Louisiana State v. Department of Commerce

• Citation: 559 F.Supp.3d 543
• Decision Date: 09 September 2021
• Docket Number: CIVIL ACTION NO: 21-1523
• Parties: LOUISIANA STATE v. DEPARTMENT OF COMMERCE et al.
• Court: U.S. District Court — Eastern District of Louisiana

559 F.Supp.3d 543

LOUISIANA STATE

v.DEPARTMENT OF COMMERCE et al.

CIVIL ACTION NO: 21-1523

United States District Court, E.D. Louisiana.

Signed September 9, 2021

Elisabeth Ashley Daigle, Office of the Solicitor General, Louisiana Dept. of Justice, Federalism Division, Machelle Rae Lee Hall, Elizabeth Baker Murrill, Louisiana's Office of the Attorney General, Baton Rouge, LA, Joseph S. St. John, Office of the Attorney General, Louisiana Dept. of Justice, New Orleans, LA, for Louisiana State.

Shampa Panda, US DOJ-ENRD Wildlife and Marine Resources, Washington, DC, for National Oceanic & Atmospheric Administration, Chris Oliver, Samuel D. Rauch, III, National Marine Fisheries Service, Department of Commerce.

SECTION: "H"

ORDER AND REASONS

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff's Motion for Preliminary Injunction (Doc. 13). For the following reasons, the Motion is GRANTED.

BACKGROUND

Plaintiff Louisiana State, through the Louisiana Department of Wildlife and Fisheries, brings Administrative Procedure 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 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.

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.

LEGAL STANDARD

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

LAW AND ANALYSIS

A. 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 delayed; and

(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;

(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 expertise.¹⁰

"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 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 action.

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 supply-chain 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."

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

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