US Bolsters Bid to Get Case Involving CAMLR Tossed From Trade Court
Importer Southern Cross Seafood failed to rebut the government's showing that the National Marine Fisheries Service's denial of the company's preapproval application seeking to import Chilean sea bass does not amount to an embargo, the U.S. argued in a Jan. 27 reply brief at the Court of International Trade. Even if this denial were an embargo, Southern Cross has further failed to show that jurisdiction does not exclusively lie in the relevant district court and not at the trade court, the U.S. said (Southern Cross Seafoods v. United States, CIT #22-00299).
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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 Conservation of Antarctic Marine Living Resources (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. Southern Cross said that 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 (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. then moved for the case to be dismissed for lack of jurisdiction, arguing that 16 U.S.C. 2440 clearly states that jurisdiction over the CAMLR matters belong in district courts.
Southern Cross, in both its complaint and reply to the motion to dismiss, said that 28 U.S.C. Section 1581(i)(1)(C)-(D) gives it jurisdiction since the denial of the preapproval application "amounts to an embargo on toothfish." To establish this point, the plaintiff looked to the 1988 Supreme Court decision K Mart Corp. v. Cartier, which described an embargo as a "governmentally imposed quantitative restriction -- of zero -- on the importation of merchandise." The U.S. responded that the NMFS's preapproval application denial comes nowhere close to this definition of an embargo.
"This single decision is not an embargo or quantitative restriction on the trade of toothfish pursuant to the standard set forth in K Mart Corp., and, notably, Southern Cross has not cited any authority to support its argument that an agency’s application of a condition of trade in one particular instance constitutes an embargo," the government said. "This absence of support is not surprising, given that K Mart Corp. makes evident that a condition of trade is not an embargo even if a case-specific application of that condition might lead to a situation where importation of a product is prevented."
In its reply brief, the U.S. bolstered its claim that the case belongs in a district court by beating back Southern Cross's repeal by implication arguments and claiming that 16 U.S.C. Section 2440 is more specific than Section 1581(i), the trade court's "residual" jurisdiction. "Southern Cross’s position in its brief cannot be squared with its allegations, and this inconsistency undermines Southern Cross’s efforts to demonstrate that exclusive jurisdiction exists in this Court," the brief said.