Sea Shepherd New Zealand v. United States

• Decision Date: 13 August 2020
• Docket Number: Slip Op. 20-116,Court No. 20-00112
• Citation: 469 F.Supp.3d 1330
• Parties: SEA SHEPHERD NEW ZEALAND and Sea Shepherd Conservation Society, Plaintiffs, v. UNITED STATES, Wilbur Ross, in his official capacity as Secretary of Commerce, United States Department of Commerce, a United States government agency, Chris Oliver, in his official capacity as Assistant Administrator of the National Marine Fisheries Service, National Marine Fisheries Service, a United States government agency, Steven Mnuchin, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, a United States government agency, Chad Wolf, in his official capacity as Acting Secretary of Homeland Security, and United States Department of Homeland Security, a United States government agency, Defendants, and New Zealand Government, Defendant-Intervenor.
• Court: U.S. Court of International Trade

469 F.Supp.3d 1330

SEA SHEPHERD NEW ZEALAND and Sea Shepherd Conservation Society, Plaintiffs,

v. UNITED STATES, Wilbur Ross, in his official capacity as Secretary of Commerce, United States Department of Commerce, a United States government agency, Chris Oliver, in his official capacity as Assistant Administrator of the National Marine Fisheries Service, National Marine Fisheries Service, a United States government agency, Steven Mnuchin, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, a United States government agency, Chad Wolf, in his official capacity as Acting Secretary of Homeland Security, and United States Department of Homeland Security, a United States government agency, Defendants,andNew Zealand Government, Defendant-Intervenor.

Slip Op. 20-116

Court No. 20-00112

United States Court of International Trade.

August 13, 2020

Lia Comerford, Earthrise Law Center at Lewis & Clark Law School, of Portland, OR, argued for plaintiffs. With her on the joint brief were Danielle Replogle; and Brett Sommermeyer Catherine Pruett, Sea Shepherd Legal, of Seattle, WA.

Stephen C. Tosini, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel Daniel J. Calhoun, Assistant Chief Counsel, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

Warren E. Connelly Trade Pacific PLLC, of Washington, DC, argued for defendant-intervenor. With him on the brief were Robert G. Gosselink and Kenneth N. Hammer.

OPINION AND ORDER

Katzmann, Judge:

The critically endangered Maui dolphin (Cephalorhynchus hectori maui ), residing exclusively in the waters surrounding New Zealand's North Island, has been deemed to be facing an extremely high risk of extinction. See Am. Compl. ¶ 38, July 20, 2020, ECF No. 23.¹ The Maui dolphin suffered a precipitous population decline since the 1970s, with an estimated population of around sixty individuals. See id. ¶ 1. Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society (collectively, "Plaintiffs") bring this suit to challenge the U.S. Department of Commerce's ("Commerce") failure to implement an import ban on fish and fish products caught with nets that threaten the Maui dolphin as required by the Marine Mammal Protection Act ("MMPA") and a denial of their petition for emergency rulemaking to implement such a ban. Id. ¶¶ 84–94. Plaintiffs allege that the decline in the Maui dolphin population is the result of "incidental capture, or bycatch, in gillnet and trawl fisheries within their range." Id. ¶ 1. In proceeding under the MMPA and filing a motion for preliminary injunction to compel the Secretary of Commerce to implement an import ban, Plaintiffs are setting forth a legal theory that was presented to this court in recently concluded litigation involving the vaquita, the world's smallest porpoise on the verge of extinction. See Natural Resources Defense Council, Inc. v. Ross, No. 18-0055, 44 CIT ––––, 456 F.Supp.3d 1292, Slip Op. 20-53 (April 22, 2020). See also Natural Resources Defense Council, Inc. v. Ross, 42 CIT ––––, 331 F. Supp. 3d 1338 (2018) (" NRDC I"); Natural Resources Defense Council, Inc. v. Ross, 42 CIT ––––, 331 F. Supp. 3d 1381 (2018) ; Natural Resources Defense Council, Inc. v. Ross, 42 CIT ––––, 348 F. Supp. 3d 1306 (2018).

Plaintiffs have moved this court for a preliminary injunction ordering Defendants to ban the import of commercial fish and products from fish caught using gillnets and trawls in the range of the Maui dolphin. Pls.' Mot. for a Prelim. Inj. on Their First Claim for Relief, July 1, 2020, ECF No. 11. The Defendants, several United States agencies and officials (collectively, "the Government"), have moved to stay the filing of their response to Plaintiffs' pending motion and requested a voluntary remand so that NOAA Fisheries could reconsider Plaintiffs' petition for emergency rulemaking under the MMPA in light of: (1) new fishery measures implemented by the New Zealand Government ("NZG"); (2) "[NZG]'s request for a comparability assessment of its action;" and (3) new factual information presented in connection with those measures. Def.'s Mot. for Voluntary Remand at 5–6, July 17, 2020, ECF No. 17 ("Def.'s Br."). In this motion for remand, the Government is also joined by NZG, as Defendant-Intervenor. See Mot. of the NZG for Permissive Intervention as Def.-Inter., July 15, 2020, ECF No. 13; Order Granting Unopposed Mot. to Intervene as Def-Inter., July 21, 2020, ECF No. 24. The court grants that motion so that the National Oceanic and Atmospheric Administration's National Marine Fisheries Service ("NOAA Fisheries") may address the cited developments in the first instance. The Government is ordered to file the remand determination with this court no later than October 30, 2020.

BACKGROUND

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) (2012).² "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 Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795, 801 (D.C. Cir. 1988). In overview, 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." See 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), under which, the Government "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." See generally NRDC I, 331 F. Supp. 3d 1338. Primary responsibility for the implementation of the MMPA rests with NOAA Fisheries, which is within the Department of Commerce. See 16 U.S.C. § 1362(12)(A)(i). The statute contains multiple provisions, including those which direct NOAA Fisheries to make stock assessments, assess the potential biological removal ("PBR") level, 16 U.S.C. § 1386(a)(6), and 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).

As noted, at the center of this case is the endangered Maui dolphin of New Zealand. Plaintiffs allege that the Maui dolphin's decline and endangerment of extinction is the result of "incidental capture, or bycatch, in gillnet and trawl fisheries within their range." Am. Comp. ¶ 1. For this reason, the "Maui dolphin is listed as critically endangered by the International Union for Conservation of Nature[, which means] the subspecies is considered to be facing an extremely high risk of extinction in the wild." Am. Compl. ¶ 38. Because of the Maui dolphins' "low reproductive rate (calving every 2–4 years) and late onset of sexual maturity (7–9 years)" Maui dolphins have a low population growth rate and thus any human-caused mortality further threatens the species. Am. Compl. ¶ 40. Plaintiffs' allege that the PBR for the Maui dolphin indicates that "only one Maui dolphin roughly every 20 years could be removed from the population while still allowing Maui dolphins to reach or maintain their optimum sustainable population." Am. Compl. ¶ 44. The Government notes that NZG's "risk assessment for Maui dolphins" indicated a PBR of 0.11 or one Maui dolphin death every ten years in order to maintain a sustainable population. Def.'s Br. at 2–3.

NZG has implemented various measures to combat incidental bycatch of the Maui dolphin since 2003. See Am. Compl. ¶ 47. According to NOAA Fisheries, NZG implemented a new threat management plan ("TMP") and regulatory regime in 2012 which includes "measures restricting set nets and trawls in certain areas of Maui dolphin habitat, and required increased observer coverage and other monitoring mechanisms." 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. 32,853, 32,854 (NOAA July 10, 2019) ("Petition Rejection"). Most recently, NZG implemented new regulatory measures on June 24, 2020, that will go in effect on October 1, 2020, within Maui dolphin habitat to "extend existing, and create new, areas that prohibit the use of commercial and recreational set-nets," "extend the closure to trawl fishing," "put in place a fishing-related mortality limit of one dolphin," and "prohibit the use of drift nets." Def.'s Br., Attach. A at 1.

In 2019, Plaintiffs petitioned NOAA Fisheries "for an emergency rulemaking under the [MMPA], asking [the Government] to ban the import of fish caught in gillnet and trawl fisheries in the Maui dolphin's range" because NZG's 2012...