Sea Shepherd New Zealand v. United StatesSea Shepherd New Zealand v. United States
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendants United States, Gina M. Raimondo, United States Department of Commerce, National Marine Fisheries Service, Janet Yellen, United States Department of the Treasury, Alejandro Mayorkas, and United States Department of Homeland Security. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director. Of counsel was Jason S. Forman, Office of the General Counsel, National Oceanic and Atmospheric Administration, of Silver Spring, MD.
Warren E. Connelly, Robert G. Gosselink and Kenneth N. Hammer, Trade Pacific PLLC, of Washington, D.C., for Defendant-Intervenor New Zealand Government.
OPINION
[The court denies Defendants’ Partial Motion to Dismiss.]
Katzmann, Judge: Earlier this month, the world observed World Ocean Day, an international day, recognized by the United Nations, dedicated to “unit[ing] and rall[ying] to protect and restore our blue planet.”2 Relatedly, the court today returns to the precarious state of the Maui dolphin -- the world‘s smallest dolphin, found only in the waters around New Zealand -- of which an estimated forty-eight to sixty-four individuals remain.3 Since May 2020, Plaintiffs Sea Shepherd New Zealand Ltd. and Sea Shepherd Conservation Society4 have pursued a line of litigation before this court based on the fundamental claim that as a result of incidental capture -- also referred to as “bycatch” -- in gillnet and trawl fisheries within their range, the Maui dolphin population is declining such that a ban on imports of fish and fish products from New Zealand is required by the Marine
In November 2022, after dismissing the first count of Plaintiffs’ Complaint, this court -- upon evaluation of the factors that govern a request for injunctive relief -- granted Plaintiffs a preliminary injunction to preserve the status quo of their remaining second and third counts pending final adjudication. That preliminary injunction ordered the immediate ban on imports into the United States of fish and fish products deriving from nine species caught in New Zealand‘s West Coast North Island inshore trawl and set net fisheries, unless affirmatively identified as having been caught with a gear type other than gillnets or trawls. The preliminary injunction remains in effect at present.
The court is now asked to consider the third count of Plaintiffs’ Complaint, which alleges that the U.S. Department of Commerce (“Commerce“) acted arbitrarily, capriciously, and otherwise not in accordance with law in issuing to New Zealand‘s West Coast North Island inshore trawl and set net fisheries findings of comparability with U.S. standards. On January 1, 2023, these “comparability findings” issued by Commerce expired on their own terms. Accordingly, Defendants -- several United States agencies and officials (collectively “the United States” or “the Government“) -- here ask the court to dismiss as moot Plaintiffs’ third claim. The Government of New Zealand -- as Defendant-Intervenor -- supports the United States’ instant motion; while Plaintiffs oppose it on the grounds that the expiry of New Zealand‘s comparability findings has not mooted their attendant claim.
Because the court concludes that aspects of Plaintiffs’ request for declaratory relief under their third claim remain live, the court denies Defendants’ Partial Motion to Dismiss.
BACKGROUND
The court presumes familiarity with its decisions in Sea Shepherd N.Z. v. United States, 44 CIT __, 469 F. Supp. 3d 1330 (2020) (“Sea Shepherd I“), Sea Shepherd N.Z. v. United States, 46 CIT __, 606 F. Supp. 3d 1286 (2022) (“Sea Shepherd II“), and Sea Shepherd N.Z. v. United States, 47 CIT __, 611 F. Supp. 3d 1406 (2023) (“Sea Shepherd III“), but for ease of reference, sets out the legal and procedural background necessary to contextualize the instant motion.
I. Legal Background
A. The Marine Mammal Protection Act
Congress enacted the MMPA,
The MMPA does not otherwise define the phrase “United States standards,”
B. NOAA‘s Imports Regulation
Central to the instant motion, NOAA‘s Imports Regulation requires foreign harvesting nations to secure “comparability findings” for their fisheries importing fish and fish products into the United States and establishes that any fish or fish product harvested in a fishery for which a “valid comparability finding” is not in effect is in excess of “U.S. standards,” and thereby prohibited from import. See
In the ordinary course, “a comparability finding shall remain valid for 4 years from [its] publication or for such other period as [NOAA] may specify.”
II. Procedural Background
Contending that Maui dolphins are being “caught with commercial fishing technology . . . result[ing] in . . . incidental kill[s] or . . . serious injury . . . in excess of United States standards,”
Meanwhile, on June 24, 2020, the Government of New Zealand announced new fishing measures to enhance protections of Maui dolphins. See Letter from Hon. Stuart Nash, Minister of Fisheries, re: Hector‘s and Maui Dolphin Threat Management Plan at 3 (July 24, 2020), P.R. 580. On the belief that these revised measures are comparable to “United States standards” under the MMPA, the New Zealand Government requested that NOAA perform comparability assessments for its “West Coast North Island inshore trawl fishery” and “West Coast North Island inshore set net fishery” pursuant to the Imports Regulation.
In light of the New Zealand Government‘s request for comparability assessments, as well as in light of certain assessed differences between Plaintiffs’ February 2019 petition before the agency and the May 2020 complaint before this court, on August 13, 2020, this court granted the United States a remand so that the agency could address these intervening developments in the first instance. See Sea Shepherd I, 469 F. Supp. 3d at 1337–38; see also Ct. Order Granting Defs.’ Mot. for Voluntary Remand, Aug. 13, 2020, ECF No. 39. As part of this remand, Plaintiffs submitted a supplemental petition asking Commerce to “ban the import of all fish and fish products originating from fisheries [operating] in . . . the entire coastline of [New Zealand‘s] North Island out to the 100m depth contour, that employ either set nets or trawls.” See Sea Shepherd Legal et al., Supplemental Petition to Ban Imports of Fish and Fish Products from New Zealand 5 (2020), P.R. 5.
On November 9, 2020, Commerce again declined to impose Plaintiffs’ requested import ban and instead issued comparability findings to New Zealand‘s West Coast North Island inshore trawl and set net
With their petition denied for a second time, Plaintiffs filed a Supplemental Complaint with this court on November 24, 2020. See First Suppl. Compl. This Supplemental Complaint lodged three claims, that:
- NOAA unlawfully withheld or unreasonably delayed agency action in violation of section 706(1) of the APA, see
5 U.S.C. § 706(1) , by failing to ban the import of commercial fish and products from fish caught using gillnet and trawls in excess of U.S. standards in the Maui dolphin‘s range; - NOAA‘s denial of Plaintiffs’ petition for emergency rulemaking was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law under section 706(2)(A) of the APA, see
5 U.S.C. § 706(2)(A) ; and - NOAA‘s grant of comparability findings to the two New Zealand fisheries was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law under section 706(2)(A) of the APA, see
5 U.S.C. § 706(2)(A) .
See
Plaintiffs asked this court to preliminarily enjoin New Zealand‘s implicated imports, pending final resolution of the merits. See Pls.’ Renewed Mot. for Prelim. Inj. at 1, Dec. 11, 2020, ECF No. 49 (“Pls.’ Ren. PI Mot.“). The United States and the Government of New Zealand opposed Plaintiffs’ Motion for a Preliminary Injunction, see U.S. Gov‘t Resp. in Opp. to Pls.’ Renewed Mot. for Prelim. Inj., Jan. 15, 2021, ECF No. 57 (“Defs.’ Resp. in Opp. to PI“); N.Z. Gov‘t Resp. in Opp. to Pls.’ Renewed Mot. for Prelim. Inj., Jan. 15, 2021, ECF No. 55 (“Def.-Inter.‘s Resp. Br.“), and moved to dismiss for lack of subject matter jurisdiction Plaintiffs’ first claim of agency action unlawfully withheld, see U.S. Gov‘t Mot. to Dismiss Count I of Suppl. Compl., Jan. 27, 2021, ECF No. 58 (“Defs.’ Mot. to Dismiss Count I“); N.Z. Gov‘t Mot. to Dismiss Count I of Suppl. Compl., Jan. 15, 2021, ECF No. 56 (“Def-Inter.‘s Mot. to Dismiss Count I“).
After oral argument on the parties’ respective motions and while the court was deliberating, the Government of New Zealand submitted on November 30, 2021, an application to NOAA -- pursuant to
Correspondingly, NOAA extended the deadline from December 31, 2022, to December 31, 2023, for foreign harvesting nations to secure comparability findings for their fisheries, see Deadline Modification,
Because the court determined that it would benefit from oral argument on the Government‘s Second Remand Motion, and because the United States submitted that said motion need “not delay a final decision on the [parties’ other] pending motions,” Defs.’ Second Remand Mot. at 6, the court resolved to: (1) grant Defendants’ Motion to Dismiss Plaintiffs’ First Claim; and (2) grant Plaintiffs a preliminary injunction on their remaining second and third claims, without reaching Defendants’ Second Remand Motion. See Sea Shepherd II, 606 F. Supp. 3d at 1332; Further Order on Pls.’ Mot. for Prelim. Inj., Nov. 28, 2022, ECF No. 109. After determining that each of the factors that govern a court‘s grant of injunctive relief11 weighed in favor of Plaintiffs, on November 28, 2022, the court issued a preliminary injunction that ordered the immediate ban on imports into the United States of fish and fish products deriving from nine species caught in New Zealand‘s West Coast North Island inshore trawl and set net fisheries, unless affirmatively identified as having been caught with a gear type other than gillnets or trawls. Id.12
Concluding that “[t]he preliminary injunction ha[d] overtaken events and supersede[d] the soon to expire comparability findings,” the United States withdrew its Second Remand Motion on December 2, 2022. See Defs.’ Notice of Withdrawal of Partial Consent Mot. to Remand Case at 1–2, Dec. 2, 2022, ECF No. 112. In so withdrawing, the United States submitted that “the expiration of [New Zealand‘s] comparability findings on January 1, 2023, [would] have no impact on the import ban . . . in place pursuant to the preliminary injunction.”
On January 1, 2023, the comparability findings issued to New Zealand‘s West Coast North Island inshore trawl and set net fisheries expired on their own terms.
The Government of New Zealand filed its Answer to Plaintiffs’ Supplemental Complaint on January 6, 2023. See N.Z. Gov‘t Answer to First Suppl. Compl., Jan. 6, 2023, ECF No. 128. In light of the expiration of New Zealand‘s comparability findings, and before filing an answer,13 the
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this action pursuant to
“Mootness is a jurisdictional question because the Court ‘is not empowered to decide moot questions or abstract propositions‘. . . .” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quoting United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920)). A court‘s “lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964). This “case-or-controversy requirement subsists through all stages of federal judicial proceedings,” such that an issue becomes moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (first quoting Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477 (1990); then quoting Knox v. Serv. Emp., 567 U.S. 298, 307 (2012)).
Although the party alleging jurisdiction typically bears the burden of proving it, see, e.g., McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936), “[t]he party arguing that a case has become moot ‘bears the burden of coming forward with the subsequent events that have produced that alleged result,‘” Mitchco Int‘l., Inc. v. United States, 26 F.4th 1373 (Fed. Cir. 2022) (quoting Hyosung TNS Inc. v. Int‘l Trade Comm‘n, 926 F.3d 1353, 1357 (Fed. Cir. 2019)). Mootness “problems often require a highly individualistic, and usually intuitive, appraisal of the facts of each case.” Wright & Miller, supra note 13, § 3533. “[E]ven the availability of a partial remedy is sufficient to prevent [a] case from being moot.” Chafin, 568 U.S. at 177
(second alteration in original) (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam)).
As has been noted, count three of Plaintiffs’ Supplemental Complaint asks this court: (1) to “[h]old unlawful and set aside” the comparability findings that NOAA issued to New Zealand‘s West Coast North Island inshore trawl and set net fisheries; and (2) to “[d]eclare that [NOAA‘s] issuance of [said] comparability findings to New Zealand was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law under APA,
Because “even the availability of a partial remedy is sufficient to prevent [an issue] from being moot,” Chafin, 568 U.S. at 177 (quoting Calderon, 518 U.S. at 150), and because Plaintiffs seek both injunctive and declaratory relief under count three of their Supplemental Complaint, the court examines each form of requested relief in turn.
I. Plaintiffs’ Request for Injunctive Relief Is Moot.
As an initial matter, the court concludes that Plaintiffs’ request for injunctive relief is moot. This is so, because the challenged comparability findings issued to New Zealand‘s West Coast North Island inshore trawl and set net fisheries expired by their own terms on January 1, 2023, and -- as the Government explains -- “no fish or fish product can [now] ever enter the United States based” upon them. Defs.’ Reply at 1. Thus, whether or not this court “hold[s] [the comparability findings] unlawful and set[s] [them] aside,” they have -- and will continue to have -- no effect. First Suppl. Compl. at 38. Where “even a favorable decision,” Murphy v. Hunt, 455 U.S. 478, 481–82 (1982), “could have no practical effect” for Plaintiffs, SKF USA, Inc. v. United States, 512 F.3d 1326, 1329 (Fed. Cir. 2008), their request for injunctive relief is moot. See Mitchco, 26 F.4th at 1378 (holding “[t]here is no question that the injunctive relief [plaintiff] seeks is moot insofar as [plaintiff] seeks an order enjoining . . . performance of [a] contract [that] the [defendant] Army has already terminated“).
II. Plaintiffs’ Request for Declaratory Relief Is Not Moot.
However, the determination that Plaintiffs’ request for injunctive relief is moot does not end the inquiry. See Super Tire Eng‘g Co. v. McCorkle, 416 U.S. 115, 121–22 (1974) (explaining that although the termination of an economic strike “dissolved” plaintiff employers’ “case for an injunction,” they might “still retain sufficient interests and injury as to justify the award of declaratory relief“). Plaintiffs ask this court to “[d]eclare that [NOAA‘s] issuance of comparability findings to New Zealand was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law under APA,
This “capable of repetition, yet evading review” exception to mootness invoked by Plaintiffs “applies ‘only in exceptional situations‘“; namely, where (1) “‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again‘” and (2) “‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration.‘” Ebanks v. Shulkin, 877 F.3d 1037, 1038–39 (Fed. Cir. 2017) (quoting Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (alterations in original)). The court concludes that certain aspects of Plaintiffs’ request for declaratory relief satisfy both requirements, such that the third count of their Supplemental Complaint is not moot.
A. Capable of Repetition
When assessing the “capable of repetition” prong, the “question is ‘whether the controversy [is] capable of repetition and not . . . whether the claimant [has] demonstrated that a recurrence of the dispute was more probable than not.‘” NIKA Techs., Inc. v. United States, 987 F.3d 1025, 1028 (Fed. Cir. 2021) (alterations and emphasis in original) (quoting Honig v. Doe, 484 U.S. 305, 318 n.6 (1988)). To show that their objections to the comparability findings are “capable of repetition,” Plaintiffs submit several examples of other courts affirmatively assessing this prong in the context of expired permits. See, e.g., Montgomery Env‘t Coal. v. Costle, 646 F.2d 568, 578–79 (D.C. Cir. 1980) (“[A] controversy concerning an initial permit may simply continue in the context of succeeding permits.“).15 A close reading of these cases reinforces that the “capable of repetition” prong defies absolute, a priori application, but rather “requires careful consideration of the relevant facts” of “an individual case.” Montgomery Env‘t Coal., 646 F.2d at 579.
For example, in Montgomery Environmental Coalition -- the case this court deems most analogous to the instant one of those submitted by the parties -- the D.C. Circuit considered plaintiff environmentalists’ challenge to the issuance of discharge permits to certain sewage treatment plants by the Environmental Protection Agency (“EPA“). Id. at 572–73. In particular, plaintiffs contested the EPA‘s award of a permit to the “Blue Plains” plant on seven grounds:
- refusal to consider diversion of excess capacity to alternative treatment methods,
- refusal to consider a sewer hook-up moratorium,
- denial of the binding character of certain planning documents,
- failure to deem combined sewer overflow points as part of the “treatment works,”
- improper placement of the burden of persuasion,
- insufficient support in the record for deletion of the denitrification provisions, and
- insufficient support for annual rather than more frequent averaging in testing water quality.
Regarding “the first four objections,” the D.C. Circuit held that because plaintiffs challenged a “categorical legal stance” of the agency, “[t]he fact that the original permit ha[d] expired [wa]s irrelevant.” Id. at 580–81. More specifically, the court explained:
Id. (last alteration in original) (quoting Super Tire Eng‘g Co., 416 U.S. at 122). Determining that it was “highly reasonable . . . that petitioners w[ould] be subjected to the same action again,” the D.C. Circuit held that plaintiffs’ first four objections were not moot.The EPA has . . . adopted the flat position that as a matter of law it has no right to impose a sewer hook-up moratorium as a condition of granting a . . . permit, or to require diversion to alternative treatment, and it denies that it is legally bound to impose a denitrification requirement at Blue Plains. This categorical legal stance amounts to a “continuing and brooding presence, cast[ing] what may well be a substantial adverse effect on the interests of the petitioning parties.”
By contrast, regarding “the last three” objections, the D.C. Circuit “conclude[d] that these issues” -- which hinged on allegations that the EPA awarded the Blue Plains permit based on insufficient evidence, consideration of impermissible factors, and arbitrary deviations from past practice -- “d[id] not present a reasonable expectation of repetition, and so [we]re moot.” Id. at 583. In so deciding, the D.C. Circuit explained, in part,16 that:
Id. at 584. Accordingly, “the last three” objections were “stated in a form that [wa]s not capable of repetition, and [were] therefore moot.” Id. at 580 n.6, 584.All that remains is the question of sufficiency of the evidence, whether the [EPA‘s] weighing of the factual evidence pertaining to a now-expired permit was defensible. The new permit[‘s] adjudicatory hearing will develop an entirely new factual record. There have been further studies, and there will be new testimony. No purpose would be served in our reviewing the stale record of the earlier [permit].
Informed by the persuasive model of Montgomery Environmental Coalition, the court concludes that at least one of Sea Shepherd‘s objections allege “errors that are liable to be repeated,” even if the majority do not. Id. at 580 n.6. In Plaintiffs’ own words:
Plaintiffs challenge the comparability findings as arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the MMPA,
16 U.S.C. § 1371(a)(2) , within the meaning of APA section 706(2)(A) for the following reasons:[1] New Zealand‘s fisheries continue to kill and injure Maui dolphins in excess of U.S. standards;
[2] NOAA failed to exercise independent judgment in issuing the comparability determination;
[3] in response to [New Zealand‘s] submission of insufficient evidence in support of its application for a comparability finding, NOAA failed to
draw reasonable conclusions about the fisheries at issue; and [4] NOAA failed to undertake the mandatory considerations outlined in its regulations at
50 C.F.R. § 216.24(h)(7) .
Pls.’ Resp. to Ct.‘s Apr. 11, 2022, Suppl. Qs. at 19, May 2, 2022, ECF No. 97 (“Pls.’ Suppl. Qs. Resp.“) (numbering and formatting added); see also First Suppl. Compl. ¶ 111 (substantively similar).
To start, the court determines that Sea Shepherd‘s first, second, and third objections are “stated in a form that is not capable of repetition, and [are] therefore moot.” Montgomery Env‘t Coal., 646 F.2d at 584.
This is so, because Sea Shepherd‘s first and third objections -- that New Zealand is indeed killing/injuring Maui dolphins in excess of U.S. standards and has failed to substantiate its representations to the contrary -- appear merely to “question [the] sufficiency of the evidence.” Id. at 584. Just as the D.C. Circuit in Montgomery Environmental Coalition deemed it important that the EPA would award “new permits” on the basis of an “adjudicatory hearing [that] w[ould] develop an entirely new factual record,” id., so too here, NOAA will award new comparability findings on the basis of notice and comment rulemaking addressing “successive application[s] . . . based on different facts than the preceding applications,” Defs.’ Reply at 2. As the Government notes, such subsequent applications might “reflect[] changes to marine mammal populations, commercial fishing technology, regulations of the United States, and the exporting country‘s regulations” as well as new scientific studies. Id. Because the court agrees with the D.C. Circuit‘s view that “[n]o purpose would be served in . . . reviewing the stale record of [an] earlier” comparability finding, Sea Shepherd‘s first and third objections are “stated in a form that is not capable of repetition, and [are] therefore moot.” Montgomery Env‘t Coal., 646 F.2d at 584.
Sea Shepherd‘s second objection -- that NOAA failed to exercise independent judgment in issuing the comparability determinations -- presents a more nuanced question, but is ultimately also moot. At base, this objection appears to allege that NOAA‘s “issuance of the comparability finding[s] was . . . biased.” Pls.’ Ren. PI Mot. at 35. Federal Circuit caselaw is instructive in this regard. For example, in Galen Medical Associates, Inc. v. United States, a disappointed bidder challenged the Veterans Affairs (“VA“)‘s award of a contract to another supplier, alleging bias and wrongful award of contract. 369 F.3d 1324, 1327 (Fed. Cir. 2004). Where the VA had already elected to redo the selection process but continued to award the contract to the originally selected supplier, the Federal Circuit had to decide whether “complaints based on pre-corrective action events [we]re moot.” Id. at 1333 (emphasis added). The court held that where such complaints were “charged as a specific violation of a code or statute,” they were moot; but where such complaints were “relevant in order to establish a possible pattern of bias,” they were not. Id.
As in Galen Medical, Plaintiffs here allege “a possible pattern of bias.” Id.; see also Defs.’ Reply at 4 (acknowledging that “Sea Shepherd . . . accuse[s] NOAA of being a rubber stamp for whatever New Zealand submits to the agency“). However, a critical difference is that unlike in Galen Medical -- where the VA had already awarded for a second time the contested contract to the original selectee -- here, NOAA has not yet awarded any subsequent comparability findings to New Zealand. Whether, upon evaluation of New Zealand‘s latest application, NOAA will continue to issue comparability findings,
In short, where New Zealand‘s one-off comparability findings expired without replacement on January 1, 2023, Sea Shepherd‘s second objection -- that NOAA failed to exercise independent judgment in issuing the comparability determinations -- asks this court to “pronounc[e] that [Commerce‘s] past actions which have no demonstrable continuing effect were . . . wrong.” Spencer v. Kemna, 523 U.S. 1, 18 (1998). Because courts “are not in the business of” doing as such, id., Sea Shepherd‘s second objection is moot.18
Finally, Sea Shepherd‘s fourth objection -- that NOAA failed to undertake mandatory considerations -- presents a mix of live and moot questions.
Beginning with the moot elements, Plaintiffs overarchingly state that “in their third claim, [they] are challenging NOAA‘s application of the Imports Rule to the factual circumstances specific to this case by asking the Court to determine whether NOAA‘s comparability findings failed to comply with the express requirements of the Rule.” Pls.’ Resp. to Ct.‘s Qs. at 11, June 29, 2021, ECF No. 73 (emphasis added). Where the United States does not contest that the Imports Regulation enumerates mandatory conditions that NOAA must consider in awarding comparability findings to foreign fisheries, see
All that said, aspects of Plaintiffs’ challenge under the fourth objection are of a different quality, and thus remain live. Specifically, parties disagree as to the meaning of certain criteria under
The Imports Rule states that the deciding official “shall” consider the “extent to which the harvesting nation has successfully implemented measures . . . to reduce incidental mortality and serious injury of each marine mammal stock below the bycatch limit.”
50 C.F.R. § 216.24(h)(7)(ii) . The Rule also states that, where relevant, the decisionmaker should consider the population trend and “the history and nature of interactions with marine mammals in th[e] export fishery.”Id. § 216.24(h)(7)(iv) . These factors necessarily require Federal Defendants to consider the historical rate of decline.
See Pls.’ Combined Reply Br. in Supp. of Renewed Mot. for Prelim. Inj. and Resp. Br. in Opp. to Fed. Defs.’ and Def.-Inter.‘s Mots. to Dismiss at 31, Feb. 17, 2021, ECF No. 64. Unlike Plaintiffs’ other objections, this interpretation-based argument challenges a “categorical legal stance” of Defendants. Montgomery Env‘t Coal., 646 F.2d at 584. Where New Zealand has already applied to NOAA for replacement comparability findings, see Joint Status Report at 1–2, the court determines that it is reasonably likely the agency will continue to adhere to its contested legal interpretation in reviewing these successive applications. Thus, in this regard, Plaintiffs have lodged under their fourth objection a challenge that is “capable of repetition.”
Having concluded that count three of Plaintiffs’ Supplemental Complaint alleges at least some “errors that are liable to be repeated,” id. at 580 n.6, the court next considers whether the comparability findings are “too short to be fully litigated prior to [their] expiration,” Ebanks, 877 F.3d at 1038–39 (quoting Kingdomware Techs., Inc., 579 U.S. at 170).
B. Evading Review
By “evading review,” “the Supreme Court has meant evading Supreme Court review,” Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 369–70 (D.C. Cir. 1992) (citing Neb. Press Ass‘n v. Stuart, 427 U.S. 539, 547 (1976)), and has previously held that, at least in some scenarios, “a period of two years is too short to complete judicial review,” Kingdomware Techs., Inc., 579 U.S. at 170.
New Zealand‘s now-expired comparability findings were in place for just over two years. See Comp. Finding Determ. at 71297 (“These comparability findings are valid for the period of November 6, 2020, through January 1, 2023, unless revoked.“). While NOAA‘s Imports Regulation suggests that comparability findings issued in the ordinary course “shall remain valid for 4 years,”
CONCLUSION
In sum, although the expiry of New Zealand‘s comparability findings has mooted Plaintiffs’ request for injunctive relief under the third count of their Supplemental Complaint, certain aspects of Plaintiffs’ request for declaratory relief are “capable of repetition, yet evading review,” and thus remain live. Because “even the availability of a ‘partial remedy’ is ‘sufficient to prevent [an issue] from being moot,‘” Chafin, 568 U.S. at 177 (quoting Calderon, 518 U.S. at 150), for the foregoing reasons, the court denies Defendants’ Partial Motion to Dismiss.
It is hereby:
ORDERED that the United States’ Partial Motion to Dismiss, ECF No. 132, is denied; and it is further
ORDERED that the Parties shall confer and submit to the court by no later than July 7, 2023 a proposed scheduling order for briefing on the merits in this action.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: June 21, 2023
New York, New York
Notes
(Emphasis added).[T]he importation of commercial fish or fish products which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of U.S. standards or caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of the United States are prohibited. For purposes of paragraph (h) of this section, a fish or fish product caught with commercial fishing technology which results in the incidental mortality or incidental serious injury of marine mammals in excess of U.S. standards is any fish or fish product harvested in an exempt or export fishery for which a valid comparability finding is not in effect.
As established, infra, the Government of New Zealand requested such early comparability findings for its West Coast North Island inshore trawl and set net fisheries, which -- by NOAA‘s own assessment rendered such fisheries presently subject to “the full effect of the [Imports Regulation].” See Mem. from A. Cole to C. Oliver, re: Decision Memorandum for the Denial of Petition for Rulemaking and Issuance of a Comparability Finding for the Government of New Zealand‘s Fisheries at 2, 8 (Dep‘t Com. Oct. 27, 2020), P.R. 3104 (emphasis added). Accordingly, those fisheries currently require “valid comparability finding[s]” to comport with “U.S. standards” under NOAA‘s Imports Regulation.
- whether the moving party is likely to prevail on the merits of the claims;
- whether the moving party is likely to suffer irreparable harm in the absence of a preliminary injunction;
- the balance of equities; and
- whether a preliminary injunction is in the public interest.
As an initial matter, the excerpts Plaintiffs cite comprise five pages of New Zealand‘s pending application, a document that past experience suggests could be over 100 pages in full. Compare Def.-Inter.‘s Mot. to Modify PI Ex. C at 1–4, i (five-page excerpt of New Zealand‘s pending comparability finding application), with Supplemental Administrative Record at 94–233, Nov. 23, 2020, ECF No. 44-9 (New Zealand‘s 140-page 2020 application). Where New Zealand‘s full, pending application is not on the record, the court cannot speculate as to the degree of overlap with New Zealand‘s prior application.
But even assuming arguendo a high degree of overlap in New Zealand‘s submissions, the court remains unpersuaded that Sea Shepherd‘s second objection is stated in a form that is capable of repetition. As noted, NOAA will conduct a fresh round of notice and comment rulemaking on whether to award new comparability findings to New Zealand, and the court cannot predict what impact any such attendant submissions might have on NOAA‘s determinations. Moreover, the agency‘s future decision making will likely be informed by this court‘s prior review of NOAA‘s deliberative processes to date. See, e.g., Sea Shepherd II, 606 F. Supp. 3d at 1310-23. Accordingly, because Sea Shepherd‘s argument “that NOAA will . . . [simply] repeat the same or similar flawed reasoning from its decision on New Zealand‘s 2020 Comparability Findings,” Pls.’ Resp. at 4, depends on “many contingencies,” Plaintiffs “ha[ve] not shown a sufficiently reasonable expectation that [they] will again be subjected to the same action,” Ebanks, 877 F.3d at 1039.