Monday, March 17, 2008

9th Circuit Rules in Favor of Industrial Shark Finners

The 9th Circuit Court of Appeals recently decided in favor of large-scale industrial shark finners premised on a technical violation of "due process" by the feds in a civil forfeiture case brought against the defendants for violating the Shark Finning Prohibition Act.

If you care about species protections, go read this decision. Seriously.

Here's the nutshell:

. . . Claimant-Appellant Tai Loong Hong Marine Products, Ltd. (“TLH”) owned the shark fins. TLH, a Hong 2474 UNITED STATES v. APPROXIMATELY 64,695 POUNDS Kong company, had chartered the KD II and ordered it to meet foreign fishing vessels on the high seas, purchase shark fins from those vessels, transport the fins to Guatemala, and deliver them to TLH.

The Government seized the fins pursuant to the Shark Finning Prohibition Act (“SFPA”), which makes it unlawful for any person aboard a U.S. fishing vessel to possess shark fins obtained through prohibited “shark finning.” 16 U.S.C. § 1857(1)(P)(ii).

TLH does not contest that, on its behalf, the KD II purchased the fins at sea from foreign vessels that engaged in shark finning. Instead, it argues that the KD II is not a fishing vessel under 16 U.S.C. § 1802(18)(B), and for that reason the forfeiture of the shark fins it possessed would violate due process.

We agree that neither the statute nor the regulations provided fair notice to TLH that it would be considered a fishing vessel under § 1802(18)(B). We therefore reverse the judgment of forfeiture and remand for further proceedings consistent with this opinion.

Did you get that?

Despite the clear and express intention of the Act--protection of sharks by outlawing industrial shark finning in US waters--the Court determined that because the Act apparently didn't forbid "non-fishing" vessels from obtaining or possessing shark fins from non-US fishing vessels while at sea, that the civil forefeiture of the shark fins was invalid on due process grounds.

There's clear evidence of collusion and it's patently obvious that the defendants intended to skirt US laws. Instead of directly de-finning the sharks themselves, the just arranged to get them from non-US industrial de-finners on the opean ocean.

It's not like they just happened to stumble upon each other's boats out in the ocean and one of the boats just happened to have 64,695 pounds of shark fins that the other just happened to want. They planned this.

By using such a narrow definition of "fishing vessel" to reach its conclusion, the Court makes a mockery of the intent and spirit of the laws protecting vulnerable and threatened species.

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