Comparability Findings on New Zealand Fisheries Not Capable of Repetition, US Says at CIT
A lawsuit over an expired comparability finding for New Zealand's West Coast North Island multispecies set-net and trawl fisheries should be dismissed since the comparability findings “are not capable of repetition yet evading review,” the U.S. said March 29. There is no “reasonable expectation” that anyone will be subjected to the same findings, the government said. The challenge should be dismissed because the proceeding deals with whether certain fish can enter the U.S. during a discreet time period that has now passed, the U.S. said (Sea Shepherd New Zealand v. U.S., CIT # 20-00112).
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The suit, brought by Sea Shepherd New Zealand and Sea Shepherd Conservation Society, 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. DOJ moved to dismiss the count of the complaint that deals with the National Oceanic and Atmospheric Administration'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. The conservation groups say the claim is not moot since the challenged decision could just be repeated in subsequent years, each time becoming moot before review (see 2303100022).
The government countered by arguing that the concern raised by the conservation groups only exists where “(1) ‘the challenged action is in its duration too short to be fully litigated prior to cessation or expiration,’ and (2) ‘there is a reasonable expectation that the same complaining party [will] be subject to the same action again.’” The four-year duration that the comparability findings remain in place is “sufficient for litigation,” and Sea Shepherd fails to show that this matter is capable of repetition, the U.S. said.
The conservation groups identify “no underlying agency policies, regulations, guidelines, or recurrent identical agency action that is allegedly unlawful or erroneous along with a basis to believe that NOAA will repeat any error in future proceedings,” the brief said.