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.
OPINION AND ORDER
[Vacating and remanding the National Marine Fisheries Service‘s 2024 decision memorandum for the Government of New Zealand‘s regulated West coast, North Island multi-species set-net and trawl fisheries.]
Dated: August 26, 2025
Joshua W. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., Zachary Simmons, Attorney, United States Customs and Border Protection, of New York, N.Y., and Mark Hodor, Counsel, Office of General Counsel, National Oceanic and Atmospheric Administration, of Silver Spring, MD, argued for Defendants National Marine Fisheries Service, National Oceanic and Atmospheric Administration Fisheries, United States Department of the Treasury, United States Department of Homeland Security, and United States Department of Commerce. With them on the brief were Yaakov M. Roth, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. Sosun Bae, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., also appeared.
Warren E. Connelly, Trade Pacific PLLC, of Washington, D.C., argued for Defendant-Intervenor New Zealand Government. With him on the brief were Kenneth N. Hammer and Robert G. Gosselink, Trade Pacific PLLC, of Washington, D.C.
Choe-Groves, Judge: Plaintiff Māui And Hector‘s Dolphin Defenders NZ Inc. (“Plaintiff“) filed this action pursuant to
Before the Court is Plaintiff‘s Motion for Summary Judgment. Pl.‘s Mot. Summ. J. (“Plaintiff‘s Motion” or “Pl.‘s Br.“), ECF No. 30. Defendants NMFS, National Oceanic and Atmospheric Administration Fisheries, U.S. Department of Treasury, U.S. Department of Homeland Security, and the U.S. Department of Commerce (collectively, “Defendants“) filed Defendants’ Response to Motion for Judgment on the Agency Record. Defs.’ Resp. Mot. J. Agency R. (“Defs.’ Resp.“), ECF No. 37. Defendant-Intervenor Government of New Zealand (“Defendant-Intervenor“) filed Defendant-Intervenor‘s Response to Motion for Judgment on the Agency Record. Def.-Interv.‘s Resp. Mot. J. Agency R. (“Def.-Interv.‘s Resp.“), ECF No. 36. Plaintiff filed a Reply in Support of Plaintiff‘s Motion for Summary Judgment on the Agency Record. Pl.‘s Reply Br. Supp. Pl.‘s Mot. Summ. J. Agency R. (“Pl.‘s Reply Br.“), ECF No. 38. The Court held oral argument on June 13, 2025. Oral Argument (June 13, 2025), ECF No. 39.
For the reasons discussed below, the Court vacates and remands the Decision Memorandum to NMFS for further consideration and explanation.
ISSUES PRESENTED
The Court reviews the following issues:
- Whether NMFS’ determinations in the Decision Memorandum are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and
- Whether the proper remedy includes vacatur and an order for NMFS to implement an import ban.
BACKGROUND
Recognizing that certain species and populations of marine mammals may be at risk of depletion or extinction due to human activity, Congress enacted the Marine Mammal Protection Act (“MMPA“) in 1972 to protect marine mammals and establish the Marine Mammal Commission. Marine Mammal Protection Act,
Sea Shepherd filed a petition in 2019 with NMFS seeking emergency rulemaking to ban the importation of fish and fish products sourced using fishing practices that resulted in the incidental kill or serious injury of Māui dolphins in excess of United States standards. Citing regulatory efforts implemented by New Zealand deemed comparable in effectiveness to United States standards, NMFS denied the petition. Notification of the Rejection of the Petition to Ban Imports of All Fish and Fish Products From New Zealand that do not Satisfy the Marine Mammal Protection Act, 84 Fed. Reg. 32,853 (Nat‘l Oceanic & Atmospheric Admin. July 10, 2019). Sea Shepherd appealed the administrative rejection to the U.S. Court of International Trade. Sea Shepherd New Zealand v. United States, Court No. 20-00112.
The United States moved for a remand in the then-pending litigation to allow
NMFS’ comparability finding identified two fisheries with more than a remote likelihood of incidental mortality or serious injury to Māui dolphins: West coast, North Island multi-species set-net fishery and West coast, North Island multi-species trawl fishery. Id. Sea Shepherd amended its complaint in the litigation and filed a motion for a preliminary injunction. First Suppl. Compl. (Nov. 24, 2020), Court No. 20-00112, ECF No. 46. In November 2022, the court entered an injunction banning the importation of multiple varieties of fish from New Zealand‘s West coast North Island multi-species set-net and trawl fisheries. Sea Shepherd New Zealand v. United States (“Sea Shepherd“), 46 CIT __, 606 F. Supp. 3d 1286 (2022).
Following the court‘s injunction, the Government of New Zealand provided additional information regarding its fisheries in support of its application for a comparability finding, and NMFS issued a new positive comparability finding in the January 2024 Decision Memorandum. Decision Memorandum (Jan. 2, 2024), NMFS_12241; Implementation of Fish and Fish Product Import Provisions of Marine Mammal Protection Act—Notification of Issuance of Comparability Findings, 89 Fed. Reg. 4595 (Nat‘l Oceanic & Atmospheric Admin. Jan. 24, 2024), NMFS_1232. Because the January 2024 Decision Memorandum superseded the
earlier comparability finding, the court terminated the preliminary injunction in April 2024. Sea Shepherd New Zealand v. United States, 48 CIT __, 693 F. Supp. 3d 1364 (2024). The instant case was filed in December 2024.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade has jurisdiction pursuant to
Agency action is arbitrary and capricious when the agency “relied on factors which Congress has not intended it to
A motion for judgment on an agency record may be filed when “a party believes that the determination of the court is to be made solely on the basis of the record made before an agency,” and the party “move[s] for judgment in its favor on all or any part of the agency determination.” USCIT R. 56.1(a).
DISCUSSION
Plaintiff seeks vacatur of the Decision Memorandum, arguing that NMFS failed to evaluate properly whether programs adopted by the Government of New Zealand were comparable to the standards imposed by the United States, failed to utilize the best available data, failed to support its determinations adequately, and ignored the impact on marine mammals other than Māui dolphins. Pl.‘s Br. at 12–13. Defendants argue that Plaintiff‘s position is based on a misinterpretation of the MMPA and its implementing regulations, and that the Decision Memorandum was supported by record evidence. Defs.’ Resp. at 14–18. Defendants contend that if the Court decides the motion in favor of Plaintiff, the proper remedy is remand without vacatur. Id. at 18.
I. The 2024 Decision Memorandum
For the reasons discussed below, the Court concludes that NMFS’ determinations in the Decision Memorandum are arbitrary and capricious. At the outset, the Court observes that the 2024 Decision Memorandum is a cursory seven-page document that is replete with conclusory statements and cites minimal record evidence.
A. Standard of Comparability Findings
In addressing the incidental taking of marine mammals, the MMPA provides:
In any event it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate. The Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.
B. Zero Mortality Rate Goal
Plaintiff contends that the Decision Memorandum did not establish that the programs implemented by the Government of New Zealand were comparable to the zero mortality rate goal of the MMPA. Pl.‘s Br. at 13–14. In response, Defendants and Defendant-Intervenor assert that NMFS did determine that New Zealand‘s regulatory scheme had a comparable goal, and this determination was supported by record evidence. Defs.’ Resp. at 22–26; Def.-Interv.‘s Resp. at 6–16.
A goal of the MMPA is that “the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate . . . .”
The Decision Memorandum described New Zealand‘s regulatory scheme as establishing a bycatch limit of one Māui or Hector‘s Dolphin. Decision Memorandum at 5. The objectives of New Zealand‘s Threat Management Plan were to “ensure that dolphin deaths arising from fisheries threats do not exceed the population sustainability threshold [] with 95% certainty” and “allow localized subpopulations to recover and/or remain at or above 80% of their unimpacted status with 95% certainty.”
Defendants cite to NMFS’ 2020 Denial of Petition for Rulemaking and Issuance of a Comparability Finding for the Government of New Zealand‘s Fisheries-Decision Memorandum (“2020 Decision Memorandum“), in which NMFS determined that “[t]he management objective [of New Zealand‘s program] is to effectively restrict the allowable level of fisheries related mortality to zero given the high risk of extinction.” 2020 Decision Memorandum (Oct. 27, 2020) at 20, NMFS_10938 (internal quotation omitted); see Defs.’ Resp. at 23. NMFS did not address its prior comparability finding or its prior analysis of the Zero Mortality Rate Goal in the 2024 Decision Memorandum.
In making a determination, an agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (internal quotation omitted). NMFS failed to address the Zero Rate Mortality Goal in its Decision Memorandum. In reaching its general determination that the New Zealand program was comparable to United States standards, the Court concludes that NMFS did not support its determination of the existence of a policy of reducing incidental mortality rates to zero with substantial record evidence and did not provide a sufficient explanation for its determination.
The Decision Memorandum contained minimal citations to record evidence. On the issue of “Evidence that New Zealand Bans International Mortality and Serious Injury of Māui Dolphins,” the Decision Memorandum merely stated that, “[b]ased on information provided by the GNZ, its Marine Mammal Protection Act of 1978 and the Fisheries Act of 1996 prohibit the intentional killing of marine mammals in the course of commercial fishing operations and are comparable to U.S. standards.” Decision Memorandum at 4. This language was conclusory and unaccompanied by any record evidence to support NMFS’ determination.
In addition, NMFS failed to address the responses in the Government of New Zealand‘s comparability application that were seemingly inconsistent with NMFS’ comparability determination.
The Court concludes that NMFS’ determination that the New Zealand program was effectively comparable in results to the United States’ Zero Mortality Rate Goal was arbitrary and contrary to law, and remands the Decision Memorandum to the agency for further explanation of this issue.
Plaintiff argues that NMFS failed to assess whether New Zealand utilized a standard comparable to the negligible impact standard required by the MMPA. Pl.‘s Br. at 14–15. Defendants and Defendant-Intervenor respond that NMFS determined that New Zealand‘s regulatory programs for endangered species were effectively comparable to United States standards and NMFS supported the determination with record evidence. Defs.’ Resp. at 26–28; Def.-Interv.‘s Resp. at 16–21.
The MMPA aims to protect species listed as “endangered” or “threatened” under the Endangered Species Act by directing NMFS to prohibit the incidental taking of such species by commercial fishing operations unless NMFS determines that “the incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock.”
The MMPA does not define “negligible impact.” To determine a negligible impact limit, NMFS developed numeric formulas and equations that are calculated when implementing the provisions in the MMPA that call for a negligible impact assessment. See NMFS, Criteria for Determining Negligible Impact under MMPA Section 101(a)(5)(E), Procedural Directive 02-204-02 at 2 (June 17, 2020), https://media.fisheries.noaa.gov/dam-migration/02-204-02.pdf (last visited Aug. 25, 2025).
The Decision Memorandum did not mention the negligible impact standard. NMFS did not cite to any record evidence indicating that NMFS calculated the applicable negligible impact limit or examined whether New Zealand employed a comparable method for assessing the impact of incidental death or serious injury to the Māui dolphin population.
The Government of New Zealand argues that the negligible impact standard did not apply because the incidental taking of any Māui dolphin was prohibited. Def.-Interv.‘s Resp. at 17. Defendant-Intervenor does not cite to any law prohibiting incidental taking and actually reported in its comparability application that it did not prohibit the incidental bycatch of marine mammals. Gov‘t New Zealand‘s Comparability Appl. Part D: Q3 at 1. Absent 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. See
Defendants contend that New Zealand‘s regulatory regime for endangered species was comparable in effectiveness to the negligible impact standard, citing to the entire Decision Memorandum and its attached MMPA Import Provisions Comparability Finding Application Final Report (“Application Final Report“) to claim that the regulatory measures within were indicators of comparability. Defs.’ Resp. at 27–28; see Application Final Report (2023), NMFS_1235. The measures Defendants reference, including the Threat Management Plan or the management trigger, were not supported in the Decision Memorandum with citations to record evidence or an explanation that amounts to a determination on the negligible impact standard.
NMFS is required to provide explanations that articulate a connection between the record evidence and the determinations. See State Farm, 463 U.S. at 43. The Decision Memorandum failed to address the negligible impact standard or identify the record evidence that supported NMFS’ determination that New Zealand‘s standards for managing endangered species were effectively comparable to the United States negligible impact standard. The Court concludes that NMFS’ determination that New Zealand‘s programs were comparable in results to the negligible impact standard was arbitrary and not in accordance with law, and remands the Decision Memorandum to the agency for further explanation of this issue.
D. Bycatch Limit
Plaintiff argues that NMFS’ determination that New Zealand‘s bycatch limit was comparable to the Potential Biological Removal standard was arbitrary and contrary to the MMPA and its implementing regulations. See Pl.‘s Br. at 16–19. Plaintiff avers that NMFS erred because New Zealand‘s regulations used a “Fishing Related Mortality Limit” that was not comparable to NMFS’ Potential Biological Removal level because the Fishing Related Mortality Limit differed in several ways: (1) the Fishing Related Mortality Limit was ten times higher than NMFS’ estimate of the Potential Biological Removal level; (2) the Fishing Related Mortality Limit did not specify how much time must elapse after a dolphin capture before a fishery is compliant again; (3) the Fishing Related Mortality Limit only applied to mortalities within a designated dolphin habitat zone; and (4) the Fishing Related Mortality Limit did not mandate any corrective action when the limit was exceeded.
The MMPA and implementing regulations require NMFS to evaluate whether a
The Decision Memorandum stated that New Zealand “established a bycatch limit of one Māui/Hector‘s dolphin.” Decision Memorandum at 5. The Decision Memorandum described New Zealand‘s regulatory program as providing the Minister of Fisheries with the “authority to quickly enact additional prohibitions considered necessary to ensure the bycatch limit is not exceeded.”
The Decision Memorandum did not address how New Zealand calculated a bycatch limit of one dolphin and NMFS did not explain whether New Zealand‘s
bycatch calculation method involved a comparable scientific metric to the Potential Biological Removal level. See id. at 5;
Defendants contend that New Zealand calculated the Potential Biological Removal level under United States standards for the 2020 and 2021 comparability applications, and that these applications addressed the Fishing Related Mortality Limit and the comparability of the population sustainability threshold to the Potential Biological Removal level. See Defs.’ Resp. at 29–32. Despite Defendants’ arguments made in their litigation briefs, these post hoc arguments are not persuasive because
Because NMFS neglected to identify any record evidence in the Decision Memorandum to support its determinations on bycatch, NMFS failed to provide a satisfactory explanation. See F.C.C., 556 U.S. at 513. Further, NMFS failed to address the Fishing Related Mortality Limit and the population sustainability threshold, despite its statutory obligation to consider the important aspects of the decision before it. See State Farm, 463 U.S. at 43. The Court concludes that NMFS’ determination that the New Zealand program was effectively comparable in results to the United States bycatch limit and regulatory plan to reduce bycatch was arbitrary and not in accordance with law, and the Court remands the Decision Memorandum to the agency for further explanation of this issue.
E. Population Estimate
Plaintiff contends that NMFS erred in determining that the bycatch rate in New Zealand Fisheries did not exceed the United States bycatch limit standard because NMFS measured the bycatch limit against a Potential Biological Removal level that NMFS calculated using an outdated, Maui dolphin population estimate. Pl.‘s Br. at 19–22. Defendants and Defendant-Intervenor aver that NMFS’ decision to use an older Maui dolphin population estimate was not arbitrary or capricious because NMFS examined different population studies and relied on the most scientifically sound estimate. Defs.’ Resp. at 32–34; Def.-Interv.‘s Resp. at 26–32.
The MMPA establishes that the Potential Biological Removal level is the product of the following factors: (1) the minimum population of the stock; (2) one-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and (3) a recovery factor between 0.1 and 1.0.
The Decision Memorandum stated that “current estimates [of the Maui dolphin population] are approximately [54] individuals ... with the population declining at the rate of 3–4% per year between 2001 and 2021.” Decision Memorandum at 2.2 NMFS never explained how this population estimate was determined or why NMFS considered it to be the “best available scientific information on abundance.” See
Defendants assert that “it is this type of weighing of the scientific evidence that is best left to the agency, who are experts in the matter.” Defs.’ Resp. at 34. Still, an agency must consider the relevant data and provide a satisfactory explanation for its choice. F.C.C., 556 U.S. at 513. The Decision Memorandum contained no citations to the scientific studies NMFS weighed purportedly when determining the Potential Biological Removal level. See Defs.’ Resp. at 33–34. The Court concludes that NMFS’ decision to rely on a Maui dolphin population estimate of 54 dolphins was arbitrary and did not address contrary record evidence of 48 dolphins from the 2023 Whaling Commission Scientific Committee, and the Court remands the Decision Memorandum to the agency for further explanation of this issue.
F. Monitoring Program
Plaintiff argues that NMFS erred in determining that New Zealand‘s monitoring program was comparable to United States standards because NMFS did not compare New Zealand‘s program to United States monitoring practices when bycatch of a critically endangered species was involved. Pl.‘s Br. at 22–27. Plaintiff asserts that New Zealand‘s 90% monitoring coverage estimate was too high and contrary to evidence on the record, while the United States’ 10% measure of monitoring comparability contained in the Application Final Report was too low. Id. Plaintiff avers further that NMFS erred in determining that New Zealand‘s electronic monitoring of Maui dolphin bycatch was comparable to the United States human observer program. Id. Defendants and Defendant-Intervenor contend that NMFS’ determinations were correct because the
The MMPA requires NMFS to “establish a program to monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations.”
The Decision Memorandum described New Zealand‘s monitoring program as an at-sea monitoring program comprised of observers and electronic monitoring, and a self-reporting program comprised of vessel logbooks. Decision Memorandum at 4. New Zealand‘s Maui Dolphin Habitat Zone covers approximately 90–95% of the Maui dolphin habitat and the Government of New Zealand requires electronic monitoring for the entirety of the Maui Dolphin Habitat Zone. Id. at 4–5. NMFS determined that New Zealand‘s observer and self-reporting programs were comparable in effectiveness to United States standards and exceeded the requirements of the MMPA. Id. at 4.
It is clear, however, that the Decision Memorandum never addressed the United States monitoring standards that NMFS determined were exceeded by New Zealand‘s monitoring program. The Decision Memorandum merely expressed a conclusion, without explaining what United States standards applied and how the New Zealand standards were comparable. The Application Final Report stated that the United States monitors approximately 10% of its fisheries, but did not explain how that estimate was determined and whether NMFS considered the higher priority that must be given to monitoring efforts for an endangered species such as the Maui dolphin. Application Final Report at 18–20, 22. Additionally, NMFS did not support its determination that New Zealand‘s monitoring covered 90% of fishing activity in the Maui Dolphin Habitat Zone with citations to record evidence, or address contrary record evidence of monitoring charts that instead suggested that the coverage estimate could be anywhere from 50–70%, to as low as 2%. See Maui Dolphin: Supplementary Information – Monitoring Programme
Defendants aver that NMFS “thoroughly examined [New Zealand‘s] monitoring program” and conducted a “thorough review of the entire record.” Defs.’ Resp. at 35, 37. It is apparent to the Court, however, that NMFS did not support its determinations or address potentially contrary record evidence regarding the extent of New Zealand‘s monitoring coverage. Thus, the Decision Memorandum does not indicate that NMFS considered all relevant aspects when assessing the comparability of New Zealand‘s monitoring program. See State Farm, 463 U.S. at 43. The Court concludes that NMFS’ determination that New Zealand‘s monitoring program was comparable to United States standards was arbitrary and not in accordance with law, and remands the Decision Memorandum to the agency for further explanation of this issue.
G. Marine Mammal Stock Assessments
Plaintiff contends that NMFS failed to explain or support its determination that New Zealand‘s regulatory programs met United States stock assessment standards. Pl.‘s Br. at 27–28. Defendants and Defendant-Intervenor assert that NMFS evaluated New Zealand‘s stock assessment process properly and relied on ample record evidence to support the comparability determination, including descriptions of the geographic range of the affected stock, data collected through the monitoring program, and New Zealand‘s “Spatially Explicit Fisheries Risk Assessment” model. Defs.’ Resp. at 40–41; Def.-Interv.‘s Resp. at 50–53.
The MMPA requires NMFS to conduct stock assessments for each marine mammal stock found in the waters under United States jurisdiction.
Despite these conclusory statements, the Decision Memorandum did not describe New Zealand‘s process for estimating abundance or how it compared to the components of a United States stock assessment. NMFS provided no explanation of how New Zealand‘s plan to undertake a stock assessment at an undisclosed frequency was comparable to the United States standard of conducting annual stock assessments for species such as the Maui dolphin. See
This Court has previously held that “conclusory statements and citations that do not explain how a determination was reached are insufficient.” In re Section 301 Cases, 46 CIT __, __, 570 F. Supp. 3d 1306, 1338 (2022). Defendants and Defendant-Intervenor cite to case law from the U.S. Court of Appeals for the Federal Circuit to support their assertion that an agency is presumed to have reviewed record evidence and NMFS does not need to provide proof of such review. Defs.’ Resp. at 41 (citing Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) (“[A]bsent specific evidence indicating otherwise, all evidence contained in the record at the time of the [agency]‘s determination ... must be presumed to have been reviewed by [the agency], and no further proof of such review is needed.“)); Def.-Interv.‘s Resp. at 51 (same). This presumption of review does not excuse NMFS from its statutory obligation to articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc., 371 U.S. at 168. Even assuming that NMFS reviewed the record, the Decision Memorandum did not provide an explanation from NMFS indicating which parts of the record were relevant to NMFS’ comparability determination. See F.C.C., 556 U.S. at 513.
The Court concludes that NMFS’ determination that New Zealand‘s stock assessments were comparable to United States standards was arbitrary and not in accordance with law, and remands the Decision Memorandum to the agency for further explanation of this issue.
H. Bycatch of Marine Mammals Other than Maui Dolphins
Plaintiff argues that the Decision Memorandum was arbitrary and contrary to the MMPA‘s implementing regulations because NMFS evaluated only Maui dolphin bycatch rather than bycatch of other species implicated by record evidence. Pl.‘s Br. at 28–30. Defendants and Defendant-Intervenor argue that New Zealand‘s regulatory programs and monitoring efforts applied with equal force to other marine mammals and afforded the same protections that the Maui dolphin received. Defs.’
The MMPA aims to protect all “ocean mammals” generally and contains few species-specific restrictions.
To produce the Decision Memorandum, NMFS evaluated the West coast, North Island multi-species set-net fishery, and the West coast, North Island multi-species trawl fishery, and assessed whether bycatch of the Maui dolphin exceeded United States standards. See Decision Memorandum.
New Zealand submitted documents evidencing bycatch of several marine mammal species that interacted with its fisheries, including dolphins, orcas, whales, and seals. New Zealand Fishery Information, NMFS_1145. NMFS did not address this evidence in the Decision Memorandum or evaluate whether bycatch for these species exceeded United States standards. Rather, the Decision Memorandum characterized its determinations as NMFS’ “response to the [Government of New Zealand‘s] renewed request to NMFS to issue comparability findings for the two fisheries based on additional documentary evidence regarding its regulatory program to reduce mortality and serious injury of Maui dolphin[s] in the West coast, North Island multi-species set-net fishery and the West coast, North Island multi-species trawl fishery.” Decision Memorandum at 3 (emphasis added). Thus, it appears to the Court that NMFS made its determinations with regard to a specific species, rather than follow the regulatory requirement to consider bycatch evidence of each marine mammal species that interacted with the fisheries. See
Defendants and Defendant-Intervenor contend that New Zealand‘s protections for the Maui dolphin, such as monitoring or gear restrictions, applied with equal force to all marine mammals and that this determination was supported by record evidence, including the 2020 Decision Memorandum, New Zealand‘s 2020 comparability application, and New Zealand‘s Marine Mammal Summary. Defs.’ Resp. at 42–43; Def.-Interv.‘s Resp. at 54–55; see New Zealand Marine Mammal Summary, NMFS_1052; New Zealand Species Mortality, NMFS_1053; Maui Dolphins: Application for Comparability Finding (Sept. 1, 2020) at 40–41, NMFS_10808–09; 2020 Decision Memorandum at 22. In the Decision Memorandum, however, NMFS did not cite to any of these documents or to its prior analysis of which marine mammals interacted with the fisheries it assessed. The Decision Memorandum‘s background section contained only information on the Maui dolphin and never indicated that the determinations to follow would be made with regard to the several other marine mammal stocks for which bycatch information was submitted. See Decision Memorandum at 2.
NMFS’ determination that New Zealand‘s regulatory programs protected all marine mammals was unsupported by record evidence. The Decision Memorandum did not address record documents indicating
II. Remedy
Plaintiff asks the Court to vacate the Decision Memorandum pursuant to
Section 706(1) applies when a plaintiff seeks to “compel agency action unlawfully withheld or unreasonably delayed.”
By contrast,
Plaintiff‘s challenge to the Decision Memorandum concerns the sufficiency of an agency‘s action, rather than whether the agency unlawfully withheld or unreasonably delayed action in the first instance. Accordingly,
The Court concludes that the Decision Memorandum is arbitrary and not in accordance with law, and considers now whether to order vacatur and remand, or depart from the default remedy and order remand without vacatur. The Court‘s earlier analysis of the Decision Memorandum
Plaintiff argues that if the Decision Memorandum is vacated, the Court should compel Defendants to implement an import ban pursuant to
As noted earlier, this case is governed by
Here, because NMFS issued a Decision Memorandum with a positive comparability finding for the New Zealand fisheries, rather than denying or terminating a comparability finding for a fishery, the agency was not required to implement an import ban. See
CONCLUSION
In conclusion, the Court observes that the Decision Memorandum contains no citations to record evidence at all. Although
For the foregoing reasons, the Court concludes that NMFS’ determinations in the Decision Memorandum are arbitrary, capricious, and not in accordance with law. The Court vacates and remands the Decision Memorandum for further consideration consistent with this Opinion.
Accordingly, it is hereby
ORDERED that Plaintiff‘s Motion for Judgment upon the Agency Record Pursuant to USCIT Rule 56.1, ECF No. 30, is granted in part and denied in part; and it is further
ORDERED that NMFS’ Decision Memorandum is vacated and remanded for reconsideration and further explanation consistent with this Opinion; and it is further
ORDERED that this case shall proceed according to the following schedule:
- Defendants shall file their remand comparability findings on or before November 24, 2025;
- Defendants shall file the administrative record, which shall include a copy of the “Issuance of Comparability Findings for the Government of New Zealand‘s Set-Net and Trawl Fisheries—Decision Memorandum” with its original attachments, on or before December 8, 2025;
- Comments in opposition to the remand comparability findings shall be filed on or before January 22, 2026;
- Comments in support of the remand comparability findings shall be filed on or before March 9, 2026.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Date: August 26, 2025
New York, New York