U.S. v. Approximately 64,695 Pounds of Shark Fins, No. 03CV0594BTMLSP.

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtMoskowitz
Citation353 F.Supp.2d 1095
PartiesUNITED STATES of America, Plaintiff, v. APPROXIMATELY 64,695 POUNDS OF SHARK FINS, Defendant.
Docket NumberNo. 03CV0594BTMLSP.
Decision Date20 January 2005
353 F.Supp.2d 1095
UNITED STATES of America, Plaintiff,
v.
APPROXIMATELY 64,695 POUNDS OF SHARK FINS, Defendant.
No. 03CV0594BTMLSP.
United States District Court, S.D. California.
January 20, 2005.

Page 1096

Carol C. Lam, United States Attorney, Mary C. Lundberg, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for Plaintiff.

Bryan Y.Y. Ho, Law Offices of Bryan Y.Y. Ho, Honolulu, HI, J. Peter Olson, Gordon and Rees, LLP, San Diego, CA, Russell Brown, Gordon and Rees, LLP, San Diego, CA, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION

MOSKOWITZ, District Judge.


This case arises out of the seizure by the United States of approximately 64,695 pounds of shark fins discovered aboard the M/V KING DIAMOND II ("KD II"), a U.S. flag vessel. Claimant Tai Loong Hong Marine Products, Ltd. ("Tai Loong") owned the shark fins. On March 26, 2003, the United States filed a complaint for civil forfeiture of the $775,000 bond serving as a substitute res for the shark fins under the Shark Finning Prohibition Act ("SFPA"). On September 13, 2004, the United States filed a motion for summary judgment seeking summary adjudication on the narrow issue of whether the KD II is a "fishing vessel" under the SFPA. Tai Loong opposes the motion.

I. BACKGROUND

The KD II is a United States flag vessel owned and operated by Tran and Yu, Inc. From 1995 to 2000, the KD II, under prior ownership, was documented with a fishing endorsement and held a Federal Limited Access Permit that authorized the use of longline fishing gear. Tran and Yu, Inc. purchased the KD II in January 2001. From February 26, 2001 through May 9, 2001, under Tran and Yu's ownership, the KD II held a "fishery" endorsement with no expressed entitlement. See 46 U.S.C. § 12108 (fishery endorsements); 46 U.S.C. § 12101(a)(1) (defining fisheries). From May 9, 2001 through September 30, 2004, the KD II was documented with a "registry" endorsement. See 46 U.S.C. § 12105 (registry endorsements); 46 U.S.C. § 12101(b)(1).

Tai Loong is a Hong Kong based company that regularly deals in seafood products including shark fins. Tai Loong chartered

Page 1097

the KD II to purchase shark fins and shark carcasses from foreign fishing vessels at prearranged meeting points at sea and transport them to Guatemala. Tai Loong verbally contracted with Tran and Yu to charter the KD II and did not execute a written charter contract.1 (See Edward Yu's Decl. ¶ 11.) Tai Loong agreed to pay $1.00 per kilogram of cargo delivered, in addition to reimbursing the expenses for fuel and groceries consumed during the voyage. (Id.)

On or about June 18, 2002, the KD II left Honolulu, Hawaii to rendezvous with the foreign fishing vessels at sea. Tai Loong intended that the KD II meet up with approximately 26 different foreign fishing vessels on the high seas. (See Supp. Decl. of Special Agent Zetwo at 3.) Moon Ik Jang, a Tai Loong employee, carried $300,000 in cash on the KD II to purchase the shark fins and carcasses from the foreign vessels. Between June 18, 2002 and August 14, 2002, the KD II purchased and loaded approximately 64,695 pounds of shark fins from 23 to 26 different fishing vessels.2 (See Pl.'s Mem. in Support of Summ J. at 7-8.) Tai Loong contends that during the first three weeks of the voyage, the KD II also loaded 20-30 tons of frozen shark carcasses and had instructions to load more. (See Mem. in Opp'n to Pl.'s Mot. for Summ. J. at 7; Edward Yu's Decl. ¶ 19.)3 However, Tai Loong claims that the KD II's freezer system broke down and the shark carcasses were thrown overboard because they would rot once they thawed. (Id.) The United States asserts that there is no documentary evidence of any purchase(s) of shark carcasses. (See Supp. Decl. of Special Agent Zetwo.) The government also alleges that repeated interviews of the KD II crew reveal that while the KD II may have intended to purchase shark carcasses, they never got the chance to do so because the United States Coast Guard intervened before any purchases were made. (Id.) In deciding the instant motion, however, it is not necessary for the Court to resolve the disputed factual issue of whether Tai Loong did in fact purchase and load shark carcasses aboard the KD II.

On August 14, 2002, the United States Coast Guard boarded the KD II approximately 250 miles off the coast of Guatemala. The Coast Guard discovered that the KD II's hold and working deck were

Page 1098

filled with shark fins; however, no shark carcasses were found on board. The KD II was then ordered to divert to San Diego, California. On August 23, 2004, the National Oceanic Atmospheric Administration ("NOAA") seized the 64,695 pounds of shark fins on board the KD II pending its investigation of whether Tai Loong and the KD II violated the SFPA. The shark fins were placed into cold storage in San Diego, California under the control of the United States.

In a separate action regarding the sale of the shark fins, this Court enjoined the government from conducting a public sale of the seized shark fins and allowed Tai Loong to post a bond to recover them.4 Tai Loong posted a $775,000 bond as a substitute res and gained possession of the shark fins. Tai Loong subsequently sold the 64,965 pounds of shark fins to three separate buyers for a total of $619,958.

II. STATUTORY BACKGROUND

In 1976, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson Act") in order to manage and preserve the nation's fishery resources. See 16 U.S.C. § 1801 et seq; Wards Cove Packing Corp. v. National Marine Fisheries Service, 307 F.3d 1214, 1216 (9th Cir.2002). The Magnuson Act manages the Exclusive Economic Zone ("EEZ") in the waters off the coast of the United States, extending from the seaward boundary of each of the coastal States to 200 nautical miles offshore. See 16 U.S.C. §§ 1811, 1802(11); Washington v. Daley, 173 F.3d 1158, 1161-62 (9th Cir.1999); United States v. F/V Alice Amanda, 987 F.2d 1078, 1079 (4th Cir.1993). Within the EEZ, all fishing is subject to the exclusive fishery management authority of the United States. 16 U.S.C. § 1811(a). See Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183, 189 (1st Cir.2004); F/V Alice Amanda, 987 F.2d at 1079. See also 16 U.S.C. § 1801(c)(1). The Magnuson Act is administered by the Department of Commerce, the National Marine Fisheries Service ("NMFS"), and the NOAA. See 16 U.S.C. § 1802(20). The Magnuson Act vests the Secretary of Commerce (acting through the NMFS) with the authority to issue fishery management regulations. See Midwater Trawlers Co-operative v. Department of Commerce, 282 F.3d 710, 715 (9th Cir.2002) (citing 16 U.S.C. §§ 1853, 1855; Daley, 173 F.3d at 1162 (9th Cir.1999)).

In 2000, the Shark Finning Prohibition Act ("SFPA") amended the Magnuson Act to "eliminate the wasteful and unsportsmanlike practice of shark finning." Pub.L. 106-557, 114 Stat. 2772 (2000); see also 16 U.S.C. § 1822. The "purpose" of the SFPA is to "eliminate shark-finning by addressing the problem comprehensively at both the national and international levels." H.R. 5461, 106th Cong. § 2, 114 Stat. 2772 (2000).

"Shark finning means taking a shark, removing a fin or fins (whether or not including the tail), and returning the remainder of the shark to sea." 50 C.F.R. 600.1202(a). The SFPA, as codified at 16 U.S.C. § 1857(1)(P), and its corresponding regulations make it unlawful for any person to:

(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

(iii) to land any such fin without the corresponding carcass.

Page 1099

For purposes of subparagraph (P) there is 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)(P) (emphasis added). Accord 50 C.F.R. § 600.1203(a)(1)-(3), (b)(2) (prohibiting the same conduct by regulation).

III. LEGAL STANDARD

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure if the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to establish an essential element of the nonmoving party's case on which the nonmoving party bears the burden of proving at trial. See id. at 322-23, 106 S.Ct. 2548. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)

Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. See...

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1 practice notes
  • U.S. v. Approximately 64,695 Pounds of Shark Fins, No. 05-56274.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Marzo 2008
    ...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 anal cost of lit......
1 cases
  • U.S. v. Approximately 64,695 Pounds of Shark Fins, No. 05-56274.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Marzo 2008
    ...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 anal cost of lit......

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