Sea Shepherd N.Z. v. United States
| Docket Number | 20-00112,Slip Op. 23-92 |
| Decision Date | 21 June 2023 |
| 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 denies Defendants' Partial Motion to Dismiss.]
Lia Comerford, and Kevin Cassidy, Earthrise Law Center at Lewis & Clark Law, of Portland, OR and Norwell, MA, for Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., 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, Robert G. Gosselink and Kenneth N. Hammer, Trade Pacific PLLC, of Washington, D.C., for Defendant-Intervenor New Zealand Government.
Before: Gary S. Katzmann, Judge
Earlier this month, the world observed World Ocean Day, an international day, recognized by the United Nations, dedicated to "unit[ing] and rall[ying] . . . to protect and restore our blue planet."[2] Relatedly, the court today returns to the precarious state of the Maui dolphin -- the world's smallest dolphin, found only in the waters around New Zealand - - of which an estimated forty-eight to sixty-four individuals remain.[3] Since May 2020, Plaintiffs Sea Shepherd New Zealand Ltd. and Sea Shepherd Conservation Society[4] have pursued a line of litigation before this court based on the fundamental claim that as a result of incidental capture -- also referred to as "bycatch" -- in gillnet and trawl fisheries within their range, the Maui dolphin population is declining such that a ban on imports of fish and fish products from New Zealand is required by the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq. 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.[5]
In November 2022, after dismissing the first count of Plaintiffs' Complaint, this court --upon evaluation of the factors that govern a request for injunctive relief -- granted Plaintiffs a preliminary injunction to preserve the status quo of their remaining second and third counts pending final adjudication. That preliminary injunction ordered the immediate ban on imports into the United States of fish and fish products deriving from nine species caught in New Zealand's West Coast North Island inshore trawl and set net fisheries, unless affirmatively identified as having been caught with a gear type other than gillnets or trawls. The preliminary injunction remains in effect at present.
The court is now asked to consider the third count of Plaintiffs' Complaint, which alleges that the U.S. Department of Commerce ("Commerce") acted arbitrarily, capriciously, and otherwise not in accordance with law in issuing to New Zealand's West Coast North Island inshore trawl and set net fisheries findings of comparability with U.S. standards. On January 1, 2023, these "comparability findings" issued by Commerce expired on their own terms. Accordingly, Defendants -- several United States agencies and officials (collectively "the United States" or "the Government") -- here ask the court to dismiss as moot Plaintiffs' third claim. The Government of New Zealand -- as Defendant-Intervenor -- supports the United States' instant motion; while Plaintiffs oppose it on the grounds that the expiry of New Zealand's comparability findings has not mooted their attendant claim.
Because the court concludes that aspects of Plaintiffs' request for declaratory relief under their third claim remain live, the court denies Defendants' Partial Motion to Dismiss.
The court presumes familiarity with its decisions in Sea Shepherd N.Z. v. United States, 44 CIT__, 469 F.Supp.3d 1330 (2020) ("Sea Shepherd I") Shepherd N.Z. v. United States, 46 CIT__, 606 F.Supp.3d 1286 (2022) ("Sea Shepherd II"), and Shepherd N.Z. v. United States, 47 CIT__, 611 F.Supp.3d 1406 (2023) ("Sea Shepherd III"), but for ease of reference, sets out the legal and procedural background necessary to contextualize the instant motion.
Congress enacted the 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" from "diminish[ing] below their optimum sustainable population." Id. § 1361(1)-(2). To achieve this directive, the MMPA mandates a ban on "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) (emphasis added) ("Import Provision").
The MMPA does not otherwise define the phrase "United States standards," id., but the National Oceanic and Atmospheric Administration ("NOAA") -- a bureau within Commerce -- has defined the concept, in part, through the promulgation of agency regulations. See 50 C.F.R. Part 216 ("Imports Regulation"); see also Fish and Fish Product Import Provisions of the Marine Mammal Protection Act, 81 Fed.Reg. 54390 (Dep't Com. Aug. 15, 2016).
Central to the instant motion, NOAA's Imports Regulation requires foreign harvesting nations to secure "comparability findings" for their fisheries importing fish and fish products into the United States and establishes that any fish or fish product harvested in a fishery for which a "valid comparability finding" is not in effect is in excess of "U.S. standards," and thereby prohibited from import. See 50 C.F.R. § 216.24(h)(1)(i).[6], [7] Receipt of a comparability finding signifies that NOAA has assessed a nation's fisheries to satisfy certain mandatory regulatory conditions. See id. § 216.24(h)(6)(iii), (h)(7) ().
In the ordinary course, "a comparability finding shall remain valid for 4 years from [its] publication or for such other period as [NOAA] may specify." Id § 216.24(h)(8)(iv). "To seek renewal of a comparability finding," "the harvesting nation must submit to [NOAA] the application and the [requisite] documentary evidence" "every 4 years or" "by November 30 of the year prior to the expiration date of its current comparability finding." Id § 216.24(h)(8)(v).
Contending that Maui dolphins are being "caught with commercial fishing technology . . . resulting] in . . . incidental kill[s] or . . . serious injury . . . in excess of United States standards," 16 U.S.C. § 1371(a)(2), on February 6, 2019, Plaintiffs submitted a formal petition to the Government asking it to utilize its rulemaking authority[8] to ban the import of fish and fish products originating from New Zealand fisheries in the Maui dolphin's range that employ either gillnets or trawls. See Sea Shepherd Legal et al., Petition to Ban Imports of Fish and Fish Products from New Zealand 3, 12 (2019), P.R. 1 ("February 2019 petition").[9] NOAA rejected Plaintiffs' February 2019 petition on July 10, 2019, see Notification of the Rejection of the Petition to Ban Imports of All Fish and Fish Products from New Zealand That Do Not Satisfy the Marine Mammal Protection Act, 84 Fed.Reg. 32853, 32854 (Dep't Com. July 10, 2019), P.R. 5426,[10] and Plaintiffs filed suit against the United States in this court on May 21, 2020, see Original Compl., May 21, 2020, ECF No. 5.
Meanwhile, on June 24, 2020, the Government of New Zealand announced new fishing measures to enhance protections of Maui dolphins. See Letter from Hon. Stuart Nash, Minister of Fisheries, re: Hector's and Maui Dolphin Threat Management Plan at 3 (July 24, 2020), P.R. 580. On the belief that these revised measures are comparable to "United States standards" under the MMPA, the New Zealand Government requested that NOAA perform comparability assessments for its "West Coast North Island inshore trawl fishery" and "West Coast North Island inshore set net fishery" pursuant to the Imports Regulation. Id
In light of the New Zealand Government's request for comparability assessments, as well as in light of certain assessed differences between Plaintiffs' February 2019 petition before the agency and the May 2020 complaint before this court, on August 13, 2020, this court granted the United States a remand so that the agency could address these intervening developments in the first instance. See Sea Shepherd I, ...
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