FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

TAI LOONG HONG MARINE No. 05-56274

PRODUCTS, LIMITED,

D.C. No. Claimant-Appellant,  CV-03-00594-BTM

v.

OPINION

APPROXIMATELY 64,695 POUNDS OF

SHARK FINS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

May 14, 2007—Pasadena, California

Filed March 17, 2008

Before: Stephen Reinhardt, Raymond C. Fisher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Reinhardt

2471
COUNSEL

Bryan Y.Y. Ho, Esq., Honolulu, Hawaii, for the defendantappellant.

Carol C. Lam, Esq., Roger W. Haines, Jr., Esq., Mary C.

Lundberg, Esq., United States Department of Justice, San

Diego, California, for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge: 

This case arises from a civil complaint brought by the U.S.

Government for the forfeiture of 64,695 pounds of shark fins

found on board the King Diamond II (“KD II”), a United

States vessel. 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. 

I. Background 

In 1976, Congress passed the Magnuson-Stevens Fishery

Conservation and Management Act (“Magnuson Act”), 16

U.S.C. § 1801 et seq., to conserve and manage fishery

resources. 16 U.S.C. § 1801(b)(1). In 2000, Congress enacted

the Shark Finning Prohibition Act, which amended the

Magnuson Act in an attempt to eliminate the practice of shark

finning. Pub. L. No. 106-557, 114 Stat. 2772 (2000), 16

U.S.C. § 1857(1)(P). 

The SFPA makes it unlawful:

(I) to remove any of the fins of a shark (including the

tail) and discard the carcass of the shark at sea;

(ii) to have custody, control, or possession of any

such fin aboard a fishing vessel without the corresponding carcass; or

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2475
(iii) to land any such fin without the corresponding

carcass. 

16 U.S.C. § 1857(1)(P) (emphasis added).1

The Magnuson Act, in turn, defines a fishing vessel to

include 

“any vessel, boat, ship, or other craft which is used

for, equipped to be used for, or of a type which is

normally used for — 

(A) fishing; or 

(B) 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.”

16 U.S.C. § 1802(18). 

The question we must resolve is whether TLH had notice

that the KD II’s activities would fall within the definition of

fishing vessel in § 1802(18)(B) and thus render it subject to

the prohibition on possessing shark fins under the SFPA. The

KD II is a United States vessel owned and operated by Tran

& Yu, a Hawaii corporation. Tran & Yu purchased the KD II

in January 2001. Although Tran & Yu initially registered the

vessel with a “Fishery” endorsement,2 the company re1The SFPA establishes a “rebuttable presumption that any shark fins

landed from a fishing vessel or found on board a fishing vessel were taken,

held, or landed in violation of subparagraph (P) if the total weight of shark

fins landed or found on board exceeds 5 percent of the total weight of

shark carcasses landed or found on board.” 16 U.S.C. § 1857(1). 

2A fishery endorsement entitles a vessel to work in fisheries and land

its catch in United States ports. See 46 C.F.R. § 67.21(a). See also 46

C.F.R. § 67.3 (“Fisheries includes processing, storing, transporting (except

in foreign commerce), planting, cultivating, catching, taking, or harvesting

fish, shellfish, marine animals, pearls, shells, or marine vegetation in the

navigable waters of the United States or in the Exclusive Economic

Zone.”). 

2476 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
documented the vessel with a “Registry” endorsement, which

“entitles a vessel to employment in the foreign trade . . . and

any other employment for which a coastwise, Great Lakes, or

fishery endorsement is not required.” 46 C.F.R. § 67.17(a).

During the time of the transactions at issue in this case, the

KD II operated under this registry endorsement. 

TLH is a Hong Kong company that purchases and sells seafood products, including shark fins. TLH chartered the KD II

and ordered it to make a voyage in which it would rendezvous

with foreign fishing vessels on the high seas, purchase shark

fins from those vessels, and transport the fins to Guatemala,

where TLH would accept delivery. 

In June 2002 the KD II left Honolulu, Hawaii, to begin the

charter trip for TLH. During the next two months, the KD II

met with over 20 vessels on the high seas and purchased

approximately 64,695 pounds of shark fins. On August 14,

2002, United States Coast Guard officials boarded the KD II

approximately 250 miles off the coast of Guatemala. On

board, they discovered the shark fins but no shark carcasses.

The SFPA establishes a rebuttable presumption that shark fins

landed or found on board a fishing vessel without corresponding shark carcasses were obtained through prohibited shark

finning. 16 U.S.C. § 1857(1)(P). Acting on this presumption,

the Coast Guard detained the KD II and escorted it to San

Diego. On August 23, 2002, the Government seized the shark

fins. 

On March 26, 2003, the Government filed a civil complaint

for forfeiture of the shark fins. The complaint alleged that the

fins were subject to forfeiture pursuant to the Magnuson Act,

16 U.S.C. § 1860(a), because they were taken or retained in

violation of the SFPA, 16 U.S.C. § 1857(1)(P)(ii), and its

implementing regulations at 50 C.F.R.§ 600.1203(a)(2) (formerly 50 C.F.R. § 600.1022(a)(2)). This is referred to herein

as the “possession” prohibition. The landing prohibition, set

forth in the following subsection of the statute, subsection

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2477
(iii), is not at issue here, because “landing” applies only to

landings at U.S. ports. 

The issue in dispute is whether the KD II was a fishing vessel within the meaning of the SFPA and the Magnuson Act.

The district court ruled on two separate arguments advanced

by TLH. It first held that there was a genuine issue of material

fact about whether the KD II was “used for, equipped to be

used for or of a type which is normally used for . . . fishing”

as defined in § 1802(18)(A), and it therefore denied summary

judgment as to that ground. The court then held that the KD

II was a fishing vessel as a matter of law under § 1802(18)(B)

because it aided or assisted fishing vessels at sea in the performance of activities related to fishing, including “purchase,

storage, and transportation.” As a result, the court granted the

government’s motion for summary judgment on that basis.

See United States v. Approximately 64,695 Pounds of Shark

Fins, 353 F. Supp. 2d 1095 (S.D. Cal. 2005). The parties then

filed an Amended Stipulated Facts and Legal Conclusion “for

the purpose of saving the time and cost of litigating the fair

market value of the shark fins, as well as to expedite TLH’s

appeal of an order forfeiting the fair market value of the shark

fins to the Ninth Circuit Court of Appeals.” The parties stipulated that the fair market value of the fins at the time of the

seizure was $618,956 and that an order forfeiting this amount

was a legal consequence of the district court’s summary judgment order. 

The district court entered a judgment of forfeiture on June

6, 2005. TLH timely appealed. 

II. The statutes and regulations did not provide TLH

with notice that the prohibition on possessing shark

fins aboard a fishing vessel as defined in 16 U.S.C.

§ 1802(18)(B) applied to the KD II 

TLH challenges the district court’s ruling, arguing both that

the KD II was not a fishing vessel within the meaning of 16

2478 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
U.S.C. § 1802(18)(B), and that application of that provision

of the SFPA to the KD II violated due process. Even if the KD

II were a fishing vessel within the meaning of § 1802(18)(B),

we conclude that the provision in question would not provide

fair notice to TLH that it was such a vessel and was subject

to the possession prohibition. As a result, we agree that application of that sub-section of the SFPA to the KD II violated

due process. 

A. Fair notice

[1] Due process requires that an agency provide “fair notice

of what conduct is prohibited before a sanction can be

imposed.” Stillwater Mining Co. v. Federal Mine Safety &

Health Review Comm’n, 142 F.3d 1179, 1182 (9th Cir. 1998)

(quoting Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996)).

As the D.C. Circuit has explained, “[i]n the absence of notice

— for example, where the regulation is not sufficiently clear

to warn a party about what is expected of it — an agency may

not deprive a party of property by imposing civil or criminal

liability.” Trinity Broadcasting of Florida, Inc. v. Federal

Commc’n Comm’n, 211 F.3d 618, 628 (D.C. Cir. 2000) (quoting General Elec. Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C.

Cir. 1995)) (alteration in original). 

[2] 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.” Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). We agree with TLH that a reasonable owner of a

cargo vessel engaged in at-sea purchase and transfer of shark

fins would not anticipate that its ship could be deemed a fishing vessel under § 1802(18)(B). 

1. Plain Language of the Statute

In determining the meaning of a statute, we first look to the

language of the statute itself. See Freeman v. DirecTV, Inc.,

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2479
457 F.3d 1001, 1004 (9th Cir. 2006) (“The starting point for

[the] interpretation of a statute is always its language.”) (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,

739 (1989)). In this case, we find nothing in the plain meaning of § 1802(18)(B) that would provide notice to the owners

of the KD II that its activities would render it a fishing vessel

under § 1802(18)(B). 

[3] The district court found the KD II in violation of the

SFPA, which prohibits the possession of unlawfully obtained

shark fins aboard a fishing vessel. 16 U.S.C. § 1857(1)(P). As

explained above, the SFPA relies on the Magnuson Act to

define the term “fishing vessel.” The definition includes any

vessel that “aid[s] or assist[s] 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.” 16 U.S.C. § 1802(18)(B). 

The district court held that the KD II was a fishing vessel

under 16 U.S.C. § 1802(18)(B) because it aided and assisted

vessels at sea in the performance of fishing-related activities.

Specifically, the district court found that the KD II’s “purchase, storage, and transport” of the shark fins aided and

assisted the foreign fishing vessels. 

[4] None of these activities would appear to fall within the

plain meaning of “aiding” or “assisting” in the circumstances

of this case. 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 (4th ed. 2000).

Similarly, it defines “to aid” as “[t]o help or furnish with help,

support, or relief.” Id. As these definitions indicate, “aiding”

and “assisting” generally connote doing an act for the benefit

of another. 

[5] In this case, the charterers of the KD II did not purchase, store or transport shark fins for the benefit of the for2480 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
eign fishing vessels. Instead, they purchased the fins for their

own commercial purposes. The foreign fishing vessels had no

interest in the shark fins after selling them to the KD II. As

a result, the KD II’s subsequent post-purchase storage and

transport of the shark fins did not benefit the foreign vessels

any more than the purchaser of any other product aids and

assists the seller by storing the goods it has acquired in a

warehouse or transporting them to the location at which it

intends to resell them. Nor does the mere act of purchasing

constitute an act of aiding and assisting a seller. Otherwise it

would not be necessary in criminal statutes that are intended

to punish buyers as well as sellers of illegal substances to

specify the former group expressly. It would be enough that

selling is proscribed and that a purchaser bought the illicit

product. Under the district court’s theory, the simple act of

purchasing would make a buyer an aider or abettor. This is

simply incorrect. Moreover, here, unlike storing and transporting, “purchasing” is not listed in the statute as one of the

acts that constitutes aiding and abetting. Under these circumstances, the statutory provision that prohibits “aiding or assisting any activity relating to fishing” does not give fair notice

that purchasing fins is prohibited, nor that storing or transporting them after they are acquired is contrary to law. 

Similarly, we are not persuaded by the district court’s reasoning that purchasing shark fins at particular at-sea locations

designated by the foreign vessels constitutes an act of aiding

or assisting the foreign vessels. As explained above, the acts

of purchasing, and then storing and transporting the shark fins

do not in themselves constitute aiding or assisting the fishing

vessels. Rather, the charterers of the KD II were at all times

acting for their own benefit, not for the benefit of the foreign

fishing vessels. That the foreign vessels chose to conduct the

sales at sea — even at particular locations at sea — and to

transfer possession of the fins at that point, may have been

beneficial or even necessary to those vessels’ business operations, but the choice did not change the nature of the purchasers’ actions in any respect. They still purchased the fins,

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2481
stored them and transported them for their own commercial

purposes. From the standpoint of the purchaser, any benefit to

the seller was incidental. In short, the statutory language at

issue here does not support the district court’s conclusion that

the KD II became a fishing vessel because it purchased, transported and stored the shark fins at a location favorable to the

foreign fishing vessels. 

We also reject the district court’s reasoning that the at-sea

purchase of the shark fins constituted aiding and assisting

because it allowed the foreign vessels to continue fishing for

longer than they would have otherwise. The court supported

this conclusion by referring to a letter stating that the KD II

would save time and expense by having one of the foreign

vessels pick up shark fins from other vessels and deliver them

in bulk to the KD II. Although the letter relates the time and

expense that TLH saved by not having to go from vessel to

vessel in each instance, it does not establish that the failure or

inability to make such arrangements with respect to all the

foreign vessels constituted aiding or assisting those to which

the KD II actually went. Surely, purchasing all the shark fins

at the dock would have been preferable for TLH (if the cost

were to remain the same), and surely the sellers benefited

from selling at a particular location, just as they benefited

from making the sale in the first place. Nevertheless, wherever the purchase is made, the purchaser is doing no more

than making a purchase that it desires to make for its own

business reasons. As a result, while the district court’s

assumption that the seller would benefit from the location of

particular sales appears reasonable, it is irrelevant. Thus,

nothing in the district court’s reasoning persuades us that the

plain language of § 1802(18)(B) provides fair notice that a

purchaser of shark fins is aiding or assisting the seller by the

act of purchasing. 

We recognize that Congress enacted the SFPA to “eliminate the wasteful and unsportsmanlike practice of shark finning” and that it explained that “the purpose of this Act is to

2482 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
eliminate shark-finning by addressing the problem comprehensively at both the national and international levels.” Pub.

L. 106-557, 114 Stat. 2772 (2000). Although this broad statement expresses an intent to prevent shark finning, it says

nothing to suggest that purchasing shark fins or subsequently

transporting or storing them for the purchaser’s benefit constitutes aiding or assisting the seller and, thus, falls within the

ambit of the possession prohibition. Given that the plain language of § 1802(18)(B) nowhere suggests that the possession

prohibition extends to the activities of the KD II, the broad

purpose of the Act provides no help to the government with

regard to the issue on appeal. 

Although we find nothing in the plain language of

§ 1802(18)(B) that would provide notice to the KD II that the

possession prohibition extended to its activities, we will next

turn to the regulations and to the district court’s alternative

holding that they provide such notice. 

2. Implementing Regulations

The district court concluded that the implementing regulations made clear that the actions of the KD II would render it

subject to the possession prohibition. We reject this holding

as well. 

Pursuant to the SFPA, the National Marine Fisheries Services (NMFS) enacted regulations making it unlawful to: 

1) Engage in shark finning as provided in

§ 600.1204(a) and (I).

2) Possess shark fins without the corresponding carcasses while on board a U.S. fishing vessel, as provided in § 600.1204(b) and (j).

3) Land shark fins without the corresponding carcasses, as provided in § 600.1204(c) and (k). 

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2483
50 C.F.R. § 600.1203. 

The relevant portion of the possession prohibition is

defined at § 600.1204(b), which provides:

No person aboard a U.S. fishing vessel shall possess

on board shark fins harvested seaward of the inner

boundary of the U.S. EEZ without the corresponding

carcass(es). . . . 

The relevant portion of the landing prohibition is defined at

§ 600.1204(c), which provides:

No person aboard a U.S. or foreign fishing vessel

(including any cargo vessel that received shark fins

from a fishing vessel at sea) shall land shark fins harvested in waters seaward of the inner boundary of

the U.S. EEZ without corresponding shark carcasses.

. . . 

As the government conceded at oral argument, the landing

provision applies only to fishing vessels (and cargo vessels

that receive fins from a fishing vessel at sea) landing at U.S.

ports. It does not apply to those vessels landing at foreign

ports, such as Guatemala, where the KD II was to land. 

To support its conclusion that the regulations make clear

that the KD II was a fishing vessel, the district court looked

exclusively to the agency’s explanation of the regulation prohibiting landing shark fins, the prohibition at 50 C.F.R.

§ 600.1204(c). The agency explained this provision in the preamble: 

The prohibition of landing shark fins without corresponding carcasses extends to any vessel (including

a cargo or shipping vessel) that obtained those fins

from another vessel at sea. Any such at-sea transfer

of shark fins effectively would make the receiving

2484 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
vessel a “fishing vessel,” as the receiving vessel is

acting “in support of fishing.” Thus, the receiving

vessel is prohibited from landing shark fins without

corresponding carcasses under this final rule. 

67 Fed. Reg. 6194 (2002) (emphasis added). 

[6] Far from making clear that the KD II was a fishing vessel for purposes of the possession prohibition — the prohibition under which the government seized the shark fins aboard

the KD II — the language relied on, in context, suggests the

opposite. As TLH points out, the quoted language relates to

the landing prohibition. While the text of the landing prohibition, 50 C.F.R. § 600.1204(c), explicitly provides that a cargo

vessel that lands shark fins after an at-sea transfer is considered a fishing vessel, § 1204(b) — the prohibition on possessing shark fins — includes no such provision. Where an

agency includes language in one section of the regulation and

omits it in another, it is reasonable to presume that the agency

acted intentionally in forgoing the language. Cf. Bates v.

United States, 522 U.S. 23, 29 (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.”) (internal citation omitted).

In other words, the text of the landing prohibition specifically includes cargo or shipping vessels such as the KD II,

while the text of the possession prohibition contains no such

language. The obvious implication is that although the landing prohibition defines vessels that simply engage in at-sea

transfer of shark fins as fishing vessels, the possession provision does not. 

[7] The preamble to the regulation similarly supports the

conclusion that vessels engaged in the at-sea transfer of fins

will be considered fishing vessels only for purposes of the

landing prohibition. Again, the only reference in the preamble

UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2485
to a prohibition on at-sea transfer of shark fins is found in the

discussion of the landing prohibition; no such reference

occurs in the discussion of the possession prohibition. 

[8] Taken together, the regulations and the preamble may

be reasonably read to provide notice that vessels that engage

in at-sea transfers of fins are prohibited from landing shark

fins in a U.S. port, but they do not provide notice that such

vessels are prohibited from possessing fins for the purpose of

making a delivery to a foreign port. This reading is further

supported by the agency’s emphasis in the preamble on its

desire not to interfere with international trade. See 67 Fed.

Reg. 6194, 6195 (2002). As TLH pointed out, the KD II’s

purchase and delivery of shark fins to a foreign port for resale

falls within the ambit of international trade. In the absence of

any other indication in the statutes or the regulations, a vessel

engaged in such trade has reason to believe that it is not subject to the possession prohibition as a fishing vessel under

§ 1802(18)(B). 

[9] Under the circumstances, a reasonable person would not

have fair notice that the activities of the KD II would render

it a fishing vessel under § 1802(18)(B). As a result, we hold

that the district court’s application of the possession prohibition of the SFPA to the KD II as a fishing vessel under

§ 1802(18)(B) violated due process. We therefore reverse its

decision and remand for further proceedings consistent with

this opinion. 

REVERSED AND REMANDED.

2486 UNITED STATES v. APPROXIMATELY 64,695 POUNDS