Louisiana State v. Department of Commerce et al
ORDER AND REASONS: GRANTING 13 Motion for Preliminary Injunction, as stated herein. Signed by Judge Jane Triche Milazzo on 09/09/2021. (am)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEPARTMENT OF COMMERCE ET AL.
ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Preliminary Injunction (Doc.
13). For the following reasons, the Motion is GRANTED.
Plaintiff Louisiana State, through the Louisiana Department of Wildlife
and Fisheries, brings Administrative Procedures Act (“APA”) claims arising
out of the National Marine Fisheries Service’s (“NMFS”) 2019 regulation
requiring Turtle Excluder Devices (“TEDs”) on skimmer trawl vessels of a
certain size operating in inshore waters, 84 Fed. Reg. 70,048 (Dec. 20, 2019)
(the “Final Rule”). Defendants are NMFS, the National Oceanic & Atmospheric
Administration, the Department of Commerce, Chris Oliver as Assistant
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Administrator for Fisheries, and Samuel D. Rauch, III as Deputy Assistant
Administrator for Regulatory Programs (collectively, “the Agency”).
The Final Rule was published on December 20, 2019 to promote sea
turtle conservation by requiring TEDs on all skimmer trawls on vessels greater
than 40 feet in length. Skimmer trawls are commonly used by shrimpers in
Louisiana. The original effective date of the Final Rule was April 1, 2021. On
March 31, 2021, however, the Agency issued a Delay Rule, postponing the
effective date until August 1, 2021 in light of the effects of the COVID-19
pandemic on travel and the ability of the Agency to hold in-person TED
training sessions (“the Delay Rule”).
The Final Rule went into effect on August 1, 2021. On August 11, 2021,
Plaintiff filed this action, arguing that (1) the Final Rule is arbitrary and
capricious, and (2) the failure to reconsider the August 1, 2021 effective date of
the Final Rule is arbitrary and capricious in light of the continued effects of
the COVID-19 pandemic on the supply chain and in-person TED trainings.
Initially, Plaintiff moved for a temporary restraining order immediately
postponing the effective date of the Final Rule based on the Agency’s failure to
reconsider the August 1, 2021 effective date. Plaintiff argued that the Agency
acted arbitrarily and capriciously in refusing to further extend the effective
date past August 1, 2021 despite the ongoing COVID-19 pandemic. The Court
denied Plaintiff’s Motion, holding that it had not alleged any “agency action”
with respect to the Agency’s failure to further extend the effective date of the
Final Rule. The Court noted that the record did not indicate that Plaintiff had
ever requested extension of the effective date, and therefore there was no
agency action for this Court to review.
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In the instant Motion, Plaintiff seeks a preliminary injunction enjoining
enforcement of the Final Rule or extending its effective date. In its Motion,
Plaintiff has shifted its argument regarding the Final Rule’s effective date.
Now, Plaintiff argues that the effective date of the Final Rule and the Delay
Rule are arbitrary and capricious because they did not consider the amount of
time necessary for shrimpers to come into compliance with the Final Rule. It
also argues that the Final Rule itself is arbitrary and capricious because it is
a policy reversal that is contrary to findings.
An applicant for preliminary injunctive relief must show: (1) a
substantial likelihood that he will prevail on the merits; (2) a substantial
threat that he will suffer irreparable harm if the injunction is not granted; (3)
his threatened injury outweighs the threatened harm to the party whom he
seeks to enjoin; and (4) granting the preliminary injunction will not disserve
the public interest. 1 A preliminary injunction is an extraordinary remedy. 2
Accordingly, a preliminary injunction should only be granted when the party
seeking it has clearly carried the burden of persuasion on all four
requirements. 3 In the end, a preliminary injunction is treated as an exception
rather than the rule. 4
Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003).
Miss. Power & Light Co. v. United Gas Pipe Line, Co., 760 F.2d 618, 621 (5th Cir.
St. of Tex. v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975).
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LAW AND ANALYSIS
Likelihood of Success on the Merits
To show likelihood of success on the merits, the plaintiff need not prove
that it is entitled to summary judgment. 5 “[I]t will ordinarily be enough that
the plaintiff has raised questions going to the merits so serious, substantial,
difficult and doubtful, as to make them a fair ground for litigation and thus for
more deliberate investigation.” 6 Here, Plaintiff brings two claims arising under
the APA: (1) that the effective date of the Final Rule and the Delay Rule are
arbitrary and capricious and (2) that the Final Rule itself is arbitrary and
capricious. 7 Because the Court finds a likelihood of success on the merits as to
Plaintiff’s argument that the Delay Rule was arbitrary and capricious, it need
not consider its other arguments at this time.
The APA states, in pertinent part, that:
To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The
reviewing court shall–
(1) compel agency action unlawfully withheld or unreasonably
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be–
(A) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
Allied Home Mortg. Corp. v. Donovan, 830 F. Supp. 2d 223, 227 (S.D. Tex. 2011).
7 Plaintiff’s argument here differs from Count 1 in its Complaint, which it titles
“Failure to Reconsider the August 1st Effective Date Is Arbitrary and Capricious.” However,
the Court finds that the recharacterization of its claim is properly before the Court and that
Defendants have had ample opportunity to respond thereto.
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(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law[.] 8
The Fifth Circuit has mirrored this language, finding that courts should only
overturn rules pursuant to the APA if agency action “is arbitrary, capricious,
an abuse of discretion, not in accordance with law, or unsupported by
substantial evidence on the record taken as a whole.” 9 An agency action is
arbitrary and capricious if:
the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
“If the agency’s reasons and policy choices conform to minimal standards of
rationality, then its actions are reasonable and must be upheld.” 11
At the outset, the Agency argues that the Delay Rule is not a final,
reviewable agency action. This Court disagrees. “A final agency action is one
that imposes an obligation, denies a right, or fixes a legal relationship.” 12 In
Clean Air Council v. Pruitt, the court held that the stay of an EPA rule was
“essentially an order delaying the rule’s effective date, and this court has held
that such orders are tantamount to amending or revoking a rule.” 13 It held that
5 U.S.C. § 706.
Buffalo Marine Services, Inc. v. U.S., 663 F.3d 750, 753 (5th Cir. 2011) (citations
10 Texas Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923, 933 (5th Cir. 1998) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
11 Id. at 934.
12 Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994).
13 862 F.3d 1, 6 (D.C. Cir. 2017).
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because the decision was the agency’s final position on the issue and had
immediate and direct effects on the parties, it was a final, reviewable order.
Here too, the Delay Rule is the Agency’s final decision regarding the date on
which shrimpers are required to be in compliance with the Final Rule. 14
Accordingly, this Court finds that the Delay Rule is a final, reviewable agency
Plaintiff argues that the Delay Rule is arbitrary and capricious because
it failed to consider the difficulty that shrimpers were having complying with
the Final Rule in light of the COVID-19 pandemic. Plaintiff argues that supplychain delays have made it impossible for shrimpers in Louisiana to secure
TEDs to comply with the regulation and that the lack of in-person training
sessions from the Agency has left shrimpers and net manufacturers confused.
Plaintiff presents a declaration from Robert Boudreaux III, the owner and
operator of Bob’s Net Shop in Lafitte, Louisiana, in which he states that there
has been a shortage of aluminum, very small twine, and angle measuring
devices that has made it difficult to build TEDs. He also explained that each
TED must be custom made by hand and that the process is time-consuming
and tedious. He explained that net makers need training on how to make TEDs
that comply with the Final Rule and that the lack of in-person training by the
Agency left net makers “in the dark.”
Further, courts have reviewed the effective date of final rules where the agency was
arbitrary and capricious in failing to give those affected by the rule sufficient time to comply.
See Am. Fed’n of Lab. & Cong. of Indus. Organizations v. Chao, 298 F. Supp. 2d 104, 119
(D.D.C. 2004); Nat’l Ass’n of Indep. Television Producers & Distributors v. Fed. Commc’ns
Comm’n, 502 F.2d 249, 251 (2d Cir. 1974).
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Indeed, the Agency seemed to recognize the time necessary to produce
TEDs when it implemented the Final Rule. It stated that it had “delayed the
effectiveness of the final rule until April 1, 2021, to allow for the manufacture
of the necessary number of TEDs and for fishers, particularly lower income
fishers, to prepare financially for the regulation.” 15 However, in implementing
the Delay Rule, the Agency stated that:
We are now delaying the effective date of the final rule published
on December 20, 2019, (84 FR 70048) until August 1, 2021. Safety
and travel restrictions due to the COVID-19 pandemic have
limited our ability to complete the in-person workshops and
training sessions that we had anticipated and communicated to
the public. This delay in effective date is necessary to provide us
with additional time to conduct our planned outreach and training
for fishers through a modified strategy, including but not limited
to, virtual training sessions with the public. In addition to
generally educating the public on the use of the [TED] devices, it
will help prepare us for responding to installation and
maintenance problems from industry when the regulations go in
effect. This will allow fishers to be better prepared for compliance
with regulations and reduce the likelihood of potential increased
sea turtle deaths caused by widespread use of improperly
constructed and/or installed TEDs. 16
Accordingly, the Delay Rule does not indicate that the Agency considered the
ability of net makers to produce sufficient TEDs and for shrimpers to comply
with the Final Rule by August 1. Further, the Agency does not present any
evidence that it considered those issues in selecting an August 1 effective date.
While the Delay Rule addressed the additional time needed by the Agency to
Sea Turtle Conservation; Shrimp Trawling Requirements, 86 Fed. Reg. 16,676
(Mar. 31, 2021).
16 Id.; Sea Turtle Conservation; Shrimp Trawling Requirements, 84 Fed. Reg. 70,048
(Dec. 20, 2019).
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train the net makers on how to produce TEDs to comply with the Final Rule,
it did not take into consideration the fact that net makers would need time to
hand make each TED after they received that training. The Agency therefore
appears to have “entirely failed to consider an important aspect of the problem”
when it selected an August 1 effective date in the Delay Rule. 17 This Court
finds that Plaintiff has shown a likelihood of success on the merits as to the
arbitrariness of the Delay Rule.
The Court further notes that shortly after the filing of this Motion,
Hurricane Ida, a Category 4 hurricane, caused catastrophic damage in South
Louisiana. While the full effects of the hurricane’s destruction remain to be
seen, this Court feels confident that it will exacerbate supply chain problems
and distract net makers, whose homes and businesses may have been
damaged, from constructing TEDs.
B. Irreparable Harm
Next, the Court must consider whether irreparable harm will result
from the implementation of the Final Rule on August 1. “In general, a harm is
irreparable where there is no adequate remedy at law, such as monetary
damages.” 18 Plaintiff claims the premature effective date of the Final Rule will
harm the shrimping industry and result in economic harm to the state. 19
Additionally, Plaintiff argues that it will not be able to recover money damages
against the Agency due to sovereign immunity.
Texas Oil & Gas Ass’n, 161 F.3d at 933.
Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011).
19 “The State of Louisiana has standing to sue in the quasi-soverign capacity because
of its interest in and ownership of its marine resources.” State of La. ex rel. Guste v. Verity,
681 F. Supp. 1178, 1181 (E.D. La.), aff’d, 850 F.2d 211 (5th Cir. 1988).
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In the Final Rule itself, the Agency recognized that, even when
appropriately implemented, the “regulation may have significant adverse
economic effects on the shrimp industry.” 20 It acknowledged that the Rule may
cause some vessels to cease shrimping operations and expected a reduction in
gross revenue of approximately $2.939 million for the Gulf of Mexico
harvesting sector. 21 In light of the aforementioned problems with compliance
with the Rule prior to the effective date, the Louisiana Department of Wildlife
and Fisheries estimates that 50% of Louisiana’s shrimpers were unable to
comply before shrimping season began. Accordingly, there are many more
vessels that are not operating than originally estimated by the Agency, and the
economic harm will likely be much higher. This includes increased impacts to
employment, income, and the number of shrimp harvested, adversely affecting
the shrimping industry, restaurants, and grocers. The Court therefore finds
that Plaintiff has shown irreparable harm to its economy will result from
failing to extend the effective date of the Final Rule.
C. Balancing of Equities
Finally, the Court must consider whether the harm to Plaintiff
outweighs the threatened harm to the Agency and whether granting the
preliminary injunction will not disserve the public interest. “Federal courts
have considered the balance of equities and public interest factors together as
they overlap considerably.” 22 Here, Plaintiff’s and the public’s interest in
preserving Louisiana’s economy outweighs the Agency’s interest in beginning
84 Fed. Reg. 70,048 (Dec. 20, 2019).
Final Environmental Impact Statement, Doc. 14-13.
22 Texas v. United States, No. 6:21-CV-00003, 2021 WL 2096669, at *48 (S.D. Tex.
Feb. 23, 2021).
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enforcement of the Final Rule on August 1. The Agency estimates that the
Final Rule will prevent the mortality of 801 to 1,158 sea turtles annually
nationwide. 23 Plaintiff has shown that about half of its shrimpers are already
in compliance with the Final Rule’s requirements. Accordingly, a brief delay in
implementation of the Final Rule to allow appropriate time for all shrimpers
to come into compliance will not result in an unreasonable risk to sea turtles.
D. Scope of Injunction
This Court finds that Plaintiff has carried its burden to show its
entitlement to a preliminary injunction delaying the effective date of the Final
Rule. In initially implementing the Final Rule in December 2019, the Agency
recognized that a delay in the effective date of sixteen months was necessary
to allow for new TEDs to be constructed and installed. 24 Three months later,
the COVID-19 pandemic began, which slowed production and created supply
chain difficulties. In the Delay Rule, the Agency delayed the effective date by
four months. The Court finds that an additional six-month delay is appropriate
to allow Louisiana’s shrimpers to come into compliance with the Final Rule.
For the foregoing reasons, the Motion for Preliminary Injunction is
GRANTED. Defendants are enjoined from imposing 84 Fed. Reg. 70,048 (Dec.
20, 2019) in Louisiana inshore waters until February 1, 2022.
Final Environmental Impact Statement, Doc. 14-13.
84 Fed. Reg. 70,048 (Dec. 20, 2019).
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New Orleans, Louisiana this 9th day of September, 2021.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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