UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 23-92

Before the court in Sea Shepherd New Zealand v. United States, Court No. 20-112, Slip Op. 23-92 (June 21, 2023) was the Defendant’s motion to dismiss the third count in Plaintiffs’ complaint which alleged that the Department of Commerce acted arbitrarily, capriciously, and otherwise not in accordance with law in issuing to New Zealand’s West Coast North Island inshore trawl and set net fisheries findings of comparability with U.S. standards. The Government argued that the comparability findings expired as of January 1, 2023 and there was “no case or controversy.” However, Plaintiffs argued their complaint was not moot because the challenge was capable of repetition, yet evading review. As an initial matter, the court found that Plaintiffs’ request for injunctive relief in Count III was moot. However, for the following reasons the Court denied the Government’s motion to dismiss Plaintiffs’ request for declaratory relief.

Plaintiffs asked the court to declare the “issuance of comparability findings to New Zealand was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” The court noted that the “capable of repetition, yet evading review” exception to mootness applied only when “(1) there [is] reasonable expectation that the same complaining party [will] be subject to the same action again and (2) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration.” The Court found that three of the four reasons plaintiffs objected to the Government’s finding as arbitrary and capricious were moot as of January 1, 2023. However, the Court did find that certain aspects of Plaintiffs’ fourth objection, remain live. Plaintiffs argued that the Government position on import regulation does not require consideration of historical rates of marine mammal population decline in awarding comparability findings. Plaintiffs’ stance is that the Import Rules state that it will “consider the extent to which the harvesting nation has successfully implemented measures to reduce incidental mortality and serious injury to each marine mammal stock below the by catch limit.” The court concluded that it is likely that the agency will rely on prior successful legal interpretations of applications. This made the objection “capable of repetition”.

Evading review, historically points to evading Supreme Court review. Other courts have held that two years is too short to complete judicial review. The court recognized that New Zealand’s now-expired comparability findings were in place for over two years. This court held that four years is “too short for full litigation prior to their expiration.” Although this case has been in front of this court for three years, it is “too short of a period to reach the Federal Circuit … [or] the Supreme Court … for judicial review to conclude.” As such, the court found that Plaintiffs satisfied both requirements and their third count of their Complaint was not moot.