NZ Government joins US lawsuit on seafood ban

The New Zealand Government has waded into a US lawsuit which could affect millions of dollars of seafood exports

The Government has been granted permission to join US defendants in a lawsuit seeking to ban New Zealand seafood imports.

The lawsuit was instigated by conservation advocates Sea Shepherd due to concerns Māui dolphins are not adequately protected by rules preventing bycatch.

The case is the latest development in ongoing debate surrounding the endangered Māui dolphins. It's estimated only 63 dolphins remain in total, with only 14 to 17 females of reproductive age. Conservationists have called for greater bans of set net fishing and trawling in their habitat which they say should include waters up to 100m deep.

Sea Shepherd’s lawsuit alleges the US Department of Commerce, Department of Homeland Security, NOAA Fisheries, and the Treasury Department are not upholding the Marine Mammal Protection Act.

This Act bans the import of seafood from fisheries that don’t have rules preventing bycatch of marine mammals to a similar level to the United States.

A petition Sea Shepherd submitted to US agencies was rejected the day after the New Zealand Government released the draft Māui and Hector’s threat management plan for consultation.

Now the New Zealand Government is joining the four US agencies to defend the lawsuit in the United States Court of International Trade. 

A spokesperson for the Ministry of Primary Industries said the decision to join the US case was made: "... in order to provide the court with information about the measures being taken to protect Maui dolphins. In particular, that these measures are at least comparable to requirements in similar circumstances in the United States."

If a ban goes ahead it could cost $2 million a year in exports of fish which come from Māui habitat. However, unless a traceability programme is set up to prove where fish are caught, the ban could affect up to $200m a year of New Zealand exports.

The prospect of a ban caused frantic meetings within the New Zealand Government when the petition was first submitted. 

Newsroom’s Sam Sachdeva reported on documents released under the Official Information Act showing the issue reached the Prime Minister’s office. Briefing documents say a ban would be “difficult and time-consuming to reverse”.

“In particular, an import ban applied as a result of Sea Shepherd court action can be expected to apply for years rather than months.”

The New Zealand Government is being represented by a US law firm, Trade Pacific Law, which describes itself on its website as a “leading Washington, D.C.-based international trade law firm”.

Newsroom has requested the costs to date, as well as expected costs incurred due to joining the case.

Its motion requesting permission to join the lawsuit says the New Zealand Government would be adversely affected by a ban:

“Moreover, the NZG seeks permission to demonstrate that the analyses that the plaintiffs have submitted to date are riddled with numerous factual errors and flawed assumptions.”

Sea Shepherd NZ’s Michael Lawry said he had no issue with our Government joining the lawsuit as it shows it is taking the issue seriously, “however, it doesn’t make the science any better”.

The judge assigned to Sea Shepherd’s case is Judge Gary Katzmann. He is the same judge who granted a preliminary injunction banning seafood imports from the area in Mexico where the endangered vaquita porpoise is found. The Mexican government did not join this lawsuit.

Sea Shepherd Legal's legal director Brett Sommermeyer said a decision on a preliminary injunction, which would immediately ban imports until the lawsuit is concluded, has been delayed. He expects a decision could be due in September or October.

Timeline of Māui and Hector’s dolphin threat management plan:

February 6, 2019: Sea Shepherd petitions US National Oceanic and Atmospheric Administration to ban snapper and seafood caught in the area.

May 6, 2019: Briefing regarding the Sea Shepherd petition sent to Fisheries Minister Stuart Nash and Conservation Minister Eugenie Sage, Foreign Affairs Minister Winston Peters, Trade and Export Growth Minister David Parker, and Prime Minister Jacinda Ardern.

June 7, 2019: Government announces all commercial fishing boats at risk of encountering Māui dolphins would be required to have on-board cameras.

June 17, 2019: A proposed Threat Management Plan is released.

June 18, 2019: US National Oceanic and Atmospheric Administration rejects Sea Shepherd’s petition for a ban.

June 18, 2019: Scientists question the proposal's claim cat faeces pose a bigger threat to dolphins than commercial fishing.

July 9, 2019: Questions raised over the calculation of economic impact of set-net and trawl bans in dolphin habitat.

August 19, 2019: Submissions to the Threat Management Plan close.

August 20, 2019: Fishing interests Sanford and Moana New Zealand, with WWF-New Zealand, propose an “option five”. This suggests an observation and move-on approach if dolphins are seen.

September 2019: Full page advertisements are published in the Dominion Post by Seafood NZ. Communications staff call these justified.

November 1, 2019: Deadline for boats fishing in Māui habitat to have on-board cameras. Fourteen of 20 boats intending to fish in the area had cameras.

November 11, 2019: The Department of Conservation releases information from acoustic monitoring that suggests dolphins are regularly present in the coastal waters of Tongaporutu, Taranaki, and visit as far south as Tapuae. It said it was determining whether further management options were needed as part of the review of the Hector’s and Māui dolphin Threat Management Plan.

December 19, 2019: Government announces delay to a decision on plan. No new deadline is given.

May 22, 2020: Sea Shepherd files lawsuit in the United States.

June 24, 2020: Proposed plan updates released with further submissions open until July 21.

July 1, 2020: Motion for Preliminary Injunction filed in the US Court of international Trade.

July 15, 2020: Motion is filed seeking permission for the New Zealand Government to join US lawsuit.

Help us create a sustainable future for independent local journalism

As New Zealand moves from crisis to recovery mode the need to support local industry has been brought into sharp relief.

As our journalists work to ask the hard questions about our recovery, we also look to you, our readers for support. Reader donations are critical to what we do. If you can help us, please click the button to ensure we can continue to provide quality independent journalism you can trust.

With thanks to our partners