Natural Resources Defense Council, Inc. v. United States, 2018 CIT 92

Background

The vaquita is a critically endangered porpoise endemic to Mexico’s northern Gulf of California; surveys show a collapse from hundreds in the 1990s to ~15 animals by 2017–2018, with annual declines ~39–49% caused primarily by gillnet bycatch.
Congress’ Marine Mammal Protection Act (MMPA) includes an Imports Provision that directs the Secretary of the Treasury to ban imports of fish/products caught with technology that causes incidental marine mammal mortality “in excess of United States standards,” and expresses an immediate goal of reducing incidental mortality to levels approaching zero.
Plaintiffs (NRDC, Center for Biological Diversity, Animal Welfare Institute) sued under the Administrative Procedure Act, seeking a preliminary injunction compelling defendants (NOAA Fisheries, Commerce, Treasury, DHS and officials) to ban importation of fish/products from Mexican commercial fisheries that use gillnets in the vaquita’s range.
NOAA Fisheries and the Marine Mammal Commission (MMC) had concluded gillnets in multiple fisheries kill vaquita at rates far exceeding potential biological removal (PBR); NOAA calculated vaquita PBR as ~0.017–0.032 animals/year (i.e., ~one mortality per 31–61 years), while documented gillnet mortality was several per year.
NOAA Fisheries had adopted a regulatory comparability regime (50 C.F.R. §216.24) with a one-time five-year exemption period (through Jan 1, 2022) and retained an emergency-rulemaking option for imminent, significant adverse impacts. Plaintiffs sought immediate enforcement of the statutory import ban rather than waiting for the regulation’s comparability process.
The Court (CIT) denied the Government’s motion to dismiss, found plaintiffs had standing, and granted a preliminary injunction ordering an import ban on fish/products from Mexican fisheries using gillnets within the vaquita’s range pending final adjudication.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction under the APA to compel an import ban under MMPA §1371(a)(2)	The Imports Provision uses mandatory language (“shall ban”) creating a discrete, non-discretionary duty; APA relief is available to compel that action.	The statutory duty is not self-executing; the regulatory comparability process and exemption period mean the agency retains discretion and the action is not a discrete mandatory duty.	The court held the duty to ban is mandatory and discrete under the statute; the regulation’s exemption does not override the statutory mandate and does not preclude jurisdiction.
Whether plaintiffs have standing	Plaintiffs’ members have concrete aesthetic/recreational interests harmed by the decline/extinction risk to vaquita; an import ban is likely to reduce bycatch and thus redress injury.	Any injury is traceable to Mexican actors (government/fishermen), not U.S. inaction; redressability is speculative because Mexico might not or cannot respond, and illegal totoaba fishing is a primary driver.	The court held plaintiffs have Article III standing: injury is concrete/imminent, fairly traceable to U.S. inaction, and redressable because U.S. market leverage makes an embargo likely to prompt regulatory/compliance responses.
Meaning of “United States standards” and whether bycatch in excess of PBR triggers the ban	PBR and related MMPA provisions (stock assessments, take-reduction duties) are part of U.S. standards; vaquita bycatch in northern Gulf gillnet fisheries exceeds PBR, activating the ban.	The regulation defines comparability and sets the procedural path for determining U.S. standards; courts must defer to the agency (Chevron) and await the comparability findings.	The court held PBR and the MMPA framework constitute relevant U.S. standards and that the regulatory comparability process (and its exemption period) cannot defeat the statute’s immediate command, especially given the species’ imminent risk of extinction.
Whether a preliminary injunction is warranted	Immediate injunction required: plaintiffs likely to prevail on merits, face irreparable harm (extinction risk), equities favor protecting the species, and the public interest supports compliance with MMPA.	An injunction could disrupt sensitive international negotiations and impose burdens; the regulation’s process should be allowed to run.	The court granted the preliminary injunction, finding the four Winter factors favor plaintiffs: likelihood of success, irreparable harm, equities, and public interest.

Key Cases Cited

Murphy v. Smith, 138 S. Ct. 784 (2018) (interpreting "shall" as mandatory language)
Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA §706(1) can compel discrete agency actions)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency enforcement discretion principles)
Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (standing requirements)
Kokechik Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795 (D.C. Cir. 1988) (MMPA administered for species benefit; context on moratorium)
Earth Island Inst. v. Mosbacher, 929 F.2d 1449 (9th Cir. 1991) (upholding import embargo under MMPA)
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) (injunction to protect endangered species)