FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHINATOWN NEIGHBORHOOD 

ASSOCIATION, a nonprofit 

corporation; ASIAN AMERICANS FOR 

POLITICAL ADVANCEMENT, a 

political action committee,

Plaintiffs-Appellants,

v.

KAMALA HARRIS, Attorney General 

of the State of California; CHARLTON 

H. BONHAM, Director, California 

Department of Fish and Game,

Defendants-Appellees,

HUMANE SOCIETY OF THE UNITED 

STATES; MONTEREY BAY AQUARIUM 

FOUNDATION; ASIAN PACIFIC 

AMERICAN OCEAN HARMONY 

ALLIANCE,

Intervenor-Defendants–Appellees.

No. 14-15781

D.C. No.

3:12-cv-03759-

WHO

OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick III, District Judge, Presiding

Argued and Submitted

March 18, 2015—San Francisco, California
2 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

Filed July 27, 2015

Before: Stephen Reinhardt, John T. Noonan,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent by Judge Reinhardt

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal of 

plaintiffs’ amended complaint challenging California’s 

“Shark Fin Law,” which makes it “unlawful for any person 

to possess, sell, offer for sale, trade, or distribute a shark 

fin” in the state.

The panel rejected plaintiffs’ claim that the Shark Fin 

Law is preempted by the Magnuson-Stevens Fishery 

Conservation and Management Act. The panel held that 

plaintiffs failed to identify any actual conflict between 

federal authority under the Magnuson-Stevens Act to 

manage shark fishing in the ocean off the California coast 

and the California Shark Fin Law. The panel further held 

that the district court did not abuse its discretion by failing 

 

 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 3

to sua sponte grant plaintiffs leave to amend so they could 

plead additional facts to support the preemption claim. The 

panel held that even assuming that plaintiffs preserved the 

argument for appeal, leave to amend would be futile.

The panel rejected plaintiffs’ claim that the Shark Fin 

Law is per se invalid under the Commerce Clause because 

it interferes with the interstate commerce in shark fins. The 

panel held that even when state law has significant 

extraterritorial effects, it passes Commerce Clause muster 

when, as here, those effects result from the regulation of instate conduct. The panel further determined that the Shark 

Fin Law does not interfere with activity that is inherently 

national or that requires a uniform system of regulation, 

and that, accordingly, there is no significant interference 

with interstate commerce.

Judge Reinhardt dissented in part because he believes 

that plaintiffs must be granted leave to amend the 

complaint with respect to their preemption claim.

COUNSEL

Michael Tenenbaum (argued), The Michael Tenenbaum 

Law Firm, Santa Monica, California; Joseph M. Breall, 

Breall & Breall LLP, San Francisco, California, for 

Plaintiffs-Appellants.

Kamala D. Harris, Attorney General of California, Douglas 

J. Woods, Senior Assistant Attorney General, Tamar 

Pachter, Supervising Deputy Attorney General, Alexandra 

Robert Gordon (argued), Deputy Attorney General, San 

Francisco, California, Attorneys for Defendants-Appellees.
4 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

Bruce A. Wagman, Schiff Hardin LLP, San Francisco, 

California; Ralph E. Henry (argued), The Humane Society 

of the United States, Washington, DC, Attorneys for 

Intervenors-Defendants-Appellees The Humane Society of 

the United States, Monterey Bay Aquarium Foundation, 

and Asian Pacific Americans for Ocean Harmony Alliance.

Seth L. Atkinson, Natural Resources Defense Council, San 

Francisco, California, for Amicus Curiae Natural Resources 

Defense Council.

OPINION

HURWITZ, Circuit Judge:

California’s “Shark Fin Law” makes it “unlawful for 

any person to possess, sell, offer for sale, trade, or 

distribute a shark fin” in the state. Cal. Fish & Game Code 

§ 2021(b). The plaintiffs in this action claim that the Shark 

Fin Law violates the Supremacy Clause by interfering with 

the national government’s authority to manage fishing in 

the ocean off the California coast, and the dormant 

Commerce Clause by interfering with interstate commerce 

in shark fins. The district court dismissed the plaintiffs’ 

amended complaint with prejudice, and we affirm.

I.

A.

The Magnuson-Stevens Fishery Conservation and 

Management Act (“MSA”), 16 U.S.C. §§ 1801-1884, “was 

enacted to establish a federal-regional partnership to 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 5

manage fishery resources.” Nat’l Res. Def. Council, Inc. v. 

Daley, 209 F.3d 747, 749 (D.C. Cir. 2000). Under the 

MSA, the federal government exercises “sovereign rights 

and exclusive fishery management authority over all fish, 

and all Continental Shelf fishery resources, within the 

exclusive economic zone” (“EEZ”), 16 U.S.C. § 1811(a), 

which extends from the seaward boundary of each coastal 

state to 200 miles offshore,1id. § 1802(11); City of 

Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155, 160 

(4th Cir. 2002). The MSA expressly preserves the 

jurisdiction of the states over fishery management within

their boundaries. See 16 U.S.C. § 1856(a)(1).

To manage fishing in the EEZ, the MSA calls for the 

creation of regional Fishery Management Councils 

(“FMCs”), composed of state and federal officials and 

experts appointed by the Secretary of the National Marine 

Fisheries Service (“NMFS”). 16 U.S.C. § 1852(b)(1)-(2). 

With the cooperation of “the States, the fishing industry, 

consumer and environmental organizations, and other 

interested persons,” id. § 1801(b)(5), the NMFS and FMCs 

develop and promulgate Fishery Management Plans 

(“FMPs”) to “achieve and maintain, on a continuing basis, 

the optimum yield from each fishery,” id. § 1801(b)(4).2 In 

 

 

1

In California, the seaward boundary is three miles offshore. 

Vietnamese Fishermen Ass’n of Am. v. Cal. Dep’t of Fish & Game, 

816 F. Supp. 1468, 1470 (N.D. Cal. 1993).

 

2

See, e.g., Fishery Management Plan for U.S. West Coast Fisheries 

for Highly Migratory Species, Pacific Fishery Management Council 
6 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

the MSA, “optimum yield” means the amount of fish that 

“will provide the greatest overall benefit to the Nation, 

particularly with respect to food production and 

recreational opportunities, and taking into account the 

protection of marine ecosystems.” Id. § 1802(33); see also 

50 C.F.R. § 600.310(e)(3).

B.

Shark finning is the practice of removing the fins from 

a living shark. The primary market for shark fins is to 

make shark fin soup, a traditional Chinese dish.

Even before the Shark Fin Law was passed, federal and 

state law prohibited finning in the waters off the California 

coast. In 1995, the California legislature made it “unlawful 

to sell, purchase, deliver for commercial purposes, or 

possess on any commercial fishing vessel . . . any shark fin 

or shark tail or portion thereof that has been removed from 

the carcass.” Cal. Fish & Game Code § 7704(c); see 1995 

Cal. Legis. Serv. ch. 371, § 1 (S.B. 458). In 2000, 

Congress added finning prohibitions to the MSA, which, as 

amended in 2011, make it unlawful to remove the fins from 

a shark at sea, possess detached fins aboard fishing vessels, 

transfer them from one vessel to another, and land them 

onshore. See 16 USC § 1857(1)(P); Conservation of 

Sharks, Pub. L. No. 111-348, § 103(a)(1), 124 Stat. 3668, 

3670 (2011); Shark Finning Prohibition Act, Pub. L. No. 

106-557, § 3, 114 Stat. 2772 (2000).

 

(July 2011), available at http://www.pcouncil.org/wpcontent/uploads/HMS-FMP-Jul11.pdf.
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 7

In 2011, after finding that shark finning nonetheless 

continued to “cause[] tens of millions of sharks to die each 

year,” thereby threatening a critical element of the ocean 

ecosystem, and that “California is a market for shark fin” 

that “helps drive the practice of shark finning,” 2011 Cal. 

Legis. Serv. ch. 524, § 1(d), (f) (A.B. 376), the California 

legislature passed the Shark Fin Law, which makes it a 

misdemeanor to possess, sell, trade, or distribute detached 

shark fins in California, see Cal. Fish & Game Code 

§§ 2021(b), 12000.

C.

The plaintiffs are associations whose members 

previously engaged in cultural practices and commerce 

involving shark fins. They claim that the Shark Fin Law is 

preempted by the MSA because it interferes with federal 

management of shark fishing in the EEZ, and with the 

federal government’s prerogative to balance the various 

statutory objectives of the MSA. They also claim the law 

runs afoul of the dormant Commerce Clause by interfering 

with commerce in shark fins between California and other 

states, and by stemming the flow of shark fins through 

California into the rest of the country.3

In August 2012, the plaintiffs moved the district court 

to preliminarily enjoin the enforcement of the Shark Fin 

Law. The district court denied the motion, and we 

 

 

3 The plaintiffs also claimed below that the Shark Fin Law violates 

the Equal Protection Clause, but they abandoned this claim at oral 

argument.
8 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

affirmed, agreeing that the plaintiffs had failed to show a 

likelihood of success on the merits of their preemption and 

dormant Commerce Clause claims.4 See Chinatown 

Neighborhood Ass’n v. Brown, 539 F. App’x 761, 762-63 

(9th Cir. 2013) (mem.). On December 9, 2013, the 

plaintiffs filed an amended complaint. The district court 

granted the defendants’ motion to dismiss with prejudice on 

March 24, 2014.

 

 

4 The federal government raised tentative preemption concerns in an 

untimely amicus brief filed with this Court while the appeal from the 

denial of the preliminary injunction was before us. See Chinatown 

Neighborhood Ass’n v. Brown, 539 F. App’x 761, 763 (9th Cir. 2013) 

(mem.). That brief relied in part on an NMFS notice of proposed 

rulemaking—which proposed regulations that have not been adopted—

suggesting that under certain circumstances, the MSA would preempt 

state laws that have the effect of regulating fishing within the EEZ. See 

Magnuson-Stevens Act Provisions; Implementation of the Shark 

Conservation Act of 2010, 78 Fed. Reg. 25,685, 25,687 (May 2, 2013). 

We declined to consider the federal government’s position on 

preemption in determining whether the district court had abused its 

discretion in denying preliminary injunctive relief because that position 

was first presented in an untimely amicus brief on appeal, but said that 

the federal government could “rais[e] these arguments in the permanent 

injunction proceedings.” Chinatown Neighborhood Ass’n, 539 F. 

App’x at 763. The federal government did not file an amicus brief in 

connection with the motion to dismiss or the present appeal, but the 

defendants have submitted correspondence from the NMFS stating that 

the Shark Fin Law “is not preempted by the Magnuson-Stevens Act, as 

amended.” In light of our conclusions below, we need not rely on this 

position.
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 9

II.

We have jurisdiction over this appeal under 28 U.S.C. 

§ 1291. We review a district court’s grant of a motion to 

dismiss de novo, Cousins v. Lockyer, 568 F.3d 1063, 1067 

(9th Cir. 2009), and the denial of leave to amend for abuse 

of discretion, Toth v. Trans World Airlines, Inc., 862 F.2d 

1381, 1385 (9th Cir. 1988).

III.

The MSA does not have an express preemption 

provision. Even absent such a provision, however, a 

federal statute has preemptive effect if it conflicts with state 

law. This can occur when “compliance with both federal 

and state regulations is a physical impossibility,” Fla. Lime 

& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 

(1963), or when a state law “stands as an obstacle to the 

accomplishment and execution of the full purposes and 

objectives of Congress,” Arizona v. United States, 132 S. 

Ct. 2492, 2501 (2012).5 In assessing the preemptive force 

of a federal statute, the purpose of Congress, as “discerned 

from the language of the pre-emption statute and the 

statutory framework surrounding it,” is the “ultimate 

touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86 

(1996) (quotation marks omitted).

 

 

5 Under the doctrine of “field preemption,” state law is preempted if it 

regulates “conduct in a field that Congress, acting within its proper 

authority, has determined must be regulated by its exclusive 

governance.” Arizona, 132 S. Ct. at 2501. The plaintiffs have 

abandoned any claim of field preemption.
10 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

A presumption against preemption applies generally, 

but is especially strong when, as here, “Congress has 

legislated in a field which the states have traditionally 

occupied.” McDaniel v. Wells Fargo Invs., LLC, 717 F.3d 

668, 674 (9th Cir. 2013); see also Bayside Fish Flour Co. 

v. Gentry, 297 U.S. 422, 426 (1936) (explaining the historic 

control of states over fish in state waters); N.Y. State 

Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1309-10 (2d Cir. 

1994) (“The interest of a state in regulating the taking of its 

fish and wildlife resources has been long established.”). 

Thus, the California statute cannot be set aside absent 

“clear evidence” of a conflict. Geier v. Am. Honda Motor 

Co., 529 U.S. 861, 885 (2000); see also McClellan v. IFlow Corp., 776 F.3d 1035, 1039 (9th Cir. 2015) (“[T]he 

historic police powers of the States were not to be 

superseded unless that was the clear and manifest purpose 

of Congress.” (alteration omitted)).

A.

Although the plaintiffs argue the Shark Fin Law 

interferes with the federal government’s authority under the 

MSA to manage shark fishing in the EEZ, they do not 

identify any “actual conflict between the two schemes of 

regulation.” Fla. Lime, 373 U.S. at 141. To be sure, the 

California statute restricts certain economically viable uses 

for sharks that are lawfully harvested from the EEZ and 

landed in California. But the MSA does not mandate that a 

given quantity of sharks be harvested from the EEZ—and 

even if it did, detached fins are not the only viable use for 

harvested sharks. As the plaintiffs recognize, “[t]he use of 

approximately 95% of any legally fished shark for shark 

oil, shark meat, shark skin, etc. is still permitted” under the 

California regime. The plaintiffs point to no “clear and 

manifest” intent of Congress to preempt regulation such as 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 11

the Shark Fin Law, McClellan, 776 F.3d at 1039; rather, 

they have alleged nothing more than the prospect of a 

“modest impediment” to general federal purposes, Pharm. 

Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 667 

(2003). This does not suffice to overcome the presumption 

against preemption. See Sprietsma v. Mercury Marine, 

537 U.S. 51, 67 (2002) (finding no preemption in the 

absence of conflict with an “authoritative message” from 

Congress); P.R. Dep’t of Consumer Affairs v. Isla Petrol. 

Corp., 485 U.S. 495, 501 (1988) (same); Fla. Lime, 

373 U.S. at 146-52 (same).6

 

 

6 The cases relied upon by the plaintiffs that invalidate state 

regulations with effects on fishing in the EEZ are unpersuasive because 

in each case, the invalidated regulations either directly proscribed what 

federal law affirmatively allowed, see A Fisherman’s Best, 310 F.3d at 

173-76 (Fourth Circuit case finding preempted a city resolution 

forbidding access to ports for vessels using longline tackle, which was 

the only fishing method authorized by the applicable FMP), or directly 

banned activity within the EEZ that was legal under federal law, see

Vietnamese Fishermen Ass’n, 816 F. Supp. at 1475 (concluding an 

FMP permitted the use of gill nets in certain places within the EEZ, and 

invalidating a California proposition banning the use of gill nets in the 

EEZ); Bateman v. Gardner, 716 F. Supp. 595, 597-98 (S.D. Fla. 1989) 

(finding preempted a Florida statute that banned fishing in portions of 

the EEZ where federal law allowed it), aff’d, 922 F.2d 847 (11th Cir. 

1990) (mem.). In Southeast Fisheries Association v. Chiles, a case 

cited in the dissent, the Eleventh Circuit suggested in dicta that statelaw daily quotas on landing Spanish Mackerel would interfere with a 

federal annual quota on catch of that fish in the EEZ. 979 F.2d 1504, 

1509-10 (11th Cir. 1992). There too, state law directly conflicted with 

what federal law allowed.
12 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

B.

The plaintiffs emphasize that even when state and 

federal purposes overlap, a conflict in the method of 

achieving those purposes can be grounds for setting aside a 

state law. See Arizona, 132 S. Ct. at 2505 (“[C]onflict in 

technique can be fully as disruptive to the system Congress 

enacted as conflict in overt policy.”). They discern in the 

MSA a balancing of competing objectives in fishery 

management and a corresponding congressional intent to 

preclude state legislation that promotes one of these 

objectives—conservation—over others. See, e.g., id.

(finding state law preempted from interfering “with the 

careful balance struck by Congress with respect to 

unauthorized employment” of undocumented workers).

The MSA indeed recognizes various competing values. 

See 16 U.S.C. § 1801(b) (listing “conserv[ing] and 

manag[ing] the fishery resources found off the coasts of the 

United States,” “promot[ing] domestic commercial and 

recreational fishing under sound conservation and 

management principles,” and “encourag[ing] the 

development by the United States fishing industry of 

fisheries which are currently underutilized or not 

utilized . . . in a non-wasteful manner” as objectives of the 

MSA). Among them, however, conservation is paramount. 

See Nat. Res. Def. Council, Inc. v. Nat’l Marine Fisheries 

Serv., 421 F.3d 872, 879 (9th Cir. 2005) (“The purpose of 

the Act is clearly to give conservation of fisheries priority 

over short-term economic interests.”); Daley, 209 F.3d at 

753 (“[U]nder the . . . [MSA], the Service must give 

priority to conservation measures.”). Indeed, in the 

particular context of shark fishing, the amendments to the 

MSA addressing finning make the primacy of conservation 

unambiguous. See 16 U.S.C. § 1857(1)(P). This is, 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 13

accordingly, not the rare circumstance in which a state law 

interferes with a “deliberate effort to steer a middle path,” 

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 378 

(2000) (quotation marks omitted), or to strike a “careful 

balance,” Arizona, 132 S. Ct. at 2505.

The MSA’s provision for broad state-level participation 

in the implementation of the statutory objectives further 

undermines any inference of interference with Congress’s 

method. See, e.g., 16 U.S.C. § 1852(a)(2) (“Each [FMC] 

shall reflect the expertise and interest of the several 

constituent States in the ocean area over which such 

Council is granted authority.”); see also id. § 1853(b)(3)(B) 

(permitting FMPs to limit commerce in fish caught within 

the EEZ “consistent with any applicable . . . State safety 

and quality requirements”); id. § 1856(a)(1) (“[N]othing in 

this chapter shall be construed as extending or diminishing 

the jurisdiction or authority of any State within its 

boundaries.”); Daley, 209 F.3d at 749 (“The Fishery Act 

was enacted to establish a federal-regional partnership to 

manage fishery resources.”). Courts have found conflicts 

between state and federal schemes with overlapping 

purposes when the federal scheme is comprehensive and 

exclusive, see, e.g., Arizona, 132 S. Ct. at 2504-05 

(immigration); Crosby, 530 U.S. at 380-88 (international 

sanctions), but not when, as here, the federal scheme is 

cooperative, see Wyeth v. Levine, 555 U.S. 555, 575 (2009) 

(“The case for federal pre-emption is particularly weak 

where Congress has indicated its awareness of the 

operation of state law in a field of federal interest, and has 

nonetheless decided to stand by both concepts and to 

tolerate whatever tension there is between them.” 

(alteration omitted)); DeHart v. Town of Austin, Ind., 

39 F.3d 718, 722 (7th Cir. 1994) (“[G]iven the clear 
14 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

expressions of Congressional intent to foster cooperation 

with state and local governments and the different, albeit 

overlapping, purposes behind the [federal] Act and the . . . 

Ordinance, we discern no Congressional intent to ban state 

or local legislation . . . .”).

C.

The plaintiffs’ attempt to draw a negative inference 

from Congress’s failure in the MSA to address on-land 

activities related to finning, see 18 U.S.C. § 1857(1)(P) 

(referring to activities at sea, aboard fishing vessels, and 

during landing), is similarly meritless. Silence, without 

more, does not preempt—“a clear and manifest purpose of 

pre-emption is always required.” Isla Petrol., 485 U.S. at 

503 (quotation marks omitted). There is no “authoritative 

federal determination” that on-land activities are “best left 

unregulated.” Id.

7

 To the contrary, the federal scheme 

 

 

7 The plaintiffs rely on regulations that limit the circumstances under 

which sharks may be sold on land. See 50 C.F.R. § 635.31(c)(1), (5). 

But these regulations limit, rather than encourage, commerce in sharks. 

Cf. 16 U.S.C. § 1853(b)(3) (permitting FMPs to “establish specified 

limitations which are necessary and appropriate for the conservation 

and management of the fishery on the . . . sale of fish caught during 

commercial, recreational, or charter fishing” (emphasis added)). The 

plaintiffs also rely on a statement by Representative George Miller 

during floor debates on the federal finning prohibition act that the “Act 

will not prevent United States fishermen from harvesting sharks, 

bringing them to shore, and then using the fins or any other part of the 

shark.” 146 Cong. Rec. H11571 (Oct. 30, 2000). But a lone statement 

in the legislative history is not a “clear and manifest” expression of 

Congress’s intent to preempt, and in any event, this statement merely 

describes the limits of federal law.
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 15

expressly preserves the ability of states to regulate fishingrelated activities within their boundaries. See 16 U.S.C. 

§ 1856(a)(1).

D.

The plaintiffs amended their original complaint after we 

remanded the case upon affirming the denial of a 

preliminary injunction. At the hearing on the motion to 

dismiss the amended complaint, the district court asked 

plaintiffs’ counsel during the discussion of the preemption 

claim whether “you’ve got the complaint where you want 

it,” and counsel responded affirmatively. Based on this 

representation, the court found that a second round of 

amendments would be futile and granted the motion to 

dismiss with prejudice.

The plaintiffs assert for the first time on appeal that 

they could plead additional facts to support the preemption 

claim, and ask us to find that the district court abused its 

discretion in failing to grant leave sua sponte. Even 

making the charitable assumption that this argument was 

preserved for appeal, see Alaska v. United States, 201 F.3d 

1154, 1163-64 (9th Cir. 2000) (“Where a party does not ask 

the district court for leave to amend, the request on appeal 

to remand with instructions to permit amendment comes 

too late.” (alterations and quotation marks omitted));

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 

749 (9th Cir. 2006) (relying on Alaska for the proposition 

that “we generally will not remand with instructions to 

grant leave to amend unless the plaintiff sought leave to 
16 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

amend below”), we cannot conclude on this record that the 

district court abused its discretion in dismissing with 

prejudice.8

“Although leave to amend ‘shall be freely given when 

justice so requires,’ it may be denied if the proposed 

amendment either lacks merit or would not serve any 

purpose because to grant it would be futile in saving the 

plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. 

Co., 799 F.2d 458, 459 (9th Cir. 1986) (quoting Fed. R. 

Civ. P. 15(a)). The first amended complaint makes no 

allegations of a direct conflict between the California 

statute and any unambiguous federal mandate. At oral 

argument on this appeal, plaintiffs’ counsel asserted that 

the plaintiffs could remedy this defect by alleging that state 

bans on commerce in shark fins affect the ability of 

commercial fishers to reap the optimum yields prescribed 

in FMPs for shark harvests. But the MSA does not preempt 

a state law simply because it may affect the realization of 

optimum yields—if that were so, a wide array of state 

regulations affecting commercial fishing, such as taxes or 

labor laws, would be potentially suspect. Indeed, Congress 

expressly foreclosed any interpretation of optimum yield 

that would have such a broad preemptive effect by 

 

 

8 The dissent correctly notes the “strong showing” required in the 

district court to justify dismissal with prejudice, but ignores the 

deferential abuse-of-discretion standard governing our review of the 

district court’s failure to grant leave to amend. At the very least, it is 

even more difficult to perceive an abuse of discretion when the 

plaintiffs never sought leave to amend below.
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 17

preserving state jurisdiction over commerce in fish 

products within state borders. See 16 U.S.C. § 1856(a)(1).

The plaintiffs concede that no provision of federal law 

affirmatively guarantees the right to use or sell shark fins 

onshore, and they do not dispute that there are 

commercially viable uses for sharks besides their detached 

fins. That resolves the preemption issue. See Fla. Lime, 

373 U.S. at 146-47 (“[W]e are not to conclude that 

Congress legislated the ouster of this California statute . . . 

in the absence of an unambiguous congressional mandate to 

that effect.”). Leave to amend would therefore be futile. 

Cf. ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 

754 F.3d 754, 761-62 (9th Cir. 2014) (“Preemption is 

almost always a legal question, the resolution of which is 

rarely aided by development of a more complete factual 

record.” (quotation marks omitted)).9

IV.

“The Supreme Court has adopted a two-tiered approach 

to analyzing state economic regulation under the 

 

 

9 Our conclusion is bolstered by the posture in which the request to 

amend was made. The original complaint was filed three years ago, 

since then, there has been ample opportunity to explore the scope of the 

preemption claim, including in litigating the preliminary injunction and 

the appeal from the denial of the preliminary injunction. The plaintiffs 

had the benefit of this litigation, and its resolution, before filing the first 

amended complaint. Cf. AmerisourceBergen Corp. v. Dialysist W., 

Inc., 465 F.3d 946, 953-54 (9th Cir. 2006) (affirming denial of leave to 

amend based on delay between learning of basis for amendment and 

seeking leave).
18 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

Commerce Clause.” Ass’n des Eleveurs de Canards et 

d’Oies du Quebec v. Harris, 729 F.3d 937, 948 (9th Cir. 

2013) (quotation marks omitted), cert. denied, 135 S. Ct. 

398 (2014). If a state statute “directly regulates or 

discriminates against interstate commerce, or . . . its effect 

is to favor in-state economic interests over out-of-state 

interests,” it is “struck down . . . without further inquiry.” 

Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 

476 U.S. 573, 579 (1986). When, however, a state statute 

has only indirect effects on interstate commerce and 

regulates evenhandedly, it violates the Commerce Clause 

only if “the burdens of the statute so outweigh the putative 

benefits as to make the statute unreasonable or irrational.” 

UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1196 

(9th Cir. 2007) (alteration omitted).

A.

The plaintiffs claim the Shark Fin Law is per se invalid 

under the Commerce Clause because it regulates 

extraterritorially by curbing commerce in shark fins 

between California and out-of-state destinations, and by 

preventing the flow of shark fins through California from 

one out-of-state destination to another. But a state may 

regulate commercial relationships “in which at least one 

party is located in California.” Gravquick A/S v. Trimble 

Navigation Int’l, Ltd., 323 F.3d 1219, 1224 (9th Cir. 2003). 

And even when state law has significant extraterritorial 

effects, it passes Commerce Clause muster when, as here, 

those effects result from the regulation of in-state conduct. 

See Rocky Mtn. Farmers Union v. Corey, 730 F.3d 1070, 

1101-04 (9th Cir. 2013) (upholding California statute 

imposing fuel standards that affect out-of-state fuel 

producers because the standard applies only to fuels 

consumed in California), cert. denied, 134 S. Ct. 2875 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 19

(2014); Ass’n des Eleveurs, 729 F.3d at 948-51 (upholding 

California statute banning sale of products from force-fed 

birds, even though it affected out-of-state producers and 

exports from California); cf. Sam Francis Found. v. 

Christies, 784 F.3d 1320, 1323-24 (9th Cir. 2015) (en banc) 

(invalidating a California statute that “facially regulates a 

commercial transaction that takes place wholly outside of 

the State’s borders” (quotation marks omitted)). Thus, 

nothing about the extraterritorial reach of the Shark Fin 

Law renders it per se invalid.

The plaintiffs’ reliance on Healy v. Beer Institute,

Brown-Forman Distillers Corp. v. New York State Liquor 

Authority, and Baldwin v. G.A.F. Seelig, Inc. is misplaced. 

In each of those cases, the Supreme Court struck down 

price-control or price-affirmation statutes that had the 

effect of preventing producers from pricing products 

independently in neighboring states. See Healy, 491 U.S. 

324, 326, 334 (1989) (Connecticut statute requiring beer 

distributors to affirm that Connecticut prices were at least 

as low as prices in other states); Brown-Forman, 476 U.S. 

at 575, 582-83 (New York statutes barring distillers from 

selling liquor at prices higher than prices in other states); 

Baldwin, 294 U.S. 519, 521-22 (1935) (New York statute 

prohibiting sale of milk in New York if acquired from 

Vermont farmers at price lower than price available to New 

York farmers). We have recognized the sui generis effect 

on interstate commerce of such price-control regimes and 

the correspondingly limited scope of these cases. See Ass’n 

des Eleveurs, 729 F.3d at 951 (“Healy and Baldwin are not 

applicable to a statute that does not dictate the price of a 

product and does not tie the price of its in-state products to 

out-of-state prices.” (alteration and quotation marks 

omitted) (quoting Walsh, 538 U.S. at 669)). The Shark Fin 
20 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

Law does not fix prices in other states, require those states 

to adopt California standards, or attempt to regulate 

transactions conducted wholly out of state, and the pricecontrol cases are therefore inapposite. See Rocky Mtn., 

730 F.3d at 1102-03.

B.

The plaintiffs claim that even if the Shark Fin Law is 

not an impermissible direct regulation of extraterritorial 

conduct, it should be struck down under Pike v. Bruce 

Church, Inc., because “the burden [it] impose[s] on 

[interstate] commerce is clearly excessive in relation to the 

putative local benefits.” 397 U.S. 137, 142 (1970). Our 

precedents, however, preclude any judicial “assessment of 

the benefits of [a state] law[] and the . . . wisdom in 

adopting” it unless the state statute either discriminates in 

favor of in-state commerce or imposes a “significant 

burden on interstate commerce.” Nat’l Ass’n of 

Optometrists & Opticians v. Harris, 682 F.3d 1144, 1156 

(9th Cir. 2012); see also Ass’n des Eleveurs, 729 F.3d at 

951-52. Here, the plaintiffs do not allege the Shark Fin 

Law has any discriminatory effect, and they cannot 

establish a significant burden on interstate commerce.

“[O]nly a small number of . . . cases invalidating laws 

under the dormant Commerce Clause have involved laws 

that were genuinely nondiscriminatory . . . .” Nat’l Ass’n of 

Optometrists, 682 F.3d at 1150 (quotation marks omitted). 

These cases address state “regulation of activities that are 

inherently national or require a uniform system of 

regulation,” id. at 1148—most typically, interstate 

transportation, see, e.g., Raymond Motor Transp., Inc. v. 

Rice, 434 U.S. 429, 447-48 (1978) (state regulation of truck 

length); see also Ass’n des Eleveurs, 729 F.3d at 952 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 21

(“[E]xamples of courts finding uniformity necessary fall 

into the categories of transportation or professional sports 

leagues.” (alteration and quotation marks omitted)).

The Shark Fin Law does not interfere with activity that 

is inherently national or that requires a uniform system of 

regulation. The purpose of the Shark Fin Law is to 

conserve state resources, prevent animal cruelty, and 

protect wildlife and public health. See 2011 Cal. Legis. 

Serv. ch. 524, § 1 (A.B. 376) (listing purposes). These are 

legitimate matters of local concern. See, e.g., Merrifield v. 

Lockyer, 547 F.3d 978, 986 (9th Cir. 2008); UFO Chuting, 

508 F.3d at 1196. And to the extent the Shark Fin Law is 

effectively a means of ocean fishery management, fishery 

management is an inherently cooperative endeavor—with 

state and federal jurisdiction over the oceans divided 

according to distance from shore, see 16 U.S.C. 

§§ 1802(11), 1811(a), 1856(a)(1), and with state and 

federal cooperation contemplated even in the management 

of federal waters, see, e.g., id. § 1852(a)(2). There is, 

accordingly, no significant interference with interstate 

commerce. See Ass’n des Eleveurs, 729 F.3d at 952; Nat’l 

Ass’n of Optometrists, 682 F.3d at 1156.

“Because the [Shark Fin Law does] not impose a 

significant burden on interstate commerce, it would be 

inappropriate for us to determine [its] constitutionality . . . 

based on our assessment of the benefits of th[e] law[] and 

the State’s wisdom in adopting [it],” or the availability of 

less-burdensome alternatives. Nat’l Ass’n of Optometrists, 

682 F.3d at 1156-57; see also Ass’n des Eleveurs, 729 F.3d 
22 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

at 952 (finding an inquiry into “whether the benefits of the 

challenged laws are illusory” unwarranted because the 

regulation of the foie gras market is not inherently 

national).10

V.

We AFFIRM the judgment of the district court.

 

 

10 Because none of the plaintiffs’ constitutional claims survive the 

motion to dismiss, the district court properly dismissed the claim under 

42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 48 (1988).
REINHARDT, Circuit Judge, dissenting in part:

I dissent in part because the plaintiffs must be granted 

leave to amend the complaint with respect to their 

preemption claim.1“[I]n a line of cases stretching back 

nearly 50 [now 65] years, we have held that in dismissing 

for failure to state a claim under Rule 12(b)(6), ‘a district 

court should grant leave to amend even if no request to 

amend the pleading was made, unless it determines that the 

pleading could not possibly be cured by the allegation of 

other facts.’” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 

2000) (emphasis added) (citations omitted); see also 

Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 2015). In 

my view, the defects in plaintiffs’ preemption claim could

be cured by amendment, and the majority’s other suggested 

reasons for affirming the denial of leave to amend are also 

without merit.

The majority first states in dictum that the issue of the 

denial of leave to amend the complaint may have been 

waived. As the foregoing statement of the law regarding 

dismissals with prejudice makes clear, however, whether 

the plaintiffs asked the district court for leave to amend is 

irrelevant. The majority incorrectly suggests that Alaska v. 

United States, 201 F.3d 1154, 1163–64 (9th Cir. 2000), 

broadly held that a party cannot raise the issue for the first 

time on appeal, Maj. Op. at 15-16, but that case neither 

considered nor abrogated our longstanding rule regarding 

dismissals under Rule 12(b)(6). Rather, it merely held that 

 

 

1 The plaintiffs do not contest the denial of leave to amend with 

respect to their Commerce Clause claim on this appeal.
24 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

the government could not seek to amend its answer to the 

complaint on appeal from judgment on the pleadings where 

it had intentionally adopted its answer as a strategic 

litigating position. See Alaska, 201 F.3d at 1163. In so 

doing, Alaska relied on cases holding that a party cannot 

wait until an appeal of summary judgment to seek leave to 

amend a pleading, id. at 1163–64—a rule that makes sense 

in light of the time and expense that a disposition at that 

stage entails. By contrast, there is a strong presumption that 

a plaintiff with a plausible legal claim who simply fails to 

master the art of the well-pleaded complaint must be 

allowed to cure pleading defects—whether or not it makes 

a request to do so before the district court.

The majority also alludes in dictum to the fact that the 

plaintiffs voluntarily amended their complaint on one prior 

occasion and that it has been three years since the original 

complaint was filed. True, the presumption that a dismissal 

should be without prejudice may be rebutted by a finding of 

“undue delay, bad faith or dilatory motive . . . , repeated 

failure to cure deficiencies by amendments previously 

allowed, [or] undue prejudice to the opposing party by 

virtue of allowance of the amendment . . . .” Sharkey, 

778 F.3d at 774 (internal citation and quotations marks 

omitted). However, absent prejudice to the opposing 

party—which the district court did not find and the 

defendants do not assert—there must be a “strong

showing” of one of the other factors to justify a dismissal 

with prejudice. Id. (emphasis added and citation omitted). 

A single, good-faith prior amendment of the complaint 

cannot satisfy this high bar. Nor can the mere passage of 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 25

time.2 More important, the district court relied solely on the 

purported futility of an amendment. We cannot affirm 

based on a finding of repeated failure to cure or undue 

delay that the district court did not make. See id. (holding 

that the district court must provide an explanation for 

dismissal with prejudice).

Nor are the majority and the district court correct that 

the plaintiffs’ pleading defects could not possibly be cured 

by amendment. I agree that the plaintiffs’ complaint as 

currently drafted fails to “identify any actual conflict 

between” the Shark Fin Law and “the federal government’s 

authority under the [Magnuson-Stevens Act] to manage 

shark fishing in the [exclusive economic zone].” Maj. Op. 

at 10 (quotation marks omitted). It includes nothing beyond 

“mere conclusory statements,” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009), that the Shark Fin Law conflicts with “the 

[Magnuson-Stevens Act], federal implementing regulations 

and federal [Fisheries Management Plans].” First Amended 

Complaint for Declaratory and Injunctive Relief at 12 ¶ 57, 

Chinatown Neighborhood Ass’n v. Harris, No. CV 12-

03759 WHO (N.D. Cal. Dec. 9, 2013). However, the 

 

 

2 This case is not akin to AmerisourceBergen Corp. v. Dialysist W., 

Inc., cited by the majority, in which the district court found that the 

defendant would be prejudiced by the plaintiff’s attempt “twelve 

months into the litigation, . . . [to] drastically change[ ] its litigation 

theory” without explanation. 465 F.3d 946, 953 (9th Cir. 2006). As 

explained below, the problem with the operative complaint in this case 

could be cured by the pleading of additional facts; unlike in 

AmerisourceBergen, the plaintiffs do not seek to change their strategy 

altogether.
26 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

plaintiffs assert that, if permitted to amend the complaint, 

they could plead additional facts demonstrating that (1) the 

federal government has adopted specific quotas for shark 

fishing pursuant to the optimum yield provisions of the 

Magnuson-Stevens Act and that (2) the Shark Fin Law 

poses an obstacle to achievement of those quotas because it 

significantly reduces otherwise legal shark fishing.3 As 

outlined below, if such facts were properly pleaded, this 

would constitute a plausible claim for relief.

As relevant here, conflict preemption occurs where “the 

challenged state law ‘stands as an obstacle to the 

accomplishment and execution of the full purposes and 

objectives of Congress,’” Arizona v. United States, 132 S. 

Ct. 2492, 2501 (2012), including where it “would interfere 

with the careful balance struck by Congress,” id. at 2505. A 

central purpose and objective of the Magnuson-Stevens Act 

is to “achieve and maintain, on a continuing basis, the 

optimum yield from each fishery,” 16 U.S.C. § 1801(b)(4), 

which is the “amount of fish which — (A) will provide the 

greatest overall benefit to the Nation, particularly with 

respect to food production and recreational opportunities, 

and taking into account the protection of marine 

ecosystems; [and] (B) is prescribed on the basis of the 

maximum sustainable yield from the fishery . . . .” Id. 

§ 1802(33). As the majority explains, the MagnusonStevens Act creates a framework under which regional 

 

 

3

Federal law bans the inhumane practice of shark finning—of 

removing the fin from a shark on a boat—but it does not prohibit the 

landing of an intact shark carcass or the subsequent detachment and 

sale of a fin. See 16 U.S.C. § 1857(1)(P).
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 27

Fishery Management Councils comprised of federal and 

state stakeholders collaborate to adopt Fishery Management 

Plans designed to achieve optimum yield. Id. § 1851(a). In 

short, Fishery Management Plans seek to maximize the 

commercial and recreational benefits of fisheries in the 

exclusive economic zone without compromising the longterm sustainability of them. See id.; Natural Res. Def. 

Council, Inc. v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000).

One of the things a Fishery Management Plan may do 

to achieve optimum yield is establish a quota for the 

amount of a particular species of fish that should be caught. 

A plaintiff states a cognizable preemption claim where a 

Fishery Management Plan has established such a quota and 

a state law interferes with the achievement of that quota. 

Se. Fisheries Ass’n v. Chiles, 979 F.2d 1504, 1510 (11th 

Cir. 1992) (holding that the plaintiffs stated a cognizable 

preemption claim where a Fishery Management Plan 

established an annual quota for the total catch of Spanish 

Mackerel while state law established a daily limit on the 

number of Spanish Mackerel that a commercial vessel 

could bring into a state port). Notwithstanding the 

majority’s statement to the contrary, the Magnuson-Stevens 

Act provision that preserves a state’s “jurisdiction or 

authority . . . within its boundaries,” 16 U.S.C. § 1856(a)(1) 

(emphasis added), does not authorize a state to adopt laws 

that pose an obstacle to the federal government’s authority 

to manage and maximize the productivity of fisheries 

within its own respective territory, see id. § 1811(a) (“the 

United States claims, and will exercise . . . sovereign rights 

and exclusive fishery management authority over all fish 

. . . within the exclusive economic zone.”). See also City of 

Charleston v. A Fisherman’s Best, 310 F.3d 155, 174–76, 

179 (4th Cir. 2002) (holding that city resolution banning 
28 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

vessels that use longline tackle from docking at city marina 

was preempted by Fishery Management Plan designating 

“longline” as the authorized gear for catching swordfish).

Although the plaintiffs’ pleadings as presently drafted 

fail to point to a Fishery Management Plan regulating 

sharks or setting a shark quota, at oral argument defendants 

and their amicus curiae admitted that there are a number of 

Fishery Management Plans in place around the country that 

do so. Even if those Fishery Management Plans are silent 

with regard to the sale of shark fins (as the defendants and 

their amici represented at oral argument), the plaintiffs 

could establish that the Shark Fin Law is preempted by 

adducing clear evidence that it poses an obstacle to the 

achievement of an optimum yield of sharks specified in an 

Fishery Management Plan because it results in a significant 

decrease in otherwise legal shark fishing. The plaintiffs 

asserted at oral argument that if permitted to amend their 

complaint, they would provide additional facts 

demonstrating that the number of sharks caught in the 

exclusive economic zone has dropped significantly and that 

they have lost millions in revenue due to the Shark Fin 

Law.4If the fin is the main part of a shark that has 

 

 

4 The plaintiffs did not, as the majority contends, concede that “there 

are commercially viable uses for sharks besides their detached fins.” 

Maj. Op. at 17. The majority improperly relies on two statements in 

the record to hold that the plaintiffs conceded the matter. First, it cites 

plaintiffs’ counsel’s statement at oral argument that a letter from the 

Director of the California Department of Fish and Wildlife was not a 

“big deal.” That letter states that “revenue from the sale of sharks 

harvested in federal waters off California derives mostly from the sale 
CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS 29

commercial value and thus California fishermen largely 

cease catching sharks in exclusive economic zone fisheries, 

the federal objective of achieving optimum yield might be 

unconstitutionally impaired by the state’s ban on the sale of 

fins—i.e., the balance between conservation and economic 

interests struck by the Fishery Management Council in 

adopting a quota could be upset. While I express no 

opinion on the likelihood that such a claim would 

ultimately succeed on the merits, the command that “leave 

to amend shall be freely given” requires that the plaintiffs 

at least be given a chance to adequately plead their claim. 

Sharkey, 778 F.3d at 774 (citation omitted).

Finally, the majority’s assertion that in dismissing the 

complaint with prejudice the district court properly relied 

on a representation by the plaintiffs that amendment would 

be futile is erroneous. The comment on which the majority 

and the district court rely is ambiguous at best. In response 

to the district court’s inquiry, “you’ve got the complaint 

 

of the meat of the shark, not from the sale of fins after the shark is 

legally harvested and landed with fins naturally attached.” Although 

that assertion may indeed prove true, our job at the motion to dismiss 

stage is to test the sufficiency of the plaintiffs’ allegations. We cannot 

simply accept as true a state government official’s position regarding a 

factual matter.

Second, the majority relies on a footnote in the operative complaint 

stating that “[t]he use of approximately 95% of any legally fished shark 

. . . is still permitted.” This statement, however, says nothing about the 

relative commercial value of the parts of a shark or whether the ban on 

the sale of sharks is an obstacle to the achievement of optimum yield—

matters that involve factual questions that cannot be decided against the 

plaintiffs at the motion to dismiss stage.
30 CHINATOWN NEIGHBORHOOD ASS’N V. HARRIS

where you want it . . . ?”, plaintiffs’ counsel responded 

“you are correct.” Counsel likely meant only that he 

believed that he had made sufficient averments to support 

the claims at the motion to dismiss stage, as the district 

court’s inquiry followed counsel’s lengthy argument to that 

effect. This is different from a representation that should 

the district court conclude that the allegations in the 

complaint were insufficient, the plaintiffs could not provide 

further allegations. The district court and the majority err 

by treating counsel’s ambiguous representation as sufficient 

to dislodge “the presumption in favor of granting leave to 

amend.” Id. It would have taken little effort by the district 

court to clarify the matter before permanently depriving the 

plaintiffs of an opportunity to pursue their case.

I respectfully dissent.