Slip Op. 20-  UNITED STATES COURT OF INTERNATIONAL TRADE
SEA SHEPHERD NEW ZEALAND AND SEA SHEPHERD CONSERVATION SOCIETY, Plaintiffs,

v. UNITED STATES, WILBUR ROSS, in his official capacity as Secretary of Commerce, UNITED STATES DEPARTMENT OF COMMERCE, a United States government agency , CHRIS OLIVER, i n his official capacity as Assistant Administrator of the National Marine Fisheries Service, NATIONAL MARINE FISHERIES SERVICE, a United States government agency , STEVEN MNUCHIN, in his official capacity as Secretary of the Treasury , UNITED STATES DEPARTMENT OF THE TREASURY, a United States government agency , CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security , and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, a United States government agency, Defendants, and NEW ZEALAND GOVERNMENT, Defendant-Intervenor. Before: Judge Gary S. Katzmann Court No. 20-00112

OPINION AND ORDER [The court grants the Government ’s motion for a voluntary remand]. Dated: August 13, 2020 Lia Comerford, Earthrise Law Center at Lewis & Clark Law School, of Portland, OR, argued for plaintiffs. With her on the joint brief were Danielle Replogle; and Brett Sommermeyer Catherine Pruett, Sea Shepherd Legal, of Seattle, WA.Court No. 20-00112 Page 2 Stephen C. Tosini, Senior Trial Attorney, Comm ercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argue d for defendant. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davi dson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel Daniel J. Calhoun, Assi stant Chief Counsel, Office of Chief Counsel for Trade Enforcement & Comp liance, U.S. Department of Commerce. Warren E. Connelly Trade Pacific PLLC, of Washi ngton, DC, argued for defendant-intervenor. With him on the brief were Robert G. Gosselink and Kenneth N. Hammer. Katzmann, Judge: The criticallyendangered Maui dolphin ( Cephalorhynchus hectori
maui ), residing exclusively in the waters surro unding New Zealand’s North Island, has been deemed to be facing an extremely high risk of extinction. See Am. Compl. ¶ 38, July 20, 2020,
ECF No. 23. 1 The Maui dolphin suffered a precipitous population decline si nce the 1970s, with an estimated population of around sixty individual s. See id. ¶ 1. Plaintiffs Sea Shepherd New Zealand and Sea Shepherd Conservation Society (collectively, “Plaintiffs”) bring this suit to challenge the U.S. Department of Commerce’s (“Commerce”) failure to implement an import ban on fish and fish products caught with nets that th reaten the Maui dolphin as required by the Marine Mammal Protection Act (“MMPA”) and a denial of their petition for emergency rulemaking to implement such a ban. Id. ¶¶ 84–94. Plaintiffs allege that the decline in the Maui dolphin population is the result of “incidental capture, or by catch, in gillnet and trawl fisheries within their range.” Id. ¶ 1. In proceeding under the MMPA and filing a motion for preliminary injunction to compel the Secretary of Commerce to implement an import ban, Plaintiffs are setting forth a legal theory that was presented to this court in recently concluded litigation involving the vaquita, the world’s smallest porpoise on the verge of extinc tion. See Natural Resource s Defense Council, Inc. v. Ross, No. 18-0055, 44 CIT __, Slip Op. 20-53 (April 22, 2020). See also Natural Resources

1 Plaintiffs moved to amend thei r complaint on July 20, 2020, in orde r to alter their jurisdictional statement. Pls.’ Unopposed Mot. for Leave to File First Am. Compl., July 20, 2020, ECF No. 18. The court granted that order, July 20, 2020, ECF No. 22, and all relevant citations are to the Amended Complaint.Court No. 20-00112 Page 3 Defense Council, Inc. v. Ross, 42 CIT __, 331 F. Supp. 3d 1338 (2018) (“NRDC I”); Natural Resources Defense Council, Inc. v. Ross, 42 CIT __, 331 F. Supp. 3d 1381 (2018); Natural Resource Defense Council, Inc. v. Ross, 42 CIT __, 348 F. Supp. 3d 1306 (2018). Plaintiffs have moved this court for a prelim inary injunction ordering Defendants to ban the import of commercial fish and products from fish caught using gillnets and trawls in the range of the Maui dolphin. Pls.’ Mot. for a Prelim. Inj. on Their First Claim for Relief, July 1, 2020, ECF No. 11. The Defendants, several United States agencies and officials (collectively, “the Government”), have moved to stay the filing of their response to Plaintiffs’ pending motion and requested a voluntary remand so that NOAA Fisher ies could reconsider Plaintiffs’ petition for emergency rulemaking under the MMPA in light of: (1) new fishery measures implemented by the New Zealand Government (“NZG”); (2) “[NZG]’s re quest for a comparability assessment of its action;” and (3) new factual inform ation presented in connection withthose measures. Def.’s Mot. for Voluntary Remand at 5–6, July 17, 2020, ECF No. 17 (“Def.’s Br.”). In this motion for remand, the Government is also joined by NZG, as Defendant-Intervenor. See Mot. of the NZG for Permissive Intervention as Def.-Inter., Ju ly 15, 2020, ECF No. 13; Order Granting Unopposed Mot. to Intervene as Def-Inte r., July 21, 2020, ECF No. 24. The court grants that motion so that the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NOAA Fisheries”) may address th e cited developments in the fi rst instance. The Government is ordered to file the remand determination with this cour t no later than October 30, 2020.Court No. 20-00112 Page 4

BACKGROUND The MMPA created a “moratorium on the taking and importation of marine mammals and marine mammal products,” with certain exceptions. 16 U.S.C. § 1371(a) (2012). 2 “Congress decided to undertake this decisive action because it was greatly concerne d about the maintenance of healthy populations of all sp ecies of marine mammals within the ecosystems they inhabit.” Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795, 801 (D.C. Cir. 1988). In overview, Congress mandated an “immediate goal th at 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 injuryrate.” 16 U.S.C. § 1371(a)(2); see also 16 U.S.C. § 1387(b) (stating the “[z]ero mo rtality rate goal” that “[c]ommercial fisheries shall reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury ra te within 7 years after April 30, 1994”). To achieve this goal, the MMPA sets specific standard s governing and restricti ng the incidental catch 3 of marine mammals, commonly referre d to as “bycatch.” See 16 U.S.C. §§ 1386–87.

2 Unless otherwise indicated, all ci tations to statutes are to the 2012 edition of the United States Code, and all references to regulat ions are to the 2012 edition of the Code of Federal Regulations. 3 The regulatory definitions pertaini ng to the MMPA provide that: Incidental catch means the taking of a marine mammal (1) because it is directly interfering with commercial fishing operati ons, or (2) as a consequence of the steps used to secure the fish in connection w ith commercial fishi ng operations: Provided, That a marine mammal so taken must imme diately be returned to the sea with a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the requirements of this definition shall not be considered an incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations. 50 C.F.R. § 216.3.Court No. 20-00112 Page 5 The MMPA standards apply both to domestic co mmercial fisheries and to foreign fisheries that wish to export thei r products to the United States. At issu e in this litigat ion is the Imports Provision, 16 U.S.C. § 1371(a)(2), under which, the Government “shall ban the importation of commercial fish or products from fish which have been caught with commer cial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.” See generally NRD C I, 331 F. Supp. 3d 1338. Primary responsibility for the implementation of the MMPA rests with NOA A Fisheries, which is within the Department of Commerce. See 16 U.S.C. § 1362(12)(A)(i). The statute contains multiple provisions, including those which direct NOAA Fisheries to ma ke stock assessments, assess the potential biological removal (“PBR”) level, 16 U.S.C. § 13 86(a)(6), and effectuate “the immediate goal 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.” 16 U.S.C. § 1387(a)(1). As noted, at the center of this case is the endangered Maui dolphin of New Zealand. Plaintiffs allege that the Maui dolphin’s decline and endangerment of extinction is the result of “incidental capture, or by catch, in gillnet and trawl fisheries w ithin their range.” Am. Comp. ¶ 1. For this reason, the “Maui dolphin is listed as critically endangeredby the International Union for Conservation of Nature[, which means] the subsp ecies is considered to be facing an extremely high risk of extinction in the wild.” Am. Comp l. ¶ 38. Because of the Maui dolphins’ “low reproductive rate (calving every 2–4 years) and late onset of se xual maturity (7–9 years)” Maui dolphins have a low population growth rate and thus any human-caused mortality further threatens the species. Am. Compl. ¶ 40. Plaintiffs’ allege that the PBR for the Maui dolphin indicates that “only one Maui dolphin roughly every 20 years c ould be removed from the population while stillCourt No. 20-00112 Page 6 allowing Maui dolphins to reach or maintain their op timum sustainable population.” Am. Compl. ¶ 44. The Government notes that NZG’s “risk asse ssment for Maui dolphins” indicated a PBR of 0.11 or one Maui dolphin death every ten years in order to maintain a sustainable population. Def.’s Br. at 2–3. NZG has implemented various measures to combat incidental bycatch of the Maui dolphin since 2003. See Am. Compl. ¶ 47. According to NOA A Fisheries, NZG implemented a new threat management plan (“TMP”) and regulatory regime in 2012 which includes “measures restricting set nets and trawls in certain areas of Maui dolphin habitat, and requ ired increased observer coverage and other monitoring mechanisms.” Notif ication 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, 32,854 (NOAA Ju ly 10, 2019) (“Petition Rejection”). Most recently, NZG implemented new regulatory measures on June 24, 2020, that will go in effect on October 1, 2020, within Maui dolphin habitat to “ex tend existing, and create new, areas that prohibit the use of commercial a nd recreational set-nets,” “extend the closure to trawl fishing,” “put in place a fishing-related mortality limit of one dolphin,” and “prohibit the use of drift nets.” Def.’s Br., Attach. A at 1. In 2019, Plaintiffs petitioned NOAA Fisherie s “for an emergency rulemaking under the [MMPA], asking [the Government] to ban the import of fish caught in gill net and trawl fisheries in the Maui dolphin’s range” because NZG’s 2012 regulations were insufficient to protect the Maui dolphin. Pls.’ Opp’n to Mot. for Voluntary Remand at 1, July 22, 2020, ECF No. 27 (“Pls.’ Br.”). See also Compl., Attach. 1; Pet ition Rejection. NOAA Fisheries d enied this petition after reviewing “the petition, supporting documents, prev ious risk assessments and threat management plans and New Zealand’s 2019 risk assessment a nd [TMP].” Petition Rejection, 84 Fed. Reg. atCourt No. 20-00112 Page 7
32,854. NOAA Fisheries’ denial re lied on (1) NZG’s existing regulatory program; (2) NZG’s 2019 risk assessment on the effectiveness of its regulatory program; and (3) additional proposed regulatory measures that would likely further reduce Maui dolphin bycatch. Id. On May 21, 2020, Plaintiffs initiated this suit al leging (1) that NOAA Fisheries’ failure to ban imports as required by the MMPA violated 5 U.S.C. § 706(1), which prohibits an agency unlawfully withholding or unreaso nably delaying action; and (2) th at NOAA Fisheries’ denial of its petition was arbitrary and cap ricious and thus violated 5 U.S.C. § 706(2)(A). Compl., ECF No. 5; Am. Compl. ¶¶ 84–94. On July 1, 2020, Plainti ffs moved for a preliminary injunction. ECF No. 11. Before responding to Plaintiffs’ motion for a preliminary injunction, the Government moved for a voluntary remand in order to reconsider Plaintiffs’ petition for emergency rulemaking under the MMPA. Def.’s Br. In that and a subseque nt motion, the Governmentrequested that the court stay filing deadlines in th e case pending decision of the volunt ary remand. Id.; Mot. to Stay Filing of Ans. and Administrative R., July 20, 20 20, ECF No. 20. The court ordered a stay of all pending deadlines in the case until disposition of the Government’s mo tion. July 21, 2020, ECF No. 21. Plaintiffs opposed the Government’s mo tions. Pls.’ Br. at 2. The Government and NZG replied in support of the Government’s moti on. Def.’s Reply, July 27, 2020, ECF No. 31; Reply of NZG to Sea Shepherd’s Br. in Opp’n to th e Defs.’ Mot. for Voluntary Remand, July 31, 2020, ECF No. 33 (“NZG’s Reply”). The court held oral argument on August 6, 2020. ECF No. 34. At oral argument, the Government stated that th e requested remand determination by NOAA Fisheries would be completed by October 30, 2020. Id. Post argument submissi ons by the parties were filed on August 11, 2020. Def.’s Post-Hr’g Br., ECF No. 35; NZG’s Submission in Supp. of the Def.’s Mot. for Voluntary Remand, ECF N o. 36; Pls.’ Suppl. Br. in Opp’n to Def.’s Mot. for Voluntary Remand, ECF No. 37.Court No. 20-00112 Page 8

DISCUSSION The Government argues that a voluntary remand is warranted so that NOAA Fisheries may have the first opportunity to consider NZG’ s new fisheries measures and to perform a comparability assessment of the NZG’s actions related to the Maui dolphin compared to United States standards. Def.’s Br. at 5–6. The Governme nt also states that “the short remand might result in additional Maui dolphin protections afte r consultation between the United States and New Zealand, or the imposition of MMPA import restrictions ,” “the last officially recorded confirmed death of a Maui’s dolphin from entanglement in commercial fishing gear was February 2002 in set-net gear,” and “[n]o Maui dolphin has been confirmed to have been stranded due to entanglement in commercial fishing operations since 2013.” Def.’s Post-Hr’g Br. at 2 (citations omitted). Plaintiffs oppose this motion stating that it will delay litigati on and a decision on their motion for preliminary injunctive relief. Pls.’ Br. at 2. Further, the Plaintiffs argue that the Government’s remand request would only address Count Two of their complaint regarding the denial of their petition to NOAA F isheries and not Count One pursuant to which Plaintiffs seek an injunction under the MMPA. Pls.’ Br. at 2. The c ourt concludes that remand, with a tight deadline of October 30, 2020, for reconsideration of Plainti ffs’ petition and completion of the comparability assessment is appropriate. The motion for remand is thus granted. Both parties agree that SKF USA v. Unite d States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), states, in relevant part, that a district court has discretion in deciding whethe r to grant a request for voluntary remand. See Def.’s Br. at 5; Pls.’ Br. at 5. In SKF USA, the Federal Circuit noted that “even if there are no interveni ng events, [an] agency may reque st a remand (without confessing error) in order to reconsider its previous positi on.” 254 F.3d at 1029. Furthe r, the Federal CircuitCourt No. 20-00112 Page 9 stated that “if the agency’s concern is substantial and legitimate, a remand is usually appropriate.” 4 Id. In applying this standard, th is court concluded that an agency ’s concern is substantial and legitimate where (1) the agency “provided a comp elling justification for its remand request,” (2) the need for finality “does not outweigh the justif ication for voluntary remand”; and (3) the “scope of [the] remand request is appropriate.” Shakepr oof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 29 CIT 1516, 1522–26, 412 F. Supp. 2d 1330, 1336–39 (2005). See also Ad Hoc Shrimp Trade Action Committee v. United States, 37 CIT 67, 71, 882 F. Supp. 2d 1377, 1381 (2013). The court concludes that a voluntary remand is warranted base d on NOAA Fisheries’ substantial and legitimate concern of addressing new developments regarding protection of the Maui dolphin in the first instance. See SKF US A, 254 F.3d at 1029. Factual circumstances have changed since NOAA Fisheries denied Plainti ffs’ petition, which provides a compelling justification for its requ est. First, NZG issued new regula tions on June 24, 2020, that, within the Maui dolphin’s habitat, “extend existing, and create new, areas that prohibit the use of commercial and recreational set-nets,” “extend the closure to trawl fishing,” “put in place a fishing-related mortality limit of one dolphin,” and “prohibits the use of drift nets.” Def.’s Br., Attach. A at 1. As the Government notes, NOAA Fisheries “has yet to make any determination . . . that [NZG]’s final fisheries measures warrant an embargo on th at country.” Def.’s Br. at 6. The Government argues that “NOAA has ‘a duty to take a hard look at the proffered evidence’” in the first instance. Def.’s Br. at 6 (quoting Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 385 (1989)).

4 As Plaintiffs note, “a court should reject a re quest for voluntary remand where reconsideration of the challenged agency action woul d be unwarranted, abusive, frivol ous, or in bad faith.” Pls.’ Br. at 4 (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice And Procedure, § 8383 (3d. ed. 2002)). However, at oral argument, Plaintiffs clarified that they made no such claims against the Government’s remand reque st here. Oral Arg. , Aug. 6, 2020, ECF No. 34.Court No. 20-00112 Page 10

The court notes Plaintiffs’ assertion that NOAA Fisheries already considered NZG’s new measures in their proposed form when they denied their petition in 2019. Pls.’ Br. at 2. However, the court also notes that NZG he re argues that it implemented me asures above what was proposed in 2019. See NZG Reply at 4–5. Further, in attemp ting to distinguish the relief sought in Count One from that of Count Two, Plaint iffs point out that they now s eek an import ban that covers a geographical range larger than what they sought in their petition. Pls.’ Br. at 6–7. Plaintiffs explained at oral argument that, since filing thei r petition, their knowledge of the Maui dolphin’s habitat has changed, and thus they now seek a wider ban. Oral Arg. The court agrees with the Government that NOAA Fisheries is best positioned to review these new facts inthe first instance. See Def.’s Reply at 6; NZG’s Reply at 10. E ven though NOAA Fisheries had the authority to issue a wider ban based on Plaintiffs’ petition and NOAA Fisheries previously reviewed NZG’s proposed measures, there is no reason to thi nk that NOAA Fisheries would come to the same conclusion with the benefit of this additional information. If Plaintiffs were unaware of information regarding the Maui dolphin’s habitat at the time they submitted their petition, then their petition could not have contained that in formation and there is no reason to believe that NOAA Fisheries would have possessed or consider ed that information in denying their petition and in failing to implement an import ban pursuant to the MMPA. Where, as here, the court would have to “conduct a de novo inquiry into the ma tter being reviewed and to reach its own conclusions,” remand is required for further inves tigation and explanation by the expert agency. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729 , 744 (1985). The court wi ll also direct NOAA Fisheries to allow Plaintiffs to supplement thei r petition on remand so that NOAA Fisheries has before it all additional information in reconsidering Plaintiffs’ petition.Court No. 20-00112 Page 11 NZG also requested a comparability finding for its new regulations on July 15, 2020. Def.’s Br. at 5–6; Def.’s Br., Attach. B. Plainti ffs argue that NZG’s request for a comparability finding is irrelevant to their challenge because the comparability assessment is done pursuant to the MMPA Imports Regulation that does not go into effect until 2022. See Pls.’ Br. at 8–9. However, should NOAA Fisheries decide thatNZG’s new measures do not meet U.S. comparability standards, then it may impose a ban pursuant to its MMPA Import regulations that could take effect prior to 2022. See, e.g., Im plementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Ac t— Notification of Revoca tion of Comparability Findings and Implementation of Import Restrictions ; Certification of Admissibility for Certain Fish Products From Mexico, 85 Fed. Reg. 13,626 (NOAA Mar. 9, 2020) (implementing a ban on the importation from Mexico of fish and fish produc ts caught with gillnets that threaten the vaquita porpoise after negative comparability findings). As Plaintiffs note, a comparability finding is not required for an import ban under the MMPA, Pls.’ Br. at 8 (citing NRDC I, 331 F. Supp. 3d at 1353–54); remand may nevertheless result in a ban that would address Count One of Plaintiffs’ complaint. Thus, a remand would allow the agency to address both of Plaintiffs’ claims pursuant to the MMPA. See also NZG’s Reply at 13. Finally, Plaintiffs oppose the Government’s re quest for voluntary remand and subsequent stay during the remand because they argue that remand would delay the necessary protections for the Maui dolphin from their requested prelim inary injunctive relief. Pls.’ Br. at 6–7, 11–12. However, the court retains jurisd iction over this case and the resu lts of the voluntary remand. By setting October 30, 2020, as the tight deadline by which NOAA Fisheries must file its remand redetermination, the court is granting that agency an appropriate amount of time to consider the new NZG regulations and factual information pres ented by the Plaintiffs. The parties should beCourt No. 20-00112 Page 12 on notice that the court appreciates the urgency of the issues presented in this case and will also move the case forward on an expedited schedule once the resu lts of the voluntary remand are issued. Should NOAA Fisheries agree that a ban is n ecessary, it could be implemented just as, or more rapidly, than if the court proceeded on th e preliminary injunction. Most importantly, NOAA Fisheries will be able to make this assessment in the first instance based on the technical, factual information that through its e xpertise it is best positioned to assess. Should NOAA Fisheries not grant Plaintiffs’ requested relief , the court will act swiftly to decide Plaintiffs’ outstanding motion for a preliminary injunction. Finally, remand w ould not unduly impact Pl aintiffs’ desire for finality since, by its nature, a preliminary injunction is not permanent, final relief. See Pls.’ Br. at
11. In sum, because of the new factual information available to NOAA Fisheries, NZG’s new regulatory regime, and an ability for NOAA to grant all of the reli ef requested thr ough a decision on these new facts in the firs t instance on remand, the court gr ants the Government’s motion.
CONCLUSION The court concludes that the Government’s re quest for a voluntary remand is appropriate. Thus, it is hereby
ORDERED that the Government’s motion for voluntary remand is GRANTED; it is further
ORDERED that 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 (NOAA July 10, 2019), is remande d to NOAA Fisheries for the purpose of issuing a redetermination on Pl aintiffs’ petition for emergency rulemaking under the MMPA to ban importation of commercial fish or fish products from fish that have been caught withCourt No. 20-00112 Page 13 commercial fishing technology that results in inci dental mortality or se rious injury of Maui dolphins in excess of United St ates standards; it is further
ORDERED that, on remand, NOAA Fisheries shall al low Plaintiffs to supplement their petition underlying the challenged determination and consider whether the Hector’s and Maui dolphin Threat Management Plan – Fisheries Meas ures, issued by the New Zealand Minister of Primary Industries on June 24, 2020, results in incidental mortality or serious injury of Maui dolphins in excess of United States st andards under the MMPA; it is further
ORDERED that if Plaintiffs supplement th eir petition underlying the challenged determination by NOAA Fisheries, then Plaintiffs shall submit the petition and any additional information for consideration to NOAA Fisheries with in fourteen (14) days of this Order; it is further
ORDERED that, on remand, NOAA Fisheries sha ll reach a determination on NZG’s request of July 15, 2020, to perform a comparability assessment of the New Zealand Threat Management Plan as it relates to Maui dolphins; it is further
ORDERED that all filing deadlines are stay ed until October 30, 2020; it is further
ORDERED that Defendants shall file the remand de termination with the court by October 30, 2020; and it is further
ORDERED that the parties shall confer and s ubmit a joint proposed briefing schedule on Plaintiffs’ motion for preliminary injunction a nd the remand determination by November 6, 2020.
SO ORDERED. /s/ Gary S. Katzmann Gary S. Katzmann, Judge
Dated: August 13, 2020 New York, New York