Conservation Groups Rail Against New Zealand's Stay Bid Over Ban of Certain Fish Imports at CIT

The Court of International Trade should reject a request to temporarily stay an order barring the import of certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries, plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society argued in a Dec. 12 reply brief. Harms the New Zealand fisheries will purportedly suffer absent a stay are "short-lived, overstated, and speculative," the brief said, but "[m]ore importantly, they pale in comparison to the ongoing risk posed to the Maui dolphin from set net and trawl fisheries that operate within the dolphins' range" (Sea Shepherd New Zealand v. United States, CIT #20-00112).

The case was initially launched to seek an import ban under the Marine Mammal Protection Act on fish and fish products caught using gillnets and trawl nets within the Maui dolphin's range; only 48 to 64 Maui dolphins above one year of age remain. The MMPA provides for bans on the importation of fish or fish products captured in foreign commercial fisheries that fail to provide marine mammal species with a comparable level of protection to that afforded by the U.S.

In a November opinion, Judge Gary Katzmann found the plaintiffs were likely to succeed on two claims that argued the U.S. violated the Administrative Procedure Act by arbitrarily and capriciously denying a petition for emergency rulemaking and granting comparability findings to two "unsuitable New Zealand fisheries" (see 2211280053). The judge issued an injunction on the import of snapper, tarakihi, spotted dogfish, trevally, warehou, hoki, barracouta, mullet and gurnard from the fisheries in question. The New Zealand government then asked the trade court to stay the ban until Jan. 31, to give it time to set up a traceability system and clear the standard set in the MMPA.

In response, the plaintiffs argued New Zealand failed to satisfy any of the preliminary injunction or stay factors, which say a moving party must be likely to prevail on the claim's merits, be likely to suffer irreparable harm absent the stay, have the balance of equities tip in its favor and have the stay be in the public interest. Under this first factor, New Zealand argued the merits of its claims do not concern the issues discussed in the court's opinion but rather whether the New Zealand government has shown enough to prove that a short stay is needed.

"But this argument is circular, and thus illogical: that the Court should grant the motion to stay because New Zealand is likely to succeed on its motion to stay," the plaintiffs said. "Moreover, New Zealand cites no case law for this novel interpretation." Even if this were the case, the government is not likely to succeed on its stay because the New Zealand seafood industry will not be irreparably harmed without the stay.

The plaintiffs claimed said New Zealand's government, not its seafood industry, is a party to the case, so the court can at most consider impacts to the seafood industry as part of the public interest prong analysis in ruling on the stay. Even considering potential harms to the industry, the harms are not irreparable, the plaintiffs argued. New Zealand asks for only a temporary stay, meaning the harms are not "irreparable," the brief said. The other "significant issue with New Zealand's argument" is that the alleged harm is "self-inflicted."

"New Zealand has known for years that it lacked an adequate traceability system," the brief said. Despite knowing the risk posed by the lack of a traceability system and despite believing "it can develop and implement a system in less than two months -- for almost four years New Zealand has failed to develop and implement such a system," the brief said. "Part-and-parcel of the self-inflicted nature of New Zealand’s harm is that New Zealand has had the power to avoid that harm by developing and implementing a traceability system. For these reasons, New Zealand’s harms are not irreparable."