                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 27 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHINATOWN NEIGHBORHOOD                           No. 13-15188
ASSOCIATION, a nonprofit corporation;
ASIAN AMERICANS FOR POLITICAL                    D.C. No. 4:12-cv-03759-PJH
ADVANCEMENT, a political action
committee,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

EDMUND G. BROWN, Jr., Governor of
the State of California; KAMALA
HARRIS, Attorney General of the State of
California; CHARLTON H. BONHAM,
Director, California Department of Fish
and Game,

              Defendants - Appellees,

THE HUMANE SOCIETY OF THE
UNITED STATES; MONTEREY BAY
AQUARIUM FOUNDATION; ASIAN
PACIFIC AMERICAN OCEAN
HARMONY ALLIANCE,

              Intervenor-Defendants -
Appellees.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                       Argued and Submitted August 14, 2013
                             San Francisco, California

Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.

      The Chinatown Neighborhood Association and Asian Americans for Political

Advancement (collectively “Chinatown”) appeal the district court’s denial of a

preliminary injunction against the enforcement of sections 2021 and 2021.5 of the

California Fish and Game Code (the “Shark Fin Law”). Subject to certain exceptions,

the Shark Fin Law makes it “unlawful for any person to possess, sell, offer for sale,

trade, or distribute a shark fin” in California. Id. § 2021(b).

      We have appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and review

the denial of a preliminary injunction for abuse of discretion. Am. Trucking Ass’ns

v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). On the record before it, the

district court did not abuse its discretion, and we accordingly affirm.

      1.   The district court properly applied the Winter test in analyzing the

preliminary injunction application. Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). Contrary to Chinatown’s protestations, the district court also

expressly found that Chinatown failed to meet its burden under the alternative “serious


                                           2
questions” test articulated in Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

1135 (9th Cir. 2011).

      2. The district court did not abuse its discretion in determining that Chinatown

failed to prove a likelihood of irreparable harm. Chinatown offered only evidence

suggesting that business owners would suffer some economic harm from operation of

the Shark Fin Law. See Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374,

1376 (9th Cir. 1985).

      3. Nor did the district court abuse its discretion in finding that Chinatown failed

to show a likelihood of success on its Equal Protection Clause claim. The Shark Fin

Law is facially neutral, and Chinatown presented no persuasive evidence indicating

that the California legislature’s real intent was to discriminate against Chinese

Americans rather than to accomplish the Law’s stated humanitarian, conservationist,

and health goals. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

      4. On the record before it, the district court did not abuse its discretion in

concluding that Chinatown was unlikely to succeed on its dormant Commerce Clause

claim. Chinatown asserted claims only on behalf of those who seek to buy and sell

shark fins for end use in California. Chinatown’s amici offered broader arguments on

how the Shark Fin Law burdens interstate commerce for the first time on appeal. In

the context of the preliminary injunction proceedings, the district court did not err in


                                           3
concluding that the Shark Fin Law does not substantially burden the interstate market.

See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Nat’l Ass’n of Optometrists

& Opticians v. Harris, 682 F.3d 1144, 1148 (9th Cir. 2012). The district court can

consider the broader dormant Commerce Clause arguments when deciding whether

to issue a permanent injunction.

      5. Similarly, on the evidence before it, the district court properly found that

Chinatown did not show a likelihood of success on its Supremacy Clause claim. As

the district court properly noted, the Magnuson-Stevens Fishery Conservation and

Management Act (“MSA”), 16 U.S.C. §§ 1801–1884, does not expressly preempt

state law or occupy the entire field. And Chinatown presented no evidence indicating

that by restricting the sale and possession of shark fins in California, the Shark Fin

Law conflicts with the MSA’s objectives. Although the federal government raised

preemption concerns on the eve of oral argument before this court as a late-filing

amicus, because these arguments were never before the district court, the district court

did not abuse its discretion in failing to anticipate them. The government is, of course,

not foreclosed from raising these arguments in the permanent injunction proceedings.

      6. We have reviewed Chinatown’s other claims of error and find none.

      AFFIRMED.




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