US Court of International Trade

Slip Op. 22-130

Before the Court in Sea Shepard New Zealand, et. al. v. United States, et. al., Court No. 20-112, Slip Op. 22-130 (November 28, 2022) was plaintiffs’ motion for a preliminary injunction to block importation of certain seafood from New Zealand and the Defendant’s motion to dismiss plaintiffs’ claims. Plaintiffs bought the case to help protect the endangered Maui Dolphin. Plaintiffs claimed that “New Zealand gillnet and trawl fisheries are killing Maui Dolphins in excess of U.S. Standards.” Id. at 3. Plaintiffs specifically alleged that the U.S. Government has unlawfully withheld agency action by failing to ban New Zealand’s associated imports of fish and fish products, and that the Government acted arbitrarily, capriciously, and otherwise not in accordance with law both by denying Plaintiffs’ petition for emergency rulemaking and by granting findings of comparability to New Zealand. For the following reasons, the Court dismissed plaintiffs’ claims about emergency rulemaking and granted plaintiff’s preliminary injunction for agency action which was arbitrary, capricious, or otherwise not in accordance with law.

The first issue was whether the Government unlawfully withheld agency action under, Section 706(1) of the Administrative Procedure Act (“APA”) when plaintiff’s petition for emergency rulemaking was denied. “Section 706(1) of the APA directs that a ‘reviewing court shall’ … ‘compel agency action unlawfully withheld or unreasonably delayed.’” Id. at 29. The Supreme Court has “clarified that a ‘denial’ — i.e., an ‘agency’s act of saying no to a request’ — is not a ‘failure to act’ that is remediable under APA section 706(1). Id. The Court said “[t]his point of clarification is dispositive in the case at bar” and held that because the Government rejected Plaintiffs’ petition for emergency rulemaking and issued comparability findings to New Zealand via notice and comment rulemaking in the Federal Register … quite the opposite of an ‘omission of an action’” occurred. Id.

The next issue was plaintiffs’ motion for a preliminary injunction regarding their arbitrary and capricious claims. “When considering a preliminary injunction motion, the court evaluates four factors: (1) whether the moving party is likely to prevail on the merits of the claims; (2) whether the moving party is likely to suffer irreparable harm in the absence of a preliminary injunction; (3) the balance of equities; and (4) whether a preliminary injunction is in the public interest.” Id. at 31. The Court held that plaintiffs were likely to prevail on the merits because plaintiffs have shown that the Government did not consider all mandatory regulatory factors when issuing its findings regarding New Zealand’s fishing practices, because the Government failed to respond to all significant comments submitted in the administrative process, and because the Government failed to establish a rational connection between certain facts found and choices made in the administrative process.

The Court next found that that plaintiffs were likely to suffer irreparable harm because “no amount of money could remedy the harm” to the Maui dolphins or “plaintiffs’ enjoyment of them should they become extinct.” The Court noted that “that there have been ‘documented episode[s] of harm to Maui dolphins from commercial fishing over the years.” Id. at 59. The Court also determined the balance of equities favored the plaintiffs because the “parties agree that extinction is likely should the Maui dolphin population decline much further … [,]any such extinction poses a direct threat to Plaintiffs’ interests.” Id. at 61-62. The Court noted that the “the administrative inconvenience of administering an embargo can be characterized as ‘routine’ on the Government. Finally, the Court found that the public interest weighted in favor of plaintiff because of threat to the Maui Dolphin.