Eleventh Circuit Weighs Reversing Chilean Sea Bass Import Ban

A three-judge panel of the Eleventh U.S. Circuit Court of Appeals heard arguments Friday over whether Texas-based Southern Cross Seafoods can resume importing Chilean sea bass caught in the South Atlantic. At stake is a federal import ban born from a diplomatic standoff involving Russia, the U.K. and two dozen other nations.

The National Marine Fisheries Service blocked two shipments of the fish, prompting the lawsuit in 2022. A Miami federal judge sided with the government last year. Friday's oral arguments in Atlanta suggested the appellate panel is divided on the core question: what happens when an international conservation body deadlocks?

What triggered the dispute?

Chilean sea bass, also called Patagonian toothfish, lives in waters near Antarctica. Harvesting is governed by the Convention on the Conservation of Antarctic Marine Living Resources, or CCAMLR — a 26-member body created by treaty in 1980 that sets annual catch limits by consensus.

Russia broke that framework in 2021. It rejected proposed catch limits, effectively closing the fishing area for most member countries.

The U.K. responded with its own rules. It licensed limited fishing near South Georgia, a small British territory in the South Atlantic. A U.K.-licensed fishing company then sold Chilean sea bass to Southern Cross Seafoods, which tried to import the catch through Florida. The National Marine Fisheries Service denied the import application, calling the fish non-compliant with CCAMLR measures.

U.S. District Judge David Leibowitz, a Biden appointee, ruled for the government last year. His opinion was blunt: "CCAMLR was created to protect Antarctic marine life." The company appealed immediately.

What does the company argue?

Raoul Cantero of White & Case, representing Southern Cross Seafoods, told the panel the lack of consensus means no limits and no prohibitions exist. Without a clear CCAMLR mandate, he argued, the import ban is arbitrary and illegal.

"The issue in this case is a purely legal question," Cantero said. "You may be missing Chilean sea bass, and this is why."

"I had some last night," Judge Charles Wilson interrupted, chuckling.

Cantero pressed the novelty point. "This will be the first time — and I'm not exaggerating — the first time in the history of the convention that fishing has been prohibited by implication," he said.

What's the default rule when consensus fails?

That question dominated the argument, and the judges split on it.

Judge Kevin Newsome, a Trump appointee, framed it directly: "Am I grossly oversimplifying this case in asking what's the default rule?"

"The default rule is everything is permitted," Cantero answered.

Judge Robin Rosenbaum, an Obama appointee, pushed back. The treaty's purpose is conservation, she noted, and members agreed limits were necessary even if they couldn't settle the numbers. "You either adopt a limit or else there's no fishing," she said.

Newsome seemed to side with the importer. Fishing predates the convention, he observed, so open access looks like the natural baseline. "In order to get out of that state of nature, you've got to enact something that prevents it — not the other way around," he said.

Wilson, a Clinton appointee, leaned the other way. He cited Supreme Court precedent on treaty interpretation: "The government's interpretation of an international treaty is entitled to great weight. You have to convince us not to give great weight to the government's interpretation of the treaty."

He added that the treaty's conservation purpose is "a plus in favor of the government."

How did the government respond?

Justice Department attorney Frederick Turner defended the ban as an exercise of treaty interpretation, not a unilateral rewrite of international rules.

"The National Marine Fishery Service is not saying to the other parties of the convention that fishing cannot occur," Turner explained. "This is a decision by one member — the United States — acting through the National Marine Fishery Service."

He acknowledged fishing might be happening near South Georgia now. "It doesn't necessarily mean that it's lawful or in compliance," he said.

What happens next?

The panel gave no timeline for a decision. For importers and trade practitioners, the ruling will test how U.S. courts treat conservation treaties when member states deadlock — whether absence of agreement means unrestricted fishing, or a precautionary shutdown.

A win for Southern Cross Seafoods would force the fisheries service to justify future import denials with explicit treaty text. A loss would entrench agency discretion to interpret multilateral conventions narrowly, whenever consensus collapses at the international level.