CIT Vacates NMFS Comparability Findings on Certain New Zealand Fisheries

Dubbing the findings "arbitrary and capricious" and a "cursory" document "replete with conclusory statements" and backed by "minimal record evidence," Judge Jennifer Choe-Groves said a court-ordered import ban could be on the table should NMFS continue to issue an unsupported decision.

The suit, filed by conservation group Maui and Hector's Dolphin Defenders NZ, is the second of its kind related to the preservation of the Maui dolphin after a case from fellow New Zealand conservation groups Sea Shepherd New Zealand and Sea Shepherd Conservation Society ended in 2024 (see 2409110027). Sea Shepherd's suit, which saw the trade court impose an injunction on imports from the New Zealand fisheries at issue, ended after NMFS issued new comparability findings.

The MMPA requires the U.S. government to ban the import of fish from a foreign fishery that harms marine mammals in excess of what would be allowed in the U.S. The Dolphin Defenders argued that NMFS's 2024 conclusion that New Zealand fisheries don't catch and kill Maui dolphins in excess of U.S. standards suffered from a host of errors (see 2412050043).

Choe-Groves agreed, honing in on seven different requirements the MMPA imposes on U.S. fisheries that the NMFS made incomplete or arbitrary comparability findings for, related to the New Zealand fisheries.

The first was the MMPA's zero mortality rate goal. NMFS provides for an "insignificance threshold," which is 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." In the comparability findings, NMFS said New Zealand imposes a bycatch limit of one Maui or Hector's Dolphin, which is comparable to U.S. limits.

The court said the agency didn't address the MMPA's "Zero Mortality Rate Goal directly," nor did it explain "how a bycatch limit of one dolphin over an undisclosed time period was comparable." NMFS also failed to explain "how the objectives to prevent deaths of dolphins from exceeding the population sustainability threshold and to allow the dolphin population to remain at 80% of its unimpacted status were comparable in effect to reducing mortality and serious injuries to zero.” While the U.S. cited to NMFS' previous comparability findings in court, the agency made no such reference to these findings in its 2024 comparability results, the judge noted.

Choe-Groves added that NMFS made "minimal citations to record evidence." NMFS merely said New Zealand laws ban the intentional killing of marine mammals during the course of commercial fishing. The court said this "language was conclusory and unaccompanied by any record evidence to support NMFS’ determination."

The MMPA also directs NMFS to bar the incidental taking of endangered species by commercial fishing unless the "incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock." Choe-Groves said that NMFS utterly failed to mention this standard in its comparability findings for the New Zealand fisheries. While the New Zealand government said this standard doesn't apply, since the "incidental taking of any Maui dolphin was prohibited," the court said the New Zealand government "does not cite to any law prohibiting incidental taking and actually reported in its comparability application that it did not prohibit the incidental bycatch of marine mammals."

The Dolphin Defenders said NMFS also failed to address the MMPA's requirement that NMFS evaluate whether a harvesting nation has a "bycatch limit" and whether a harvesting nation has measures to "reduce the total incidental mortality and serious injury" of a marine mammal stock below the bycatch limit. In its comparability findings, NMFS said New Zealand had a bycatch limit of one Maui dolphin.

The court said NMFS didn't address "how New Zealand calculated a bycatch limit of one dolphin," nor did it "explain whether New Zealand’s bycatch calculation method involved a comparable scientific metric to the Potential Biological Removal level" used by the U.S. The agency also failed to address the "Fishing Related Mortality Limit and whether it was related to the bycatch limit."

While NMFS said New Zealand's "Threat Management Plan aimed to keep dolphin deaths below a 'population sustainability threshold,'" the agency's decision "cited no record evidence, nor contained further discussion of this threshold, how it was calculated, or whether it was related to the bycatch limit," the judge said.

The Dolphin Defenders also argued that NMFS erred in finding that the bycatch rate in the New Zealand fisheries didn't exceed the U.S. bycatch limit standard, since the agency "measured the bycatch limit against a Potential Biological Removal level that NMFS calculated using an outdated, Maui dolphin population estimate." Choe-Groves agreed, finding that NMFS "never explained how this population estimate was determined or why NMFS considered it to be the 'best available scientific information on abundance.'" The government's "post hoc" explanations of its estimates are just that: post hoc.

The MMPA also requires NMFS to establish a program to "monitor incidental mortality and serious injury of marine mammals during the course of commercial fishing operations.” The Dolphin Defenders said the agency erred in finding that New Zealand's monitoring program was comparable to U.S. standards, since the agency didn't compare New Zealand's monitoring practices when bycatch of a critically endangered species was involved. Choe-Groves held that NMFS "never addressed the United States monitoring services," adding that the agency "merely expressed a conclusion, without explaining what United States standards applied and how the New Zealand standards were comparable."

The Dolphin Defenders also said NMFS failed to explain its finding that New Zealand's regulations meet U.S. "stock assessment standards" in light of the MMPA's requirement that NMFS conduct stock assessments for each marine mammal stock found in the waters under U.S. jurisdiction. Choe-Groves again found that the agency made "conclusory statements" that failed to "describe New Zealand’s process for estimating abundance or how it compared to the components of a United States stock assessment." The agency gave "no explanation of how New Zealand’s plan to undertake a stock assessment at an undisclosed frequency was comparable to the United States standard of conducting annual stock assessments for species such as the Maui dolphin," the judge said.

Lastly, Choe-Groves faulted NMFS for evaluating only Maui dolphin bycatch rather than bycatch of other species implicated by record evidence, given the MMPA's requirement that import decisions be made "with regard to a fishery, rather than a specific species." While the U.S. said New Zealand's protections apply equally to all marine mammals, the court said "NMFS did not cite to any of these documents or to its prior analysis of which marine mammals interacted with the fisheries it assessed."

Having found the NMFS decision to be arbitrary and capricious, Choe-Groves turned to the issue of remedy, ultimately finding that vacatur of the agency's decision is necessary. The judge said the deficiencies in the comparability findings are "severe," and neither the U.S. nor the New Zealand government raises "any potentially 'disruptive consequences'" that can stem from vacatur.

However, Choe-Groves said an import ban isn't necessary because the agency wasn't required to implement an import ban, given that it issued a positive comparability finding "rather than denying or terminating a comparability finding for a fishery." The court's findings "may merit the implementation of an import ban going forward, if the agency continues to rely on an arbitrary and unlawful Decision Memorandum that could be regarded as equivalent to denying a comparability finding," the judge concluded.

(Maui and Hector's Dolphin Defenders v. National Marine Fisheries Service , Slip Op. 25-113, CIT # 24-00218, dated 08/26/25, Judge: Jennifer Choe-Groves; Attorneys: Natalie Barefoot of Earthjustice for plaintiff Dolphin Defenders; Joshua Moore for defendant U.S. government; Warren Connelly of Trade Pacific for defendant-intervenor New Zealand Government)