469 F.Supp.3d 1330
Ct. Intl. Trade2020Background:
- Maui dolphin (Cephalorhynchus hectori maui) is critically endangered (≈60 individuals); Plaintiffs allege bycatch in gillnet and trawl fisheries caused decline.
- Plaintiffs (Sea Shepherd NZ and Sea Shepherd Conservation Society) petitioned NOAA Fisheries for an emergency MMPA import ban on fish/products caught with nets in Maui dolphin range; NOAA denied the petition in July 2019 relying on New Zealand’s regulatory measures and risk assessment.
- New Zealand implemented additional regulatory measures on June 24, 2020 (expanded set-net and trawl closures, drift-net ban, and a fishing-related mortality limit), and requested a comparability assessment from NOAA on July 15, 2020.
- Plaintiffs filed suit in the Court of International Trade alleging unlawful withholding of agency action and arbitrary-and-capricious denial; they also moved for a preliminary injunction to compel an import ban.
- The Government requested a voluntary remand so NOAA Fisheries can reconsider the petition and perform a comparability assessment in light of New Zealand’s new measures and new factual information; Plaintiffs opposed as delaying injunctive relief.
- The court granted the voluntary remand, directed NOAA to allow Plaintiffs to supplement their petition within 14 days, required NOAA to file its remand determination by October 30, 2020, stayed filings until then, and ordered the parties to propose a briefing schedule by November 6, 2020.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a voluntary remand is appropriate | Remand would delay urgent protections and is unnecessary because NOAA already considered NZ measures | NOAA should have first opportunity to reconsider given new NZ regulations and information | Remand granted: agency reconsideration appropriate with tight deadline |
| Whether NOAA must consider NZ’s June 24, 2020 TMP and related facts | NOAA already considered proposed measures; new measures irrelevant to petition | New measures exceed what NOAA previously reviewed; agency must reassess in first instance | NOAA must consider the June 24 TMP on remand |
| Whether NOAA should perform a comparability assessment of NZ measures | Comparability irrelevant because import regulations not fully effective until 2022 | Comparability may produce an import restriction sooner and is pertinent to remedy | NOAA must decide NZ’s July 15 comparability request on remand |
| Whether plaintiffs may supplement their petition on remand | Plaintiffs should be able to add new habitat/factual info needed for agency review | Government did not oppose supplementation of record on remand | Court ordered NOAA to permit supplementation; plaintiffs to submit within 14 days |
Key Cases Cited
- SKF USA v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (district court has discretion to grant voluntary remand; remand appropriate when agency concern is substantial)
- Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989) (agency must take a "hard look" at proffered evidence)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (courts should remand when the agency must further investigate or explain its decision)
- Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 412 F. Supp. 2d 1330 (CIT 2005) (remand factors: agency justification, finality concerns, and scope appropriateness)
- Natural Resources Defense Council, Inc. v. Ross, 331 F. Supp. 3d 1338 (CIT 2018) (discussing MMPA import ban framework)