It’s a “man bites shark” story. Despite sharks’ fearsome reputation, which has caused many a beachgoer a frisson of fear, in truth, sharks are in far more danger from humans than humans are from sharks. Every year, millions of sharks are killed for their fins alone, a practice termed finning. Finning is the cruel and wasteful practice of catching a shark, slicing off its fins, and dumping it back into the ocean to die. Shark finning persists because the fins are the most economically valuable part of the animal, and a crucial ingredient in shark fin soup. When fishing vessels are allowed to retain shark fins without the rest of the shark attached, the vessels can kill – and profit from – many more sharks than if they were required to land the entire animal. With as many as 73 million sharks slaughtered for their fins annually, these top-level predators are in serious trouble – as are the marine ecosystems that need healthy shark populations to thrive.
Turning the Tide
The good news is that the tide is beginning to turn against the acceptance of shark finning, both culturally and legally. Earlier this year, the European Union tightened its existing ban on shark finning, closing a loophole in the 2003 law that had allowed the practice to continue. More recently, after years of advocacy efforts from environmental groups, the government of Hong Kong – the world’s biggest trade hub for shark fins – took shark fin soup off the menu for official functions, following China’s lead from 2012 in making a similar proclamation. And as international counsel Alejandra Goyenechea reported in March, Defenders and our shark conservation allies successfully got five new shark species and two new manta species added to Appendix II of CITES, meaning countries that wish to export these species’ fins can only do so after the nation’s permitting agency determines that exportation will not be detrimental to the species’ survival in the wild.
Outside of Asia, the U.S. is the world’s largest market for shark fins, both as an exporter and an importer. Between 2006 and 2010, the U.S. Department of Commerce reported in 2011, the U.S. each year exported an average of 48 metric tons of shark fins and imported an average of 28 metric tons of shark fins. Just try to imagine how many sharks died to produce each metric ton of dried fins!
It was a great day for shark advocates in 2010 when President Barack Obama signed into law the Shark Conservation Act (SCA) to close the loopholes in the earlier Shark Finning Prohibition Act of 2000, originally signed into law by President Clinton. The SCA forbids any fishing vessel from carrying shark fins without also carrying the corresponding number and weight of shark carcasses. In addition, vessels are also required to bring sharks to port with their fins attached. U.S. fishing vessels can still land and sell fins, but are no longer able to fill their holds with fins alone, thus cutting down – but not eliminating – the supply of U.S.-caught shark fins, and banning the brutal practice of finning.
States Take a Stand
Because the SCA only bans finning in U.S. waters or by U.S. vessels, even this federal law is not enough to reduce or eliminate the demand for shark fins in U.S. markets. In other words, the federal SCA does nothing to affect U.S. demand for shark fin imports from overseas.
In the last several years, however, a number of U.S. states and territories have tackled the gap on the demand side by enacting laws banning the possession, sale, and distribution of shark fins within their state or territorial jurisdictions. Hawaii led the way in 2010, soon followed by Washington, Oregon, California, Maryland, Delaware, New York, and Illinois, as well as the territories of Guam, the Commonwealth of the Northern Marianas, and Samoa. These laws help ensure that the global markets will not step in to simply replace U.S.-caught shark fins with shark fins taken by countries with much weaker or nonexistent shark conservation laws.
Law vs. Law
Yet the National Marine Fisheries Service (NMFS), the agency in charge of implementing our nation’s fisheries laws, has recently starting asserting that these state and territorial laws are preempted by the Shark Conservation Act of 2010. In other words, according to NMFS, state shark fin bans are null and void because federal law trumps state law where the two come into conflict. The agency announced this position in May 2013 in draft regulations to implement the SCA, asserting that state bans would somehow undermine the conservation and management goals of the nation’s fisheries laws. NMFS took this position even though the language and history of the SCA contain no evidence that Congress intended the SCA to preempt stronger state laws to protect sharks from finning. Indeed, sixty-two members of Congress signed on to a comment letter opposing the proposed rule’s preemption provision.
Even before NMFS closed the comment period on its draft regulations, it rushed into court to oppose the enforcement of state shark fin laws. A court case challenging the state’s ban on the sale, trade or possession of shark fins made it to federal appeals court, and NMFS jumped on the opportunity, filing a brief in support of suspending the state law. Ten members of Congress signed on to a letter to NMFS and the U.S. Department of Justice asking that the brief be withdrawn. Fortunately, the federal appeals court rejected the plaintiffs’ request for an emergency order suspending the California law, but the case itself is still open, giving NMFS another opportunity to persuade the court that state shark fin laws should be null and void.
Earlier this year, Defenders joined its voice with dozens of other conservation groups and thousands of U.S. citizens who believe NMFS should back off its efforts to overturn the democratically-enacted laws of eight states and three territories that complement, rather than conflict with, federal shark conservation laws.
The message from the SCA’s congressional champions continues to be that NMFS’s preemption argument is diametrically opposed to the federal law’s intent and purpose. As a recent strongly-worded letter to NMFS from Senator John D. Rockefeller IV, a cosponsor of the SCA, stated, “these state laws are consistent with the fundamental purpose of the Shark Conservation Act – to promote the conservation of the over 400 species of sharks in U.S. waters and around the world whose abundance in recent decades has steadily declined.” NMFS has not yet issued its final regulations, so we don’t yet know whether our message has fallen on deaf ears, or whether the agency has revisited its ill-considered position.
Although we have a long way to go to end the global trade in shark finning, conservation – like charity – must begin at home, and these states have risen to the challenge. Defenders will continue to vigorously oppose any efforts by NMFS to preempt and invalidate state shark fin bans. Sharks need the strongest protections we can give them.
Jane Davenport is Defenders’ Senior Staff Attorney