Conservation Group Contests NOAA's Remand Bid in Case Over Import Ban on New Zealand Seafood
A voluntary remand is not needed in a case concerning the National Oceanic and Atmospheric Administration's ban on imports of fish and fishery products from New Zealand caught using techniques that allegedly have caused the near extinction of the Maui dolphin, plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society argued in a Nov. 23 reply brief at the Court of International Trade. NOAA's call for a voluntary remand "is a red herring" and would let the agency "avoid the repercussions of its decision to not rule on the" New Zealand government's 2021 comparability findings application by the end of the year -- a move that delays the consideration of new information over the Maui dolphin, the U.S. said (Sea Shepherd New Zealand, et al. v. United States, CIT #20-00112).
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NOAA argues that the remand would allow it to "amend the current comparability findings for certain New Zealand fisheries whose expiration dates conform with the deadlines set forth for other comparability findings to be issued under the Marine Mammal Protection Act and 50 C.F.R. § 216.24(h)" (see 2211080034).
A measure in the MMPA allows for an embargo 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 as that afforded by the U.S. NOAA issued a regulation to implement the MMPA, laying out the procedures that exporting countries must follow to get "comparability findings." Following an exemption period, all fish or fish product imports must have been caught in a foreign fishery for which NOAA has made a comparability finding. The agency extended the exemption period, meaning any new comparability finding would take effect on Jan. 1, 2024.
Sea Shepherd then filed its case seeking the import ban on fish and fish goods caught using gillnets and trawl nets within the Maui dolphin's range. The U.S. previously sought a voluntary remand to address new issues raised by the plaintiffs, including scientific literature that came out after NOAA's denial of Sea Shepherd's petition. The remand was granted, during which New Zealand applied for comparability findings. The findings were granted, though Sea Shepherd's supplemental petition was denied. The comparability findings will expire on Dec. 31, 2022, leading Sea Shepherd to renew its injunction motion at CIT. NOAA now says it will be unable to finish its review of New Zealand's requests for comparability findings by the current deadline, asking instead to be held to a Jan. 1, 2024, deadline via voluntary remand.
The plaintiffs railed against this motion, arguing that the court should not grant the voluntary remand since the agency's concerns "are not substantial or legitimate." NOAA is not reconsidering its decision to grant the comparability findings, but instead is looking to take the "predetermined action of extending" the expiration dates of the comparability findings. Further, NOAA has not given a "compelling justification" for the remand request and the claim that the agency does not want the comparability findings to expire since it would impose unnecessary procedural burdens on the parties is a "red herring," the plaintiffs said.
"It would pose little burden on the Court, nor should it impact the Court’s ability to rule on Plaintiffs’ pending Preliminary Injunction Motion," the brief said. "The Court can rule on that Motion based on whether Plaintiffs are likely to succeed on their First and Second Claims, neither of which depend on the concurrent Comparability Findings."