US Opposes Bid to Have CIT Enforce Settlement Regarding Fisheries Import Ban
The U.S. on Jan. 2 opposed three wildlife advocacy groups' bid to have the Court of International Trade compel the U.S. to comply with its settlement agreement with the groups by requiring the National Marine Fisheries Service (NMFS) to bar the importation of fish and fish products from all harvesting nations that don't meet Marine Mammal Protect Act (MMPA) standards (Natural Resources Defense Council v. Howard Lutnick, CIT # 24-00148).
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The government argued that there's "no Congressional waiver of sovereign immunity that would permit the Court to order specific performance or a declaratory judgment against the Government in a contract action." Even if there was such a waiver, the trade court's order codifying a settlement agreement in a separate case qualifies as a "court order enjoining the enforcement of a comparability finding," which would preclude enforcement of the settlement agreement at issue, the brief said.
Lastly, the U.S. said that even if the advocacy groups' "extraordinary interpretation of the Settlement Agreement were correct," the officials who negotiated the settlement agreement "had no authority to enter" into a deal that "precluded compliance with certain court orders or forbade future settlements in possible litigation going forward."
The three groups, led by the National Resources Defense Council (NRDC), reached a settlement with the U.S. in a 2024 case, Natural Resources Defense Council v. Gina Raimondo, in March 2025. The settlement saw the NMFS agree to ban importation of fish from all countries barring a finding that a given country had fishery regulations comparable to the United States’ (see 2503250033).
In a separate case brought by the National Fisheries Institute, however, the U.S. then reached a settlement in which it agreed to stay an import ban against five countries’ swimming crab fisheries as it reconsidered negative comparability findings against them (see 2510310035). In light of this settlement agreement, NRDC filed a motion to have the trade court compel the U.S. to comply with its original settlement agreement.
In response, the U.S. said NMFS has devoted significant time to the "enormous task of faithfully complying with the settlement agreement." The brief said that, since January 2025, the agency has issued comparability determinations for "all harvesting nations and fisheries that seek to export fish and fish products to the United States -- approximately 2,500 fisheries across 135 nations." As a result of that work, "235 commercial fisheries from 46 harvesting nations will be prohibited from importing fish and fish products into the United States beginning on January 1, 2026."
The motion to compel concerns a "six-month, court-ordered delay of the effective date of the import ban for just five fisheries in four countries," which was created by the settlement in the National Fisheries Institute case, the U.S. said.
Compliance with the original settlement order can't be effectuated, though, since Congress has not waived the government's sovereign immunity "based on a claimed breach of contract," and one can't be created by contract, the brief said. While a congressional waiver of sovereign immunity let the advocacy groups file suit under Section 1581(i), CIT's "residual" jurisdiction, that section "does not explicitly waive the sovereign immunity of the United States for a breach of contract claim," the brief said. Thus, CIT doesn't have jurisdiction to rule on the motion to compel compliance with the settlement agreement, the U.S. argued.
Even if this jurisdiction existed, the court order in the National Fisheries Institute case defeats the motion to compel. In the advocacy groups' settlement order, the language reads that the government "may comply with a court order enjoining the enforcement of a comparability finding, notwithstanding the obligations provided in this Agreement." The U.S. said the National Fisheries Institute settlement constitutes such an order.
The U.S. said "the Settlement Agreement memorialized what is common sense: if another judge in this Court orders relief barring enforcement of one or more of the Government’s previously issued Comparability Findings, the Government may comply with such an order." In claiming otherwise, the advocacy groups' position "requires this Court to conclude that the Settlement Agreement incorporated significant restrictions on the Government’s ability to settle an industry challenge to a negative comparability finding, while only allowing the Government freely to settle lawsuits seeking to dismantle favorable comparability findings."
Joining the government in opposing the motion to compel was a group of importers, led by the National Fisheries Institute itself, which argued that the advocacy groups were entitled to a "process, not an outcome," and that "each agency action is separate and must be judged under the Administrative Procedure Act and its own administrative record."