Slip Op. 26-73
UNITED STATES COURT OF INTERNATIONAL TRADE
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UNITED STATES Before: Jennifer Choe-Groves, Judge
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Court No. 26-02462 Page 2
OPINION AND ORDER
[Denying Defendants’ Motion to Dismiss; Denying Plaintiff’s Motion for Preliminary Injunction.]
Dated: July 13, 2026
Sabrina Devereaux and Christopher D. Eaton, Earthjustice, of Seattle, WA, Natalie N. Barefoot, Earthjustice, of San Francisco, CA, and Brett Sommermeyer and Catherine E. Pruett, Law of the Wild, of Seattle, WA, for 3ODLQWLII0ƗXLDQG Hector’s Dolphin Defenders NZ Inc.
Agatha Koprowski, Trial Attorney, Brett A. Shumate, Assistant Attorney General, and Patricia M. McCarthy, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendants National Marine Fisheries Service, National Oceanic and Atmospheric Administration Fisheries, U.S. Department of the Treasury, U.S. Department of Homeland Security, and U.S. Department of Commerce. Of counsel on the brief were Mark Hodor, Counsel, Office of the General Counsel, National Oceanic and Atmospheric Administration, of Silver Spring, MD, Zachary S. Simmons, Attorney, Angela Cherman, Attorney, Raymond Magorien, Attorney, Office of the Chief Counsel, U.S. Customs and Border Protection, of Washington, D.C., and Daniel Paisley, Counsel, Office of Tax Policy, U.S. Department of the Treasury, of Washington, D.C. Oliver J. McDonald, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. also appeared.
Warren E. Connelly, Robert G. Gosselink, and Kenneth N. Hammer, Trade Pacific PLLC, of Washington, D.C., for Defendant-Intervenor New Zealand Government.
Choe-Groves, Judge: Before the Court is 3ODLQWLII0ƗXLDQG+HFWRU¶V
Dolphin Defenders NZ Inc.’s (“Plaintiff”) Motion for Preliminary Injunction to
enjoin the comparability findings issued by the National Marine Fisheries Service
(“NMFS”) on March 11, 2026, and implement an import ban on New Zealand
fisheries that result in incidental death and serious injury to marine mammals in
excess of United States standards. Pl.’s Mot. Preliminary Injunction (“Pl.’s Br.”), Court No. 26-02462 Page 3
ECF No. 13; see Implementation of Fish and Fish Product Import Provisions of the
Marine Mammal Protection Act—Notification of Comparability Findings (“2026
Comparability Findings”), 91 Fed Reg. 11,962 (Dep’t of Commerce Mar. 11,
2026). Defendants NMFS, National Oceanic and Atmospheric Administration
Fisheries (“NOAA”), U.S. Department of the Treasury, U.S. Department of
Homeland Security, and U.S. Department of Commerce (collectively,
“Defendants”) filed a motion to dismiss Plaintiff’s complaint for lack of subjectmatter jurisdiction. Defs.’ Mot. Dismiss Pursuant R. 12(B)(1) (“Mot. Dismiss” or
“Defs.’ Br.”), ECF No. 16.
For the reasons discussed below, Defendants’ Motion to Dismiss is denied
and Plaintiff’s Motion for Preliminary Injunction is denied.
BACKGROUND
Plaintiff is a non-profit organization with its headquarters in Kumeu, New
Zealand, focused on improving environmental protections for dolphins in New
Zealand. Compl. Declaratory and Injunctive Relief (“Compl.”) at ¶ 11, ECF No. 4.
The organization’s members reside near and visit regularly 0ƗXLDQG+HFWRU¶V
dolphin habitats along the coasts of New Zealand’s North and South Islands. Id. at
¶ 12. The ability of Plaintiff’s members to enjoy and benefit from the continued
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spiritual, artistic, cultural, commercial, scientific, and environmental purposes Court No. 26-02462 Page 4
hinges upon the wellbeing of the dolphins. Id. at ¶¶ 12, 14. Plaintiff alleges that
the United States imports seafood from New Zealand’s trawl and set net fisheries
that catch, harm, and kill marine mammals in excess of United States standards.
Id. at ¶ 15. Plaintiff asserts that the Government of New Zealand has indicated
repeatedly that avoiding an import ban is an important factor in the decisionmaking and management of fisheries in MƗui and Hectors’ dolphin habitats. Id.
Plaintiff challenged NMFS’ 2024 Comparability Findings for the Government of
New Zealand’s set net and trawl fisheries in a prior litigation, and this Court
granted in part judgment on the agency record and held that the 2024
Comparability Findings were not in accordance with law and unsupported by
substantial record evidence. 0ƗXL +HFWRU’s Dolphin Defs. NZ Inc. v. Nat’l
Marine Fisheries Serv. (“0ƗXL,”), 49 CIT, __, __, 799 F. Supp. 3d 1327, 1333,
1349–50 (2025). After NMFS published 2025 Comparability Findings, as required
by settlement in a separate litigation, the Court dismissed Plaintiff’s case for
mootness given the expiration of the 2024 Comparability Findings. MƗXL
Hector’s Dolphin Defs. NZ Inc. v. Nat’l Marine Fisheries Serv. (“0ƗXL,I”), 50
CIT __, __, 2026 WL 925518, at *4 (2026). Plaintiff now challenges the 2026
Comparability Findings as arbitrary and capricious, and contrary to law, under 5
U.S.C. § 706(2)(A), and Defendants’ failure to implement an import ban as agency Court No. 26-02462 Page 5
action unlawfully withheld or unreasonably delayed under 5 U.S.C. § 706(1).
Compl. at ¶¶ 155, 160–61.
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The U.S. Court of International Trade has jurisdiction pursuant to 28 U.S.C.
§ 1581(i)(1)(C), which grants the Court with jurisdiction over “any civil action
commenced against the United States, its agencies, or its officers, that arises out of
any law of the United States providing for” “embargoes or other quantitative
restrictions on the importation of merchandise for reasons other than the protection
of the public health or safety[.]” 28 U.S.C. § 1581(i)(1)(C). The Court reviews
actions brought under § 1581(i) by applying the standards provided in 5 U.S.C.
§ 706. Id. at § 2640(e). Section 706(1) applies when a plaintiff seeks to “compel
agency action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1).
“Agency action” is defined as “an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act.” Id. at § 551(13). Due to the
discrete nature of the first five agency actions enumerated in Section 551(13) and a
court’s power to compel action unlawfully withheld, a claim under § 706(1) “can
proceed only where a plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 64 (2004) (emphasis omitted).
Court No. 26-02462 Page 6
Under Section 706(2), the Court shall hold unlawful and set aside agency
action, findings, and conclusions that are found to be “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C.
§ 706(2)(A). Agency action is arbitrary and capricious when the agency “relied on
factors which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency,” or the action “is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463
U.S. 29, 43 (1983). An arbitrary and capricious review is a “narrow” inquiry that
looks to whether the agency considered the relevant data and articulated a
satisfactory explanation for its action. F.C.C. v. Fox Tele. Stations, Inc., 556 U.S.
502, 513 (2009). The agency must articulate a “rational connection between the
facts found and the choice made.” Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962).
DISCUSSION
I. Motion to Dismiss
Article III of the Constitution limits federal courts to hearing actual, ongoing
controversies. Davis v. Fed. Election Comm’n, 554 U.S. 724, 732 (2008). An
actual case or controversy must be extant at all stages of review, not merely at the Court No. 26-02462 Page 7
time the complaint is filed. Id. at 732–33; see DaimlerChrysler Corp. v. United
States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (noting that the Court is “presumed to
be ‘without jurisdiction’ unless ‘the contrary appears affirmatively from the
record.’”) (citation omitted). “Though justiciability has no precise definition or
scope, doctrines of standing, mootness, ripeness, and political question are within
its ambit.” Fisher v. United States, 402 F.3d 1167, 1176 (Fed. Cir. 2005). The
party invoking jurisdiction bears the burden of establishing it. Hutchinson Quality
Furniture Inc. v. United States, 827 F.3d 1355, 1359 (Fed. Cir. 2016). A plaintiff
must allege sufficient facts to state each claim alleged in the complaint.
DaimlerChrysler Corp., 442 F.3d at 1318 (citing, among other cases, McNutt v.
Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)); USCIT R.
12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Article III standing is a necessary component of the Court’s subject matter
jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The
“irreducible constitutional minimum of standing contains three elements.” Id. A
party must demonstrate: (1) that it has suffered “an injury in fact,” that is “an
invasion of a legally protected interest which is (a) concrete and particularized,”
and “(b) actual or imminent, not conjectural or hypothetical;” (2) a “causal
connection between the injury and the conduct complained of;” and (3) “it must be Court No. 26-02462 Page 8
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Id. at 560–61 (internal quotations and citations omitted).
“[A]t the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’
each element” to establish standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). If a plaintiff derives
an injury from “the government’s allegedly unlawful regulation (or lack of
regulation)” of a third party, the plaintiff bears the burden to show that the third
party’s reaction to the government’s choices will likely redress the injury. Lujan,
504 U.S. at 562. Plaintiffs in this circumstance cannot rely on mere speculation to
show causation and must show that the “‘third parties will likely react in
predictable ways’ that in turn will likely injure the plaintiffs.” )RRG 'UXJ
Admin. v. All. for Hippocratic Med. (“All. for Hippocratic Med.”), 602 U.S. 367,
383 (2024) (internal quotations and citations omitted).
Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) “denies or controverts” Plaintiff’s allegations of jurisdiction, meaning that
the Court shall only accept the uncontroverted allegations pled as true for purposes
of this motion. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed.
Cir. 1993). “All other facts underlying the controverted jurisdictional allegations
are in dispute and are subject to fact-finding by the [Court].” Id. at 1584. To
determine the jurisdictional facts, the Court may review beyond the face of the Court No. 26-02462 Page 9
pleadings and consider extrinsic evidence such as affidavits and deposition
testimony. Id. Defendants contest Plaintiff’s standing on causation and
redressability grounds. Defs.’ Br. at 14.
a. Causation
Defendants contend that because the United States does not regulate
commercial fishing in New Zealand, Plaintiff’s theory of causation is too
attenuated. Id. at 23. According to Defendants, Plaintiff’s failure to show
causation of marine mammal bycatch in excess of United States standards on a
fishery-by-fishery basis is also fatal to Plaintiff’s standing. Id. at 27. Plaintiff
argues that an import ban would eliminate the United States demand for fish from
New Zealand’s trawl and set net fisheries, and that basic economic principles
support the theory that this reduction in demand and export quantities typically
results in a reduction in supply that would cause third parties to change their
behavior in response. Pl.’s Opp’n Defs.’ Mot. Dismiss (“Pl.’s Resp. Br.”) at 19–
20, ECF No. 30. Plaintiff emphasizes that the impact of an import ban is more
than solely restricting market access because the ban would serve as a significant
public statement that New Zealand’s fisheries are unsustainable and operate in a
manner that cause excessive bycatch. Id. at 30. Regarding Defendants’ fisheryby-fishery argument, Plaintiff claims that Defendants attempt to incorrectly
transform the standing inquiry from a claim-based standard to an argument-based Court No. 26-02462 Page 10
standard and that Plaintiff has demonstrated standing for the two claims for relief
pled in the Complaint. Id. at 33.
The element of causation requires a party to show that “the injury must be
fairly traceable to the challenged action.” Animal Legal Def. Fund v. Quigg, 932
F.2d 920, 932 (Fed. Cir. 1991) (internal quotation and citation omitted). Plaintiff
presents a causation theory based on the economic impact and reputational
repercussions of an import ban on New Zealand fisheries and fishery policy. See
Compl. at ¶ 15; Pl.’s Resp. Br. at 24–27. Halting the United States’ importation of
seafood from New Zealand’s trawl and set net fisheries that harm marine mammals
above United States standards can impact the Government of New Zealand and
fishers’ decision-making because the United States is a significant market for these
fisheries according to Plaintiff. Compl. at ¶ 15. Although Defendants question the
accuracy of the statistical evidence used to support this theory, Plaintiff cites data
published by the Government of New Zealand. Defs.’ Br. at 24; see Pl.’s Mot.
Preliminary Injunction, Ex. 8 (“Rose Dec.”) at ¶ 77, ECF No. 13-8. In December
2024, the Economic Intelligence Unit of New Zealand’s Ministry for Primary
Industries reported on the decline of revenue for inshore fisheries amidst volume
reduction and market shifts and stated:
Export revenue for inshore fisheries declined 3 percent to $610 million
in the year to 30 June 2024 primarily due to a 13 percent reduction in
export volumes that more than offset the 12 percent increase in export
prices. Reduced demand from Australia and a temporary US ban on
Court No. 26-02462 Page 11
New Zealand fish imports contributed to export volume declines across
some species, with snapper down 8 percent, kahawai down 20 percent,
dogfish down 8 percent, and trevally down 45 percent. The US ban has
now been lifted and an increase to commercial catch limits for snapper
of around 1,000 tonnes from October 2024 has been implemented. 1
Rose Dec., Ex. H at 54, ECF No. 13-16. Defendants attached a declaration from
the Director of Fisheries Management for New Zealand’s Ministry for Primary
Industries as an exhibit to the motion to dismiss. Mot. Dismiss, Ex. C (“Taylor
Dec.”), ECF No. 16-3. 2 Director Emma Taylor valued New Zealand’s global
seafood exports at $2.2 billion from 2024 to 2025, attributing $1.1 billion to wild
capture finfish fisheries. Id. at ¶ 26. Taylor stated that China and Australia are
New Zealand’s largest markets for wild capture finfish species and were
responsible for 33% of the export market combined in 2025, while the United
States comprised “an important but smaller market share of around 8%.” Id.
“When third party behavior is predictable, commonsense inferences may be
drawn[,]” and commonsense economic realities can support an argument for
standing. Diamond Alternative Energy, LLC v. Env’t Prot. Agency (“Diamond”),
606 U.S. 100, 116 (2025). Plaintiff’s causation theory recites a predictable
economic model of supply and demand. An import ban would halt the demand
1
The Ministry for Primary Industries reported currency figures in New Zealand dollars. See Rose Dec., Ex. H.
2
Defendant-Intervenor filed the Taylor Declaration previously in opposition to Plaintiff’s preliminary injunction motion in Case No. 1:26-cv-00060. See Taylor Dec.
Court No. 26-02462 Page 12
from the United States for seafood from the contested fisheries in New Zealand,
directly impacting the economic demand from these fisheries and thus the fishing
practices alleged to harm 0ƗXLDQG+HFWRU¶VGROSKLQs. The Government of New
Zealand’s economic reporting demonstrates that the import ban ordered by the
Court in Sea Shepherd New Zealand v. United States (“Sea Shepherd I”), 46 CIT
__, 606 F. Supp. 3d 1286 (2022), contributed to a decrease in export demands from
inshore fisheries, indicating that the United States market is not an insignificant
driver of New Zealand’s seafood export economy. See Rose Dec., Ex. H at 54.
Plaintiff’s injury is “fairly . . . trace[able]” to this action and the economic
principles of supply and demand support the causal connection between Plaintiff’s
injury and the relief that it seeks. Lujan, 504 U.S. at 560 (citation omitted).
Nevertheless, the standing requirements of causation and redressability are often
intertwined and the factors that demonstrate the redressability of Plaintiff’s injury
also inform the Court’s conclusion on causation. See All. for Hippocratic Med.,
602 U.S. at 380–81.
b. Redressability
Defendants contend that Plaintiff has failed to identify any specific action
that could redress the injury alleged to Plaintiff’s aesthetic and other interests and
that a favorable judicial decision is not one of them. Defs.’ Br. at 15, 25. Plaintiff
identifies that the United States’ legislature itself has determined that import bans Court No. 26-02462 Page 13
under the Marine Mammal Protection Act (“MMPA”) are an effective remedy and
argues that both fishers and the Government of New Zealand will respond to an
import ban. Pl.’s Resp. Br. at 6, 19–32. Defendants state that an import embargo
under the MMPA has never led to the closure of a foreign commercial fishery and
refer to the results of the proceedings in Sea Shepherd I and Nat. Res. Def.
Council, Inc. v. Ross, 42 CIT __, 331 F. Supp. 3d 1338 (2018). Defs.’ Br. at 15–
21. Plaintiff presents the same expert used by the plaintiffs in Sea Shepherd I, Dr.
Glenn Simmons, and Defendants fault Plaintiff’s reliance on his opinion given that
Dr. Simmons’ previous prediction that a ban on imports would cause New Zealand
to close the challenged set net and trawl fisheries did not come to fruition and note
Plaintiff’s concession that New Zealand “has not amended its regulations relating
to the MƗui dolphin since 2020.” Defs.’ Br. at 16–17; Pl.’s Mot. Preliminary
Injunction, Ex. 28 (“Slooten Dec.”) at ¶ 44, ECF No. 13-28. Director Taylor also
commented on the repercussions of the preliminary injunction ordered previously
by the Court in Sea Shepherd I, stating that the Government of New Zealand did
not modify any aspect of the West Coast North Island fishing-related measures
within the 17-month period between the issuance of the preliminary injunction and
the Court’s dissolution of the preliminary injunction due to the issuance of new
superseding comparability findings in 2024. Taylor Dec. at ¶ 19; Sea Shepherd, 48
CIT __, __, 693 F. Supp. 3d 1364, 1367 (2024). Taylor estimated that any Court No. 26-02462 Page 14
reconsideration of New Zealand’s regulatory measures concerning the dolphins
would require a review, pursuant to statutory requirements, that has taken
approximately two and a half years in the past. Taylor Dec. at ¶ 8.
In response, Plaintiff contends that the Government of New Zealand has
taken some action previously in response to import bans, such as expediting the
7KUHDW0DQDJHPHQW3ODQUHYLHZSURFHVVIRU0ƗXLDQG+HFWRU¶V'ROSKLQV after Sea
Shepherd petitioned for an import ban. Pl.’s Resp. Br. at 27. Plaintiff suggests
that the Government of New Zealand has delayed taking further protective actions
for the dolphins due to a cycle of anticipating that new comparability findings will
moot challenged comparability findings and dissolve the import bans ordered by
the Court. See id. at 27–28. Plaintiff urges the Court to not feed this strategic
misuse of the MMPA and comparability finding process by allowing Defendants to
use their repeated failure to comply with the MMPA “to shield themselves from
judicial review of that very failure on redressability grounds.” Id. at 28. Plaintiff
also contends that the Government of New Zealand fears losing access to the
United States’ seafood market. Id. at 24. The Court notes that the Government of
New Zealand’s presence in this action 3 as Defendant-Intervenor, and its previous
3
Upon consideration of Plaintiff’s Motion For Leave to File a Sur-Reply to Defendant-Intervenor’s Reply (“Motion to File Sur-Reply”) (ECF No. 35) and Defendant-Intervenor’s Opposition of the Government of New Zealand to the Plaintiff’s Allegation That the GNZ “Has No Right to File a Reply Brief” (ECF Court No. 26-02462 Page 15
intervention in Sea Shepherd I, MƗui I, and MƗui II, is indicative of its level of
interest in the effect of an import ban and supports Plaintiff’s redressability
arguments.
Defendants’ argument that because neither the Court nor the United States
Government can direct foreign regulation of commercial fisheries means that there
is no redressability for Plaintiff’s injury neglects the declarations and objectives
made by the Legislative Branch on marine mammal protection. The United States
Congress has declared that:
[M]arine mammals have proven themselves to be resources of great
international significance, esthetic and recreational as well as
economic, and it is the sense of the Congress that they should be
protected and encouraged to develop to the greatest extent feasible
commensurate with sound policies of resource management and that
the primary objective of their management should be to maintain the
health and stability of the marine ecosystem.
16 U.S.C. § 1361(6). The MMPA requires the Secretary of the Treasury to “ban
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.”
Id. at § 1371(a)(2). It is relevant, if not elucidative, to the standing inquiry that
“Congress chose embargoes as the most effective remedy for foreign threats to
No. 36), the Court grants Plaintiff’s Motion to File Sur-Reply and Plaintiff’s surreply shall be deemed filed.
Court No. 26-02462 Page 16
marine mammals.” Nat. Res. Def. Council, Inc., 42 CIT at __, 331 F. Supp. 3d at
1360 (citing Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1010 (D.C. Cir. 1977)
(“Congress, in enacting the MMPA, established as a matter of law the requisite
causal relationship between American importing practices and [foreign harvesting]
practices.”) (alteration in original). Defendants raise the various foreign policy
tools that the MMPA grants the Executive Branch to argue that Plaintiff is seeking
a form of redress beyond what the statute provides. Defs.’ Br. at 1–5. However,
“[t]he MMPA addresses not only the killing of marine mammals by Americans but
also the importation of them.” Animal Welfare Inst., 561 F.2d at 1010. “This
reflects a congressional decision that denial of import privileges is an effective
method of protecting marine mammals in other parts of the world[,]” and “[t]his
conclusion is supported by the legislative history.” Id.
Defendants emphasize that the statement “we don’t know,” made by
Plaintiff’s counsel during a status conference in the MƗui , II proceedings,
defines summarily the issue with Plaintiff’s standing in this case. See Defs.’ Br. at
11, 23, 26, 29. The Court examines the context of the quoted statement in full. In
a status conference before the Court on March 12, 2026, upon a question from the
Court about what impact an import ban would have, Plaintiff’s counsel stated the
following:
Well, Your Honor, Ms. Koprowski keeps talking about the fisheries
would keep operating, whatnot. There are a lot of things that can Court No. 26-02462 Page 17
happen short of shutting down a fishery that protect MƗui dolphins. We
can close certain areas off, restrict, you know, times that fisheries are
in certain areas. You know, monitoring is a big issue. So there are a
lot of things that the New Zealand government could do, and we don’t
know what that would be.
But I would venture to guess that, you know, Mr. Connelly’s presence
in this case suggests that the New Zealand government is concerned
about an import ban and would be interested in, if one were imposed,
taking responsive action to get that ban lifted. And again, it may not be
a fishery closure, but it may be other sorts of protective measures. And
if there were a ban put in place, as soon as PI briefing is done, the
Government may immediately implement some emergency measures
to get that ban lifted. We don’t know necessarily what those are.
Case No. 1:24-cv-00218, Am. Tr. In-Person Status Conf. at 57:15–25, 58:1–7,
ECF. No. 85 (emphasis added). In full context, Plaintiff’s counsel opined on the
various actions that the Government of New Zealand could take in response to an
import ban, rather than expressing doubt as to whether the Government of New
Zealand would respond at all. “[A] plaintiff need not ‘negate every speculative
and hypothetical possibilit(y) . . . in order to demonstrate the likely effectiveness of
judicial relief.’” Earth Island Inst. v. Christopher, 19 CIT 1461, 1474, 913 F.
Supp. 559, 571 (1995) (quoting Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694, 705–
06 (D.C. Cir. 1988)). Although the Government of New Zealand could take an
array of actions in response to an import ban, Plaintiff has and continues to argue
that Defendants’ unlawful comparability findings further perpetuate imports from
New Zealand fisheries that harm and kill marine mammals in excess of United Court No. 26-02462 Page 18
States standards and that an import ban will redress the harm to the dolphins.
Compl. at ¶ 8.
For the foregoing reasons, the Court concludes that Plaintiff has established
standing to challenge both Defendants’ comparability findings as arbitrary and
capricious and contrary to law and Defendants’ failure to ban the import of fish
from the New Zealand fisheries as required allegedly by the MMPA. See Compl.
at ¶¶ 142–61. 4
II. Preliminary Injunction
USCIT Rule 65 permits the Court to grant injunctive relief when
appropriate. USCIT R. 65; 28 U.S.C. § 2643(c)(1). A preliminary injunction “is
an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90
(2008)). The Court considers the following four factors when evaluating whether
to grant a preliminary injunction: (1) whether the party is likely to succeed on the
merits of the action; (2) whether the party will incur irreparable harm in the
absence of such injunction; (3) whether the balance of hardships favors the
imposition of the injunction; and (4) whether the injunction is in the public interest.
4
“We need not decide whether every piece of record evidence described above is necessary to establish standing here. The totality of record evidence, along with commonsense inferences about market realities, readily suffices to demonstrate standing.” Diamond, 606 U.S. at 120 n.5.
Court No. 26-02462 Page 19
See id. at 20; see also Wind Tower Trade Coal. v. United States (“Wind Tower”),
741 F.3d 89, 95 (Fed. Cir. 2014). A preliminary injunction may only be awarded
upon a clear showing that the plaintiff is entitled to such relief. Winter, 555 U.S. at
22. The Court of Appeals for the Federal Circuit (“CAFC”) has held that “the
party seeking the injunction must be able to ‘demonstrate that it has at least a fair
chance of success on the merits for a preliminary injunction to be appropriate.’”
Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1345 (Fed. Cir. 2018) (quoting
Wind Tower, 741 F.3d at 96).
Plaintiff moves for a preliminary injunction enjoining imports from the New
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of United States standards. Pl.’s Br. at 2. This action concerns the Comparability
Findings for New Zealand’s North and South Island Multi-Species Commercial Set
Net and Trawl Fisheries. Pl.’s Mot. Preliminary Injunction, Ex. B (March 2, 2026)
(“Decision Memorandum”), ECF No. 13-2; see 2026 Comparability Findings.
Plaintiff challenges the comparability findings under the Administrative Procedure
Act (“APA”) as arbitrary and capricious and contrary to law, and seeks to compel
an import ban of seafood products caught by New Zealand fisheries that result in
WKHLQFLGHQWDONLOOLQJRUVHULRXVLQMXU\WR0ƗXLDQG+HFWRU¶VGROSKLQVLQH[FHVVRI
United States standards. 5 U.S.C. § 706(1)–(2)(a); Compl. at ¶¶ 145–47, 158–61.
An agency action must be reasonable and reasonably explained under the arbitrary Court No. 26-02462 Page 20
and capricious standard. Fed. Commc’ns Comm’n v. Prometheus Radio Project,
592 U.S. 414, 423 (2021). The Court considers whether the agency “has acted
within a zone of reasonableness and, in particular, has reasonably considered the
relevant issues and reasonably explained the decision.” Id. (citing FCC, 556 U.S.
at 513–514; State Farm, 463 U.S. at 43).
a. Likelihood of Success on the Merits
The MMPA instructs that the incidental killing or serious injury of marine
animals allowed in the course of commercial fishing should be reduced to
insignificant levels approaching a zero mortality and serious injury rate. 16 U.S.C.
§ 1371(a)(2). The statute requires banning the importation of commercial fish or
products from fish that have been caught in commercial fishing technology that
results in the incidental killing or serious injury of ocean mammals in excess of
United States standards to achieve this goal. Id. A harvesting nation must show
adoption and implementation of “a regulatory program governing the incidental
mortality and serious injury of marine mammals in the course of commercial
fishing operations in its export fishery that is comparable in effectiveness to the
U.S. regulatory program.” Fish and Fish Product Import Provisions of the Marine
Mammal Protection Act, 81 Fed. Reg. 54,390, 54,391 (Dep’t of Commerce Aug.
15, 2016) (“Final Rule”). The conditions and criteria for comparability findings
are enumerated in 50 C.F.R. § 216.24(h)(6) and (h)(7).
Court No. 26-02462 Page 21
Plaintiff argues that it is likely to succeed on the merits of all its claims
regarding Defendants’ 2026 Comparability Findings and the Court will consider
each argument in turn.
i. Arbitrary Determination of a =ero Mortality Rate Goal
Plaintiff claims that the 2026 Comparability Findings and its accompanying
Decision Memorandum failed to establish that the Government of New Zealand’s
regulatory program met the Zero Mortality Rate Goal’s required elements of a
target bycatch rate below 10% of the Potential Biological Removal (“PBR”) level
and the implementation of regulatory measures that ensure the target is being met
or will be met within five years. Pl.’s Br. at 14–15 (citing 16 U.S.C. §§ 1387(b),
(f)(2)). Plaintiff notes that the Decision Memorandum relied on non-binding
environmental principles, nonexistent language in New Zealand’s 2020
Biodiversity Strategy and Conservation General Policy, and population objectives
in New Zealand’s Threat Management Plan only for MƗui and Hector’s dolphins.
Id. at 15–17. Defendant-Intervenor argues that a comparable Zero Mortality Rate
Goal does not require the numerical metrics Plaintiff demands and rather the
implementing regulations of the MMPA only require that a harvesting nation have
goals intended to reduce bycatch to “sustainable levels.” Opp’n Gov’t New
Zealand Pl.’s Mot. Preliminary Injunction (“Def-Interv.’s Resp. Br.”) at 8–9, ECF
No. 25. Defendants identify fishing area closures as the primary mitigation Court No. 26-02462 Page 22
measure employed by New Zealand to ensure that the total incidental mortality and
serious injury rate of the dolphins remains below its Population Sustainability
Threshold (“PST”) metric. Defs.’ Resp. Opp’n Pl.’s Mot. Preliminary Injunction
(“Defs.’ Resp. Br.”) at 28–29, ECF No. 26.
Regulatory programs must include a comparable requirement to implement
measures in export fisheries designed to reduce the total incidental morality and
serious injury of a marine mammal stock below the bycatch limit. 50 C.F.R.
§ 216.24(h)(6)(iii)(C)(3)(ii). The “Zero Mortality Rate Goal” is a United States
standard enshrined in the MMPA. See MƗui I, 49 CIT at __, 799 F. Supp. 3d at
1337 (citing Sea Shepherd I, 46 CIT at __, 66 F. Supp. 3d at 1295; Nat. Res. Def.
Council, Inc., 42 CIT at __, 331 F. Supp. 3d at 1355). To meet the goal of
reducing incidental killing or serious injury to marine mammals during commercial
fishing to insignificant levels, federal regulations define an “insignificance
threshold” as “the upper limit of annual incidental mortality and serious injury of
marine mammal stocks by commercial fisheries that can be considered
insignificant levels approaching a zero mortality and serious injury rate[,]” and
estimate such a threshold “as 10 percent of the Potential Biological Removal level
for a stock of marine mammals.” 50 C.F.R. § 229.2. The Potential Biological
Removal level is “the maximum number of animals, not including natural Court No. 26-02462 Page 23
mortalities, that may be removed from a marine mammal stock while allowing that
stock to reach or maintain its optimum sustainable population.” Id.
NMFS determined that the Government of New Zealand calculates a
Population Sustainability Threshold instead of a Potential Biological Removal
level; this is a working calculation that is being refined. Decision Memorandum at
50–51. This threshold is the maximum number of annual marine mammal deaths
that can occur while still achieving population outcome. Id. at 50. The Decision
Memorandum reported that New Zealand’s bycatch limit, the maximum number of
dolphins that can be removed from the stock annually while maintaining a
sustainable population, is equivalent to a Potential Biological Removal level of
0ƗXLGROSKLQVSHU\HDUDQG6RXWK,VODQG+HFWRU¶VGROSKLQVSHU\HDUId.
at 55–56. The actual bycatch rates were estimated as 0.056 MƗui dolphins and 8.8
Hector’s dolphins. Id. at 52–54. The Decision Memorandum framed New
Zealand’s Threat Management Plan objectives as equivalent to the Zero Mortality
Rate Goal and explained WKDWIRU0ƗXLGROSKLQV, “the objectives require fisheries
impacts to be managed to a level at or above 95% unimpacted status, not 80%[,]”
and for Hector’s dolphins the population outcome allows the population to increase
to a level at or above 90% of the maximum number of dolphins sustainable in the
environment. Id. at 62 n.321. The Decision Memorandum reported that a
population outcome of 95% means that human-induced deaths need to be as near Court No. 26-02462 Page 24
as practicable to zero. Id. NMFS determined that because New Zealand law
requires commercial fishing regulators to reduce bycatch below the bycatch limit
and keep it as low as possible as soon as practicable or within 20 years, this is
comparable in effectiveness to the MMPA’s Zero Mortality Rate Goal. Id. at 63.
The Threat Management Plans are non-statutory policies used to guide the
government’s decision-making. Id. at 17. Plaintiff argues that neither the Threat
Management Plan’s objectives nor the Population Sustainability Threshold are
comparable to the Zero Mortality Rate, and that New Zealand is failing to achieve
any results comparable to the Zero Mortality Rate Goal standards. Pl.’s Br. at 16–
17. Defendant-Intervenor argues that the current bycatch estimates for MƗui and
Hector’s dolphins are significantly reduced from historical estimates and are
moving towards zero. Def.-Interv.’s Resp. Br. at 13. NMFS determined that
population outcome targets of 95% and 90% are comparable to Zero Mortality
Rate Goals but also provided data showing that in practice these goals are resulting
in bycatch rates of 0.056 0ƗXLGROSKLQVDQG+HFWRU¶VGROSKLns. Decision
Memorandum at 52–54. NMFS explained this difference by stating that the Final
Rule does not mandate a “like for like” standard and New Zealand provided
sufficient documentary evidence that it is capable of achieving comparable results
as the United States’ regulatory program. Decision Memorandum at 63. Court No. 26-02462 Page 25
Plaintiff faults the Decision Memorandum for relying on non-binding
principles and objectives that are incorporated into New Zealand’s Marine
Mammal Protection Act but not mandatory requirements. Pl.’s Br. at 15. New
Zealand’s MMPA and the Fisheries Act of 1996 are the operative laws to address
fishing-related mortality on marine mammals and the Decision Memorandum
stated that through both laws “the [Government of New Zealand] possesses
authority to impose measures to prevent or minimize marine mammal bycatch.”
Decision Memorandum at 16. The Decision Memorandum’s description of New
Zealand’s goals, policies, and permissive authorities on marine mammal protection
differs facially from the imperative “[r]egulatory requirements” that require
harvesting nations to maintain and demonstrate a comparable regulatory program.
See 50 C.F.R. § 216.24(h)(6)(iii)(C)(3); Sea Shepherd I, 46 CIT at __, 606 F.
Supp. 3d at 1318–19 (explaining how a discretionary approach contrasts with the
MMPA’s mandatory directive that where commercial fishing causes marine
mammal mortality and/or serious injury in excess of United States standards, the
government must develop and implement Take Reduction Plans with measures to
reduce such mortality and/or serious injury to levels below the Potential Biological
Removal levels within six months of implementing the plan); see also 16 U.S.C.
§§ 1387(f)(1), (5). The Decision Memorandum cites the Aotearoa New Zealand
Biodiversity Strategy 2020, which states that a goal for 2025 was “[t]he number of Court No. 26-02462 Page 26
fishing-related deaths of protected marine species [] decreasing towards zero for all
species.” Decision Memorandum at 17 n.91, 62; see Te Mana O Te Taiao
Aotearoa New Zealand Biodiversity Strategy 2020 (August 2020)
https://www.doc.govt.nz/nature/biodiversity/te-mana-o-te-taiao-aotearoa-newzealand-biodiversity-strategy-2020/aotearoa-newzealandbiodiversity-strategy/ (last visited July 13, 2026). 5 These are policy goals and
instructions that provide frameworks for protecting marine species. The Decision
Memorandum stated that the Threat Management Plan and Take Reduction Plan
processes are comparable; New Zealand primarily uses fishery closures to mitigate
bycatch risk whereas the United States emphasizes technological modifications.
Decision Memorandum at 37. Considering New Zealand’s marine mammal
protection legal authorities, and NMFS’ explanation of the systems put in place in
New Zealand and the bycatch rates produced, the Court concludes that NMFS’
determination on the Zero Mortality Rate Goal is rationally connected to the facts
presented. See State Farm, 463 U.S. at 43. The Court concludes that, at this
preliminary stage, Plaintiff has not shown a clear likelihood that NMFS’
5
The strategy includes “[t]he direct effects of fishing do not threaten protected marine species populations or their recovery” as a 2030 goal, and “the mortality of non-target species from marine fisheries has been reduced to zero” as a 2050 goal. Te Mana O Te Taiao Aotearoa New Zealand Biodiversity Strategy 2020 (August 2020) at 54.
Court No. 26-02462 Page 27
determination on the Zero Mortality Rate Goal was arbitrary and capricious or
contrary to law.
ii. Negligible Impact Standard
The Decision Memorandum determined that the negligible impact standard
is not applicable to comparability findings for New Zealand’s commercial fisheries
because New Zealand’s statutory framework does not authorize or permit
commercial fisheries to take any marine mammals incidental to commercial fishing
operations. Decision Memorandum at 63–64. A similar argument was raised in
MƗui I and this Court found that the Decision Memorandum failed to address the
negligible impact standard or identify record evidence that supported NMFS’
determination. 49 CIT at __, 799 F. Supp. 3d at 1340. The Court concluded that
“[a]bsent a prohibition on incidental takings by the Government of New Zealand,
NMFS was required to evaluate whether New Zealand applied the negligible
impact standard or an effective equivalent.” Id., 49 CIT at __, 799 F. Supp. 3d at
1339. Plaintiff identifies that New Zealand’s MMPA prohibits taking of marine
mammals unless that take is incidental. Pl.’s Br. at 18; see Decision Memorandum
at 18. The Decision Memorandum stated that “all marine mammal species are
designated as protected species under Section 2 of the Fisheries Act and Section
26(4) of the [New Zealand] MMPA provides a defense for commercial fishing
operations if the death of, or injury to, the marine mammal was accidental, or Court No. 26-02462 Page 28
incidental (not intentional), provided that the reporting requirements set out in
section 16 of the [New Zealand] MMPA were complied with.” Decision
Memorandum at 18. The Decision Memorandum indicated that this provision of
the New Zealand MMPA is comparable to Section 1371 of the MMPA, which
provides only limited exceptions to “a general moratorium on taking marine
mammals[.]” Id. at 18 n.97.
Plaintiff argues that New Zealand law allows the incidental catch and kill of
marine mammals if it is reported, while Defendant-Intervenor claims this
mischaracterizes the permitting process described in Section 4(1)(b) of New
Zealand’s MMPA and that the penalty provisions for unreported incidental take are
comparable to the penalty provision in the MMPA. Pl.’s Br. at 18; Def.-Interv.’s
Resp. Br. at 14–15. The Decision Memorandum mentions that Section 26(4)
provides a defense for incidental death or injury to marine mammals. Decision
Memorandum at 18. NMFS stated that New Zealand’s statutory framework does
not authorize or permit commercial fisheries to incidentally take any marine
mammals, making any comparable negligible impact standard irrelevant. Id. at
64. 6 NMFS explained that a permitting scheme is established and the Government
of New Zealand “has no intention of issuing any permit that would allow the
6
“Under the NZ MMPA, government authorities have never issued a permit that authorized the incidental take of a marine mammal during commercial fishing operations since the law prohibits it.” Decision Memorandum at 64 n.332. Court No. 26-02462 Page 29
incidental take of a Maui dolphin.” Id. For endangered or threatened species,
federal regulations permit the incidental taking of such species if the negligible
impact is established, a recovery plan is developed, and a monitoring program is
established. See 16 U.S.C. §§ 1371(a)(5)(E)(i)(I)–(III). The Court finds that the
Decision Memorandum articulates a plausible connection between the record
evidence and the determination regarding the applicability of the negligible impact
standard, or lack thereof. See State Farm 463 U.S. at 43. The Court concludes
that, at this preliminary stage, Plaintiff has failed to demonstrate a likelihood to
succeed on the claim that NMFS’ finding on the negligible impact standard was
arbitrary and capricious or contrary to law.
iii. No Insistence on Reasonable Proof or Use of Best Evidence
In weighing whether commercial fishing in a harvesting nation results in
incidental death or serious injury to ocean mammals in excess of United States
standards, warranting an import ban, NMFS must “insist on reasonable proof”
from the nation’s government “of the effects on ocean mammals of the commercial
fishing technology in use for such fish or fish products exported from such nation
to the United States[.]” 16 U.S.C. § 1371(a)(2)(A). For comparability findings,
the regulations instruct that NMFS “shall consider documentary evidence provided
by the harvesting nation and relevant information readily available from other
sources.” 50 C.F.R. § 216.24(h)(6)(ii). An agency action is arbitrary and Court No. 26-02462 Page 30
capricious “if the agency has relied on factors which Congress has not intended it
to consider, entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” State Farm, 463 U.S. at 43.
Plaintiff asserts that NMFS failed to insist on reasonable proof to support
New Zealand’s bycatch estimates and to address evidence from its own 5-Year
Review that indicated that these estimates were low. Pl.’s Br. at 20–21.
Defendants argue that Plaintiff simply disagrees with the agency’s judgment
regarding the evidence used for the population estimates and Defendant-Intervenor
contends that the NMFS 5-Year Review does not make determinations on
comparability to United States standards and instead is a general collection of
information that does not constitute an agency finding. Defs.’ Resp. Br. at 23;
Def.-Interv.’s Resp. Br. at 4–7. The Government of New Zealand chose to rely on
information in the International Affairs Information Capture and Reporting System
to calculate bycatch limits for marine mammals in its 2021 Comparability Finding
application. Decision Memorandum at 52. NMFS compared the bycatch estimates
reported by the Government of New Zealand in 2021 to determine if the limit had
been exceeded for marine mammals caught in a fishery. Id. Information from the
2021 Comparability Finding application was used to estimate annual injury and Court No. 26-02462 Page 31
deaths for dolphins in New Zealand’s Spatially Explicit Fisheries Risk Assessment
(“SEFRA”) model. Id. at 52–54. Plaintiff contends that the 2026 Comparability
Findings lack evidentiary support for relying on the validity of New Zealand’s
asserted estimates and that the Hector’s dolphin estimate is likely underestimated
because the estimate was based on outdated data from the 2020–21 fishing season.
Pl.’s Br. at 21. Defendant-Intervenors argue that the SEFRA model uses many
data points to derive the estimated bycatch figures. Def.-Interv.’s Resp. Br. at 28.
The Decision Memorandum details the SEFRA model and the critiques the
model received upon review by the International Whaling Commission. Decision
Memorandum at 53. Supplemental information filed by the Government of New
Zealand is mentioned in the Decision Memorandum, but the bycatch estimates are
based on reporting from 2021. Id. at 36, 47 n.240, 51. Defendants note that
meeting the statutory standard of “reasonable proof” means that harvesting nations
must provide the “best scientific information available,” meaning evidence of
“sufficient detail, quality, and reliability for NMFS to fully evaluate the regulatory
program for a given export fishery.” Defs.’ Resp. Br. at 20; see Final Rule, 81
Fed. Reg. at 54,406.
The SEFRA model was partially updated in 2023 according to NMFS, and
the Government of New Zealand continues to fully update the model based upon
recommendations, previous modeling efforts, and fishery and non-fishery threats. Court No. 26-02462 Page 32
Decision Memorandum at 53. Plaintiff poses the question of why NMFS did not
insist on more up-to-date information for calculating the bycatch estimates than the
information reported in the 2021 comparability finding application. The Decision
Memorandum identified the data sourced for calculating the bycatch estimates and
elaborated on the sufficiency of that data. The Decision Memorandum reasonably
explained why NMFS relied on the data used to calculate the bycatch estimates.
See Fed. Commc’ns Comm’n, 592 U.S. at 423. The Court concludes, at this
preliminary stage, that Plaintiff has not demonstrated a likelihood to succeed on the
claim that NMFS’ determination regarding the evidence used to calculate bycatch
limits was arbitrary and capricious or contrary to law.
iv. Arbitrary Determination on Bycatch Limits
Plaintiff argues that NMFS relied inconsistently on three conflicting metrics
as bycatch limits–Potential Biological Removal limits, Fishing Related Mortality
Limits, and the Population Sustainability Threshold. Pl.’s Br. at 26. Plaintiff
contends that New Zealand does not actually implement Potential Biological
Removal limits for marine mammals and that the regulations require that
harvesting nations not only calculate comparable bycatch limits but implement
them. Id. A “bycatch limit” is “the calculation of a potential biological removal
level for a particular marine mammal stock . . . or comparable scientific metric
established by the harvesting nation or applicable regional fishery management Court No. 26-02462 Page 33
organization or intergovernmental agreement.” 50 C.F.R. § 216.3. Fisheries need
bycatch limits and to implement measures that “reduce the total incidental
mortality and seriously injury” of a marine mammal stock below the bycatch limit.
50 C.F.R. §§ 216.24(h)(6)(iii)(C)(3)(ii). The Decision Memorandum calculated a
3RWHQWLDO%LRORJLFDO5HPRYDOOLPLWRI0ƗXLGROSKLQVDQG+HFWRU¶V
dolphins per year. Decision Memorandum at 55–56. Defendant-Intervenor
contends that the estimation of bycatch is entirely separate from the calculation of
the bycatch limit. Def.-Interv.’s Resp. Br. at 18. The Decision Memorandum
acknowledged that New Zealand calculates Population Sustainability Threshold
rather than Potential Biological Removal. Decision Memorandum at 50. NMFS
detailed New Zealand’s approach to estimating bycatch, and attached explanatory
appendices and mentioned supplemental information submitted in New Zealand’s
February 2026 Comparability Findings Application. Id. at 50 n.249. Because the
Population Sustainability Threshold calculations are being refined, New Zealand
adopted the Potential Biological Removal calculation for estimating marine
mammal bycatch limits for its 2021 comparability finding application. Id. at 51.
“Since the [Government of New Zealand] ultimately adopted NMFS’ PBR
FDOFXODWLRQVIRU0ƗXLGROSKLQV LH 10)6[found] that the [Government of
New Zealand’s] bycatch estimates [were] comparable to the U.S. PBR estimates.”
Id. at 52. In MƗui I, the Court found that the Decision Memorandum did not Court No. 26-02462 Page 34
address how New Zealand calculated the bycatch limit nor explain whether the
bycatch calculation involved a comparable scientific metric to the Potential
Biological Removal level. 49 CIT at __, 799 F. Supp. 3d at 1341. The Decision
Memorandum in this case detailed New Zealand’s calculation formula and
explained NMFS’ reasoning for how the estimates compare to the Potential
Biological Removal calculations. Decision Memorandum at 50–54. The Court
concludes that Plaintiff has not shown a likelihood of success on a claim that
NMFS’ determination of bycatch limits was arbitrary and capricious or contrary to
law at this early stage in the proceedings.
v. Arbitrary Determination on Monitoring Program
The MMPA requires the establishment of “a program to monitor incidental
mortality and serious injury of marine mammals during the course of commercial
fishing operations.” 16 U.S.C. § 1387(d)(1). The program shall obtain reliable
statistics on incidental mortality and serious injury, determine the reliability of
such reported statistics, and identify changes in fishing methods or technology that
may increase or decrease incidental mortality and serious injury. Id. at
§ 1387(d)(1)(A)–(C). New Zealand has mandatory reporting requirements for
marine mammal bycatch that occurs within New Zealand’s exclusive economic
zone. Decision Memorandum at 41. “These regulations provide a standardized
means for commercial fishers to meet the reporting obligations discussed above Court No. 26-02462 Page 35
and as required under the [New Zealand] MMPA.” Id. The Decision
Memorandum detailed New Zealand’s monitoring program, established under
statute and regulation, that involves both human and electronic monitoring. Id. at
41–48. NMFS determined that New Zealand’s requirements for reporting marine
mammal bycatch are comparable if not exceed the regulatory requirements in the
United States. Id. at 47.
Plaintiff asserts that the Decision Memorandum’s determinations contradict
NMFS’ findings in the 5-Year Review that New Zealand’s monitoring was
inadequate and underestimates bycatch. Pl.’s Br. at 34. Defendant-Intervenor
notes that NMFS provided an extensive description of the nature and extent of the
Government of New Zealand’s monitoring program and that Plaintiff seeks a type
of monitoring program that does not exist in any United States fishery. Def.-Interv.’s Resp. Br. at 35. Defendants also argue that NMFS reasonably concluded
that New Zealand has monitoring procedures designed to estimate incidental
mortality and serious injury to marine mammals as required by 50 C.F.R.
§ 216.24(h)(6)(iii)(C)(4). Defs.’ Resp. Br. at 34–35. The Court agrees with
Defendants that the Decision Memorandum provides a plausible explanation of the
monitoring procedures implemented in New Zealand that likely satisfy the
MMPA’s regulatory requirements, especially at this early stage of the proceedings.
The Court concludes that Plaintiff has not shown a likelihood of succeeding on the Court No. 26-02462 Page 36
merits of the claim that NMFS’ monitoring program determination was arbitrary
and capricious or contrary to law.
vi. Inexplicable Reliance on Outdated and Overly Optimistic
Estimates
Plaintiff argues that the Decision Memorandum relies on outdated and
overly optimistic population estimates for dolphins without explanation. Pl.’s Br.
at 34. Plaintiff contends that contrary evidence from the International Whaling
Commission shows that NMFS used an arbitrarily high minimum population
estimate of 54 dolphins and that the Decision Memorandum gave an illogical
rationale for rejecting the lower estimate. Id. at 34–35. The Decision
Memorandum explains the type of documentary evidence that the Government of
New Zealand provided and used in the process of conducting its marine mammal
population abundance estimates. Decision Memorandum at 19–26. NMFS
engaged with the disagreement from Plaintiff regarding the actual number of 0ƗXL
dolphins in New Zealand’s waters. Id. at 24 n.126. The Decision Memorandum
explained that NMFS declined to use the International Whaling Commission’s
estimate of 48 0ƗXL dolphins because it was deemed to not be the best data
available given that it was derived from the International Whaling Commission’s
Scientific Committee’s data that NMFS categorized as “adequate enough to
provide a general indication of abundance but subject to various possible concerns
that preclude a higher categorization.” Id. at 25 (emphasis in original). NMFS Court No. 26-02462 Page 37
addressed contrary record evidence and further explained its position as the Court
requested previously. MƗui I, 49 CIT at __, 799 F. Supp. 3d at 1343. The Court
concludes that Plaintiff has not demonstrated a likelihood to succeed on the merits
of the claim that NMFS arbitrarily and capriciously relied on outdated and overlyoptimistic population estimates without explanation, especially without the benefit
of a more developed record at this early stage of the litigation.
For the foregoing reasons, the Court concludes that, at this preliminary
stage, Plaintiff has not demonstrated sufficiently a clear likelihood to succeed on
the merits of the claim that the 2026 Comparability Findings are arbitrary and
capricious or contrary to law, in violation of the MMPA and APA because, at a
minimum, NMFS provided a rational connection between certain record evidence
and certain determinations made. 7 At the preliminary injunction stage, the Court
makes these non-exhaustive conclusions that Plaintiff has not established a basis
upon which the Court can find a likelihood to prevail on its claims.
7
The Court observed in MƗui I “that the 2024 Decision Memorandum [was] a cursory seven-page document that [was] replete with conclusory statements and [cited] minimal record evidence.” 49 CIT at __, 799 F. Supp. 3d at 1336. The Court observes that the 2026 Decision Memorandum consists of a 67-page report with extensive citations to record evidence and explains, in much greater detail, NMFS’ determinations. See Decision Memorandum.
Court No. 26-02462 Page 38
b. ,UUHSDUDEOH+DUP
A plaintiff seeking preliminary injunctive relief must demonstrate that
irreparable injury is likely to occur in the absence of an injunction. Winter, 555
U.S. at 22. Harm is irreparable when it cannot be addressed by damages. See
Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012).
“‘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.’” Nat. Res. Def. Council, Inc., 42 CIT at __, 331 F. Supp. at 1368
(emphasis omitted) (citing Fed’n of Japan Salmon Fisheries Co-op. Ass’n v.
Baldridge, 679 F.Supp. 37, 48 (D.D.C. 1987)). Additionally, a “determination of
irreparable harm should be guided by reference to the purposes of the statute being
enforced.” Id., 42 CIT at __, 331 F. Supp. at 1369.
Plaintiff argues that irreparable harm is likely because this action involves
fishing-induced deaths of 0ƗXL and Hector’s dolphins and set net and trawl
fisheries pose a daily threat of bycatch to both types of dolphins. Pl.’s Br. at 36–
38. Plaintiff argues that any reduction in bycatch risk that reduces the harm is
sufficient for an injunction. Id. at 39. Defendant-Intervenor disagrees with the
DUJXPHQWWKDWWKHH[LVWHQWLDOWKUHDWWR0ƗXLGROSKLQVKDVZRUVHQHGDQGWKDWWKHUHLV
“ongoing mortality” of Hector’s dolphins in the South Island fisheries. Def.-Interv.’s Resp. Br. at 41–42. Defendant-Intervenor asserts that it is speculative that Court No. 26-02462 Page 39
deaths in excess of Potential Biological Removal limits are bound to occur and
notes that the last confirmed death of a MƗui or Hector’s dolphin attributable to
commercial fishing happened in 2012. Id. at 43. Defendants also emphasize that
the relief Plaintiff seeks, governmental intervention in New Zealand, is subject to
certain procedural and bureaucratic steps that take time. Defs.’ Resp. Br. at 39–40.
3ODLQWLIIVWDWHVWKDWRQ)HEUXDU\D0ƗXLGROSKLQZDVIRXQGGHDG
potentially due to bycatch because the necropsy report “was unable to exclude the
possibility of entanglement as a contributory factor.” Pl.’s Br. at 1, 40. The
necropsy report found that given the extent of decomposition, neither disease nor
any other cause of death could be ruled out, and “the best diagnosis in this case is
‘open’, i.e. the cause of death could not be determined.” Slooten Dec., Ex. E at 2,
ECF No. 13-33. The report also stated that:
Assessing for death due to entanglement is an important component of
any beachcast dolphin necropsy investigation. This includes looking
for evidence of net marks on the skin as well as ruling out other causes
of death. A range of tissues from this dolphin were examined
histologically (under the microscope), but all were badly affected by
decomposition. This meant that it was difficult even to identify the
organs, and impossible to interpret any lesions that may have been
present. Because of this, it is not possible to rule out other (nonbycatch) causes of death in this dolphin.
[…]
Overall, the skin lesions were assessed as not typical of bycatch,
particularly the irregular distances between the lacerations and an
absence of knot marks (which are usually obvious) at the angles where
the lacerations intersect. An alternative explanation considered was
that the lacerations occurred as the carcass washed back and forth over
shellfish beds (oyster or mussel shells).
Court No. 26-02462 Page 40
Id. at 1. A preliminary injunction is an extraordinary and drastic remedy. Munaf,
553 U.S. at 689–90. Preliminary injunctions cannot be granted on simply a
possibility of irreparable harm as that is inconsistent with the “characterization of
injunctive relief as an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22 (citing
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). The Court
concludes that Plaintiff has established a form of harm that is irreparable in nature.
However, the question remains whether this harm is likely to occur without a
preliminary injunction. The Court refers to the principle and purpose of the
MMPA. See 16 U.S.C. § 1361(6). The importation of commercial fish or fish
products that have been caught in a way that results in the incidental death or
serious injury of ocean mammals in excess of United States standards shall be
banned under the MMPA. 16 U.S.C.A. § 1371(a)(2). The contested comparability
findings in this action are what permit the continued importation of seafood from
New Zealand fisheries that are alleged to cause incidental death or serious injury to
endangered dolphins beyond what is allowed in the United States, but the Court
has determined that Plaintiff has failed to demonstrate clearly at this stage a
sufficient likelihood to succeed on the merits for its claims related to challenging
the comparability findings.
Court No. 26-02462 Page 41
Given that preliminary injunctions cannot be granted on simply a possibility
of irreparable harm, the Court concludes that, at this preliminary stage, Plaintiff
has not sufficiently demonstrated a likelihood that rises to the level necessary to
grant the extraordinary and drastic remedy of a preliminary injunction. See
Winter, 555 U.S. at 22.
c. %DODQFHRI+DUGVKLSV
The Court considers the last preliminary injunction factors taking into
consideration the legal conclusions made above regarding Plaintiff’s inability to
satisfy the first two factors. 8
Courts must balance each party’s competing claims of injury and consider
the effect on each party of either granting or denying the requested injunctive
relief. Winter, 555. U.S. at 24. Plaintiff argues that the impact on itself and the
broader public from the death and potential extinction of dolphins is immense.
Pl.’s Br. at 43. Plaintiff asserts that Defendants face little harm or burden as the
8
“While a district court must consider all four factors before granting a preliminary injunction to determine whether the moving party has carried its burden of establishing each of the four, we specifically decline today to require a district court to articulate findings on the third and fourth factors when the court denies a preliminary injunction because a party fails to establish either of the two critical factors.” Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994) (emphasis omitted) (citing T.J. Smith and Nephew Ltd. v. Consolidated Med. Equip., Inc., 821 F.2d 646 (Fed. Cir. 1987) (affirming denial of preliminary injunction based on movant’s failure to establish a reasonable likelihood of success and irreparable harm, even though district court did not address the other two factors)).
Court No. 26-02462 Page 42
result of a preliminary injunction. Id. at 45. Defendants contend that an injunction
would damage the Executive Branch’s ability to engage in foreign affairs, which
will likely have negative ramifications for vulnerable marine mammal species.
Defs.’ Resp. Br. at 41. Defendants also raise the damage that the requested relief
would inflict on numerous third parties not party to this litigation, such as
commercial fishers, United States importers, and others. Id. The Court has
repeatedly recognized that the MMPA and enacted regulations permit import bans
as an effective remedy to marine mammal survival and preservation. Nat. Res.
Def. Council, Inc., 42 CIT at __, 331 F. Supp. 3d at 1370 (“No evidence submitted
by the Government affirmatively shows that the institution of an embargo under
the Imports Provision, as required by United States law, would undermine
international negotiations, and any outcome to that effect is speculative.”). The
Court must balance the competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested relief. Winter, 555 U.S.
at 24. The Court considers the reasonableness of granting or denying Plaintiff’s
preliminary injunction request in light of the Court’s conclusions made regarding
Plaintiff’s likelihood of succeeding on the merits of the claims and the possibility
of irreparable harm. Given the legal conclusions made based on the arguments and
evidence presented, the Court concludes that the balance of equities favors denying
the requested injunctive relief.
Court No. 26-02462 Page 43
d. Public Interest
As Plaintiff has not prevailed on the other required factors for a preliminary
injunction, the public interest favors denying a grant of an extraordinary remedy of
a preliminary injunction. See Winter, 555 U.S. at 20.
The Court concludes that, at this preliminary stage of the litigation, Plaintiff
has not demonstrated sufficiently the criteria required for the extraordinary remedy
of a preliminary injunction.
CONCLUSION
Accordingly, it is hereby
ORDERED that Defendants’ Motion to Dismiss (ECF No. 16), is denied;
and it is further
ORDERED that Plaintiff’s Motion for Preliminary Injunction (ECF No. 13)
is denied; and it is further
ORDERED that Plaintiff’s Motion for Oral Argument (ECF No. 32) is
denied as moot; and it is further
ORDERED that the Parties shall meet and confer and file a Joint Proposed
Scheduling Order on or before July 27, 2026.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: July 13, 2026
New York, New York