United States v. Approximately 64,695 Pounds of Shark Fins ( 2008 )

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,
Claimant-Appellant,  D.C. No.
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
2474 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
COUNSEL
Bryan Y.Y. Ho, Esq., Honolulu, Hawaii, for the defendant-
appellant.
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
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2475
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 pursu-
ant 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 fin-
ning.” 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 forfei-
ture 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 corre-
sponding carcass; or
2476 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
(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 re-
1
The 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).
2
A 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.”).
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2477
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 sea-
food 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 correspond-
ing 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) (for-
merly 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
2478 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
(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 ves-
sel 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 perfor-
mance 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 stipu-
lated 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 judg-
ment 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
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2479
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 appli-
cation 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) (quot-
ing 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 oppor-
tunity to know what is prohibited so that he may act accord-
ingly.” 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 fish-
ing 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.,
2480 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
457 F.3d 1001, 1004 (9th Cir. 2006) (“The starting point for
[the] interpretation of a statute is always its language.”) (quot-
ing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
739 (1989)). In this case, we find nothing in the plain mean-
ing 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 “pur-
chase, 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 pur-
chase, store or transport shark fins for the benefit of the for-
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2481
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 trans-
porting, “purchasing” is not listed in the statute as one of the
acts that constitutes aiding and abetting. Under these circum-
stances, the statutory provision that prohibits “aiding or assist-
ing any activity relating to fishing” does not give fair notice
that purchasing fins is prohibited, nor that storing or transport-
ing them after they are acquired is contrary to law.
Similarly, we are not persuaded by the district court’s rea-
soning 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 opera-
tions, but the choice did not change the nature of the purchas-
ers’ actions in any respect. They still purchased the fins,
2482 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
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, trans-
ported 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, wher-
ever 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 “elimi-
nate the wasteful and unsportsmanlike practice of shark fin-
ning” and that it explained that “the purpose of this Act is to
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2483
eliminate shark-finning by addressing the problem compre-
hensively at both the national and international levels.” Pub.
L. 106-557, 114 Stat. 2772 (2000). Although this broad state-
ment 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 consti-
tutes aiding or assisting the seller and, thus, falls within the
ambit of the possession prohibition. Given that the plain lan-
guage 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 regula-
tions 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 Ser-
vices (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 car-
casses while on board a U.S. fishing vessel, as pro-
vided in § 600.1204(b) and (j).
3) Land shark fins without the corresponding car-
casses, as provided in § 600.1204(c) and (k).
2484 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
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 har-
vested 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 pro-
hibiting landing shark fins, the prohibition at 50 C.F.R.
§ 600.1204(c). The agency explained this provision in the pre-
amble:
The prohibition of landing shark fins without corre-
sponding 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
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2485
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 ves-
sel for purposes of the possession prohibition — the prohibi-
tion 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 prohibi-
tion, 50 C.F.R. § 600.1204(c), explicitly provides that a cargo
vessel that lands shark fins after an at-sea transfer is consid-
ered a fishing vessel, § 1204(b) — the prohibition on possess-
ing 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 pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”) (internal citation omitted).
In other words, the text of the landing prohibition specifi-
cally 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 land-
ing prohibition defines vessels that simply engage in at-sea
transfer of shark fins as fishing vessels, the possession provi-
sion 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
2486 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
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 sub-
ject 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 prohibi-
tion 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.