State of La., ex rel. Guste v. Verity

• Decision Date: 15 August 1988
• Docket Number: No. 88-3185,88-3185
• Citation: 853 F.2d 322
• Parties: 18 Envtl. L. Rep. 21,351 STATE OF LOUISIANA, ex rel. William J. GUSTE, Jr., et al., Plaintiffs-Appellants, and Concerned Shrimpers of Louisiana, Intervenor-Appellant, v. C. William VERITY, Jr., Secretary, United States Department of Commerce, et al., Defendants-Appellees, and The Environmental Defense Fund, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

853 F.2d 322

18 Envtl. L. Rep. 21,351

STATE OF LOUISIANA, ex rel. William J. GUSTE, Jr., et al., Plaintiffs-Appellants, and Concerned Shrimpers of Louisiana, Intervenor-Appellant, v. C. William VERITY, Jr., Secretary, United States Department

of Commerce, et al., Defendants-Appellees,

and

The Environmental Defense Fund, Intervenor-Appellee.

No. 88-3185.

United States Court of Appeals,

Fifth Circuit.

Aug. 15, 1988.

John B. Sheppard, Jr., Asst. Atty. Gen., William G. Guste, Jr., Atty. Gen., Baton Rouge, La., for State of La.

Von Hoene & Skrmetta, Eric F. Skrmetta, William L. Von Hoene, Jr., New Orleans, La., for Concerned Shrimpers.

John Volz, U.S. Atty., S. Mark Gallinghouse, Asst. U.S. Atty., New Orleans, La., for other defendants-appellees.

David J. Hayes, Vicki L. Plaut, Dept. of Justice, Peter R. Steenland, Jr., Washington, D.C., for C. William Verity.

Gerald E. Meunier, New Orleans, La., Barbara E. Pace, Washington, D.C., for Environmental Defense.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, DAVIS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Appellants, the State of Louisiana and the Concerned Shrimpers of Louisiana ("Concerned Shrimpers"), appealed the district court's entry of summary judgment in favor of the Commerce Department, upholding in all respects the Secretary's regulations requiring shrimp trawlers to install and use "turtle excluder devices," also known as "TEDs," in their nets or to limit their trawling to 90 minutes or less at a time. On July 11, 1988, six days after oral argument, we affirmed the judgment of the district court but postponed issuance of an opinion detailing the reasons for our ruling in order that we could immediately notify the parties that we were vacating the district court's order staying execution of its judgment. ¹ We now offer our reasons for affirming summary judgment below.

I.

Five species of sea turtles--the Kemp's ridley, loggerhead, leatherback, green, and hawksbill--frequent the Gulf of Mexico and the Atlantic Ocean, off the southeast coast of the United States. All of these species are listed as either "endangered" or "threatened" under the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. Sec. 1531 et seq. ² Upon inclusion of any species on the list as endangered, section 9 of the ESA prohibits any person from "taking" ³ any such species within the United States, the territorial waters of the United States, or upon the high seas. 16 U.S.C. Sec. 1538(a)(1)(B)-(C). In the case of sea turtles, it is equally forbidden to take threatened and endangered species. 50 C.F.R. Secs. 222.21, 227.71. In addition to these prohibitions, the ESA permits the Secretaries of Commerce and the Interior to promulgate protective regulations. 16 U.S.C. Sec. 1533(d).

On June 29, 1987, the Commerce Department, through its National Marine Fisheries Service ("NMFS"), promulgated final regulations requiring shrimp trawlers in the Gulf and South Atlantic to reduce the incidental catch and mortality of sea turtles in shrimp trawls. The regulations attempt to supplement ESA's prohibitions against the "taking" of protected species, and were to become effective for Louisiana on March 1, 1988. Specifically, the regulations require shrimpers operating in offshore waters and in vessels 25 feet or longer to install and use certified "turtle excluder devices," or "TEDs", in each of their trawls. 50 C.F.R. Sec. 227.72(e)(2), (6)(i) (1987). If the vessel is less than 25 feet or is trawling in inshore waters, the shrimper may limit each towing period to 90 minutes or less as an alternative to using a TED. Id. at Sec. 227.72(e)(3), (6)(ii) (1987).

The reason for the regulations is simple: Researchers have found that during shrimping operations sea turtles are caught in the large nets, or trawls, pulled behind commercial shrimping vessels. The nets drag the turtles behind the boats and thereby prevent them from surfacing for air. According to one study, once a turtle is within the mouth of a shrimp trawl, the animal's initial reaction is to attempt to outswim the device. Of course, this strenuous effort consumes oxygen but affords the turtle no opportunity to replenish the supply. Once trapped, if the exhausted turtle is not released quickly, it will drown. Research cited in the administrative record indicates that trawl times in excess of 90 minutes are highly likely to result in the death of a captured turtle. ⁴

The TED requirement thus applies without exception to large shrimping vessels that operate offshore, as these vessels frequently pull their nets for long hours prior to bringing their catches aboard. All of the presently certified TEDs ⁵ are coated mesh, rope, or rigid frame devices inserted into the cone-shaped shrimp nets at an angle, at the point where the trawl begins to narrow. When a captured turtle reaches the TED, the device deflects the turtle to an escape portal in the top or bottom of the net. The alternative measure of restricting tow-time to 90-minute intervals applies both to smaller vessels, which tend to pull fewer nets at a time and for shorter durations, and to inshore areas, where TED use by either large or small vessels may be impaired by often heavier concentrations of underwater debris.

In October 1987, the State of Louisiana filed a complaint in federal district court, contending that both the TED and tow limit requirements are invalid. The State's complaint alleged that the regulations are arbitrary and capricious, unsupported by the record, and were promulgated in violation of the Administrative Procedure Act's procedural requirements and Executive Order 12291's requirement of a regulatory impact analysis. The State further argued that the regulations violate the Louisiana shrimpers' due process and equal protection rights.

In December 1987 the Environmental Defense Fund and the Center for Environmental Education were permitted to intervene as defendants. The parties filed cross motions for summary judgment and orally argued their motions on February 10, 1988. Two days before oral argument, on February 8, Concerned Shrimpers of Louisiana was granted leave to intervene as plaintiff. Concerned Shrimpers neither filed, nor responded to, any summary judgment motion, nor participated in oral argument.

On February 29, 1988, the district court entered summary judgment for the defendants. Louisiana ex rel. Guste v. Verity, 681 F.Supp. 1178 (E.D.La.), aff'd, 850 F.2d 211 (5th Cir.1988). On April 12, 1988, a stay pending appeal was issued. In the present appeal, the appellants again argue that the regulations are arbitrary and capricious. ⁶ In addition, the Concerned Shrimpers' appeal carries forward the equal protection challenge raised below.

II.

A.

The district court entered judgment for the Secretary on cross-motions for summary judgment. When reviewing a grant of summary judgment, a court of appeals applies the same legal standard as that which guided the district court. Barbetta v. S/S BERMUDA STAR, 848 F.2d 1364, 1368 (5th Cir.1988); Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987). Review in the first instance of a challenge made to regulations promulgated under the Endangered Species Act, 16 U.S.C. Sec. 1531 et seq., is governed by standards set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 706, and it is thus to these same standards that we will look in conducting our review on appeal. Environmental Coalition of Broward County, Inc. v. Meyers, 831 F.2d 984, 987 (11th Cir.1987). Under the APA, the administrative record is reviewed to determine whether the challenged action was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction, authority or limitation; or without procedure required by law. 5 U.S.C. Sec. 706(2)(A)-(D). ⁷

Appellants primarily charge that the regulations should be invalidated as arbitrary and capricious. Our scope of review under this standard, however, is very narrow. ⁸ The court is not to weigh the evidence in the record pro and con. C.A. White Trucking Co. v. United States, 555 F.2d 1260, 1264 (5th Cir.1977). Rather, our role is to review the agency action to determine whether the decision "was based on a consideration of the relevant factors and whether there was a clear error of judgment." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2866-67; Nueces County Nav. Dist. No. 1 v. ICC, 674 F.2d 1055, 1062-63 (5th Cir.), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982).

Thus, if the agency considers the factors and articulates a rational relationship between the facts found and the choice made, its decision is not arbitrary or capricious. Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1188 (5th Cir. Unit B Apr. 1981). Indeed, the agency's decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record. ⁹ With these principles of review in mind, we turn now to the challenges posed by the appellants.

B.

The core of appellants' challenge on appeal concerns the sufficiency of the administrative record to support the TED and trawling-period regulations. In particular, they assert that the record insufficiently demonstrates the impact of shrimp trawling on sea turtle mortality, the efficacy of the regulations as applied to inshore Louisiana waters, and the impact of the regulations on the Louisiana economy. Appellants also challenge the regulations insofar as the administrative record supporting them fails to address serious causes of sea turtle mortality other than shrimping. Based upon the limited scope of our review, we find that the record amply supports the Secretary's decision to issue the regulations in question.

1. The...