Trade Court Lets Claim Proceed Against Expired NOAA Administrative Decision on New Zealand Fisheries

Certain claims from conservation groups Sea Shepherd New Zealand and Sea Shepherd Conservation Society may continue despite the fact that the administrative decision they are challenging has expired, the Court of International Trade ruled in a June 21 opinion. Judge Gary Katzmann said that an element of Sea Shepherd's challenge is capable of repetition from the National Oceanic and Atmospheric Administration and evading review, allowing a claim seeking declaratory relief to proceed. But because the decision expired, the judge said the prospect of injunctive relief was moot.

The conservation groups challenged NOAA's 2020 findings that New Zealand's standards for its West Coast North Island inshore trawl and set net fisheries were comparable with U.S. regulations. The U.S. said that since the comparability findings expired on Jan. 1, 2023, the claims against them were moot. Katzmann noted that cases on expired administrative decisions may proceed in exceptional situations, including where there is a reasonable expectation that the same party will be subject again to the same action and the action is "live" for too short a period to be fully litigated before expiration. The judge said both conditions were satisfied in the present case.

Katzmann first looked at whether the possibility of harm could be repeated, first establishing the standard under which this determination could be made. Looking to a U.S. Court of Appeals for the D.C. Circuit opinion, Montgomery Environmental Coalition v. Costle, Katzmann said that the expiry of the administrative decision is irrelevant where the plaintiffs challenge a "categorical legal stance." Going over each one of the conservation groups' four claims, the judge said that only one -- that NOAA failed to undertake its mandatory considerations laid out in federal regulations -- was still live.

Under this claim, Sea Shepherd said that the NOAA's interpretation of its imports regulation, which says that the deciding official shall consider the extent to which the harvesting nation has implemented measures to reduce incidental mortality and injury below the bycatch limit, violated the law. The conservation groups alleged that the NOAA's position, which says that the imports regulation does not require consideration of "historical rates of marine mammal population decline in awarding comparability findings," cuts against the regulation's "express terms."

The court said this claim amounts to a challenge of the government's "categorical legal stance," adding that it is "reasonably likely the agency will continue to adhere to its contested legal interpretation in reviewing these successive applications." The judge found that Sea Shepherd's other three claims against the comparability findings -- "[1] New Zealand's fisheries continue to kill and injure Maui dolphins in excess of U.S. standards; [2] NOAA failed to exercise independent judgment in issuing the comparability determination;" and [3] "NOAA failed to draw reasonable conclusions about the fisheries at issue" -- fell short. Since future comparability findings will involve a different record and notice-and-comment rulemaking, the remaining three issues are moot, the opinion said.

The judge moved on to the question of whether the comparability findings, which lasted for just over two years, were in place long enough to be challenged. Even though the findings could have remained valid for four years, Katzmann said that given the facts of the case, "four years is too short a period for this case to reach the Federal Circuit, let alone the Supreme Court, and for judicial review to conclude."

The suit is ultimately seeking 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. In November 2022, the court granted Sea Shepherd's request for a temporary ban on certain fish taken from New Zealand's West Coast North Island multispecies set-net and trawl fisheries (see 2211280053).

(Sea Shepherd New Zealand v. United States, Slip Op. 23-92, CIT #20-00112, dated 06/21/23; 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)