Extinction, Biodiversity, and the Court of International Trade
[Note: I am so disappointed in the Federal Government (exclusive of the judiciary) that I am leaving this pinned here for a while. Advancing that into the future is the only way I could make it stick. The actual publication date is Aug. 18, 2018. Visit the NRDC, Center for Biological Diversity, and Animal Welfare Institute to donate.]
Over the years, the Court of International Trade has occasionally had to dip its judicial toes into environmental law. In Natural Resources Defense Council v. Ross, it was asked to do so to help prevent the potentially imminent extinction of the vaquita. Jumping in with both feet, Judge Gary Katzmann issued a fairly dramatic decision that appears to force the government to act consistent with an existing law intended to protect these animals.
Over the years, the Court of International Trade has occasionally had to dip its judicial toes into environmental law. In Natural Resources Defense Council v. Ross, it was asked to do so to help prevent the potentially imminent extinction of the vaquita. Jumping in with both feet, Judge Gary Katzmann issued a fairly dramatic decision that appears to force the government to act consistent with an existing law intended to protect these animals.
"Vaquita" is Spanish for "little cow," but the animal in question is only the most distant of evolutionary cousin to the land-dwelling cow. The vaquita is the smallest known cetacean, which is the suborder of sea-dwelling mammals that includes whales, dolphins, and porpoises. The vaquita is native to the Mexican waters of the Gulf of California. It is also on the brink of extinction. There may be as few as 15 of these animals alive today. This is so few, that the loss of a single additional individual could significantly increase the likelihood of extinction.
 |
| Credit: San Miguel Times |
The major threat to the vaquita is getting tangled in gillnets, which are nets hung in the water column with the intention of entangling fish and shrimp for human consumption.
U.S. law supports the worldwide preservation of the vaquita and other marine mammals through the Marine Mammal Protection Act ("MMPA"). Under the so-called Import Provision of the MMPA, 16 USC 1371, Congress sought to prevent the incidental killing of marine mammals in the course of commercial fishing worldwide. One tool it deployed is the "Imports Provision," 16 USC 1371(a)(2), which bans "the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards." To make that comparison, regulations were implemented requiring a finding of comparability and creates a presumption that the foreign fishery is not operating to U.S. standards if there is no finding of comparability. Under 50 CFR 216.24(h)(1)(ii)(A), it is illegal to import fish or fish products from a fishery without a valid comparability finding. However, the regulation contains is a one-time exemption until January 1, 2022, apparently to permit commercial operators and foreign governments to transition their operations. There is also the option of "Emergency Rulemaking" to protect very small populations that are at the risk of extinction.
The Mexican government made efforts to protect the vaquita. For example, in June of 2017, it announced a permanent ban on gillnet fishing in the vaquita habitat. That ban, however, included an exemption for gillnet fishing of the curvina and sierra, which are known to cause vaquita fatalities. In addition, illegal gillnet fishing continues for totoaba, which is in demand in Asia for its swim bladders. Illegal shrimp and chano fishing also continues.
In this case, the Natural Resources Defense Council, the Center for Biological Diversity, and the Animal Welfare Institute, all of which are non-governmental environmental and conservation organizations, asked the Court of International Trade to impose a preliminary injunction on the importation of fish products from the Gulf of California fisheries using gillnets in a potentially last-ditch effort to help preserve the vaquita.
Rather than actually take action consistent with the clear intent of Congress to reduce vaquita mortality to close to zero, the United States Government opposed the motion on technical legal grounds. First, it challenged the Court of International Trade's subject matter jurisdiction. Second, it challenged the standing of the parties to bring the case.
Jurisdiction
All federal courts are limited in the scope of their authority. As a starting point, the Court must have jurisdiction over these subject matter of the dispute. Here, the plaintiffs are seeking an order enforcing what they believe to be a statutory and regulatory embargo on the importation of fish and fish products caught with gillnets. The Court of International Trade has jurisdiction over civil actions arising out of any U.S. law that provides for an embargo. 28 USC 1581(i)(3). Under the Administrative Procedure Act, a civil action can be commenced where a plaintiff asserts that an agency failed to take a "discrete" action that it is required to take.
The government's argument is that the ban on gillnet fish products is neither discrete nor is it required. Apparently, the question of whether it is consistent with Congressional direction or just the right thing to do was not enough sufficiently compelling for the National Marine Fisheries Service.
The Court found the ban to be both discrete and mandatory. The statute directs that the government "shall ban" the importation of these products. "Shall" indicates a command; it is language indicating that a duty is mandatory. Where Congress wants to be less than mandatory, it knows how to use the word "may." Furthermore, there is no waiver authority in this section of the law. The government argued that the 5-year exemption in the regulation indicates that it is not yet required to implement the embargo. The CIT noted that the statute does not contain that exemption and that the "Government cannot give itself a five year exemptions from compliance with the MMPA, which dictates that the Secretary of the Treasury 'shall ban offending imports in order to meet'" the legal requirement to reduce the killing of and injury to marine mammals. Thus, the embargo is required.
It is also discrete. While implementing the embargo may require multiple steps, that does not mean it is not legally discrete. Further, that the regulations do not define U.S. standards for purposes of making the comparability determination does not mean that the required embargo is not discrete. The fact is that the vaquita is on the verge of extinction and the importation of fish and fish products caught using gillnets is contributing to death of and injuries to vaquita. That is in direct contravention of the U.S. standards. Waiting until 2022 or any further agency delay may contribute to the extinction of this species. This is why the law directs that the Secretary of the Treasury "shall ban" the offending imports. This is sufficient to make the embargo a discrete action and to give the CIT jurisdiction.
Standing
Standing is the legal requirement that plaintiffs have a genuine interest in the litigation they commence. To have standing, the plaintiff must (1) have suffered a concrete and particularized injury that is either actual or imminent, (2) the injury must be fairly traceable to the defendant, and (3) a favorable decision is likely to redress the injury.
Here, the United States Government takes the position that because some of the individuals representing the plaintiff organizations have never seen a vaquita and have no plans to travel to the vaquita range, they do not have a particularized injury beyond the "subjective" interest in the animal. This is thick with irony as there may soon be no vaquita to see.
Environmental law has long recognized that a recreational and aesthetic interest in viewing nature is a protectable interest that can give rise to standing. That includes an interest in viewing a vaquita. The decreasing vaquita population and potential extinction impacts that interest in a real and direct way. The fact that a single representative of the plaintiff organizations has the desire to observe the animal is sufficient.
The government's second argument is more compelling. The government correctly noted that the ultimate fate of the vaquita does not rest entirely in its hands. This is true. Even a complete import ban will not stop vaquita deaths if the Mexican government does not entirely ban gillnets in the vaquita range and if there is not complete compliance with the ban. Neither seems imminent.
It is also true that vaquita may be killed by passing boats, disease, or a hungry shark. That does not mean that the U.S. should not apply the law. Nor does it mean that doing so will not be an incremental and useful step (hopefully among several steps) to protect the vaquita. According to the Court of International Trade, the risk to the vaquita is fairly traceable to the government's inaction and a favorable decision will at least help redress that injury.
Preliminary Injunction
Having found jurisdiction and standing, the next question for the Court was, what to do? Plaintiffs asked for a preliminary injunction requiring the U.S. to ban the importation of fish and fish production from gillnets in the Gulf of California.
We have previously covered the legal standard for a preliminary injunction. Here, for example. This post is long enough as is, so I will not go into the details.
The statute mandates the immediate requested embargo to prevent the extinction of marine mammal species. Furthermore, the U.S. standard is at least indicated by the National Oceanographic and Atmospheric Administration's assessment of "potential biological removal." Thus, the Court found there to be a likelihood that plaintiffs will ultimately succeed on the merits of their claim.
Next, the Court noted prior federal decisions stating that "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Plaintiffs, who have personal and professional interests, both scientific and aesthetic, in the vaquita will suffer an irreparable injury to that interest in the event of the extinction of the vaquita. To say nothing of the harm to the vaquita itself (which, technically, not before the Court).
Regarding the balance of the hardships, the government made the reasonable argument that a preliminary injunction might interfere with ongoing negotiations with Mexico over fishing in the Gulf of California. In fact, according to the argument, it might be easier to secure an import ban without the preliminary injunction interfering with ongoing discussions. [Side note: This and the potential for related WTO litigation may be the underlying reason the U.S. opposed the imposition of an injunction.] The Court found that the statutory mandate and clear congressional intent to reduce the bycatch of marine mammals to near zero weighs in favor of the preliminary injunction.
Finally, the injunction is in the public interest. It is always in the public interest to ensure that federal agencies comply with the law. The statutory purpose here is to protect the vaquita and similar species. That is, therefore, the public interest.
The Court ordered that, pending a final resolution on the merits, that the United States ban the importation of all fish and fish products from the Mexican commercial fisheries that use gillnets in the vaquita's range.
The U.S. did so via a Cargo Systems Messaging Service posting, 18-00484, which says, in its entirety:
** This message supersedes message 18-000483 **
In response to a United States Court of International Trade order (Slip-Op 18-92) and in cooperation with the National Marine Fisheries Service (NMFS), U.S. Customs and Border Protection (CBP), is imposing immediate import restrictions on fish and fish products from Mexico caught with gillnets deployed in the range of the vaquita, a species of porpoise endemic to northern Gulf of California waters in Mexico and listed as an endangered species under the U.S. Endangered Species Act.
This action prohibits the importation into the United States from Mexico of all shrimp, curvina, sierra, and chano fish and fish products harvested by gillnets in the upper Gulf of California (UGC) within the vaquita’s geographic range. To effectuate the court order, the importation into the United States of shrimp, curvina, sierra, and chano fish and fish products under the HTS codes listed below, caught with a gillnet within the vaquita’s range, is prohibited. Any shrimp, curvina, sierra, and chano fish and fish products not caught by gillnet in the vaquita’s range and imported under the HTS codes listed below from Mexico as country of origin must be accompanied by the certification set forth below upon arrival.
CBP also is requiring that all other fish and fish products not within the scope of the import restrictions but imported under the HTS codes listed below from Mexico as country of origin be accompanied by the following certification upon arrival:
U.S. IMPORT CERTIFICATION OF ADMISSIBILITY:
As the Importer of Record or duly authorized official/agent of the importer of record, I do hereby certify, to the best of my knowledge and belief, that the fish/fish products contained in this shipment are of species of fish or fish products, or from fisheries, not caught with gillnets deployed in the range of the vaquita, in the upper Gulf of California waters in Mexico.
___________________________________
Printed Name (Importer/Agent)
___________________________________
Signature
___________________________________
Date
___________________________________
Telephone
___________________________________
E-mail
If a completed U.S. IMPORT CERTIFICATION OF ADMISSIBILITY is not filed, then the entire shipment must be denied entry.
This U.S. IMPORT CERTIFICATION OF ADMISSIBILITY may be submitted to CBP via the Document Imaging System (DIS), e-mail, fax or physical presentation in hardcopy form to the appropriate CBP Port of Entry official for review.
Trade restrictions on these products harvested by gillnets in the UGC of Mexico will continue until a further order is issued by the court. The U.S. Import Certification of Admissibility as outlined above will be required for the HTS codes listed in this notice until further, superseding guidance from NMFS is issued regarding these trade restrictions and the protocol for Certification of Admissibility. Such guidance from NMFS will be communicated through various means, including a notice in the Federal Register and a subsequent CSMS message in coordination with CBP.
Any questions of CBP regarding this message should be forwarded to the Commercial Targeting & Analysis Center (CTAC) at CTAC@cbp.dhs.gov.
The attachment to the Notice is here.
Finally, on August 14, 2018, the Court issued a second order basically reaffirming its prior decision and clarifying that the injunction is effective immediately. See Slip Op. 18-100.
The Mexican government made efforts to protect the vaquita. For example, in June of 2017, it announced a permanent ban on gillnet fishing in the vaquita habitat. That ban, however, included an exemption for gillnet fishing of the curvina and sierra, which are known to cause vaquita fatalities. In addition, illegal gillnet fishing continues for totoaba, which is in demand in Asia for its swim bladders. Illegal shrimp and chano fishing also continues.
In this case, the Natural Resources Defense Council, the Center for Biological Diversity, and the Animal Welfare Institute, all of which are non-governmental environmental and conservation organizations, asked the Court of International Trade to impose a preliminary injunction on the importation of fish products from the Gulf of California fisheries using gillnets in a potentially last-ditch effort to help preserve the vaquita.
Rather than actually take action consistent with the clear intent of Congress to reduce vaquita mortality to close to zero, the United States Government opposed the motion on technical legal grounds. First, it challenged the Court of International Trade's subject matter jurisdiction. Second, it challenged the standing of the parties to bring the case.
Jurisdiction
All federal courts are limited in the scope of their authority. As a starting point, the Court must have jurisdiction over these subject matter of the dispute. Here, the plaintiffs are seeking an order enforcing what they believe to be a statutory and regulatory embargo on the importation of fish and fish products caught with gillnets. The Court of International Trade has jurisdiction over civil actions arising out of any U.S. law that provides for an embargo. 28 USC 1581(i)(3). Under the Administrative Procedure Act, a civil action can be commenced where a plaintiff asserts that an agency failed to take a "discrete" action that it is required to take.
The government's argument is that the ban on gillnet fish products is neither discrete nor is it required. Apparently, the question of whether it is consistent with Congressional direction or just the right thing to do was not enough sufficiently compelling for the National Marine Fisheries Service.
The Court found the ban to be both discrete and mandatory. The statute directs that the government "shall ban" the importation of these products. "Shall" indicates a command; it is language indicating that a duty is mandatory. Where Congress wants to be less than mandatory, it knows how to use the word "may." Furthermore, there is no waiver authority in this section of the law. The government argued that the 5-year exemption in the regulation indicates that it is not yet required to implement the embargo. The CIT noted that the statute does not contain that exemption and that the "Government cannot give itself a five year exemptions from compliance with the MMPA, which dictates that the Secretary of the Treasury 'shall ban offending imports in order to meet'" the legal requirement to reduce the killing of and injury to marine mammals. Thus, the embargo is required.
It is also discrete. While implementing the embargo may require multiple steps, that does not mean it is not legally discrete. Further, that the regulations do not define U.S. standards for purposes of making the comparability determination does not mean that the required embargo is not discrete. The fact is that the vaquita is on the verge of extinction and the importation of fish and fish products caught using gillnets is contributing to death of and injuries to vaquita. That is in direct contravention of the U.S. standards. Waiting until 2022 or any further agency delay may contribute to the extinction of this species. This is why the law directs that the Secretary of the Treasury "shall ban" the offending imports. This is sufficient to make the embargo a discrete action and to give the CIT jurisdiction.
Standing
Standing is the legal requirement that plaintiffs have a genuine interest in the litigation they commence. To have standing, the plaintiff must (1) have suffered a concrete and particularized injury that is either actual or imminent, (2) the injury must be fairly traceable to the defendant, and (3) a favorable decision is likely to redress the injury.
Here, the United States Government takes the position that because some of the individuals representing the plaintiff organizations have never seen a vaquita and have no plans to travel to the vaquita range, they do not have a particularized injury beyond the "subjective" interest in the animal. This is thick with irony as there may soon be no vaquita to see.
Environmental law has long recognized that a recreational and aesthetic interest in viewing nature is a protectable interest that can give rise to standing. That includes an interest in viewing a vaquita. The decreasing vaquita population and potential extinction impacts that interest in a real and direct way. The fact that a single representative of the plaintiff organizations has the desire to observe the animal is sufficient.
The government's second argument is more compelling. The government correctly noted that the ultimate fate of the vaquita does not rest entirely in its hands. This is true. Even a complete import ban will not stop vaquita deaths if the Mexican government does not entirely ban gillnets in the vaquita range and if there is not complete compliance with the ban. Neither seems imminent.
It is also true that vaquita may be killed by passing boats, disease, or a hungry shark. That does not mean that the U.S. should not apply the law. Nor does it mean that doing so will not be an incremental and useful step (hopefully among several steps) to protect the vaquita. According to the Court of International Trade, the risk to the vaquita is fairly traceable to the government's inaction and a favorable decision will at least help redress that injury.
Preliminary Injunction
Having found jurisdiction and standing, the next question for the Court was, what to do? Plaintiffs asked for a preliminary injunction requiring the U.S. to ban the importation of fish and fish production from gillnets in the Gulf of California.
We have previously covered the legal standard for a preliminary injunction. Here, for example. This post is long enough as is, so I will not go into the details.
The statute mandates the immediate requested embargo to prevent the extinction of marine mammal species. Furthermore, the U.S. standard is at least indicated by the National Oceanographic and Atmospheric Administration's assessment of "potential biological removal." Thus, the Court found there to be a likelihood that plaintiffs will ultimately succeed on the merits of their claim.
Next, the Court noted prior federal decisions stating that "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Plaintiffs, who have personal and professional interests, both scientific and aesthetic, in the vaquita will suffer an irreparable injury to that interest in the event of the extinction of the vaquita. To say nothing of the harm to the vaquita itself (which, technically, not before the Court).
Regarding the balance of the hardships, the government made the reasonable argument that a preliminary injunction might interfere with ongoing negotiations with Mexico over fishing in the Gulf of California. In fact, according to the argument, it might be easier to secure an import ban without the preliminary injunction interfering with ongoing discussions. [Side note: This and the potential for related WTO litigation may be the underlying reason the U.S. opposed the imposition of an injunction.] The Court found that the statutory mandate and clear congressional intent to reduce the bycatch of marine mammals to near zero weighs in favor of the preliminary injunction.
Finally, the injunction is in the public interest. It is always in the public interest to ensure that federal agencies comply with the law. The statutory purpose here is to protect the vaquita and similar species. That is, therefore, the public interest.
The Court ordered that, pending a final resolution on the merits, that the United States ban the importation of all fish and fish products from the Mexican commercial fisheries that use gillnets in the vaquita's range.
The U.S. did so via a Cargo Systems Messaging Service posting, 18-00484, which says, in its entirety:
** This message supersedes message 18-000483 **
In response to a United States Court of International Trade order (Slip-Op 18-92) and in cooperation with the National Marine Fisheries Service (NMFS), U.S. Customs and Border Protection (CBP), is imposing immediate import restrictions on fish and fish products from Mexico caught with gillnets deployed in the range of the vaquita, a species of porpoise endemic to northern Gulf of California waters in Mexico and listed as an endangered species under the U.S. Endangered Species Act.
This action prohibits the importation into the United States from Mexico of all shrimp, curvina, sierra, and chano fish and fish products harvested by gillnets in the upper Gulf of California (UGC) within the vaquita’s geographic range. To effectuate the court order, the importation into the United States of shrimp, curvina, sierra, and chano fish and fish products under the HTS codes listed below, caught with a gillnet within the vaquita’s range, is prohibited. Any shrimp, curvina, sierra, and chano fish and fish products not caught by gillnet in the vaquita’s range and imported under the HTS codes listed below from Mexico as country of origin must be accompanied by the certification set forth below upon arrival.
CBP also is requiring that all other fish and fish products not within the scope of the import restrictions but imported under the HTS codes listed below from Mexico as country of origin be accompanied by the following certification upon arrival:
U.S. IMPORT CERTIFICATION OF ADMISSIBILITY:
As the Importer of Record or duly authorized official/agent of the importer of record, I do hereby certify, to the best of my knowledge and belief, that the fish/fish products contained in this shipment are of species of fish or fish products, or from fisheries, not caught with gillnets deployed in the range of the vaquita, in the upper Gulf of California waters in Mexico.
___________________________________
Printed Name (Importer/Agent)
___________________________________
Signature
___________________________________
Date
___________________________________
Telephone
___________________________________
If a completed U.S. IMPORT CERTIFICATION OF ADMISSIBILITY is not filed, then the entire shipment must be denied entry.
This U.S. IMPORT CERTIFICATION OF ADMISSIBILITY may be submitted to CBP via the Document Imaging System (DIS), e-mail, fax or physical presentation in hardcopy form to the appropriate CBP Port of Entry official for review.
Trade restrictions on these products harvested by gillnets in the UGC of Mexico will continue until a further order is issued by the court. The U.S. Import Certification of Admissibility as outlined above will be required for the HTS codes listed in this notice until further, superseding guidance from NMFS is issued regarding these trade restrictions and the protocol for Certification of Admissibility. Such guidance from NMFS will be communicated through various means, including a notice in the Federal Register and a subsequent CSMS message in coordination with CBP.
Any questions of CBP regarding this message should be forwarded to the Commercial Targeting & Analysis Center (CTAC) at CTAC@cbp.dhs.gov.
The attachment to the Notice is here.
Finally, on August 14, 2018, the Court issued a second order basically reaffirming its prior decision and clarifying that the injunction is effective immediately. See Slip Op. 18-100.
Comments