639 F.Supp.3d 1367
Ct. Int'l Trade2023Background
- Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society challenged NOAA/Commerce comparability findings that allowed imports of fish from New Zealand’s West Coast North Island inshore trawl and set net fisheries under the MMPA.
- NOAA issued comparability findings on November 9, 2020 that were valid through January 1, 2023; plaintiffs sought to set those findings aside as arbitrary and capricious under the APA and sought injunctive and declaratory relief.
- The court granted a preliminary injunction on November 28, 2022 banning imports of nine species from the implicated fisheries (unless gear other than gillnets or trawls was used); the injunction remains in effect.
- The comparability findings expired on their terms on January 1, 2023; the United States moved to dismiss plaintiffs’ third claim (challenge to the findings) as moot.
- The court held plaintiffs’ request for injunctive relief moot (the expired findings have no continuing practical effect) but denied dismissal as to declaratory relief because some aspects of the challenge are "capable of repetition, yet evading review."
- The live portion of the claim centers on plaintiffs’ regulatory-interpretation argument that NOAA must consider historical population decline and related mandatory regulatory criteria when issuing comparability findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of injunctive relief | Injunctive relief remains appropriate to redress past unlawful comparability findings. | Findings expired Jan 1, 2023 and therefore any injunction would have no practical effect. | Injunctive relief is moot because vacating expired findings would afford no practical relief. |
| Mootness of declaratory relief (capable of repetition) | The comparability-finding process is likely to recur and is too short for full review, so declaratory relief is not moot. | Expiration renders the claim moot; no live controversy remains about the past findings. | Declaratory relief is not wholly moot: some legal-interpretation challenges meet the "capable of repetition, yet evading review" exception. |
| Challenges based on evidentiary insufficiency or agency failure to weigh facts | These objections show systemic error that could recur. | Future proceedings will develop a new factual record; past-record sufficiency claims are stale. | Claims that merely attack the sufficiency of the now-stale administrative record are moot. |
| Regulatory-interpretation claim (whether NOAA must consider historical population decline and certain §216.24 factors) | NOAA’s interpretation improperly omits consideration of historical decline; that legal stance is categorical and likely to recur. | NOAA will reassess fresh applications; replacements will be based on new records and notice-and-comment rulemaking. | Interpretation-based challenge is live (capable of repetition) because it contests a recurring, categorical legal stance of the agency. |
Key Cases Cited
- Chafin v. Chafin, 568 U.S. 165 (2013) (Article III mootness requires a live case or controversy throughout proceedings)
- Murphy v. Hunt, 455 U.S. 478 (1982) (a favorable decision that would have no practical effect is moot)
- Montgomery Envtl. Coal. v. Costle, 646 F.2d 568 (D.C. Cir. 1980) (separating expired-permit objections into those capable of repetition and those that are moot)
- Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. 2017) (standards for the "capable of repetition, yet evading review" mootness exception)
- Kingdomware Techs., Inc. v. United States, 579 U.S. 162 (2016) (periods of relatively short duration can be too brief to permit full review)
- SKF USA, Inc. v. United States, 512 F.3d 1326 (Fed. Cir. 2008) (no practical effect means relief is moot)
- Spencer v. Kemna, 523 U.S. 1 (1998) (courts should not pronounce past actions wrong when they have no continuing effect)
- Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324 (Fed. Cir. 2004) (distinguishing mootness of specific pre-corrective events from pattern-of-bias claims)
- NIKA Techs., Inc. v. United States, 987 F.3d 1025 (Fed. Cir. 2021) (explaining the standard for assessing "capable of repetition")