Plaintiffs Move to Toss Count of Complaint Seeking Import Ban on Certain Fish From New Zealand
Conservation groups Sea Shepherd New Zealand and Sea Shepherd Conservation Society moved to toss one count of their complaint in a case seeking an import ban on certain fish taken from New Zealand's West coast North Island multispecies set-net and trawl fisheries. The plaintiffs filed a partial motion to dismiss at the Court of International Trade on Feb. 2, arguing that the third count of the complaint, which is a challenge to the National Oceanic and Atmospheric Administration's 2020 comparability findings on this area in New Zealand's waters, is moot since the findings expired at the end of 2022 (Sea Shepherd New Zealand v. United States, CIT #20-00112).
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"Regardless of whether the Court were to sustain or set aside that determination, no imports may enter the United States based on that determination and, as a result, the parties 'lack a legally cognizable interest in the outcome,'" the brief said.
The lawsuit was initially filed to seek 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. Since only 48 to 64 Maui dolphins above one year of age remain, the ban would protect the species. The MMPA provides for bans 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 to that afforded by the U.S.
In a November 2022 opinion, Katzmann found the plaintiffs were likely to succeed on two claims that the U.S. violated the Administrative Procedure Act by arbitrarily and capriciously denying a petition for emergency rulemaking and granting comparability findings to two "unsuitable New Zealand fisheries" (see 2211280053). The judge issued an injunction on the import of snapper, tarakihi, spotted dogfish, trevally, warehou, hoki, barracouta, mullet and gurnard from the fisheries in question.