Natural Res. Def. Council, Inc. v. Ross

• Decision Date: 26 July 2018
• Docket Number: Slip Op. 18-92,Court No. 18-00055
• Citation: 331 F.Supp.3d 1338
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., Center for Biological Diversity, and Animal Welfare Institute, Plaintiffs, v. Wilbur ROSS, in his official capacity as Secretary of Commerce, United States Department of Commerce, Chris Oliver, in his official capacity as Assistant Administrator of the National Marine Fisheries Service, National Marine Fisheries Service, Steven Mnuchin, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security, and United States Department of Homeland Security, Defendants.
• Court: U.S. Court of International Trade

331 F.Supp.3d 1338

NATURAL RESOURCES DEFENSE COUNCIL, INC., Center for Biological Diversity, and Animal Welfare Institute, Plaintiffs,

v.Wilbur ROSS, in his official capacity as Secretary of Commerce, United States Department of Commerce, Chris Oliver, in his official capacity as Assistant Administrator of the National Marine Fisheries Service, National Marine Fisheries Service, Steven Mnuchin, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security, and United States Department of Homeland Security, Defendants.

Slip Op. 18-92

Court No. 18-00055

United States Court of International Trade.

Dated: July 26, 2018

Giulia C.S. Good Stefani and Daniel N. Carpenter-Gold, Natural Resources Defense Council, of Santa Monica, CA, argued for plaintiffs. With them on the brief were Stephen Zak Smith for plaintiff, Natural Resources Defense Council Inc. and Sarah Uhlemann, of Seattle, WA, for plaintiffs, Center for Biological Diversity, and Animal Welfare Institute.

Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Jason Forman, National Oceanic and Atmospheric Administration, of Silver Spring, MD; Daniel J. Paisley, Department of the Treasury, of Washington, DC; and Glenn Kaminsky, Department of Homeland Security, of New York, NY.

OPINION

Katzmann, Judge:

The vaquita, the world's smallest porpoise -- only about five feet long and weighing one hundred pounds -- is a critically endangered marine mammal endemic to the northern Gulf of California, in Mexican waters. Though the species has existed for millions of years, the population was first surveyed in the late 1990s. At that time, scientists estimated that there were 567 vaquita in the wild. The vaquita is now on the brink of extinction. Only about 15 vaquita remain today, and the population is declining at a rate of almost 50 percent each year. The status of the species is so precarious that even one mortality could increase the likelihood of extinction. The vaquita is an evolutionarily distinct animal with no close relatives, and its loss would represent a disproportionate loss of biodiversity, unique evolutionary history, and the potential for future evolution. The Zoological Society of London has listed the vaquita as a top Evolutionarily Distinct and Globally Endangered species, a list reserved for those species that are especially "unique ... [and] when they are gone there will be nothing like them left on earth."

It is undisputed that the cause of the vaquita's precipitous decline is its inadvertent tangling, strangulation, and drowning in gillnets, which are fishing nets hung in the water to entangle fish and shrimp. The Government of Mexico, which regulates fishing practices in the Gulf of California, has banned the usage of gillnets in certain fisheries within the vaquita's range, though illegal gillnet fishing continues. In other fisheries, gillnet fishing remains legal. If current levels of gillnet fishing in the vaquita's habitat continue, the species will likely be extinct by 2021.

Hoping to avert exactly this sort of catastrophe, Congress enacted the Marine Mammal Protection Act ("MMPA") of 1972, Pub. L. No. 92-522, 86 Stat. 1027 (codified as amended in scattered sections of 16 U.S.C.). Invoking the conditional ban on imports of fish and fish products found in Section 101(a)(2) of the MMPA, 16 U.S.C. § 1371(a)(2) (2012),¹ also known as the Imports Provision, plaintiffs Natural Resources Defense Council ("NRDC"), Center for Biological Diversity, and Animal Welfare Institute brought this action in the United States Court of International Trade. To prevent the irreparable harm that would result from the extinction of the vaquita, plaintiffs now move for a preliminary injunction requiring defendants -- several United States agencies and officials, and here collectively referred to as "the Government" -- to ban the importation of fish or fish products from any Mexican commercial fishery that uses gillnets within the vaquita's range. The Government, though opposing the motion, acknowledges that the vaquita may soon disappear from the planet forever, and "agree[s] that the primary threat to the vaquita is gillnet fishing within the vaquita's range." Def.'s Br. at 2–3. Upon consideration of the record and the MMPA, the court grants plaintiffs' motion for a preliminary injunction.

BACKGROUND

I. Legal Background

Congress passed the MMPA in 1972. In doing so, Congress found that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities." 16 U.S.C. § 1361(1). Congress also found that "such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population." Id. § 1361(2). Congress noted that "marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic," and found "that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management." Id. § 1361(6). Further, whenever consistent with the maintenance of the health and stability of the marine ecosystem, "it should be the goal to obtain an optimum sustainable [marine mammal] population keeping in mind the carrying capacity of the habitat." Id. Congress' findings clearly show that "[t]he Act was to be administered for the benefit of the protected species rather than for the benefit of commercial exploitation." Kokechik Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795, 800 (D.C. Cir. 1988) (quoting Comm. for Humane Legis., Inc. v. Richardson, 540 F.2d 1141, 1148 (D.C. Cir. 1976) ). Primary responsibility for the implementation of the MMPA rests with the National Oceanic and Atmospheric Administration's National Marine Fisheries Service ("NOAA Fisheries"), which is within the Department of Commerce. See 16 U.S.C. § 1362(12)(A)(i).²

The MMPA created a "moratorium on the taking and importation of marine mammals and marine mammal products," with certain exceptions. 16 U.S.C. § 1371(a). "Congress decided to undertake this decisive action because it was greatly concerned about the maintenance of healthy populations of all species of marine mammals within the ecosystems they inhabit." Kokechik, 839 F.2d at 801. In overview, as set forth below, in the MMPA, Congress mandated an "immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." 16 U.S.C. § 1371(a)(2) ; see also 16 U.S.C. § 1387(b) (stating the "[z]ero mortality rate goal" that "[c]ommercial fisheries shall reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury rate within 7 years after April 30, 1994"). To achieve this goal, the MMPA sets specific standards governing and restricting the incidental catch³ of marine mammals, commonly referred to as "bycatch." 16 U.S.C. §§ 1386 – 87.

The MMPA standards apply both to domestic commercial fisheries and to foreign fisheries that wish to export their products to the United States. At issue in this litigation is the Imports Provision, 16 U.S.C. § 1371(a)(2),⁴ under which, "[m]arine mammals may be taken incidentally in the course of commercial fishing operations" pursuant to permits or authorizations issued under other MMPA provisions. Emphasizing the MMPA's overarching purpose, the Imports Provision states:

In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate. The Secretary of the Treasury⁵ shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.

16 U.S.C. § 1371(a)(2). Apart from establishing the zero mortality and serious injury standard, the MMPA does not further define the phrase "United States standards." See id. As discussed below, pp. 33–38, the statute does contain multiple provisions, including those which direct NOAA Fisheries to make stock assessments, and assess the potential biological removal ("PBR") level, 16 U.S.C. § 1386(a)(6), see below, pp. 33–34, to effectuate "the immediate goal that the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." 16 U.S.C. § 1387(a)(1). Subsection 1387(g)(1), meanwhile, states that the Secretary of Commerce "shall" undertake emergency rulemaking actions if he or she "finds that the incidental mortality and serious injury of marine mammals from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on a stock or species." Before undertaking emergency rulemaking action, however, "the Secretary shall consult with the Marine Mammal Commission," among other stakeholders. 16 U.S.C. § 1387(g)(2).

The Marine Mammal Commission ("MMC") was established by the MMPA as an independent United States agency. 16...