CIT Doesn't Have Jurisdiction to Hear Cases Involving CAMLR, US Tells Trade Court

The Court of International Trade should dismiss a case from importer Southern Cross Seafood involving the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) for lack of jurisdiction, the U.S. argued in a Dec. 19 motion. Measures involving the CCAMLR belong exclusively at district courts and the statute "could not be more clear," the brief said. The case challenges the National Marine Fisheries Service's decision to deny Southern Cross' application for preapproval to import Chilean sea bass (Southern Cross Seafoods v. United States, CIT # 22-00299).

Southern Cross imports Patagonian toothfish, referred to as Chilean sea bass, fished in the Subarea 48.3 area of the South Georgia fishery in the Atlantic Ocean. It submitted an application to import fish taken from this area. Under U.S. law, it is illegal to import any Antarctic marine living resource "harvested in violation of a conservation measure in force with respect to the United States pursuant to article IX of the [CAMLR] Convention or in violation of any regulation promulgated under this title," Southern Cross said in its complaint, citing 16 U.S.C. § 2435(3).

In 2021, Russia unilaterally blocked the imposition of a catch limit and other fishery-specific measures from being set by the CAMLR Commission for the 2021-2022 fishing season for Subarea 48.3. In the absence of CAMLR Commission measures establishing a catch limit and other requirements, the CAMLR Commission does not prohibit fishing for toothfish in this area, Southern Cross argued after taking to the trade court (see 2210140029).

Nevertheless, the U.S. denied Southern Cross' preapproval application for the toothfish, saying the fish were "harvested in contravention of CCAMLR CM 31-01." The importer claimed that the request was illegally denied given that the U.S. failed to show that the fish was harvested or exported in violation of any CCAMLR conservation measure in force as required by U.S. law.

The U.S. now wants the case tossed for lack of jurisdiction, arguing that 16 U.S.C. Section 2440 clearly states that jurisdiction over the CAMLR matters belong in district courts. "But rather than adhering to this simple directive and filing suit at the appropriate district court, Southern Cross ignores the jurisdictional statute and instead alleges that 28 U.S.C. § 1581(i)(1)(C)-(D) provides the source of jurisdiction for this Court to hear its case, claiming that NMFS’s denial of the preapproval application 'amounts to an embargo on toothfish,'" the brief siad. "As the denial is not an embargo, and section 2440 plainly gives district courts exclusive jurisdiction, this Court lacks jurisdiction to entertain the complaint."

In particular, the U.S. said that the denial of the preapproval application does not amount to an embargo, or "a governmentally imposed quantitative restriction -- of zero -- on the importation of merchandise," as the Supreme Court described it. Describing the CAMLR as an embargo "would yield an application that is 'unnatural, to say the least,'" the brief said. The government did not end trade, "but instead made a case-specific determination as to whether the toothfish was harvested in compliance with the [Antarctic Marine Living Resources Convention Act of 1984 (ALMRCA)] and its implementing regulations, its actions do not prohibit trade outright," the U.S. claimed.