The Court of International Trade has temporarily banned imports of certain fish and fish products from New Zealand pending final resolution of a court case challenging the U.S. government’s failure to impose such restrictions to protect an endangered dolphin.
The Marine Mammal Protection Act bans the importation of commercial fish or products from fish that have been caught with commercial fishing technology that results in the incidental kill or serious injury of ocean mammals in excess of U.S. standards. In July 2019 and August 2020 the Department of Commerce’s National Marine Fisheries Service rejected petitions seeking an emergency ban under the MMPA on imports of all fish and fish products originating from New Zealand fisheries in the Māui dolphin’s range that employ set nets or trawls. Subsequently, in November 2020, NMFS determined that New Zealand’s program to prevent harm to the Māui dolphin in two kay areas was comparable in effectiveness to protections under the MMPA.
In a Nov. 28 decision, the CIT ruled that the plaintiffs are likely to prevail in their challenges to these two actions, noting among other things that in issuing its comparability findings the NMFS failed to consider all mandatory regulatory factors, respond to all significant comments, and articulate a rational connection between certain facts found and choices made.
The CIT therefore issued a preliminary injunction that immediately bans imports of the following nine species of fish deriving from New Zealand’s West Coast North Island multi-species set-net and trawl fisheries: snapper, terakihi, spotted dogfish, trevally, warehou, hoki, barracouta, mullet, and gurnard. This injunction will remain in place until the NMFS issues valid comparability findings to these fisheries or there is a final resolution of this court case, whichever is earlier. The court notes that a permanent injunction could be issued in the latter case.
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