Trade Updates for Week of August 1, 2018

United States Court of International Trade


Injunction Granted in Vaquita Case

In Natural Resources Defense Council Inc., et. al. v. Wilbur Ross et. al., Slip Op. 18-92, Court No. 18-00055 (July 26, 2018) the plaintiffs moved for an injunction against defendants, several United States government agencies and their officials, “to ban the importation of fish or fish products from any Mexican commercial fishery that uses gillnets within the vaquita’s range.” Id. at 3. The vaquita is an extremely engendered porpoise, with an estimated population of only 15 in the world’s oceans. Unfortunately, their numbers have declined because the porpoise gets unintentionally entangled in gillnets used for fishing. Despite laws against their use, many Mexican fishers still use gillnets. If gillnet use continues at its current rate, it is estimated the vaquita will be extinct by 2021. For the following reasons, the Court agreed with the plaintiffs and granted their motion for a preliminary injunction.

In 1972 Congress passed Marine Mammal Protection Act (“MMPA”). The MMPA “imposes on the Government an immediate and continuous duty to ban fish caught with fishing gear that kills marine mammals, such as the vaquita, in excess of United States standards.” Id. at 35.  By the terms the statute the United States Standard, “is the immediate goal that bycatch be reduced to insignificant levels approaching a zero mortality and serious injury rate.” 35. To succeed on a motion for a preliminary injunction the Court will equally weigh four factors, eventual success on the merits, the likelihood that plaintiffs suffer irreparable harm without an injunction, the balance of hardships between the parties, and the public interest in the matter.

Multiple provisions of the MMPA stress that “the statute is undergirded and propelled by a sense of urgency that mammals like the vaquita not be killed and brought to extinction, even if unintentionally.” Id. at 37. The current evidence suggests at least three vaquita are caught and killed in gillnets each year, far more than the standard set for the government to protect. Plaintiffs have established “a fair likelihood that the United States standards protections mandated under the MMPA’s Imports Provision are significantly impacted by the foreign harvesting nation’s regulatory program.” Id. at 41. In regards to the irreparable harm factor, the Court held “the likely, imminent extinction of a species in the absence of statutorily mandated action constitutes irreparable harm.” In addition, the Court held members of plaintiff organizations had standing as nature lovers who enjoy seeing the vaquita in its natural habitat. Under the balancing test between the parties, the Court said the balance of the hardships falls in favor of granting an injunction. The potential loss of the vaquita, as well as the possibility that if the species goes extinct the plaintiffs could lose their day in Court far outweighed the normal administrative duties of the government requested by imposing an embargo on certain imports, and any impact on government negotiations with Mexico. Regarding the public interest factor, the Court said “the vaquita’s plight is desperate, and that even one more bycatch death in the gillnets of fisheries in its range threatens the very existence of the species. In granting the preliminary injunction ordering the embargo set forth in the statute, the Court is simply directing compliance with a Congressional mandate,” fulfilling the public interest ideal that the government should be compelled to enforce environmental laws. Id. at 48.