Sea Shepherd New Zealand v. United States , 2024 CIT 37 ( 2024 )

Slip Op. 24-
UNITED STATES COURT OF INTERNATIONAL TRADE
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; JANET COIT, in her official
capacity as Assistant Administrator of the
National Marine Fisheries Service;
NATIONAL MARINE FISHERIES
SERVICE; JANET YELLEN, in her official Before: Gary S. Katzmann, Judge
capacity as Secretary of the Treasury; Court No. 20-00112
UNITED STATES DEPARTMENT OF THE
TREASURY; ALEJANDRO MAYORKAS, in
his official capacity as Secretary of Homeland
Security; and UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY,
Defendants,
and
NEW ZEALAND GOVERNMENT,
Defendant-Intervenor.
OPINION
[ In light of NOAA’s new comparability findings, Defendant-Intervenor’s Unopposed Motion to
Dissolve the Preliminary Injunction is granted. The court intimates no view as to those new
comparability findings. ]
Dated: April 1, 2024
Court No. 20-00112 Page 2
Lia Comerford, Earthrise Law Center at Lewis & Clark Law, of Portland, OR, 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, in
her official capacity as Secretary of United States Department of Commerce; Janet Coit, in her
official capacity as Assistant Administrator of her the National Marine Fisheries Service; National
Marine Fisheries Service; Janet Yellen, in her official capacity as Secretary of Treasury United
States Department of the Treasury; Alejandro Mayorkas, in his official capacity as Secretary of
Homeland Security; and United States Department of Homeland Security. With him on the brief
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 of Trade Pacific PLLC, of
Washington, D.C., for Defendant-Intervenor New Zealand Government.
Katzmann, Judge: The court returns once more to the case of the critically endangered
MƗui dolphin—one of the world’s smallest dolphins—that is endemic to New Zealand. See Sea
Shepherd N.Z. v. United States (“Sea Shepherd I”), 44 CIT __, 469 F. Supp. 3d 1330 (2020), ECF
No. 38; Sea Shepherd N.Z. v. United States (“Sea Shepherd II”), 46 CIT __, 606 F. Supp. 3d 1286(2022), ECF No. 108; Sea Shepherd N.Z. v. United States (“Sea Shepherd III”), 47 CIT __, 611 F.
Supp. 3d 1406 (2023), ECF No. 131; Sea Shepherd N.Z. v. United States (“Sea Shepherd IV”), 47
CIT __, 639 F. Supp. 3d 1367 (2023), ECF No. 136. Sea Shepherd New Zealand and Sea Shepherd
Conservation Society (“Plaintiffs”) initiated this lawsuit with the fundamental claim that as a result
of incidental capture—also referred to as “bycatch”—in gillnet and trawl fisheries within their
range, the MƗui dolphin population is declining such that a U.S. ban on importing certain fish and
fish products from New Zealand is required by the Marine Mammal Protection Act (“MMPA”).
See First Supp. Compl. ¶¶ 1–4, Nov. 24, 2020, ECF No. 46. On November 28, 2022, the court
entered a preliminary injunction ordering several United States agencies and officials
(“Defendants”) to “immediately ban the importation from New Zealand” of nine types of seafood
deriving from New Zealand’s West Coast North Island inshore trawl and set net fisheries, unless
Court No. 20-00112 Page 3
affirmatively identified as having been caught with a gear type other than gillnets or trawls. Order
at 2, Nov. 28, 2022, ECF No. 109; see also Sea Shepherd II, 606 F. Supp. 3d at 1286. Defendant-
Intervenor New Zealand now moves to dissolve that preliminary injunction.
Creating with certain exceptions a “moratorium on the taking and importation of marine
mammals and marine mammal products,” the MMPA aims to protect marine mammals by setting
forth U.S. standards applicable both to domestic commercial fisheries and to foreign fisheries that
wish to export their products to the United States, like those in New Zealand. 16 U.S.C. § 1371(a).
If such U.S. standards are not met, the MMPA calls for a mandatory ban. See id. § 1371(a)(2).
Administering that statute, the National Oceanic and Atmospheric Administration’s (“NOAA”)
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).
The November 28, 2022 preliminary injunction was premised on Plaintiffs’ challenge, as
pleaded in their First Supplemental Complaint, to NOAA’s decision on November 9, 2020, which
did not impose an import ban as requested by Plaintiffs’ supplemental petition and instead issued
positive comparability findings for New Zealand’s West Coast North Island inshore trawl and set
net fisheries. See First Suppl. Compl.; Implementation of Fish and Fish Product Import Provisions
of the Marine Mammal Protection Act—Notification of Rejection of Petition and Issuance of
Comparability Findings, 85 Fed. Reg. 71297, 71298 (NOAA Nov. 9, 2020); see also Sea Shepherd
I, 469 F. Supp. 3d 1330; Sea Shepherd II, 606 F. Supp. 3d 1286; Sea Shepherd III, 611 F. Supp.
3d 1406; Sea Shepherd IV, 639 F. Supp. 3d 1367. On January 24, 2024, NOAA published notice
of its issuance of new positive comparability findings for New Zealand’s West Coast North Island
Court No. 20-00112 Page 4
inshore trawl and set net fisheries, based on supplemental information provided by Plaintiffs and
New Zealand. See Implementation of Fish and Fish Product Import Provisions of the Marine
Mammal Protection Act—Notification of Issuance of Comparability Findings, 89 Fed. Reg. 4595,
4596 (NOAA Jan. 24, 2024). NOAA found that, effective for the period from February 21, 2024,
through December 31, 2025, New Zealand had established that its fisheries’ measures for reducing
the bycatch of MƗui dolphins satisfy the provisions of the MMPA. See id. 1
New Zealand now moves to dissolve the preliminary injunction. See Unopposed Mot. of
the Gov’t of N.Z. to Dissolve the Prelim. Inj., Mar. 19, 2024, ECF No. 152. Plaintiffs do not
oppose, and Defendants consent to, the dissolution of the preliminary injunction. See id. at 2. The
court concludes that NOAA’s issuance of the new comparability findings, which supersede the
administrative actions underlying the preliminary injunction, constitutes a “significant change in
factual conditions and law.” Sea Shepherd III, 611 F. Supp. 3d at 1409–10 (quoting 11A Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2961 (3d ed. 2022)). New
Zealand’s motion is granted.
To be clear, this opinion does not preclude future legal challenges to NOAA’s new
comparability findings. Nor does the court suggest any view on those new comparability findings.
All this opinion means is that the particular administrative decision underlying the November 28,
2022 preliminary injunction is no longer operative. The MƗui dolphin remains critically
1
NOAA’s notice stated:
As a result of these findings, [the National Marine Fisheries Service] announces the
issuance of positive comparability findings that will allow the importation into the
United States of fish and fish products harvested by New Zealand’s set-net and
trawl fisheries operating off the West Coast North Island within the MƗui dolphin s
range.
Id. at 4597.
Court No. 20-00112 Page 5
endangered, and current estimates indicate that approximately forty-three dolphins remain. See R.
Constantine, Int’l Union for Conservation of Nature and Nat. Res., The IUCN Red List of
Threatened Species: Cephalorhynchus hectori ssp. maui 1 (2023), https://www.iucnredlist.org/
species/39427/50380174; Mem. from A. Cole to J. Coit, re: Issuance of Comparability Findings
for the Government of New Zealand’s Set-Net and Trawl Fisheries—Decision Memorandum at 2
(NOAA Jan. 2, 2024), ECF No. 144-2 (“Decision Mem.”).
Furthermore, this litigation is not yet concluded. In response to the parties’ Joint Motion
to Govern Further Proceedings, Feb. 28, 2024, ECF No. 150, the court issued an order that (1)
adopted the parties’ proposal to submit, within sixty days, a joint filing or separate filings with an
update on the parties’ negotiations for this case’s stipulated dismissal, which may include issues
of terms of dismissal, attorneys’ fees, and costs, and (2) required the parties to include a statement
on their views of the status of the claims asserted in Plaintiffs’ First Supplemental Complaint. See
Order, Mar. 13, 2024, ECF No. 151.
It is hereby ORDERED that the preliminary injunction against Defendants, their agents
and their employees, and those in active concert and participation with them, see Order at 2, ECF
No. 109, is DISSOLVED.
SO ORDERED.
/s/ Gary S. Katzmann
Judge
Dated: April 1, 2024
New York, New York