) (mem.). As In Southeastern Fisheries city forbidding ing preempted a resolution dissent, Chiles, a cited in the sociation v. case ports using longline for vessels tack- access to suggested in dicta that Circuit the Eleventh le, only fishing author- was the method which daily quotas landing Spanish state-law FMP), directly by applicable ized interfere with a federal annu Mackerel would legal activity within the EEZ that was banned the EEZ. 979 quota al on catch of that fish in law, under see Vietnamese Fishennen federal Cir.1992). 1504, (11th There 1509-10 Ass’n, (concluding F.Supp. at 1475 816 too, directly with what law conflicted state permitted gill in certain the use of nets FMP federal law allowed. EEZ, invalidating places within the 1801(b) § (listing “conserving] and man thority any State within its bound- aging] fishery resources found off the aries.”); Daley, (“The 209 F.3d at 749 States,” coasts of the United “promoting] Fishery Act was enacted to establish domestic commercial and recreational fish federal-regional partnership to manage ing under sound conservation and manage resources.”). fishery Courts have found principles,” ment and “encouraging] conflicts between and federal development by the United States fishing sсhemes with overlapping purposes when industry of fisheries which are currently the federal is comprehensive scheme underutilized or not utilized ... in a non- exclusive, see, e.g., Arizona, 132 S.Ct. at wasteful manner” objectives as of the 2504-05 (immigration); Crosby, 530 U.S. MSA). them, Among however, conserva at (international 120 S.Ct. 2288 paramount. tion is See Nat. Res. Def. sanctions), when, here, but not the fed- Council, Inc. v. Nat’l Marine Fisheries eral scheme cooperative, is Wyeth see Serv., Cir.2005) 421 F.3d Levine, U.S. 129 S.Ct. (“The purpose of the clearly is to give Act (2009)(“The 173 L.Ed.2d 51 ease for feder- conservation of fisheries priority over al pre-emption is particularly interests.”); short-term economic weak where Daley, (“[U]nder Congress F.3d at 753 [MSA], the ... has indicated its awareness of the Service must give priority to conserva the operation of statе law a field of measures.”). tion Indeed, in particular interest, and has nonetheless de- context of fishing, the amendments cided to stand both concepts and to to the MSA addressing finning make the tolerate whatever tension there is between primacy of unambiguous. conservation (alteration them.” omitted)); DeHart v. 1857(1)(P). § See 16 U.S.C. is, This ac Austin, Ind., Town cordingly, not the rare circumstance in Cir.1994) (“[G]iventhe expressions clear which a state law interferes with a “delib Congressional intent to cooperation foster erate effort to steer a path,” middle Cros with governments state and local and the by v. Foreign Council, Nat’l Trade 530 different, albeit overlapping, purposes be- 147 L.Ed.2d hind the Act [federal] and the ... Ordi- (2000) (quotation omitted), marks or to nance, we discern Congressional no intent balance,” strike a Arizonа, “careful ”). ban state or legislation.... local S.Ct. at provision MSA’s for broad state- C. level participation in the implementation of statutory objectives further under- attempt to draw a mines any inference of interference with negative Congress’s inference from failure Congress’s See, method. e.g., 16 U.S.C. MSA to address on-land activities 1852(a)(2) (“Each § [FMC] shall reflect finning, related see 18 U.S.C. the expertise and interest the several 1857(1)(P) (referring sea, activities constituent States in ocean area over vessels, fishing aboard and during land which such Council granted authority:”); ing), similarly Silence, is meritless. with 1853(b)(3)(B) § see also id. (permitting more, out does not preempt clear and FMPs to limit in caught commerce fish —“a purpose manifest pre-emption always is within the EEZ any “consistent with appli- Petrol., required.” Isla cablе ... safety quality State and require- ments”); 1856(a)(1) (quotation omitted). § 108 S.Ct. 1350 id. in marks (“[N]othing chapter this shall be There is no construed as “authoritative extend- federal determi ing or diminishing jurisdiction or au- nation” that activities on-land are “best left comes too permit amendment tions to contrary, the Id.7 To the regulated.”

un (alterations quotation marks and late.” expressly preserves scheme federal Bella, LLC v. omitted)); Pasta Reyn’s regulate fishing-related to ability of states Inc., Visa their boundaries. activities within USA Cir.2006) propo- for the (relying on Alaska 1856(a)(1). § U.S.C. not remand will generally that “we

sition D. leave to amend grant instructions to with amend sought leave to plaintiff unless origi amended their plaintiffs The below”), this record conclude on we cannot the case after we remanded complaint nal its discretion court abused that the district preliminary of a affirming the denial upon dismissing prejudice.8 in the motion hearing At the on injunction. the dis complaint, amended to dismiss the ‘shall “Although leave to-amend during counsel plaintiffs’ trict court asked it justice requires,’ so freely given when be claim preemption of the the discussion amendment proposed if the may be denied complaint where “you’ve got

whether any would not serve lacks merit or either affir it,” responded you want and counsel it would be futile grant to purpose because representation, on this matively. Based suit.” Universal saving plaintiffs a second round court found that Co., 799 F.2d Ins. Mortg. Co. v. Prudential granted futile and would be amendments (9th Cir.1986) (quoting Fed. prejudice. to dismiss with the motion 15(a)). com The first amended R.Civ.P. of a direct allegations time on no plaint for the first makes assert plaintiffs and statute they plead additional conflict between could appeal At claim, federal mandate. any unambiguous preemption support facts to appeal, on this argument court oral the district us to find ask plaintiffs could that the grant counsel asserted failing to its discretion abused that state by alleging remedy this defect making the chari Even sponte. leave sua affect the in shark fins on commerce argument that this was bans assumption table reap to ability of commercial fishers see v. United preserved appeal, Alaska in FMPs for yields optimum prescribed States, Cir. 1163-64 the MSA does not 2000) (“Where harvests. But party does not ask may simply law because amend, preempt a state to the re court for leave district yields optimum affect the realization with instruc- appeal to remand quest on ‍​​​‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‍—if Cong. Rec. HI 1571 part of the shark.” 146 rely regulations that limit on 7. The (Oct. 2000). may be in the which sharks But a lone statement the circumstances under 635.31(c)(1), § C.F.R. on land. See 50 and mani- legislative history sold not a "clear limit, (5). regulations rather than But these Congress’s expression intent fest” encourage, in sharks. commerce event, any this statement preempt, Cf. and in 1853(b)(3) (permitting FMPs to "es- U.S.C. law. merely the limits of describes which are neces- specified limitations tablish sary appropriate for the conservation "strong correctly notes the The dissent fishery management on the ... sale of of the court showing” required in the district commercial, recreational, caught during fish ignores prejudice, but justify dismissal with added)). (emphasis fishing" or charter abuse-of-discretion standard the deferential by Repre- rely on a stаtement also governing the district court's our review of during George floor debates Miller sentative very At the grant leave to amend. failure to finning prohibition act that the the federal least, perceive an difficult to it is even more prevent United States fishermen "Act will not plaintiffs never when the abuse of discretion sharks, bringing harvesting them sought amend below. leave to shore, any using other and then the fins

1145 so, that were- array wide of regula- commerce, state or ... its effect is to favor in affecting tions fishing, commercial such as state economic interests over out-of-state laws, taxes or labor would be potentially interests,” it is “struck down ... without Indeed, suspect. Congress expressly fore- inquiry.” further Brown-Forman Distill any interpretation closed optimum yield ers Corp. Auth., v. N.Y. State Liquor 476 that would have such a рreemptive broad U.S. 2080, 90 L.Ed.2d by preserving effect jurisdiction state over (1986). When, however, a state stat commerce in products fish within state ute only has indirect effects on interstate 1856(a)(1). borders. See U.S.C. commerce and regulates evenhandedly, it plaintiffs The concede that provision no violates Commerce Clause only if “the of federal affirmatively law guarantees the burdens the statute so outweigh the right to use or onshore, sell shark fins and putative benefits as to make the statute they dispute do not there are com- unreasonable or irrational.” Chuting UFO mercially viable uses for sharks besides Haw., Smith, Inc. v. 1189, 508 F.3d their detached fins. That resolves the pre- (9th Cir.2007) (alteration omitted). emption Lime, issue. See Fla. U.S. (“[W]e 83 S.Ct. 1210 are not to A. conclude Congress legislated the oust- The claim the Shark er of this California ... statute in the .per Law is se invalid under the Com absence of unambiguous congressional merce Clause regulates because it extra- effect.”). mandate to that Leave to amend territorially by curbing commerce in shark would therefore be ReadyLink futile. Cf. fins between California and out-of-state Healthcare, Fund, Inc. v. State Comp. Ins. destinations, by preventing the flow of (9th Cir.2014) (“Pre- 754 F.3d 761-62 shark fins through California from one emption is always legal almost question, out-of-state destination to another. But a of which rarely resolution by aided state may regulate commercial relation development of a more complete factual ships “in which at one least party is locat omitted)).9 record.” (quotation marks

ed in Gravquick California.” v. Trim A/S Ltd., IV. ble Navigation Int’l, 323 F.3d (9th Cir.2003). And even when state “The Supremе Court has significant law has effects, extraterritorial adopted a approach two-tiered to analyzing passes when, Commerce Clause muster regulation economic under the Com here, those result from regu effects merce Clause.” Ass’n des Eleveurs de lation of in-state conduct. Quebec Rocky Canards et Harris, d’Oies du Mtn. Cir.2013) 729 F.3d Farmers Union v. Corey, 730 F.3d (quotation —(cid:127) omitted), Cir.2013) denied, marks cert. 1101-04 Califor (upholding — - -, nia S.Ct. L.Ed.2d statute fuel imposing standards (2014). If a state “directly statute affect regu producers out-of-state fuel because lates or against discriminates interstate applies standard only to fuels con- 9. Our conclusion is posture bolstered resolution, litigation, benefit of this and its request in which the to amend was made. filing before the first amended complaint. Cf. original complaint years filed wаs three W., AmerisourceBergen Inc., Corp. Dialysist then, ago, since ample there has oppor- been (9th Cir.2006) (affirm 953-54 tunity explore scope of the preemption ing of leave denial to amend delay based claim, including litigating preliminary learning between basis amendment and injunction appeal from the denial leave). seeking preliminary injunction. had

1146 omitted) — marks (alteration quotation denied, and California), U.S. cert. in sumed 669, S.Ct. Walsh, at 123 538 U.S. 2875, L.Ed.2d 835 (quoting 189 -, S.Ct. 134 fix Eleveurs, not 1855)). at Law does Fin The Shark (2014); des Ass’n statute ban states states, require those (upholding in other prices 948-51 birds, standards, from force-fed attempt products of or ning sale adopt California to pro out-of-state affected though it wholly even conducted transactions regulate California); from exports and ducers cf. are cases state, price-control of and out Christies, F.3d 784 v. Found. Francis Sam Mtn., 730 Rocky See inapposite. therefore banc) (in (en Cir.2015) 1320, 1323-24 at 1102-03. F.3d “facially that statute validating a California transaction a commercial regulates B. of the State’s wholly outside place takes if that even claim omitted)). marks (quotation borders” impermissible Law is not Shark Fin the extraterritorial Thus, about nothing con of extraterritorial regulation direct per renders it Fin Law of the Shark reach Pike down under duct, be struck it should invalid. se Inc., Church, burden because “the v. Bruce Healy v. Beer reliance on is commerce on impose[s] [interstate] [it] Corp. Institute, Distillers Brown-Forman putative to the in relation clearly excessive Authority, Liquor York State v. New 142, 137, 90 S.Ct. 397 U.S. benefits.” local mis Inc. Seelig, v. G.A.F. Baldwin (1970). prece Our 844, 174 25 L.Ed.2d cases, Su of those In each plaсed. judicial “as however, any dents, preclude or price-control down struck preme Court state] law[ ] of [a benefits sessment ef had the statutes that price-affirmation it unless adopting” in ... and the wisdom pricing from producers preventing fect in discriminates either statute state neighboring independently products imposes or 334, commerce of in-state favor Healy, 491 U.S. states. See (1989) com interstate 275 burden “significant 105 L.Ed.2d 109 S.Ct. & dis Optometrists beer (Connecticut requiring Ass’n Nat’l statute merce.” Harris, 1156 prices that Connecticut F.3d to affirm 682 Opticians tributors in other prices low as least Elev Cir.2012); were at Ass’n des see also Brown-Forman, at states); Here, plain eurs, 951-52. 729 F.3d at (New York statutes 582-83, 106 S.Ct. has allege the do not Shark tiffs at selling liquor from distillers barring effect, cannot they discriminatory any states); other prices than higher pricеs on interstate burden a significant establish 521-22, 55 S.Ct. Baldwin, 294 U.S. commerce. (1935) (New stat York 497, 79 L.Ed. 1032 cases of ... number “[0]nly a small if in New York of milk prohibiting ute sale Com- the dormant under invalidating laws price farmers acquired Vermont were laws that have involved Clause merce New York available price than lower Nat’l nondiscriminatory....” genuinely farmers). sui recognized the have We at 1150 Optometrists, Ass’n of commerce interstate effect on generis omitted). cases These (quotation marks and the corre regimes price-control such of activities “regulation address of these cases. scope spondingly limited a uni- require inherently national are Eleveurs, F.3d at des Ass’n 1148— id. at regulation,” system of form applicable are not {“Healy Baldwin transportation, interstate typically, most price dictate does а statute Transp., Inc. see, Raymond Motor e.g., itsof price not tie the and does product Rice, 434 U.S. prices.” to out-of-state products in-state . (1978) (state L.Ed.2d 664 regulation of Optometrists, Ass’n 682 F.3d at 1156- of truck length); Eleveurs, see also Ass’n des 57; see Eleveurs, also Ass’n des 729 F.3d 729 F.3d at 952 (“[E]xamples of courts at 952 (finding an inquiry into “whether finding uniformity necessary fall into the the of benefits challenged the laws are categories of transportation or professional ‍​​​‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‍illusory” unwarranted because the regula- (alteration sports leagues.” quotation and tion gras of the foie market is not inher- omitted)). marks national).10 ently

The Shark Fin Law does not interfere

with activity that is inherently national or y. requires system a uniform of regula- We AFFIRM judgment the of the dis- tion. purpose The of the Shark Fin Law trict court. is to resources, conserve state prevent ani- mal cruelty, protect wildlife аnd public REINHARDT, Circuit Judge, health. See 2011 Legis. Cal. Serv. ch. dissenting in part: (A.B.376) § 1 (listing purposes). These I in part dissent because plaintiffs the legitimate are matters of local concern. must granted be leave to amend the com- See, e.g., v. Lockyer, 547 F.3d Merrifield plaint with respect to their preemption (9th Cir.2008); UFO Chuting, 508 claim.1 a “[I]n line of cases stretching F.3d at 1196. And to the extent the Shark back nearly 50 years, [now 65] we have Fin Law effectively a means of ocean held that in dismissing for failure to state fishery management, fishery management a claim under 12(b)(6), Rule ‘a district is an inherently cooperative endeavor— court grant should leave to even with amend jurisdiction and federal over if request no to amend the pleading oceans was divided according distance from made, unless it shore, determines plead- thаt the §§ see 16 1802(11), U.S.C. 1811(a), ing 1856(a)(1), possibly could not be cured with state and federal coop- ” allegation of Smith, eration other contemplated Lopez facts.’ even in v. the manage- (9th Cir.2000) ment 203 F.3d waters, see, e.g., (empha- id. 1852(a)(2). added) (citations § sis is, omitted); There see accordingly, no also significant Sharkey O’Neal, interference with 778 F.3d interstate Cir.2015). commerce. See Ass’n Eleveurs, view, des In my the defects in 952; F.3d at Nat’l Optometrists, Ass’n preemption claim could be cured 682 F.3d at 1156. by amendment, and the majority’s other suggested reasons for affirming the denial “Because the [Shark leave amend are also without merit. impose does] not significant a on burden commerce, interstate majority would be inappro first states dictum that priate for us to determine [its] constitu issue the denial of leave to amend tionаlity ... based on our the complaint may assessment of have been waived. As benefits th[e] law[ ] and the the foregoing State’s statement of regard- the law [it],” wisdom in adopting or the availability ing prejudice clear, dismissals with makes . of less-burdensome however, alternatives Nat’l whether asked 10. plaintiffs' Because none of the constitu- do not contest the denial of dismiss, tional claims survive the motion to leave respect to amend with to their Com- court district properly dismissed the claim merce appeal. Clause claim this Atkins, under 42 U.S.C. 1983. See West v. 487 U.S. 101 L.Ed.2d (1988). marks (internal quotations citation amend is irrele- leave to district court omitted). However, prejudice absent incorrectly suggests majority vant. The States, district party opposing United that Alaska —which Cir.2000), broadly held do the defendants find and did not 1163-64 court the issue for “strong raise a show- cannot be party must assert —there Maj. Op. appeal, justify time on first factors to the other one of ing” of nor abro- considered neither (emphasis but case Id. prejudice. dismissal regarding dis- rule longstanding our gated omitted). single, A citation added 12(b)(6). Rather, it Rule missals under com- of the amendment good-faith prior could government the that merely held Nor satisfy high this bar. cannot plaint complaint to the its to answer seek amend im- More of time.2 passage the mere can pleadings the on judgment appeal from solely on court relied district the portant, an- adopted its intentionally it had where an futility of amendment. purported the position. See litigating strategic as a swer finding of on a affirm based We cannot doing, In Alaska, so F.3d at 1163. delay cure or undue failure tо repeated holding party that a on cases Alaska relied did not make. court that district the summary appeal until an wait cannot must district court (holding that the id. amend a plead- to to seek leave judgment with for dismissal explanation provide rule that makes at 1163-64—a ing, id. prejudice). that expense the light time sense district majority and the the Nor are By stage entails. at that disposition a pleading plaintiffs’ the that court correct presumption contrast, strong a there is by cured be possibly could not defects claim legal a plaintiff plausible a with that that the agree I amendment. the the art fails to simply master who to fails currently drafted complaint to must be allowed complaint well-pleaded the conflict between” “identify any actual not it or defects—whether pleading cure govern- “the federal Fin Law and Shark dis- before the to do so request makes a [Magnuson- the authority under ment’s trict court. fishing manage shark to Act] Stevens in dictum majority also alludes Maj. Op. zone].” economic [exclusive the voluntarily the fact that the omitted). It in- marks (quotation at 1142 oc- prior on one complaint their amended conclusory “mere nothing beyond cludes years three it been has casion and statements,” Iqbal, (cid:127) Ashcroft was filed. complaint original since the 173 L.Ed.2d that a dismissal True, presumption Fin conflicts (2009), Law the Shark may be rebut- prejudice should without be Act], federal [Magnuson-Stevens “the faith delay, bad finding of “undue by ted federal regulations implementing ..., failure repeated motive dilatory First Management Plans].” [Fisheries previous- by amendments cure deficiencies Declаratory and Complaint Amended to the allowed, prejudice undue ly [or] ¶ 57, Chinatown Relief at Injunctive of allowance by virtue party opposing ” Harris, CV No. Ass’n Neighborhood F.3d at Sharkey, 778 the amendment.... below, Cir.2006). explained As AmerisourceBergen akin to is not 2. This case W.,Inc., complaint in this majori- operative by the Dialysist problem cited with the Corp. v. court found that addi- by pleading ty, in district which be cured could case plain- prejudiced be would facts; AmerisourceBergen, defendant unlike in tional litiga- attempt into "twelve months tiffs tion, strategy change their plaintiffs do not seek litigation change[ drastically ] its [to] ... altogether. explanation. 465 theory” without (N.D. 2013). 1203759 WHO Cal. Dec. and recreational benefits of fisheries in the However, that, assert if per- exclusive economic zone without compro- mitted to amend the complaint, they mising could long-term sustainability of plead additional facts demonstrating id.; them. See Council, Natural Res. Def. (1) the government has adopted Inc. v. Daley, (D.C.Cir. specific quotas for shark fishing pursuant 2000).

to the optimum yield provisions of the One of the things a Fishery Manage- Magnuson-Stevens (2) Act and that the ment may Plan do to achieve optimum poses Shark an obstacle to yield is establish a quota for the amount of achievement of quotas those because particular species of fish that should be significantly legal reduces otherwise caught. plaintiff A states a cognizable fishing.3 below, As outlined if such facts preemption claim a Fishery where Man- properly pleaded, were this would consti- agement Plan has established such a quota plausible tute a clаim for relief. and a law interferes with the achieve- here,

As relevant conflict preemption oc- ment that quota. of Se. Fisheries Ass’n v. curs where challenged “the Chiles, state law Cir.1992) F.2d ‘stands as an obstacle to accomplish- the (holding that plaintiffs the stated cogni- a ment and execution of the full purposes zable preemption claim where a Fishery ” objectives and of Congress,’ v. Management Arizona Plan established an annual — States, United -, quota for the total catch of Spanish Mack- (2012), L.Ed.2d includ- erel while state law a daily established ing where it “would interfere with the limit on the number Spanish of Mackerel careful by balance struck Congress,” at that a id. commercial vessel could bring into a 2505. A purpose objective central of state port). Notwithstanding majori- the Magnuson-Stevens the Act is tо ty’s “achieve statement to the contrary, Magnu- the maintain, basis, on a continuing the son-Stevens Act provision preserves that a optimum yield from each fishery,” “jurisdiction 16 state’s or authority ... with- § 1801(b)(4), U.S.C. which is the boundaries,” “amount in its 1856(a)(1) § 16 U.S.C. (A) fish of provide will greatest the (emphasis added), which— does not authorize a Nation, overall benefit to the particularly adopt pose to laws that an obstacle to respect with production to food government’s recre- the federal authority to man- ational opportunities, and taking age into ac- and maximize productivity the of fish- protection count the ecosystems; marine eries within its respective own territory, (B) is prescribed [and] on 1811(a) (“the the basis of § the see id. United States maximum yield sustainable claims, from the fish- and will ... exercise sovereign 1802(33). ery-” § Id. As the majority rights and exclusive fishery management explains, Magnuson-Stevens the Act authority cre- over all ... fish within the exclu- a ates under framework which regional zone.”). sive economic City also Fishery Management comprised Councils Best, Charleston v. A Fisherman’s of federal and state stakeholders collabo- Cir.2002) (hold- adopt rate to Fishery Management Plans ing city that banning resolution vessels designed to optimum achieve yield. Id. that longline use tackle from docking at 1851(a). short, § Fishery In Management city marina was preempted by Fishery Plans seek to maximize the commercial Management Plan designating “longline” 3. Federal practice law bans the inhumane landing of an shark intact or the carcass shark finning- removing the fin subsequent a and sale a detachment fin. See —of shark on a boat—but prohibit it 1857(1)(P). does 16 U.S.C. on ban by the state’s stitutionally impaired catching sword- gear the authorized

as between i.e., the balance sale fish). fins — struck interests and economic conservation pleadings Although the Council Fishery Management by the Fishery a point to fail to drafted presently I upset. While could be quota adopting sharks regulating Plan Management that the likelihood opinion on express no argument at oral setting quota, a shark ultimately succeed a claim would such admit- curiae amicus and their defendants that “leave merits, the command Fishery number of are a there ted that requires that freely given” amend shall be around place Plans Management a chance given least be at plaintiffs Fishery if those Even country that do so. Sharkey, claim. adequately plead their regard silent with Plаns are .Management omitted). (citation at 774 778 F.Bd (as the defendants of shark to the sale fins that in majority’s assertion Finally, argu- oral represented amici and their complaint prejudice dismissing ment), could establish plaintiffs rep- relied on properly court the district by ad- preempted is the Shark amend- resentation an ob- poses evidence clear ducing is erroneous. ment be futile would optimum of an the achievement stacle to and the majority which the comment on Fishery in an specified of sharks yield at best. rely ambiguous district court in a it results because Plan Management inquiry, the district court’s In response legal in otherwise significant decrease want you where complaint “you’ve got asserted at fishing. The “you responded ?”, plaintiffs’ ... counsel it to amend permitted if that argument orаl only likely meant Counsel are addi- correct.” provide they would complaint, their suffi- he had made that that he number believed demonstrating the that facts tional at the claims support to cient averments economic caught the exclusive in of sharks district stage, as the to dismiss the motion and that significantly dropped zone has lengthy followed counsel’s inquiry to court’s in revenue due lost millions they have This is different that effect. argument is the main If the fin Fin Law.4 the Shark the dis- that should representation from a value has commercial that part a shark of in allegations the that trict court conclude largely fishermen California and thus insufficient, plain- the were complaint the econom- in catching exclusive cease sharks allegations. further provide not tiffs objective of could fisheries, fеderal the ic zone by majority err the court and The district be uncon- yield might achieving optimum true, job at motion not, prove our the may majority con- indeed as the did 4. The sufficiency of the stage is to the test tends, commercially to dismiss "there are concede that simply ac- allegations. We cannot detached besides their uses for sharks viable posi- government official’s cept a state as true majority im- Maj. Op. fins.” matter. regarding a factual tion the rec- in two statements properly relies on the plaintiffs conceded hold that the Second, ord to a majority relies on footnote the First, plaintiffs’ counsel’s cites stating matter. use complaint ”[t]he operative the argument a letter from legally any at oral fished statement of approximately of 95% statemеnt, Department of of the This permitted.” the Director ... is still shark however, "big deal.” That com- nothing Wildlife the relative says was about Fish parts sale a shark or of of that “revenue from value of the states mercial letter of is off Califor- sale sharks the ban harvested in waters whether sharks optimum of meat mostly the sale of the of achievement obstacle nia derives questions factual shark, yield fins after the involve the sale of not from —matters plaintiffs at against the be decided that cannot fins legally landed harvested stage. to dismiss Although motion that'assertion naturally attached.” treating counsel’s ambiguous representa- similarly situated; GuideStone Finan tion as sufficient to dislodge “the presump- cial Resources of the Bap Southern tion favor of granting leave to amend.” tist Convention, a nоnprofit Texas Id. It would have taken little effort corporation, Plaintiffs-Appellees. district court to clarify the before matter permanently depriving of an Sylvia Burwell, Mathews Secretary of opportunity pursue their case. the United States Department of I respectfully dissent. Health and Human Services; United Department

States of Health & Hu Services; man Thomas Perez, E. Secretary of the United States De partment Labor; of United States Department Labor; Lew, Jacob J. LITTLE SISTERS OF THE POOR Secretary of the United States De HOME AGED, THE FOR DENVER, partment Treasury; United COLORADO, a non-profit Colorado Department States Treasury, corporation; Little Sisters of Defendants-Appellants. Poor, Baltimore, Inc., Maryland Theologians Catholic Ethicists; non-profit corporation, by themselves Physicians Alabama Life; Ameri- and on behalf of all similarly others can Association of Pro-Life situated; Obstetri- Services, Christian Brothers cians Gynecologists; & American a New As- Mexico non-profit corporation; sociation University Women; Employee Christian Brothers Benefit American Society; Bible Trust, American Plaintiffs-Appellants, Center for Justice; Law and Ameri- ‍​​​‌‌‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌‌​‌​‌​‌‌​​‌‌‌‌‌​​‍can Civil Liberties Colorado; Union of Sylvia BURWELL, Mathews Secretary American Civil Liberties Union of of the United Department States Oklahoma; American Civil Liberties Health Services; and Human United Union; American State, Federation of Department States of Health & Hu- County and Municipal Employees Services; man Perez, Thomas E. (AFSCME); American Public Health Secretary of the United States De- Association; Americans United for partment Labor; United States Separation State; Church Department Labor; Lew, Jacob J. Asian & Pacific Islander American Secretary of the United States De- Forum; Health Asian Americans Ad- partment Treasury; of the United vancing AAJC; Justice Asian Ameri- Department States Treasury, of the Advancing cans Justice Angeles; Los Defendants-Appellees. Physicians Association of American & Surgeons; Southern Association University; Nazarene of Christian Okla Wesleyan International; homa Schools University; Association of Okla Gospel Baptist Missions; homa Rescue University; Black Wom- Mid-Amer ica en’s Imperative; Health University; Christian Reaching Souls International, Center, Women’s Inc., Law National an Okla Wom- homa profit Center; en’s Law corporation; California Women’s Center; College, Truett-McConnell Inc., Catholic Medical Associ- Georgia ation; nonprofit corporation, Legal Christian Society; Chris- themselves and on tian Association; behalf of all Medical others Christie’s

Case Details

Case Name: Chinatown Neighborhood Assn v. Kamala Harris

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 27, 2015

Citation: 794 F.3d 1136

Docket Number: 14-15781

Court Abbreviation: 9th Cir.