Challenge of Expired NOAA Comparability Decision Should Proceed, Conservation Groups Say
Dismissing Sea Shepherd New Zealand's and Sea Shepherd Conservation Society's challenge of an expired comparability finding for New Zealand's West Coast North Island multispecies set-net and trawl fisheries would allow the National Oceanic and Atmospheric Administration to evade review and take similar action in the future, the conservation groups said in a March 9 brief (Sea Shepherd New Zealand v. U.S., CIT # 20-00112).
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The suit seeks 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. The Court of International Trade previously granted Sea Shepherd's bid for a preliminary injunction on the import of nine types of fish from the fisheries (see 2302020035). DOJ later moved to dismiss the count of the complaint that deals with NOAA's 2020 comparability findings, arguing the claim is moot since the findings expired at the end of 2022.
The conservation groups said New Zealand filed for new comparability findings, and NOAA must issue its results by the end of the year. NOAA has yet to make a decision despite declaring it would make a decision in "early 2023," instead moving to dismiss the claim over the expired findings, Sea Shepherd said. The conservation groups say the claim is not moot since the challenged decision "is capable of repetition, yet evading review."
Sea Shepherd said "it is reasonable to expect that NOAA" will repeat the "same or similar flawed reasoning from its decision on New Zealand's 2020 Comparability Findings when it makes its decision on New Zealand's pending application." NOAA in its 2020 comparability findings also relied heavily on New Zealand's application and analysis, and the agency "vigorously defended" the 2020 findings, Sea Shepherd said. It's "reasonable to expect that NOAA will continue to defend those Findings in this case, as well as repeat those legal positions and analysis in its decision on New Zealand’s pending application."
The conservation groups added that the 2020 comparability findings are capable of evading judicial review because NOAA set the findings to expire just after two years. "[T]he Supreme Court has concluded that two years is too short a time for a challenge to be fully litigated," Sea Shepherd said, citing Kingdomware Techs. v. U.S. "Here, the 2020 Comparability Findings were effective for a little more than two years -- from November 6, 2020 through January 1, 2023, just short of 26 months. For purposes of completing judicial review, the marginal difference between two years and the length of time here is a distinction without a difference."