UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 23-01

Before the Court in Sea Shepherd New Zealand, et. al. v. United States, et. al., was a motion by the Government of New Zealand to modify a preliminary injunction previously issued by the Court in the litigation. The case involves “the critically endangered Maui dolphin, endemic to New Zealand, and to the line of litigation based on the fundamental claim that as a result of incidental capture — also referred to as ‘bycatch’ — in gillnet and trawl fisheries within their range, the Maui dolphin population is declining such that an import ban is required by the Marine Mammal Protection Act (“MMPA”).” Id. at 2. The Court issued a preliminary injunction on November 28, 2022, “ordering the immediate ban on imports into the United States of fish and fish products deriving from nine fish species caught in New Zealand’s West Coast North Island inshore trawl and set net fisheries, unless affirmatively identified as having been caught with a gear type other than gillnets or trawls.” Id. The Government of New Zealand, as a defendant-intervenor, in the case moved for the court to modify the preliminary injunction, until January 31, 2023, “to afford New Zealand a grace period to implement a ‘traceability system’ Id. at 2-3. For the following reasons the Court denied the motion.

“Generally … courts have inherent power and … discretion to modify injunctions.” Id. at 4. “However, ‘the party seeking to modify a preliminary injunction bears the burden of establishing a change in circumstances that would make continuation of the original preliminary injunction inequitable.”’ Id. at 4-5. “Such a ‘change in circumstances’ may be established ‘by showing either a significant change in factual conditions or law.’” Id. at 5. The Government of New Zealand argued that “the present need to implement a traceability system itself constitutes a change of circumstances meriting modification of the preliminary injunction.” Id. However, the Court noted that “the present need for a traceability system is simply a direct — and anticipated — consequence of the court’s awarded injunctive relief.” Id. The Court held that “the preliminary injunction itself or the circumstances flowing directly from its issuance cannot constitute ‘changed circumstances.’ … [,] To hold otherwise would nullify the ‘changed circumstances’ factor, as such conditions would exist in every case.” Id. As such, the Court denied the Government of New Zealand’s motion to modify the previous preliminary injunction.