Chinatown Neighborhood Assn v. Kamala Harris

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHINATOWN NEIGHBORHOOD No. 14-15781 ASSOCIATION, a nonprofit corporation; ASIAN AMERICANS FOR D.C. No. POLITICAL ADVANCEMENT, a 3:12-cv-03759- political action committee, WHO Plaintiffs-Appellants,

v. OPINION

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.

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 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…

Opinion by Judge HURWITZ; Dissent by Judge REINHARDT.

OPINION

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 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…

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 *1148 district court for leave to amend is irrelevant. The majority incorrectly suggests that Alaska v.…