Natural Res. Def. Council, Inc. v. Ross, Slip Op. 18-100

331 F.Supp.3d 1381

NATURAL RESOURCES DEFENSE COUNCIL, INC., Center for Biological Diversity, and Animal Welfare Institute, Plaintiffs,

v.Wilbur ROSS, in his official capacity as Secretary of Commerce, United States Department of Commerce, Chris Oliver, in his official capacity as Assistant Administrator of the National Marine Fisheries Service, National Marine Fisheries Service, Steven Mnuchin, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security, and United States Department of Homeland Security, Defendants.

Slip Op. 18-100

Court No. 18-00055

United States Court of International Trade.

Dated: August 14, 2018

Giulia C.S. Good Stefani and Daniel N. Carpenter-Gold, Natural Resources Defense Council, of Santa Monica, CA, argued for plaintiffs. With them on the brief were Stephen Zak Smith for plaintiff, Natural Resources Defense Council Inc. and Sarah Uhlemann, of Seattle, WA, for plaintiffs, Center for Biological Diversity, and Animal Welfare Institute.

Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Jason Forman, National Oceanic and Atmospheric Administration, of Silver Spring, MD; Daniel J. Paisley, Department of the Treasury, of Washington, DC; and Glenn Kaminsky, Department of Homeland Security, of New York, NY.

OPINION

Katzmann, Judge:

On July 26, 2018, presented with the desperate plight of the vaquita -- the world's smallest porpoise, now on the verge of extinction as they are caught and strangled in the gillnets of fisheries in the Northern Gulf of California in Mexican waters -- this Court granted "plaintiffs' [Natural Resources Defense Council, Center for Biological Diversity, and Animal Welfare Institute] motion for a preliminary injunction requiring the Government, pending final adjudication of the merits, to ban the importation of all fish and fish products from Mexican commercial fisheries that use gillnets within the vaquita's range." Nat. Res. Def. Council v. United States, 42 CIT ––––, 331 F.Supp.3d 1338, 1351, (July 26, 2018) ("NRDC I") at 331 F.Supp.3d at 1371–72. The Government (herein the collective reference to several United States agencies and officials) now returns to this Court, seeking to limit the scope of the preliminary injunction and also to question whether the preliminary injunction is effective immediately.

The Court must observe that in the short days that have intervened since the issuance of the preliminary injunction, there has been no reduction in the risk to the vaquita by gillnet death, and it is undisputed that "even one more bycatch death in the gillnets of fisheries in its range threatens the very existence of the species." NRDC I at 331 F.Supp.3d at 1371. The Court todays holds that there should be no doubt, as NRDC I made clear, that the Government is enjoined and ordered to ban the importation from Mexico of all shrimp, curvina, sierra, and chano fish and their products caught with gillnets inside the vaquita's range. Furthermore, as that opinion also makes clear, there is a real danger that the vaquita will disappear from the planet. Consequently, the import ban ordered by the Court pursuant to the Marine Mammal Protection Act ("MMPA") is effective immediately. Finally, to facilitate future action, the Court issues an updated order, reproduced in the Appendix below.

BACKGROUND

The Court explained in NRDC I that the vaquita is a critically endangered marine mammal endemic to the northern Gulf of California, in Mexican waters. NRDC I at 331 F.Supp.3d at 1344. It is the world's smallest porpoise, measuring only about five feet long and weighing one hundred pounds. Id. The vaquita's population has plummeted from 567 in the late 1990s, when it was first surveyed, to approximately fifteen today. Id. The status of the species is so precarious that even one mortality could increase the likelihood of extinction. Id. It is undisputed that the cause of the vaquita's precipitous decline is its inadvertent tangling, strangulation, and drowning in gillnets, which are fishing nets hung in the water to entangle fish and shrimp. Id.

In the hopes of avoiding exactly this type of disaster, Congress in 1972 enacted the MMPA, Pub. L. No. 92-522, 86 Stat. 1027 (codified as amended in scattered sections of 16 U.S.C.). That Act commands "that 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 injury rate." 16 U.S.C. § 1371 (a)(2). Invoking the conditional ban on imports of fish and fish products found in Section 101(a)(2) of the MMPA, 16 U.S.C. § 1371(a)(2) (2012),¹ also known as the Imports Provision, plaintiffs brought this action on March 21, 2018 in the United States Court of International Trade. Plaintiffs sought an injunction requiring the Government to ban the import of fish or fish products from any Mexican commercial fishery that uses gillnets within the vaquita's range. Orig. Compl., ECF No. 1; Summ., ECF No. 2; Compl. at 19.

In NRDC I, the Court explained that the vaquita's range is approximately 4,000 square kilometers in size, and overlaps with commercial fisheries that target shrimp, curvina, chano, and sierra, and with an illegal fishery targeting the endangered totoaba. NRDC I at 331 F.Supp.3d at 1348–49. The Court noted that gillnet fishing for curvina and sierra remains legal, while fishing for shrimp and chano with gillnets inside the vaquita's range is illegal, but continues anyway. Id. at 1346–47. Curvina, chano, and sierra fishing occurs year-round in the northern Gulf of California, while shrimp fishing occurs from September to March. Id. at 1348–49. Plaintiffs and the Government agree that, though the vaquita is not a target of Mexican fishermen, it is threatened and inadvertently killed by gillnets deployed to capture these other species with which it shares its territory. The parties also agree that the vaquita is on the verge of extinction as a result.

After consideration of the parties' filings and all the appropriate factors, the Court denied the Government's motion to dismiss and, as noted, granted "plaintiffs' motion for a preliminary injunction requiring the Government, pending final adjudication of the merits, to ban the importation of all fish and fish products from Mexican commercial fisheries that use gillnets within the vaquita's range." On August 3, 2018, the Government moved to clarify the Court's Order, "in particular the specific species covered by the injunction." Def.'s Mot. to Clarify ("Def.'s Br.") at 1, ECF No. 34. Plaintiffs responded to the Government's motion on August 6, 2018. Pl.'s Resp. to Def.'s Mot., ECF No. 36.² The parties participated in a teleconference with the Court on August 7, 2018.

In the "Motion to Clarify," now before this Court, the Government asserts that the Court's Order is unclear as to the fisheries that are covered under the importation ban and as to the effective start date of the ban because: the MMPA does not generally apply to illegal commercial fisheries and therefore that Northern Gulf of California shrimp and chano commercial gillnet fisheries are excluded from the scope of the preliminary injunction; other federal statutes, namely the Lacey Act and the Magnuson-Stevens Fishers Conservation and Management Act ("Magnuson-Stevens Act") render inoperative the express duty imposed by the MMPA; and the purported regulatory challenges of implementation make immediate implementation impossible. The Court rules that there should be no doubt that: (1) the ban on the importation of commercial fish mandated by the MMPA is not limited to legal fisheries, but applies to illegal fisheries as well; (2) as is clear from the Court's opinion in NRDC I, the Government is enjoined and ordered to ban the importation from Mexico of all shrimp, curvina, sierra, and chano fish and their products caught with gillnets inside the vaquita's range; (3) other laws may also restrict the import of some of the fish covered by the ban does not bar from the Court from preliminarily enjoining the Government to ban importation under the MMPA; and (4) the import ban ordered by the Court pursuant to the MMPA is effective immediately.³

The Court addresses the Government's contentions in turn.

DISCUSSION

I. The MMPA Imports Provision Applies to Legal and Illegal Fisheries.

Submitting that "[e]nforcement of prohibitions against illegal fishing activities is not generally governed by the MMPA," the Government essentially questions whether the Court's Order is meant to ban imports of shrimp and chano -- species for whom gillnet harvesting is already illegal in Mexico -- and suggests that "[t]here may be other fish species harvested illegally with gillnets within the vaquita's range that were not addressed at all in plaintiffs' motion." Def.'s Br. at 2–3.

The ban on the importation of commercial fish mandated by the Imports Provision, 16 U.S.C. § 1371(a)(2), is not limited to legal fisheries, but applies to illegal fisheries as well. The Court explained in NRDC I that the embargo Order applies to the curvina, sierra, shrimp, and chano fisheries. See NRDC I at 331 F.Supp.3d at 1348 (listing the commercial fisheries that target "shrimp, curvina, chano, and sierra" as overlapping with the vaquita's range); 1348–49 (noting fishing seasons of "[c]urvina, chano, [ ] sierra [and] shrimp"); 1350–51 (discussing "curvina and sierra" and "shrimp and chano" gillnet fishing within the vaquita's habitat); 1359 (referring to "curvina, sierra, shrimp, and chano" as the "gillnet fisheries in question"); 1366 (listing "shrimp,...