Sea Shepherd New Zealand v. United States , 2020 CIT 116 ( 2020 )

Slip Op. 20-
UNITED STATES COURT OF INTERNATIONAL TRADE
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
Before: Judge Gary S. Katzmann
official capacity as Secretary of the Treasury,
Court No. 20-00112
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.
OPINION AND ORDER
[The court grants the Government’s motion for a voluntary remand].
Dated: 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.
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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.
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 __, Slip Op. 20-53 (April 22, 2020). See also Natural Resources
1
Plaintiffs moved to amend their complaint on July 20, 2020, in order to alter their jurisdictional
statement. Pls.’ Unopposed Mot. for Leave to File First Am. Compl., July 20, 2020, ECF No. 18.
The court granted that order, July 20, 2020, ECF No. 22, and all relevant citations are to the
Amended Complaint.
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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
Resource 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.
Court No. 20-00112 Page 4
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 catch 3
of marine mammals, commonly referred to as “bycatch.” See 16 U.S.C. §§ 1386–87.
2
Unless otherwise indicated, all citations to statutes are to the 2012 edition of the United States
Code, and all references to regulations are to the 2012 edition of the Code of Federal Regulations.
3
The regulatory definitions pertaining to the MMPA provide that:
Incidental catch means the taking of a marine mammal (1) because it is directly
interfering with commercial fishing operations, or (2) as a consequence of the steps
used to secure the fish in connection with commercial fishing operations: Provided,
That a marine mammal so taken must immediately be returned to the sea with a
minimum of injury and further, that the taking of a marine mammal, which
otherwise meets the requirements of this definition shall not be considered an
incidental catch of that mammal if it is used subsequently to assist in commercial
fishing operations.
50 C.F.R. § 216.3.
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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
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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 regulations were insufficient to protect the Maui
dolphin. Pls.’ Opp’n to Mot. for Voluntary Remand at 1, July 22, 2020, ECF No. 27 (“Pls.’ Br.”).
See also Compl., Attach. 1; Petition Rejection. NOAA Fisheries denied this petition after
reviewing “the petition, supporting documents, previous risk assessments and threat management
plans and New Zealand’s 2019 risk assessment and [TMP].” Petition Rejection, 84 Fed. Reg. at
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32,854. NOAA Fisheries’ denial relied on (1) NZG’s existing regulatory program; (2) NZG’s
2019 risk assessment on the effectiveness of its regulatory program; and (3) additional proposed
regulatory measures that would likely further reduce Maui dolphin bycatch. Id.
On May 21, 2020, Plaintiffs initiated this suit alleging (1) that NOAA Fisheries’ failure to
ban imports as required by the MMPA violated 5 U.S.C. § 706(1), which prohibits an agency
unlawfully withholding or unreasonably delaying action; and (2) that NOAA Fisheries’ denial of
its petition was arbitrary and capricious and thus violated 5 U.S.C. § 706(2)(A). Compl., ECF No.
5; Am. Compl. ¶¶ 84–94. On July 1, 2020, Plaintiffs moved for a preliminary injunction. ECF
No. 11. Before responding to Plaintiffs’ motion for a preliminary injunction, the Government
moved for a voluntary remand in order to reconsider Plaintiffs’ petition for emergency rulemaking
under the MMPA. Def.’s Br. In that and a subsequent motion, the Government requested that the
court stay filing deadlines in the case pending decision of the voluntary remand. Id.; Mot. to Stay
Filing of Ans. and Administrative R., July 20, 2020, ECF No. 20. The court ordered a stay of all
pending deadlines in the case until disposition of the Government’s motion. July 21, 2020, ECF
No. 21. Plaintiffs opposed the Government’s motions. Pls.’ Br. at 2. The Government and NZG
replied in support of the Government’s motion. Def.’s Reply, July 27, 2020, ECF No. 31; Reply
of NZG to Sea Shepherd’s Br. in Opp’n to the Defs.’ Mot. for Voluntary Remand, July 31, 2020,
ECF No. 33 (“NZG’s Reply”). The court held oral argument on August 6, 2020. ECF No. 34. At
oral argument, the Government stated that the requested remand determination by NOAA Fisheries
would be completed by October 30, 2020. Id. Post argument submissions by the parties were filed
on August 11, 2020. Def.’s Post-Hr’g Br., ECF No. 35; NZG’s Submission in Supp. of the Def.’s
Mot. for Voluntary Remand, ECF No. 36; Pls.’ Suppl. Br. in Opp’n to Def.’s Mot. for Voluntary
Remand, ECF No. 37.
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DISCUSSION
The Government argues that a voluntary remand is warranted so that NOAA Fisheries may
have the first opportunity to consider NZG’s new fisheries measures and to perform a
comparability assessment of the NZG’s actions related to the Maui dolphin compared to United
States standards. Def.’s Br. at 5–6. The Government also states that “the short remand might
result in additional Maui dolphin protections after consultation between the United States and New
Zealand, or the imposition of MMPA import restrictions,” “the last officially recorded confirmed
death of a Maui’s dolphin from entanglement in commercial fishing gear was February 2002 in
set-net gear,” and “[n]o Maui dolphin has been confirmed to have been stranded due to
entanglement in commercial fishing operations since 2013.” Def.’s Post-Hr’g Br. at 2 (citations
omitted). Plaintiffs oppose this motion stating that it will delay litigation and a decision on their
motion for preliminary injunctive relief. Pls.’ Br. at 2. Further, the Plaintiffs argue that the
Government’s remand request would only address Count Two of their complaint regarding the
denial of their petition to NOAA Fisheries and not Count One pursuant to which Plaintiffs seek an
injunction under the MMPA. Pls.’ Br. at 2. The court concludes that remand, with a tight deadline
of October 30, 2020, for reconsideration of Plaintiffs’ petition and completion of the comparability
assessment is appropriate. The motion for remand is thus granted.
Both parties agree that SKF USA v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001),
states, in relevant part, that a district court has discretion in deciding whether to grant a request for
voluntary remand. See Def.’s Br. at 5; Pls.’ Br. at 5. In SKF USA, the Federal Circuit noted that
“even if there are no intervening events, [an] agency may request a remand (without confessing
error) in order to reconsider its previous position.” 254 F.3d at 1029. Further, the Federal Circuit
Court No. 20-00112 Page 9
stated that “if the agency’s concern is substantial and legitimate, a remand is usually appropriate.”4
Id. In applying this standard, this court concluded that an agency’s concern is substantial and
legitimate where (1) the agency “provided a compelling justification for its remand request,” (2)
the need for finality “does not outweigh the justification for voluntary remand”; and (3) the “scope
of [the] remand request is appropriate.” Shakeproof Assembly Components Div. of Ill. Tool
Works, Inc. v. United States, 29 CIT 1516, 1522–26, 412 F. Supp. 2d 1330, 1336–39 (2005). See
also Ad Hoc Shrimp Trade Action Committee v. United States, 37 CIT 67, 71, 882 F. Supp. 2d
1377, 1381 (2013).
The court concludes that a voluntary remand is warranted based on NOAA Fisheries’
substantial and legitimate concern of addressing new developments regarding protection of the
Maui dolphin in the first instance. See SKF USA, 254 F.3d at 1029. Factual circumstances have
changed since NOAA Fisheries denied Plaintiffs’ petition, which provides a compelling
justification for its request. First, NZG issued new regulations on June 24, 2020, that, within the
Maui dolphin’s habitat, “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 “prohibits the use of drift nets.” Def.’s Br., Attach. A at 1.
As the Government notes, NOAA Fisheries “has yet to make any determination . . . that [NZG]’s
final fisheries measures warrant an embargo on that country.” Def.’s Br. at 6. The Government
argues that “NOAA has ‘a duty to take a hard look at the proffered evidence’” in the first instance.
Def.’s Br. at 6 (quoting Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 385 (1989)).
4
As Plaintiffs note, “a court should reject a request for voluntary remand where reconsideration
of the challenged agency action would be unwarranted, abusive, frivolous, or in bad faith.” Pls.’
Br. at 4 (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure,
§ 8383 (3d. ed. 2002)). However, at oral argument, Plaintiffs clarified that they made no such
claims against the Government’s remand request here. Oral Arg., Aug. 6, 2020, ECF No. 34.
Court No. 20-00112 Page 10
The court notes Plaintiffs’ assertion that NOAA Fisheries already considered NZG’s new
measures in their proposed form when they denied their petition in 2019. Pls.’ Br. at 2. However,
the court also notes that NZG here argues that it implemented measures above what was proposed
in 2019. See NZG Reply at 4–5. Further, in attempting to distinguish the relief sought in Count
One from that of Count Two, Plaintiffs point out that they now seek an import ban that covers a
geographical range larger than what they sought in their petition. Pls.’ Br. at 6–7. Plaintiffs
explained at oral argument that, since filing their petition, their knowledge of the Maui dolphin’s
habitat has changed, and thus they now seek a wider ban. Oral Arg. The court agrees with the
Government that NOAA Fisheries is best positioned to review these new facts in the first instance.
See Def.’s Reply at 6; NZG’s Reply at 10. Even though NOAA Fisheries had the authority to
issue a wider ban based on Plaintiffs’ petition and NOAA Fisheries previously reviewed NZG’s
proposed measures, there is no reason to think that NOAA Fisheries would come to the same
conclusion with the benefit of this additional information. If Plaintiffs were unaware of
information regarding the Maui dolphin’s habitat at the time they submitted their petition, then
their petition could not have contained that information and there is no reason to believe that
NOAA Fisheries would have possessed or considered that information in denying their petition
and in failing to implement an import ban pursuant to the MMPA. Where, as here, the court would
have to “conduct a de novo inquiry into the matter being reviewed and to reach its own
conclusions,” remand is required for further investigation and explanation by the expert agency.
See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). The court will also direct NOAA
Fisheries to allow Plaintiffs to supplement their petition on remand so that NOAA Fisheries has
before it all additional information in reconsidering Plaintiffs’ petition.
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NZG also requested a comparability finding for its new regulations on July 15, 2020.
Def.’s Br. at 5–6; Def.’s Br., Attach. B. Plaintiffs argue that NZG’s request for a comparability
finding is irrelevant to their challenge because the comparability assessment is done pursuant to
the MMPA Imports Regulation that does not go into effect until 2022. See Pls.’ Br. at 8–9.
However, should NOAA Fisheries decide that NZG’s new measures do not meet U.S.
comparability standards, then it may impose a ban pursuant to its MMPA Import regulations that
could take effect prior to 2022. See, e.g., Implementation of Fish and Fish Product Import
Provisions of the Marine Mammal Protection Act— Notification of Revocation of Comparability
Findings and Implementation of Import Restrictions; Certification of Admissibility for Certain
Fish Products From Mexico, 85 Fed. Reg. 13,626 (NOAA Mar. 9, 2020) (implementing a ban on
the importation from Mexico of fish and fish products caught with gillnets that threaten the vaquita
porpoise after negative comparability findings). As Plaintiffs note, a comparability finding is not
required for an import ban under the MMPA, Pls.’ Br. at 8 (citing NRDC I, 331 F. Supp. 3d at
1353–54); remand may nevertheless result in a ban that would address Count One of Plaintiffs’
complaint. Thus, a remand would allow the agency to address both of Plaintiffs’ claims pursuant
to the MMPA. See also NZG’s Reply at 13.
Finally, Plaintiffs oppose the Government’s request for voluntary remand and subsequent
stay during the remand because they argue that remand would delay the necessary protections for
the Maui dolphin from their requested preliminary injunctive relief. Pls.’ Br. at 6–7, 11–12.
However, the court retains jurisdiction over this case and the results of the voluntary remand. By
setting October 30, 2020, as the tight deadline by which NOAA Fisheries must file its remand
redetermination, the court is granting that agency an appropriate amount of time to consider the
new NZG regulations and factual information presented by the Plaintiffs. The parties should be
Court No. 20-00112 Page 12
on notice that the court appreciates the urgency of the issues presented in this case and will also
move the case forward on an expedited schedule once the results of the voluntary remand are
issued. Should NOAA Fisheries agree that a ban is necessary, it could be implemented just as, or
more rapidly, than if the court proceeded on the preliminary injunction. Most importantly, NOAA
Fisheries will be able to make this assessment in the first instance based on the technical, factual
information that through its expertise it is best positioned to assess. Should NOAA Fisheries not
grant Plaintiffs’ requested relief, the court will act swiftly to decide Plaintiffs’ outstanding motion
for a preliminary injunction. Finally, remand would not unduly impact Plaintiffs’ desire for
finality since, by its nature, a preliminary injunction is not permanent, final relief. See Pls.’ Br. at
11.
In sum, because of the new factual information available to NOAA Fisheries, NZG’s new
regulatory regime, and an ability for NOAA to grant all of the relief requested through a decision
on these new facts in the first instance on remand, the court grants the Government’s motion.
CONCLUSION
The court concludes that the Government’s request for a voluntary remand is appropriate.
Thus, it is hereby
ORDERED that the Government’s motion for voluntary remand is GRANTED; it is
further
ORDERED that 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 (NOAA July 10, 2019), is remanded to NOAA Fisheries for the purpose of
issuing a redetermination on Plaintiffs’ petition for emergency rulemaking under the MMPA to
ban importation of commercial fish or fish products from fish that have been caught with
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commercial fishing technology that results in incidental mortality or serious injury of Maui
dolphins in excess of United States standards; it is further
ORDERED that, on remand, NOAA Fisheries shall allow Plaintiffs to supplement their
petition underlying the challenged determination and consider whether the Hector’s and Maui
dolphin Threat Management Plan – Fisheries Measures, issued by the New Zealand Minister of
Primary Industries on June 24, 2020, results in incidental mortality or serious injury of Maui
dolphins in excess of United States standards under the MMPA; it is further
ORDERED that if Plaintiffs supplement their petition underlying the challenged
determination by NOAA Fisheries, then Plaintiffs shall submit the petition and any additional
information for consideration to NOAA Fisheries within fourteen (14) days of this Order; it is
further
ORDERED that, on remand, NOAA Fisheries shall reach a determination on NZG’s
request of July 15, 2020, to perform a comparability assessment of the New Zealand Threat
Management Plan as it relates to Maui dolphins; it is further
ORDERED that all filing deadlines are stayed until October 30, 2020; it is further
ORDERED that Defendants shall file the remand determination with the court by October
30, 2020; and it is further
ORDERED that the parties shall confer and submit a joint proposed briefing schedule on
Plaintiffs’ motion for preliminary injunction and the remand determination by November 6, 2020.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: August 13, 2020
New York, New York