In a recent opinion, the United States Court of International Trade (CIT) upheld its categorical ban of the importation of fish and fish products caught with gillnets in the habitat of the critically endangered vaquita, off the coast of Mexico.

In a July 26, 2018 Order, the CIT granted a preliminary injunction sought by several conservation groups prohibiting the importation of certain fish and fish products from Mexico which had been caught using gillnet — fishing nets hung from boats that entangle fish and shrimp — within the limited range of the vaquita, the smallest porpoise in the world.  Experts believe that just 15 vaquitas remain and all inhabit a small area in the Northern Gulf of California, between Baja California and Mexico.  The CIT entered an order, pending final adjudication, banning the importation of shrimp, curvina, sierra, and chano fish from Mexican commercial fisheries that use gillnets within the vaquita’s range under the authority of the Marine Mammal Protection Act (“MMPA”).

The government subsequently filed a “motion to clarify” in which it questioned the scope of the ban and whether it was immediately effective.  Specifically, the government challenged the scope of the MMPA with respect to illegal commercial fisheries, whether other federal environmental protection statutes rendered the express duties of the MMPA inoperative, and asserted that the regulatory challenges with respect to implementation made immediate implementation impossible. The CIT rejected each of these challenges and held, unequivocally, that the ban was effective immediately.

The CIT determined that nothing in the language of the MMPA limited its authority to “legal” fisheries and, in fact, the MMPA was not limited to “commercial” fish, let alone, “legally caught” commercial fish. The CIT also found that the MMPA and other federal environmental protection statutes were “complimentary” and “non-duplicative” and, as such, did not excuse the government from its obligations under any of the statutes. Finally, the CIT “discern[ed] no merit” in the government’s argument lengthy certification processes meant that the ban was not effective immediately.

The CIT Opinion did not mince words in upholding its prior determination and chastising the governments request for “clarification.”  The decision serves as cautionary reminder that the words of the CIT, or any Court, are meant to be followed by governments, importers, and brokers alike.

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