LOUISIANA SEAFOOD MNGT. COUNCIL, INC. v. Foster, Civil Action No. 96-106.

• Decision Date: 29 February 1996
• Docket Number: Civil Action No. 96-106.
• Citation: 917 F. Supp. 439
• Parties: LOUISIANA SEAFOOD MNGT. COUNCIL, INC., et al. v. Murphy J. FOSTER, Jr., Governor, Richard P. Ieyoub, Attorney General, et al.
• Court: U.S. District Court — Eastern District of Louisiana

917 F. Supp. 439

LOUISIANA SEAFOOD MNGT. COUNCIL, INC., et al. v. Murphy J. FOSTER, Jr., Governor, Richard P. Ieyoub, Attorney General, et al.

Civil Action No. 96-106.

United States District Court, E.D. Louisiana.

February 29, 1996.

Paul R. Baier, Baton Rouge, LA, Robert A. Barnett, Guste, Barnett & Shushan, New Orleans, LA, for plaintiffs.

Thomas E. Balhoff, Baton Rouge, LA, Judith Ruth Atkinson, Roedel, Parsons, Hill & Koch, Baton Rouge, LA, for intervenor-plaintiff.

Frederick Coller Whitrock, Louisiana Dept. of Justice, Public Protection Division, Baton Rouge, LA, Thomas Michael Landrum, Donald E. Puckett, Laura Heap, Louisiana Dept. of Wildlife and Fisheries, Baton Rouge, LA, for defendants.

ORDER

PORTEOUS, District Judge.

Before the Court, is Plaintiffs' Motion for a Preliminary Injunction, pursuant to Fed. R.Civ.P. 65(a), that was taken under submission after a hearing, which included documentary evidence, live testimony of witnesses, and oral argument by counsel, on the 18th of January 1996. The Preliminary Injunction requested seeks to enjoin the Louisiana Governor, Attorney General, and various other Louisiana Officials from enforcing the Louisiana Marine Resources Conservation Act of 1995 ("ACT NO. 1316"). Having considered the arguments of counsel, the applicable jurisprudence, and the volumes of documents submitted for the Court's review, the Plaintiffs' Motion for Preliminary Injunction of ACT NO. 1316 is, hereby, GRANTED, in part, and DENIED, in part.

I.) FACTUAL BACKGROUND:

Plaintiffs' filed their petition and motion for a temporary restraining order ("TRO") on the 11th of January 1996. The application for a TRO was denied based on the Court's availability for an expedited preliminary injunction hearing on the 18th of January 1996 and the failure of proof that irreparable harm would be suffered in the interim. The dispute in this case arises from House Bill No. 815 or the Louisiana Marine Resources Conservation Act of 1995, that ultimately became ACT NO. 1316, which amended and reenacted significant portions of La.R.S. § 56. Plaintiffs are seeking a preliminary injunction to stop various Louisiana officials from enforcing ACT NO. 1316. In the alternative, Plaintiffs request a preliminary injunction on specific provisions of ACT NO. 1316 claiming that these alleged unconstitutional portions should be severed from the statute.

II.) SEVERABILITY OF UNCONSTITUTIONAL PROVISIONS

This Court agrees with defendants' proposition that the Louisiana Legislature is the steward of Louisiana's natural resources as set out in the Louisiana Constitution Article IX, Section 1, which, in pertinent part, states:

The natural resources of the state ... shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The Legislature shall enact laws to implement this policy.

However, it is the manner in which the Legislature protects these resources that represents the conflict before the Court. In determining the "means" that the legislature will use to arrive at the legitimate "end" of conservation, they may not enact statutes in conflict with Federal law, the Equal Protection Clause of the 14th Amendment, the Due Process Clause of the 14th Amendment, the Commerce Clause in Article I, Section 8, or any other provision of the United States Constitution and/or Louisiana Constitution.

For all enjoined provisions of ACT NO. 1316, the Court will utilize the Severability clause found in La.R.S. 24:175, which provides, in part:

(A.) ... the provisions of each act of the legislature are severable, whether or not a provision to that effect is included in the act. If any provision or item of an act, or the application thereof, is held invalid, such invalidity shall not affect other provisions, items, or applications of the act which can be given effect without the invalid provision, item, or application.

(B.) This Section shall apply to all acts of the legislature ...

The Court is troubled with its position in acting as a surgeon carving out all of the enjoined provisions that have not passed Constitutional scrutiny. Severability is authorized unless the unconstitutional portions of the statute are so interrelated and connected with the Constitutional parts that they cannot be separated without destroying the intention manifested by the Legislature in passing the act. The Louisiana Supreme Court in State v. Cinel, 646 So.2d 309 (La. 1994), citing State v. Johnson, 343 So.2d 705 (La.1977), has further refined the test for severability as, "whether or not the legislature would have passed the statute had it been presented with the invalid features removed." Cinel at 314. This Court finds the Cinel test to be satisfied considering the amount of substantive changes that will remain in the commercial fishing regulations even without the severed portions included. These severed portions, which will be addressed later in the Order, are excluded only for the purpose of granting a preliminary injunction and do not permanently change the statute until further Order of the Court.

III.) STANDARD FOR PRELIMINARY INJUNCTION

The four factors, as listed in Buchanan v. U.S. Postal Service, 508 F.2d 259 (5th Cir.1975), citing 11A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure, § 2948, which must be considered prior to issuance of a Preliminary Injunction are as follows:

(1) Is there a substantial likelihood that plaintiffs will prevail on the merits?

(2) Is there a substantial threat that plaintiffs will suffer irreparable injury if interlocutory injunctive relief is not granted?¹

(3) Does the threatened injury to plaintiffs outweigh the threatened harm the injunction may do to defendants?

(4) Will a granting of a preliminary injunction disserve the public interest? Buchanan, p. 266.

These factors will be considered for the statute as a whole as well as for each individual portion of the statute. Only segments of the statute that meet all four of the factors, with the exception of preemption, will be discussed in this Order for Preliminary Injunction. The area of preemption will be discussed in an attempt to shed light on this unsettled area of law.

IV.) DISCUSSION OF PREEMPTION AND THE EXCLUSIVE ECONOMIC ZONE (EEZ)

It is well established that the Supremacy Clause² of the United States Constitution nullifies state laws that "interfere with, or are contrary to" federal law. Gibbons v. Ogden, 9 Wheat 1, 211, 6 L.Ed. 23 (1824). Federal law may supersede state law in several different ways. First, Congress may indicate an intent to preempt all state law in a particular field by so stating this intent. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Second, without the expressed preemptive language, Congress' intent may be inferred when comprehensive regulations leave "no room" for state supplemental regulation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Third, state law is nullified to the extent that it actually conflicts with Federal law and compliance with both regulations is a physical impossibility. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). Plaintiffs allege that all three forms of preemption are present in their memorandum in support of a preliminary injunction. This Court, respectfully, disagrees. While Plaintiffs' arguments are not without merit, they have failed to satisfy the first requirement for a preliminary injunction that they have a substantial likelihood of prevailing on the merits with respect to the entirety of ACT NO. 1316.

In years previous to the Magnuson Act, states were allowed to regulate beyond their territorial waters because there were few Federal Fishery Regulations on the books. During this period, the U.S. Supreme Court was confronted with several cases that raised the issue of preemption of state regulations in, or affecting, federal waters. In Skiriotes v. Florida, 313 U.S. 69, 77, 61 S.Ct. 924, 929, 85 L.Ed. 1193 (1941), the U.S. Supreme Court held that in matters affecting its legitimate interest a state may regulate the conduct of its citizens on the high seas as long as there was no conflicting Federal provision. More specifically, the Court recognized that a state's interest in preserving nearby fisheries is a sufficiently strong basis to permit extraterritorial enforcement of state laws.³ The Fifth Circuit followed this reasoning in Felton v. Hodges, 374 F.2d 337 (5th Cir.1967) when they held that Florida could enforce its crawfish regulations beyond the seaward boundary in Federal waters because of its interest in conservation and no conflicting Federal regulations.

The Magnuson Act, 16 U.S.C. § 1811, et seq., expresses Congress' intent to control the exclusive fishery management authority beginning at the state's seaward boundary (three miles seaward from the state's coastline) to a line drawn in such a manner that each point is 200 nautical miles from the outer boundary of each state's territorial waters. This area is often referred to as the Exclusive Economic Zone ("EEZ"). The Magnuson Act established eight regional fishery councils and provided that management of fishery resources within each region is to be conducted pursuant to Fishery Management Plans ("FMP") prepared by each council for certain species of fish within its region. Congress established the Magnuson Act to conserve and manage the harvesting of a valuable marine resource, saltwater finfish, as well as to inject uniformity into regulations governing the EEZ. While the Magnuson Act expresses Congress' plan to occupy regulation of the EEZ⁴, complete preemption of state authority is not intended. People v. Weeren, 26 Cal.3d 654, 163 Cal.Rptr. 255, 607 P.2d 1279 (1980). In 16 U.S.C. § 1856(a)(3), Congress expressly granted authority for state...