Maui and Hector's Dolphin Defenders NZ Inc. v. Nat'l Marine Fisheries Serv.Maui and Hector's Dolphin Defenders NZ Inc. v. Nat'l Marine Fisheries Serv.
[Denying Defendants’ Motion to Dismiss; Denying Plaintiff‘s Motion for Preliminary Injunction.]
Dated: July 13, 2026
Sabrina Devereaux and Christopher D. Eaton, Earthjustice, of Seattle, WA, Natalie N. Barefoot, Earthjustice, of San Francisco, CA, and Brett Sommermeyer and Catherine E. Pruett, Law of the Wild, of Seattle, WA, for Plaintiff Māui and Hector‘s Dolphin Defenders NZ Inc.
Agatha Koprowski, Trial Attorney, Brett A. Shumate, Assistant Attorney General, and Patricia M. McCarthy, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendants National Marine Fisheries Service, National Oceanic and Atmospheric Administration Fisheries, U.S. Department of the Treasury, U.S. Department of Homeland Security, and U.S. Department of Commerce. Of counsel on the brief were Mark Hodor, Counsel, Office of the General Counsel, National Oceanic and Atmospheric Administration, of Silver Spring, MD, Zachary S. Simmons, Attorney, Angela Cherman, Attorney, Raymond Magorien, Attorney, Office of the Chief Counsel, U.S. Customs and Border Protection, of Washington, D.C., and Daniel Paisley, Counsel, Office of Tax Policy, U.S. Department of the Treasury, of Washington, D.C. Oliver J. McDonald, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. also appeared.
Warren E. Connelly, Robert G. Gosselink, and Kenneth N. Hammer, Trade Pacific PLLC, of Washington, D.C., for Defendant-Intervenor New Zealand Government.
Choe-Groves, Judge: Before the Court is Plaintiff Māui and Hector‘s Dolphin Defenders NZ Inc.‘s (“Plaintiff“) Motion for Preliminary Injunction to enjoin the comparability findings issued by the National Marine Fisheries Service (“NMFS“) on March 11, 2026, and implement an import ban on New Zealand fisheries that result in incidental death and serious injury to marine mammals in excess of United States standards. Pl.‘s Mot. Preliminary Injunction (“Pl.‘s Br.“),
For the reasons discussed below, Defendants’ Motion to Dismiss is denied and Plaintiff‘s Motion for Preliminary Injunction is denied.
BACKGROUND
Plaintiff is a non-profit organization with its headquarters in Kumeu, New Zealand, focused on improving environmental protections for dolphins in New Zealand. Compl. Declaratory and Injunctive Relief (“Compl.“) at ¶ 11, ECF No. 4. The organization‘s members reside near and visit regularly Māui and Hector‘s dolphin habitats along the coasts of New Zealand‘s North and South Islands. Id. at ¶ 12. The ability of Plaintiff‘s members to enjoy and benefit from the continued presence of Māui and Hector‘s dolphin populations for recreational, aesthetic, spiritual, artistic, cultural, commercial, scientific, and environmental purposes
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade has jurisdiction pursuant to
DISCUSSION
I. Motion to Dismiss
Article III of the Constitution limits federal courts to hearing actual, ongoing controversies. Davis v. Fed. Election Comm‘n, 554 U.S. 724, 732 (2008). An actual case or controversy must be extant at all stages of review, not merely at the
Article III standing is a necessary component of the Court‘s subject matter jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing contains three elements.” Id. A party must demonstrate: (1) that it has suffered “an injury in fact,” that is “an invasion of a legally protected interest which is (a) concrete and particularized,” and “(b) actual or imminent, not conjectural or hypothetical;” (2) a “causal connection between the injury and the conduct complained of;” and (3) “it must be
Defendants’ motion to dismiss pursuant to
a. Causation
Defendants contend that because the United States does not regulate commercial fishing in New Zealand, Plaintiff‘s theory of causation is too attenuated. Id. at 23. According to Defendants, Plaintiff‘s failure to show causation of marine mammal bycatch in excess of United States standards on a fishery-by-fishery basis is also fatal to Plaintiff‘s standing. Id. at 27. Plaintiff argues that an import ban would eliminate the United States demand for fish from New Zealand‘s trawl and set net fisheries, and that basic economic principles support the theory that this reduction in demand and export quantities typically results in a reduction in supply that would cause third parties to change their behavior in response. Pl.‘s Opp‘n Defs.’ Mot. Dismiss (“Pl.‘s Resp. Br.“) at 19–20, ECF No. 30. Plaintiff emphasizes that the impact of an import ban is more than solely restricting market access because the ban would serve as a significant public statement that New Zealand‘s fisheries are unsustainable and operate in a manner that cause excessive bycatch. Id. at 30. Regarding Defendants’ fishery-by-fishery argument, Plaintiff claims that Defendants attempt to incorrectly transform the standing inquiry from a claim-based standard to an argument-based
The element of causation requires a party to show that “the injury must be fairly traceable to the challenged action.” Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 932 (Fed. Cir. 1991) (internal quotation and citation omitted). Plaintiff presents a causation theory based on the economic impact and reputational repercussions of an import ban on New Zealand fisheries and fishery policy. See Compl. at ¶ 15; Pl.‘s Resp. Br. at 24–27. Halting the United States’ importation of seafood from New Zealand‘s trawl and set net fisheries that harm marine mammals above United States standards can impact the Government of New Zealand and fishers’ decision-making because the United States is a significant market for these fisheries according to Plaintiff. Compl. at ¶ 15. Although Defendants question the accuracy of the statistical evidence used to support this theory, Plaintiff cites data published by the Government of New Zealand. Defs.’ Br. at 24; see Pl.‘s Mot. Preliminary Injunction, Ex. 8 (“Rose Dec.“) at ¶ 77, ECF No. 13-8. In December 2024, the Economic Intelligence Unit of New Zealand‘s Ministry for Primary Industries reported on the decline of revenue for inshore fisheries amidst volume reduction and market shifts and stated:
Export revenue for inshore fisheries declined 3 percent to $610 million in the year to 30 June 2024 primarily due to a 13 percent reduction in export volumes that more than offset the 12 percent increase in export prices. Reduced demand from Australia and a temporary US ban on
New Zealand fish imports contributed to export volume declines across some species, with snapper down 8 percent, kahawai down 20 percent, dogfish down 8 percent, and trevally down 45 percent. The US ban has now been lifted and an increase to commercial catch limits for snapper of around 1,000 tonnes from October 2024 has been implemented.1
Rose Dec., Ex. H at 54, ECF No. 13-16. Defendants attached a declaration from the Director of Fisheries Management for New Zealand‘s Ministry for Primary Industries as an exhibit to the motion to dismiss. Mot. Dismiss, Ex. C (“Taylor Dec.“), ECF No. 16-3.2 Director Emma Taylor valued New Zealand‘s global seafood exports at $2.2 billion from 2024 to 2025, attributing $1.1 billion to wild capture finfish fisheries. Id. at ¶ 26. Taylor stated that China and Australia are New Zealand‘s largest markets for wild capture finfish species and were responsible for 33% of the export market combined in 2025, while the United States comprised “an important but smaller market share of around 8%.” Id.
“When third party behavior is predictable, commonsense inferences may be drawn[,]” and commonsense economic realities can support an argument for standing. Diamond Alternative Energy, LLC v. Env‘t Prot. Agency (”Diamond“), 606 U.S. 100, 116 (2025). Plaintiff‘s causation theory recites a predictable economic model of supply and demand. An import ban would halt the demand
b. Redressability
Defendants contend that Plaintiff has failed to identify any specific action that could redress the injury alleged to Plaintiff‘s aesthetic and other interests and that a favorable judicial decision is not one of them. Defs.’ Br. at 15, 25. Plaintiff identifies that the United States’ legislature itself has determined that import bans
In response, Plaintiff contends that the Government of New Zealand has taken some action previously in response to import bans, such as expediting the Threat Management Plan review process for Māui and Hector‘s Dolphins after Sea Shepherd petitioned for an import ban. Pl.‘s Resp. Br. at 27. Plaintiff suggests that the Government of New Zealand has delayed taking further protective actions for the dolphins due to a cycle of anticipating that new comparability findings will moot challenged comparability findings and dissolve the import bans ordered by the Court. See id. at 27–28. Plaintiff urges the Court to not feed this strategic misuse of the MMPA and comparability finding process by allowing Defendants to use their repeated failure to comply with the MMPA “to shield themselves from judicial review of that very failure on redressability grounds.” Id. at 28. Plaintiff also contends that the Government of New Zealand fears losing access to the United States’ seafood market. Id. at 24. The Court notes that the Government of New Zealand‘s presence in this action3 as Defendant-Intervenor, and its previous
intervention in Sea Shepherd I, Māui I, and Māui II, is indicative of its level of interest in the effect of an import ban and supports Plaintiff‘s redressability arguments.
Defendants’ argument that because neither the Court nor the United States Government can direct foreign regulation of commercial fisheries means that there is no redressability for Plaintiff‘s injury neglects the declarations and objectives made by the Legislative Branch on marine mammal protection. The United States Congress has declared that:
[M]arine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.
Defendants emphasize that the statement “we don‘t know,” made by Plaintiff‘s counsel during a status conference in the Māui II proceedings, defines summarily the issue with Plaintiff‘s standing in this case. See Defs.’ Br. at 11, 23, 26, 29. The Court examines the context of the quoted statement in full. In a status conference before the Court on March 12, 2026, upon a question from the Court about what impact an import ban would have, Plaintiff‘s counsel stated the following:
Well, Your Honor, Ms. Koprowski keeps talking about the fisheries would keep operating, whatnot. There are a lot of things that can
happen short of shutting down a fishery that protect Māui dolphins. We can close certain areas off, restrict, you know, times that fisheries are in certain areas. You know, monitoring is a big issue. So there are a lot of things that the New Zealand government could do, and we don‘t know what that would be. But I would venture to guess that, you know, Mr. Connelly‘s presence in this case suggests that the New Zealand government is concerned about an import ban and would be interested in, if one were imposed, taking responsive action to get that ban lifted. And again, it may not be a fishery closure, but it may be other sorts of protective measures. And if there were a ban put in place, as soon as PI briefing is done, the Government may immediately implement some emergency measures to get that ban lifted. We don‘t know necessarily what those are.
Case No. 1:24-cv-00218, Am. Tr. In-Person Status Conf. at 57:15–25, 58:1–7, ECF. No. 85 (emphasis added). In full context, Plaintiff‘s counsel opined on the various actions that the Government of New Zealand could take in response to an import ban, rather than expressing doubt as to whether the Government of New Zealand would respond at all. “[A] plaintiff need not ‘negate every speculative and hypothetical possibilit(y) . . . in order to demonstrate the likely effectiveness of judicial relief.‘” Earth Island Inst. v. Christopher, 19 CIT 1461, 1474, 913 F. Supp. 559, 571 (1995) (quoting Nat‘l Wildlife Fed‘n v. Hodel, 839 F.2d 694, 705–06 (D.C. Cir. 1988)). Although the Government of New Zealand could take an array of actions in response to an import ban, Plaintiff has and continues to argue that Defendants’ unlawful comparability findings further perpetuate imports from New Zealand fisheries that harm and kill marine mammals in excess of United
For the foregoing reasons, the Court concludes that Plaintiff has established standing to challenge both Defendants’ comparability findings as arbitrary and capricious and contrary to law and Defendants’ failure to ban the import of fish from the New Zealand fisheries as required allegedly by the MMPA. See Compl. at ¶¶ 142–61.4
II. Preliminary Injunction
Plaintiff moves for a preliminary injunction enjoining imports from the New Zealand set net and trawl fisheries that harm Māui and Hector‘s dolphins in excess of United States standards. Pl.‘s Br. at 2. This action concerns the Comparability Findings for New Zealand‘s North and South Island Multi-Species Commercial Set Net and Trawl Fisheries. Pl.‘s Mot. Preliminary Injunction, Ex. B (March 2, 2026) (“Decision Memorandum“), ECF No. 13-2; see 2026 Comparability Findings. Plaintiff challenges the comparability findings under the Administrative Procedure Act (“APA“) as arbitrary and capricious and contrary to law, and seeks to compel an import ban of seafood products caught by New Zealand fisheries that result in the incidental killing or serious injury to Māui and Hector‘s dolphins in excess of United States standards.
a. Likelihood of Success on the Merits
The MMPA instructs that the incidental killing or serious injury of marine animals allowed in the course of commercial fishing should be reduced to insignificant levels approaching a zero mortality and serious injury rate.
i. Arbitrary Determination of a Zero Mortality Rate Goal
Plaintiff claims that the 2026 Comparability Findings and its accompanying Decision Memorandum failed to establish that the Government of New Zealand‘s regulatory program met the Zero Mortality Rate Goal‘s required elements of a target bycatch rate below 10% of the Potential Biological Removal (“PBR”) level and the implementation of regulatory measures that ensure the target is being met or will be met within five years. Pl.‘s Br. at 14–15 (citing
Regulatory programs must include a comparable requirement to implement measures in export fisheries designed to reduce the total incidental morality and serious injury of a marine mammal stock below the bycatch limit.
NMFS determined that the Government of New Zealand calculates a Population Sustainability Threshold instead of a Potential Biological Removal level; this is a working calculation that is being refined. Decision Memorandum at 50–51. This threshold is the maximum number of annual marine mammal deaths that can occur while still achieving population outcome. Id. at 50. The Decision Memorandum reported that New Zealand‘s bycatch limit, the maximum number of dolphins that can be removed from the stock annually while maintaining a sustainable population, is equivalent to a Potential Biological Removal level of 0.10 Māui dolphins per year and 66.5 South Island Hector‘s dolphins per year. Id. at 55–56. The actual bycatch rates were estimated as 0.056 Māui dolphins and 8.8 Hector‘s dolphins. Id. at 52–54. The Decision Memorandum framed New Zealand‘s Threat Management Plan objectives as equivalent to the Zero Mortality Rate Goal and explained, “the objectives require fisheries impacts to be managed to a level at or above 95% unimpacted status, not 80%[,]” and for Hector‘s dolphins the population outcome allows the population to increase to a level at or above 90% of the maximum number of dolphins sustainable in the environment. Id. at 62 n.321. The Decision Memorandum reported that a population outcome of 95% means that human-induced deaths need to be as near
The Threat Management Plans are non-statutory policies used to guide the government‘s decision-making. Id. at 17. Plaintiff argues that neither the Threat Management Plan‘s objectives nor the Population Sustainability Threshold are comparable to the Zero Mortality Rate, and that New Zealand is failing to achieve any results comparable to the Zero Mortality Rate Goal standards. Pl.‘s Br. at 16–17. Defendant-Intervenor argues that the current bycatch estimates for Māui and Hector‘s dolphins are significantly reduced from historical estimates and are moving towards zero. Def.-Interv.‘s Resp. Br. at 13. NMFS determined that population outcome targets of 95% and 90% are comparable to Zero Mortality Rate Goals but also provided data showing that in practice these goals are resulting in bycatch rates of 0.056 Māui dolphins and 8.8 Hector‘s dolphins. Decision Memorandum at 52–54. NMFS explained this difference by stating that the Final Rule does not mandate a “like for like” standard and New Zealand provided sufficient documentary evidence that it is capable of achieving comparable results as the United States’ regulatory program. Decision Memorandum at 63.
ii. Negligible Impact Standard
The Decision Memorandum determined that the negligible impact standard is not applicable to comparability findings for New Zealand‘s commercial fisheries because New Zealand‘s statutory framework does not authorize or permit commercial fisheries to take any marine mammals incidental to commercial fishing operations. Decision Memorandum at 63–64. A similar argument was raised in Māui I and this Court found that the Decision Memorandum failed to address the negligible impact standard or identify record evidence that supported NMFS’ determination. 49 CIT at __, 799 F. Supp. 3d at 1340. The Court concluded that “[a]bsent a prohibition on incidental takings by the Government of New Zealand, NMFS was required to evaluate whether New Zealand applied the negligible impact standard or an effective equivalent.” Id., 49 CIT at __, 799 F. Supp. 3d at 1339. Plaintiff identifies that New Zealand‘s MMPA prohibits taking of marine mammals unless that take is incidental. Pl.‘s Br. at 18; see Decision Memorandum at 18. The Decision Memorandum stated that “all marine mammal species are designated as protected species under Section 2 of the Fisheries Act and Section 26(4) of the [New Zealand] MMPA provides a defense for commercial fishing operations if the death of, or injury to, the marine mammal was accidental, or
Plaintiff argues that New Zealand law allows the incidental catch and kill of marine mammals if it is reported, while Defendant-Intervenor claims this mischaracterizes the permitting process described in Section 4(1)(b) of New Zealand‘s MMPA and that the penalty provisions for unreported incidental take are comparable to the penalty provision in the MMPA. Pl.‘s Br. at 18; Def.-Interv.‘s Resp. Br. at 14–15. The Decision Memorandum mentions that Section 26(4) provides a defense for incidental death or injury to marine mammals. Decision Memorandum at 18. NMFS stated that New Zealand‘s statutory framework does not authorize or permit commercial fisheries to incidentally take any marine mammals, making any comparable negligible impact standard irrelevant. Id. at 64.6 NMFS explained that a permitting scheme is established and the Government of New Zealand “has no intention of issuing any permit that would allow the
iii. No Insistence on Reasonable Proof or Use of Best Evidence
In weighing whether commercial fishing in a harvesting nation results in incidental death or serious injury to ocean mammals in excess of United States standards, warranting an import ban, NMFS must “insist on reasonable proof” from the nation‘s government “of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States[.]”
Plaintiff asserts that NMFS failed to insist on reasonable proof to support New Zealand‘s bycatch estimates and to address evidence from its own 5-Year Review that indicated that these estimates were low. Pl.‘s Br. at 20–21. Defendants argue that Plaintiff simply disagrees with the agency‘s judgment regarding the evidence used for the population estimates and Defendant-Intervenor contends that the NMFS 5-Year Review does not make determinations on comparability to United States standards and instead is a general collection of information that does not constitute an agency finding. Defs.’ Resp. Br. at 23; Def.-Interv.‘s Resp. Br. at 4–7. The Government of New Zealand chose to rely on information in the International Affairs Information Capture and Reporting System to calculate bycatch limits for marine mammals in its 2021 Comparability Finding application. Decision Memorandum at 52. NMFS compared the bycatch estimates reported by the Government of New Zealand in 2021 to determine if the limit had been exceeded for marine mammals caught in a fishery. Id. Information from the 2021 Comparability Finding application was used to estimate annual injury and
The Decision Memorandum details the SEFRA model and the critiques the model received upon review by the International Whaling Commission. Decision Memorandum at 53. Supplemental information filed by the Government of New Zealand is mentioned in the Decision Memorandum, but the bycatch estimates are based on reporting from 2021. Id. at 36, 47 n.240, 51. Defendants note that meeting the statutory standard of “reasonable proof” means that harvesting nations must provide the “best scientific information available,” meaning evidence of “sufficient detail, quality, and reliability for NMFS to fully evaluate the regulatory program for a given export fishery.” Defs.’ Resp. Br. at 20; see Final Rule, 81 Fed. Reg. at 54,406.
The SEFRA model was partially updated in 2023 according to NMFS, and the Government of New Zealand continues to fully update the model based upon recommendations, previous modeling efforts, and fishery and non-fishery threats.
iv. Arbitrary Determination on Bycatch Limits
Plaintiff argues that NMFS relied inconsistently on three conflicting metrics as bycatch limits–Potential Biological Removal limits, Fishing Related Mortality Limits, and the Population Sustainability Threshold. Pl.‘s Br. at 26. Plaintiff contends that New Zealand does not actually implement Potential Biological Removal limits for marine mammals and that the regulations require that harvesting nations not only calculate comparable bycatch limits but implement them. Id. A “bycatch limit” is “the calculation of a potential biological removal level for a particular marine mammal stock . . . or comparable scientific metric established by the harvesting nation or applicable regional fishery management
v. Arbitrary Determination on Monitoring Program
The MMPA requires the establishment of “a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations.”
Plaintiff asserts that the Decision Memorandum‘s determinations contradict NMFS’ findings in the 5-Year Review that New Zealand‘s monitoring was inadequate and underestimates bycatch. Pl.‘s Br. at 34. Defendant-Intervenor notes that NMFS provided an extensive description of the nature and extent of the Government of New Zealand‘s monitoring program and that Plaintiff seeks a type of monitoring program that does not exist in any United States fishery. Def.-Interv.‘s Resp. Br. at 35. Defendants also argue that NMFS reasonably concluded that New Zealand has monitoring procedures designed to estimate incidental mortality and serious injury to marine mammals as required by
vi. Inexplicable Reliance on Outdated and Overly Optimistic Estimates
Plaintiff argues that the Decision Memorandum relies on outdated and overly optimistic population estimates for dolphins without explanation. Pl.‘s Br. at 34. Plaintiff contends that contrary evidence from the International Whaling Commission shows that NMFS used an arbitrarily high minimum population estimate of 54 dolphins and that the Decision Memorandum gave an illogical rationale for rejecting the lower estimate. Id. at 34–35. The Decision Memorandum explains the type of documentary evidence that the Government of New Zealand provided and used in the process of conducting its marine mammal population abundance estimates. Decision Memorandum at 19–26. NMFS engaged with the disagreement from Plaintiff regarding the actual number of Māui dolphins in New Zealand‘s waters. Id. at 24 n.126. The Decision Memorandum explained that NMFS declined to use the International Whaling Commission‘s estimate of 48 Māui dolphins because it was deemed to not be the best data available given that it was derived from the International Whaling Commission‘s Scientific Committee‘s data that NMFS categorized as “adequate enough to provide a general indication of abundance but subject to various possible concerns that preclude a higher categorization.” Id. at 25 (emphasis in original). NMFS
For the foregoing reasons, the Court concludes that, at this preliminary stage, Plaintiff has not demonstrated sufficiently a clear likelihood to succeed on the merits of the claim that the 2026 Comparability Findings are arbitrary and capricious or contrary to law, in violation of the MMPA and APA because, at a minimum, NMFS provided a rational connection between certain record evidence and certain determinations made.7 At the preliminary injunction stage, the Court makes these non-exhaustive conclusions that Plaintiff has not established a basis upon which the Court can find a likelihood to prevail on its claims.
A plaintiff seeking preliminary injunctive relief must demonstrate that irreparable injury is likely to occur in the absence of an injunction. Winter, 555 U.S. at 22. Harm is irreparable when it cannot be addressed by damages. See Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012). “‘Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.’” Nat. Res. Def. Council, Inc., 42 CIT at __, 331 F. Supp. at 1368 (emphasis omitted) (citing Fed‘n of Japan Salmon Fisheries Co-op. Ass‘n v. Baldridge, 679 F.Supp. 37, 48 (D.D.C. 1987)). Additionally, a “determination of irreparable harm should be guided by reference to the purposes of the statute being enforced.” Id., 42 CIT at __, 331 F. Supp. at 1369.
Plaintiff argues that irreparable harm is likely because this action involves fishing-induced deaths of Māui and Hector‘s dolphins and set net and trawl fisheries pose a daily threat of bycatch to both types of dolphins. Pl.‘s Br. at 36–38. Plaintiff argues that any reduction in bycatch risk that reduces the harm is sufficient for an injunction. Id. at 39. Defendant-Intervenor disagrees with the argument that the existential threat to Māui dolphins has worsened and that there is “ongoing mortality” of Hector‘s dolphins in the South Island fisheries. Def.-Interv.‘s Resp. Br. at 41–42. Defendant-Intervenor asserts that it is speculative that
Plaintiff states that on February 26, 2026, a Māui dolphin was found dead potentially due to bycatch because the necropsy report “was unable to exclude the possibility of entanglement as a contributory factor.” Pl.‘s Br. at 1, 40. The necropsy report found that given the extent of decomposition, neither disease nor any other cause of death could be ruled out, and “the best diagnosis in this case is ‘open’, i.e. the cause of death could not be determined.” Slooten Dec., Ex. E at 2, ECF No. 13-33. The report also stated that:
Assessing for death due to entanglement is an important component of any beachcast dolphin necropsy investigation. This includes looking for evidence of net marks on the skin as well as ruling out other causes of death. A range of tissues from this dolphin were examined histologically (under the microscope), but all were badly affected by decomposition. This meant that it was difficult even to identify the organs, and impossible to interpret any lesions that may have been present. Because of this, it is not possible to rule out other (non-bycatch) causes of death in this dolphin.
[…]
Overall, the skin lesions were assessed as not typical of bycatch, particularly the irregular distances between the lacerations and an absence of knot marks (which are usually obvious) at the angles where the lacerations intersect. An alternative explanation considered was that the lacerations occurred as the carcass washed back and forth over shellfish beds (oyster or mussel shells).
c. Balance of Hardships
The Court considers the last preliminary injunction factors taking into consideration the legal conclusions made above regarding Plaintiff‘s inability to satisfy the first two factors.8
Courts must balance each party‘s competing claims of injury and consider the effect on each party of either granting or denying the requested injunctive relief. Winter, 555. U.S. at 24. Plaintiff argues that the impact on itself and the broader public from the death and potential extinction of dolphins is immense. Pl.‘s Br. at 43. Plaintiff asserts that Defendants face little harm or burden as the
As Plaintiff has not prevailed on the other required factors for a preliminary injunction, the public interest favors denying a grant of an extraordinary remedy of a preliminary injunction. See Winter, 555 U.S. at 20.
The Court concludes that, at this preliminary stage of the litigation, Plaintiff has not demonstrated sufficiently the criteria required for the extraordinary remedy of a preliminary injunction.
CONCLUSION
Accordingly, it is hereby
ORDERED that Defendants’ Motion to Dismiss (ECF No. 16), is denied; and it is further
ORDERED that Plaintiff‘s Motion for Preliminary Injunction (ECF No. 13) is denied; and it is further
ORDERED that Plaintiff‘s Motion for Oral Argument (ECF No. 32) is denied as moot; and it is further
ORDERED that the Parties shall meet and confer and file a Joint Proposed Scheduling Order on or before July 27, 2026.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: July 13, 2026
New York, New York