In a recent decision, the Court of International Trade (CIT) denied the government’s request for a stay of the preliminary injunction that the CIT had implemented in July, banning the importation of certain seafood from Mexico.

In July, the CIT upheld its preliminary order and granted the preliminary injunction sought by conservation groups to protect the critically endangered vaquita porpoise – of which just 15 remain.  In imposing the preliminary injunction, the Court found that the Marine Mammal Protection Act (MMPA) properly applied and mandated that the Secretary of the Treasury “shall 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.” 16 U.S.C. § 1371(a)(2). Accordingly, the CIT imposed the preliminary injunction, pending final adjudication on the merits, banning the importation of all fish and fish products caught using gill-nets within the range of the vaquita in the Northern Gulf of California.

In the government’s recent motion to stay the preliminary injunction, the government cited, among other things, the negative impact the ban could have on ongoing trade negotiations between the United States and Mexico.  The CIT was not convinced, citing the mandatory ban language of the MMPA and finding that “[i]t is implausible that Congress was unaware that embargoes or limitations on imports may impact foreign relations.” In addition, the CIT was unmoved by the government’s arguments regarding the conservation groups’ purported lack of standing, finding that the government had unlawfully withheld agency action under § 706(1) of the Administrative Procedure Act and, in doing so, created cognizable harm to the vaquita.  The CIT also defended the narrowly tailored scope of the injunction, which is limited only to importation of fish and fish products caught using gill-nets in a small portion of the Gulf of California.

Accordingly, the ban remains in place until a full adjudication on the merits is complete.

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