Trade Court Denies Bid to Delay Injunction Against Imports of Certain Fish From New Zealand

The Court of International Trade in a Jan. 9 opinion denied the New Zealand government's bid to delay a preliminary injunction barring the import of certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries into the U.S. The New Zealand government requested the temporary stay of the PI to set up a traceability system that would help the govenrment identify the fish subject to the injunction. Judge Gary Katzmann said that the need to set up this system does not constitute a changed circumstance that would permit the modification of the PI.

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. Since only 48 to 64 Maui dolphins above one year of age remain, the ban would protect the species. 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 2022 opinion, Katzmann found the plaintiffs were likely to succeed on two claims that 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 ruling on this motion, Katzmann said that a party looking to modify a PI must show a change in circumstances that would make the "continuation of the original preliminary injunction inequitable." The New Zealand government said the need to impose the traceability system is the change of circumstances requiring modification of the injunction, even though, as New Zealand concedes, the need for the traceability system is a "direct -- and anticipated -- consequence of the court's awarded injunctive relief."

Katzmann agreed with the plaintiffs -- conservation groups Sea Shepherd New Zealand and Sea Shepherd Conservation Society -- that the injunction itself "'or [the] circumstances flowing directly from [its] issuance' cannot constitute 'changed circumstances.' To hold otherwise would nullify the 'changed circumstances' factor, as such conditions would exist in every case."

(Sea Shepherd New Zealand v. United States, Slip Op. 23-1, CIT #20-00112, dated 01/09/23, Judge Gary Katzmann. Attorneys: Lia Comerford of Earthrise Law Center for plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society; Stephen Tosini for defendant U.S. government; Warren Connelly of Trade Pacific for defendant-intervenor New Zealand government)