US Tells CIT to Scrap Suit Seeking Import Ban on Certain NZ Fish Due to New Comparability Findings

The government said the conservation group can't establish that the proposed injunction would "redress the injury it has alleged to the aesthetic, recreational, scientific, and other interests in marine mammal species, particularly the critically endangered Maui dolphin." The U.S. added that the case is moot, since it challenges the 2024 comparability findings regarding the fisheries at issue, and the fisheries have been replaced by the 2025 comparability findings.

In its motion to dismiss, the government also opposed the conservation group's attempt to have the trade court reconsider its previous denial of the request for an injunction. The U.S. argued that the group is seeking a "second bite at the apple following the publication of the 2025 Comparability Findings it knew were coming."

In August, CIT vacated the National Marine Fisheries Service's decision memorandum underlying its comparability findings on New Zealand's West Coast North Island multispecies set-net and trawl fisheries (see 2508260047). Judge Jennifer Choe-Groves said the memo was "arbitrary and capricious" and backed by minimal evidence. However, the judge declined to compel the agency to ban seafood from these fisheries under the Marine Mammal Protection Act, though the judge said the court's findings could lead to an import ban going forward.

Maui and Hector's Dolphin Defenders NZ asked Choe-Groves to reconsider the decision not to compel NMFS to impose an import ban on the grounds that NMFS released a new comparability finding for the fisheries at issue that is "nearly identical in substance to the one this Court held unlawful." The group said NMFS has thus continued relying on a comparability finding the court found unlawful.

In response, the U.S. said the conservation group is free to challenge the 2025 comparability findings, but "it has not done so," adding the court can't "review a claim" the group "has not brought." Thus, CIT should dismiss the case for mootness in light of the 2025 comparability findings, the brief said.

The U.S. said the "capable of repetition, yet evading review" exception to mootness doesn't apply, since the group can't establish the 2024 comparability findings were "so short in duration as to be fully litigated" or that the group's "injury is likely to occur again because the Court's previous order could never really redress it." The conservation group's problem is that its alleged injury wasn't "proximately caused by NMFS's failure to adequately explain its 2024 Comparability Findings," since the proximate cause of the harm is the "use of fishing technologies in New Zealand, not the sufficiency of the record supporting a U.S. Government agency’s determination," the U.S. said.

The conservation group hasn't established that "extraordinary circumstances" warrant reconsideration of the court's rejection of an injunction, the government added. The only basis for the group's motion is the 2025 comparability findings, which the group is free to challenge on the merits, the U.S. said, adding that NMFS didn't consider Choe-Groves' decision in the 2025 comparability findings, since the agency "was required to substantially complete them beforehand" to meet its deadline. It's also "evidently inaccurate" to say the 2025 comparability findings are the same as the invalidated ones, the U.S. added.

Even if reconsideration of the court's prior decision were appropriate, there's no reason to order an import ban, the government urged. The U.S. said NMFS hasn't acted in a way to "thwart the Court's jurisdiction by withholding action and the statutory prerequisite for prohibiting imports has not been established," the brief said.