CIT Issues Confidential Opinion on Motion to Dismiss CAMLR Case

The Court of International Trade issued a confidential opinion on Oct. 5 in a case from importer Southern Cross Seafoods pertaining to a U.S. move to ban imports of Patagonian toothish, referred to as Chilean sea bass, from the South Georgia fishery in the Atlantic Ocean. Per a letter to the litigants, Judge Timothy Reif gave the parties until Oct. 10 to review any potentially confidential information. The U.S. filed a motion to dismiss for lack of subject-matter jurisdiction, which has been fully briefed, indicating that the opinion addresses this question, though the docket doesn't indicate which way the judge ruled (Southern Cross Seafoods v. United States, CIT # 22-00299).

Southern Cross submitted an application to import Chilean sea bass fished in the Subarea 48.3 area of the South Georgia fishery. 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 Conservation of Antarctic Marine Living Resource (CAMLR) Convention or in violation of any regulation promulgated under this title," Southern Cross said in filing its case, citing 16 U.S.C. § 2435(3) (see 2210140029).

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. Southern Cross said the CAMLR Commission doesn't bar fishing in this area given the absence of measures establishing a catch limit and other requirements. Nevertheless, the U.S. denied Southern Cross' preapproval application, saying the toothfish were "harvested in contravention of CCAMLR CM 31-01."

After taking to the trade court, the U.S. filed a motion to dismiss for lack of jurisdiction, claiming that the suit belongs in the appropriate district court. CIT holds jurisdiction over claims relating to an "embargo" on goods. The government argued that the denial of the preapproval application doesn't amount to an "embargo" or a "governmentally imposed quantitative restriction," noting that marking the CAMLR Convention as an embargo would lead to an "unnatural" result (see 2212200051).