Sea Shepherd N.Z. v. United States
| Decision Date | 28 November 2022 |
| Docket Number | 20-00112,Slip Op. 22-130 |
| Parties | SEA SHEPHERD NEW ZEALAND and SEA SHEPHERD CONSERVATION SOCIETY Plaintiffs, v. UNITED STATES, GINA M. RAIMONDO, in her official capacity as Secretary of Commerce, UNITED STATES DEPARTMENT OF COMMERCE, a United States government agency, JANET COIT, in her official capacity as Assistant Administrator of the National Marine Fisheries Service, NATIONAL MARINE FISHERIES SERVICE, a United States government agency, JANET YELLEN, in her official capacity as Secretary of the Treasury, UNITED STATES DEPARTMENT OF THE TREASURY, a United States government agency, ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, a United States government agency, [1] Defendants, and NEW ZEALAND GOVERNMENT, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
[The court grants Defendants' Motion to Dismiss Plaintiffs' First Claim and grants Plaintiffs a preliminary injunction on the remaining second and third claims.]
Lia Comerford, Earthrise Law Center at Lewis & Clark Law, of Portland, OR, argued for Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society. With her on the briefs were Allison LaPlante, Danielle Replogle; and Brett Sommermeyer and Catherine Pruett, Sea Shepherd Legal, of Seattle, WA.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendants United States, Gina M. Raimondo, United States Department of Commerce, National Marine Fisheries Service, Janet Yellen United States Department of the Treasury, Alejandro Mayorkas and United States Department of Homeland Security. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy Director. Of counsel was Jason S. Forman, Office of the General Counsel, National Oceanic and Atmospheric Administration, of Silver Spring, MD.
Warren E. Connelly, of Trade Pacific PLLC, of Washington, D.C., argued for Defendant-Intervenor New Zealand Government. With him on the briefs were Robert G. Gosselink and Kenneth N. Hammer.
Before: Gary S. Katzmann, Judge
On Earth Day 2020, at the conclusion of litigation concerning the plight of the critically endangered vaquita -- the world's smallest porpoise, endemic to Mexico -- this court took note of "the sobering words of Rachel Carson: 'So delicately interwoven are [ecological] relationships that when we disturb one thread of the community fabric, we alter it all -- perhaps almost imperceptibly, perhaps so drastically that destruction follows.'"[2] Mindful that every case must be assessed on its own record and facts, the court returns today to the fate of a different critically endangered species, the Maui dolphin -- the world's smallest dolphin, endemic to New Zealand -- which most recent estimates suggest consists of between only forty-eight to sixty-four remaining individuals.[3] The court last addressed the Maui dolphin in granting a voluntary remand to Defendants -- several United States agencies and officials (collectively "the United States" or "the Government") -- so that the U.S. Department of Commerce ("Commerce") could reconsider its rejection of Plaintiffs Sea Shepherd New Zealand Ltd. and Sea Shepherd Conservation Society's (collectively "Plaintiffs")[4] petition for emergency rulemaking to ban imports of fish and fish products from New Zealand caught using fishing technology that kills or seriously injures Maui dolphins in excess of U.S. standards under the Marine Mammal Protection Act ("MMPA"). See Sea Shepherd N.Z. v. United States, 44 CIT __, __, 469 F.Supp.3d 1330, 1337-38 (2020) ("Sea Shepherd I"). That statute -- the MMPA -- aims to protect marine mammals by setting forth standards applicable to both domestic commercial fisheries and to foreign fisheries, like those in New Zealand, that wish to export their products to the United States. Upon voluntary remand, Commerce again rejected Plaintiffs' petition for emergency rulemaking and issued determinations to two New Zealand fisheries certifying their "comparability" with U.S. standards.
Before the court, in a suit asserting three claims for relief, Plaintiffs maintain that New Zealand gillnet and trawl fisheries are killing Maui dolphins in excess of U.S. standards. Accordingly, Plaintiffs allege in their first claim that the United States has unlawfully withheld agency action by failing to ban New Zealand's associated imports of fish and fish products; Plaintiffs further allege in their second and third claims, respectively, that the United States acted arbitrarily, capriciously, and otherwise not in accordance with law both by denying Plaintiffs' petition for emergency rulemaking and by granting findings of comparability to New Zealand. Pending final resolution on the merits, Plaintiffs ask the court to preliminarily enjoin New Zealand's implicated imports. By contrast, the United States and the Government of New Zealand -- as Defendant-Intervenor -- ask the court to dismiss Plaintiffs' claim of agency action unlawfully withheld and to otherwise deny Plaintiffs' Preliminary Injunction Motion.
The court grants Defendants' Motion to Dismiss Plaintiffs' First Claim of agency action unlawfully withheld because Commerce "acted" by denying Plaintiffs' petition for emergency rulemaking and by granting comparability findings to New Zealand; as to Plaintiffs' second and third claims alleging that such agency action was arbitrary, capricious, or otherwise not in accordance with law, the court grants Plaintiffs a preliminary injunction -- the scope of which is defined herein -- pending final resolution on the merits because the factors that guide the court's grant of injunctive relief favor Plaintiffs.
The court begins by setting out the overarching statutory and regulatory frameworks necessary to contextualize Plaintiffs' challenge; in the forthcoming discussion of specific issues, infra pp. 32-56, the court will expand upon certain legal provisions as relevant and necessary.
Congress enacted the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., to protect marine mammal species that "are, or may be, in danger of extinction or depletion as a result of man's activities," id. § 1361(1), from "diminish[ing] below their optimum sustainable population," id. § 1361(2).
Accordingly, Congress imposed -- with limited exceptions -- a "moratorium on the taking[5]and importation of marine mammals and marine mammal products," id. § 1371(a) (footnote not in original), so that "the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations [may] be reduced to insignificant levels approaching . . . zero," id. § 1371(a)(2) (hereinafter "the Zero Mortality Rate Goal"). As part of the Zero Mortality Rate Goal, paragraph 1371(a)(2) further instructs that "[t]he Secretary of the Treasury[6]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." Id. § 1371(a)(2) (hereinafter "Import Provision") (footnote not in original).
The MMPA does not otherwise define the phrase "United States standards," 16 U.S.C. § 1371(a)(2), but this court has identified certain markers throughout the statute that illuminate the concept. See Nat. Res. Def. Council, Inc. v. Ross, 42 CIT __, __, 331 F.Supp.3d 1338, 1355, 1363 (2018) ("NRDC I").[7] One such marker of "United States standards" is the "Potential Biological Removal" level, or "PBR," which is the "maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population." 16 U.S.C. §§ 1362(20), 1386(a)(6). Where commercial fishing causes mortality of a marine mammal population in excess of PBR, NOAA is required to develop a "Take Reduction Plan" with measures to reduce fishery-related mortalities to less than PBR within six months and to reduce mortality and/or serious injury of marine mammals incident to commercial fishing to insignificant levels approaching zero within five years. Id. §§ 1387(f)(1)-(2), (5), 1362(19).
In addition to the Zero Mortality Rate Goal, PBR, and Take Reduction Plans, further statutory markers of "United States standards" include, but are not necessarily limited to, monitoring of "incidental takes," also referred to as "bycatch," id. § 1387(d), as well as stock assessments -- which document a marine mammal species' population abundance and the fisheries that interact with them, see id. § 1386. For purposes of assessing whether "United States standards" have been exceeded, the Secretary "shall insist on reasonable proof from the government of any nation from which fish or fish products will be exported to the United States of the effects on ocean mammals of the commercial technology in use for such fish or fish products." Id. § 1371(a)(2)(A).
NOAA supplemented the MMPA's markers of "United States standards" through the promulgation of agency regulations in August 2016. See 50 C.F.R. Part 216 (hereinafter "Imports Regulation"); see also Fish and Fish Product Import Provisions of the Marine Mammal Protection Act, 81 Fed.Reg. 54,390 (Dep't Commerce Aug. 15, 2016).
For example, NOAA's Imports Regulation requires foreign harvesting nations to secure "comparability findings" for their fisheries importing fish and fish products into...
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