On Monday, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) rejected the U.S. Government’s appeal of a preliminary injunction issued by the U.S. Court of International Trade (CIT) in July 2018 ordering the National Oceanic and Atmospheric Administration (NOAA) “to ban the importation of all fish and fish products from Mexican commercial fisheries that use gillnets within the vaquita’s range.”
The Federal Circuit explained that it would be inappropriate for the appellate court to weigh in on the proceedings while substantive arguments and evidence were being actively presented before the lower court. The Federal Circuit determined that it was “the CIT, and not this court, [that] should review in the first instance the factual circumstances laid out in the letters [filed at the CIT] to determine if they constitute a change in circumstances that alters the basis for the preliminary injunction.” The Court observed that “[w]e are not convinced by the Government that the factual circumstances have changed so much as to warrant our dismissal of the preliminary injunction before reconsideration by the CIT.”
Based on these findings, the Federal Circuit ordered the CIT to consider the arguments presented by the Government seeking to overturn that Court’s order for a preliminary injunction pending final adjudication of a lawsuit brought by the Natural Resources Defense Council, Inc., the Center for Biological Diversity, and the Animal Welfare Institute. In that lawsuit, these environmental organizations have alleged that the federal government failed to implement the “Imports Provision” of the Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1371(a)(2)) in response to gillnet fishing for shrimp and fish in the upper Gulf of California that has resulted in the deaths of vaquita dolphins, a critically endangered species of marine mammals. The “Imports Provision” of the MMPA requires that NOAA ban the importation of seafood in certain circumstances but no action had been taken under that statutory provision in the 47 years since the MMPA was originally enacted.
In December, the Federal Register published NOAA’s determination to deny a “comparability finding for the El Golfo de Santa Clara curvina rodeo-style gillnet fishery.” This denial of a “comparability finding” means that NOAA, the Treasury Department, and U.S. Customs and Border Protection are required to identify and prohibit the importation of these fish products from the United States pursuant to NOAA’s recently promulgated regulations at 50 C.F.R. § 216.24(h)(9) implementing the “Imports Provision” of the MMPA. At the same time, NOAA granted “comparability finding[s]” for non-gillnet fisheries operating in the Upper Gulf of California, paving the way for importation of such seafood. However, because the CIT’s preliminary injunction continues to bar the importation of sierra, shrimp, and chano, as well as corvina, imports of these products still must be accompanied by a Certificate of Admissibility.
The U.S. Department of Justice (DOJ) is now asking the CIT to dissolve the preliminary injunction and eliminate the Certificate of Admissibility requirement, asserting that NOAA’s decision to deny a “comparability finding” for the “El Golfo de Santa Clara curvina rodeo-style gillnet fishery” is sufficient to address its obligations under the MMPA. In its most recent filings to the CIT, the DOJ claims that NOAA may effectively prohibit the importation of other products that are potentially harming vaquita dolphins, including shrimp, through other legal authority. With respect to shrimp, a NOAA official states: “Because shrimp caught using gillnets in the Gulf of California is [illegal, unreported and unregulated (IUU)] seafood, its importation would be banned under the [Magnuson-Stevens Fishery Conservation and Management Act (MSA)] and this import restriction can be enforced through [Seafood Import Monitoring Program (SIMP)] reporting and recordkeeping requirements.”
The environmental organization plaintiffs disagree and believe that SIMP requirements do not necessarily lead to the prohibition of illegally-harvested shrimp imports:
That Mexican shrimp are subject to “reporting” and “recordkeeping” requirements under the new U.S. Seafood Import Monitoring Program (SIMP) . . . is also not a ban. The SIMP records may help “facilitate enforcement” actions pursuant to the Magnuson-Stevens Act, 50 C.F.R. § 300.324; however, even fish confirmed by the SIMP to be illegally caught are not necessarily banned. . . . The final rule implementing the SIMP describes the array of responses NOAA Fisheries may take, should it discover illegal fish, which “could include, but are not limited to” re-delivery, exclusion from admission, or an enforcement action. . . . Further, SIMP regulations exempt small-boat fisheries that “aggregate” their catch—such as shrimp caught with panga boats in the northern Gulf—from key reporting requirements, including the “type(s) of gear” used. See 50 C.F.R. §§ 300.324(b)(1); 300.321. The SIMP may aid the efficacy of the Magnuson-Stevens Act, but it does not “excuse the Government from its MMPA obligation” to ban gillnet-caught shrimp.
Because of these legal arguments and the Federal Circuit’s refusal to throw out the preliminary injunction, the CIT will now be tasked with determining whether SIMP effectively bans the importation of illegally-harvested shrimp. Until this issue is resolved, the CIT’s order that NOAA implement a ban on the importation of Mexican seafood, including shrimp, harvested by gillnets in the upper Gulf of California remains in effect.
Read the Court of Appeals for the Federal Circuit’s order in Natural Resources Defense Council v. Ross (May 20, 2019), here: http://www.cafc.uscourts.gov/sites/default/files/18-2325_Order.pdf
Read the U.S. Department of Justice’s “Further Supplemental Memorandum” in Natural Resources Defense Council v. United States, Court No. 18-00055 (May 2, 2019), here: https://www.shrimpalliance.com/wp-content/uploads/2019/05/DOJ-Post-Oral-Argument-Filing.pdf
Read the Natural Resources Defense Council, Inc.’s “Further Supplemental Memorandum” in Natural Resources Defense Council v. United States, Court No. 18-00055 (May 3, 2019), here: https://www.shrimpalliance.com/wp-content/uploads/2019/05/NRDC-Response-to-Government-Post-Argument-Filing.pdf
Read the Court of International Trade’s decision in Natural Resources Defense Council v. United States, Slip Op. 18-92 (July 26, 2018), Court No. 18-00055 here:https://www.cit.uscourts.gov/sites/cit/files/18-92.pdf