Maui and Hector's Dolphin Defenders NZ Inc. v. Nat'l Marine Fisheries Serv.

Slip Op. 26-73 UNITED STATES COURT OF INTERNATIONAL TRADE 0Ɩ8,$1'+(&725¶6 '2/3+,1'()(1'(561= INC., Plaintiff, v. NATIONAL MARINE ),6+(5,(66(59,&( NATIONAL OCEANIC AND $70263+(5,& $'0,1,675$7,21),6+(5,(6 UNITED STATES Before: Jennifer Choe-Groves, Judge '(3$570(172)7+( TREASURY, UNITED STATES Court No. 26-02462 '(3$570(172)+20(/$1' SECURITY, AND UNITED STATES DEPARTMENT OF COMMERCE, Defendants, and 1(:=($/$1' *29(510(17 Defendant-Intervenor. 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 subject- matter 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 SUHVHQFHRI0ƗXLDQG+HFWRU¶VGROSKLQSRSXODWLRQVIRUUHFUHDWLRQDODHVWKHWLF 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 decision- making 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. -85,6',&7,21$1'67$1'$5'2)5(9,(: 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’ fishery- by-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 sur- reply 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 =HDODQGVHWQHWDQGWUDZOILVKHULHVWKDWKDUP0ƗXLDQG+HFWRU¶VGROSKLQVLQH[FHVV 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 mamma