environment

Immediate NZ seafood ban in front of US court

Advocacy group Sea Shepherd steps up its moves to push for US ban on New Zealand seafood over Māui dolphin protection

A US ban on New Zealand seafood could come as early as September after Sea Shepherd filed a motion for a preliminary injunction.

Earlier this year, the marine advocacy group filed a lawsuit in the United States Court of International Trade against the U.S. Department of Commerce, Department of Homeland Security, NOAA Fisheries, and the Treasury Department. 

If successful, a preliminary injunction could force a ban on New Zealand seafood caught in the Māui dolphin habitat before a case is heard. Sea Shepherd NZ’s Michael Lawry said he expected a decision from the judge on the preliminary injunction in September. A full hearing on the case is likely to be several more months away.

The judge assigned to the case is the same judge who approved a preliminary injunction banning Mexican seafood imports because of the risk posed to vaquita porpoises. 

The lawsuit hinges on part of the United States’ 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. 

The Act is designed to protect US consumers from purchasing goods which could lead to the extinction of a species.

The lawsuit was filed before the release of proposed updates to the Māui and Hector’s dolphin Threat Management Plan. 

Sea Shepherd believes the proposal is “wholly insufficient” to protect the Māui dolphin. There are around 63 Māui dolphins remaining. 

Many conservation groups want set-netting and trawling banned to a depth of 100m in the Māui dolphin habitat. The proposals do extend bans in some areas, but not to 100m depth.

The potential impact on New Zealand’s exports would apply to $2 million of annual exports. However, unless a traceability programme was implemented to prove where in New Zealand fish were caught, the impact could be up to $200m per year.

It’s a risk that caused a flurry of political activity when Sea Shepherd first petitioned for the ban.

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.”

A video conference was held between New Zealand and US officials “where the urgency with which this was being treated within New Zealand was underlined”.

Sea Shepherd’s petition was rejected by US officials the day after a draft Threat Management Plan was released.

The court action challenges this rejection.

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, which at that time had an estimated population of 15. 

When he granted the vaquita preliminary injunction, he wrote:

“It is undisputed that the cause of the vaquita’s precipitous decline is its inadvertent tangling, strangulation, and drowning in gillnets, which are fishing nets hung in the water to entangle fish and shrimp. The Government of Mexico, which regulates fishing practices in the Gulf of California, has banned the usage of gillnets in certain fisheries within the vaquita’s range, though illegal gillnet fishing continues. In other fisheries, gillnet fishing remains legal. If current levels of gillnet fishing in the vaquita’s habitat continue, the species will likely be extinct by 2021.”

Documents submitted to Judge Katzmann by Sea Shepherd include submissions from University of Otago’s professor Elisabeth Slooten, fisheries researcher Dr Glenn Simmons and Oceanographer Dr Timothy Ragen.

Ragen’s submission focused on differences between New Zealand’s protection of Māui dolphins compared to protection they would receive in the United States. He points out while the population of Māui dolphins is estimated to sit at over 50, there are only 14 to 17 females of reproducing age. His 62-page submission concludes:

“New Zealand is a highly advanced society in many ways, but — in the Māui dolphin case — it has chosen economic discretion rather than population recovery and ecosystem health. In my expert opinion, its standards are not equivalent to those of the United States, and its fishers are not subject to the same constraints as US fishers.”

Timeline:

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: Lawsuit filed 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.

* Details in this story have been updated since publication. Initially, a judge’s decision was estimated to be due in three to four weeks, this has been corrected to September.

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