State of La. ex rel. Guste v. Verity, Civ. A. No. 87-4948.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtPATRICK E. CARR
Citation681 F. Supp. 1178
Docket NumberCiv. A. No. 87-4948.
Decision Date29 February 1988
PartiesSTATE OF LA., ex rel. William J. GUSTE, Jr. v. C. William VERITY, Jr., Secretary, United States Department of Commerce, the Environmental Defense Fund, the Center for Environmental Education, Concerned Shrimpers of Louisiana (Intervenors).

681 F. Supp. 1178

STATE OF LA., ex rel. William J. GUSTE, Jr.
v.
C. William VERITY, Jr., Secretary, United States Department of Commerce, the Environmental Defense Fund, the Center for Environmental Education, Concerned Shrimpers of Louisiana (Intervenors).

Civ. A. No. 87-4948.

United States District Court, E.D. Louisiana.

February 29, 1988.


681 F. Supp. 1179
COPYRIGHT MATERIAL OMITTED
681 F. Supp. 1180
Elizabeth R. Megginson, Trial Atty., Asst. Atty. Gen., Baton Rouge, La., for plaintiff

Donald A. Carr, James C. Kilbourne, Michele Kuruc, Trial Atty., Dept. of Justice, Land & Natural Resources Div., Washington, D.C., John Volz, U.S. Atty., S. Mark Gallinghouse, Asst. U.S. Atty., New Orleans, La., for William C. Verity; Karen Antrim, National Oceanic & Atmospheric Admin., St. Petersburg, Fla., of counsel.

Hogan & Hartson, David J. Hayes, Trial Atty., Mary Anne Mason, Barbara E. Pace, Washington, D.C., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Gerald E. Meunier, New Orleans, La., for defendant-intervenors.

ORDER AND REASONS

PATRICK E. CARR, District Judge.

The motions of plaintiff, State of Louisiana, ex rel. William J. Guste, Jr., Defendant, C. William Verity, Jr., and Intervenors, The Environmental Defense Fund, and The Center for Environmental Education for summary judgment were heard on February 10, 1988. After considering the motions, memoranda of the parties, the record and the law applicable to this case, the Court hereby renders its Order and Reasons.

This action is brought by the State of Louisiana, ex rel. William J. Guste, Jr., Attorney General, on behalf of the people of Louisiana and the Louisiana Department of Wildlife & Fisheries against William C. Verity, Jr., the United States Secretary of Commerce, seeking judicial review of regulations promulgated by the Secretary through the National Marine Fisheries Service (NMFS) concerning the shrimp trawling requirements, and the use of the turtle exclusion device (TED). The plaintiff moves the court to declare that those regulations are invalid and to issue a preliminary and permanent injunction enjoining the defendant from enforcing the regulations. The Concerned Shrimpers of Louisiana, Inc. have intervened asserting the same claims as the plaintiff. The defendant joined by intervenors, The Environmental Defense Fund and The Center for Environmental Protection, have moved to have the court to dismiss plaintiff's suit with prejudice, asserting that the regulations are valid.

On June 29, 1987, the defendant issued final regulations requiring shrimp trawlers in the Gulf and Atlantic to reduce the incidental catch and mortality of sea turtles in shrimp trawls. The rules for Louisiana become effective on March 1, 1988. The regulations require all Gulf shrimpers to use a TED if the shrimp trawler is trawling in offshore waters and the trawler is 25 feet or longer. If the trawler is less than 25 feet or trawling in inshore waters, the trawler will have to limit total trawling times to 90 minutes or less or in the alternative use a TED.

681 F. Supp. 1181

The plaintiff claims the regulations are arbitrary, capricious and an abuse of discretion. The plaintiff argues that the regulations place the entire burden of saving sea turtles on the backs of one "identifiable and powerless group" which violates their equal protection and due process rights. These claims are based on four (4) assertions made by the plaintiff: (1) that the TED has not been sufficiently tested in Louisiana waters; (2) that there is insufficient data to prove the turtles come into Louisiana waters in sufficient numbers to justify the imposition of these regulations; (3) that shrimpers are not the cause of turtle mortality; and (4) that the public was not given adequate notice and opportunity for meaningful participation in the promulgation of the regulations.

I. Standing:

In plaintiff's complaint at 3.1 the State of Louisiana states that it brings this action in its sovereign capacity. The State of Louisiana has an interest in both the protection and development of its coastal waters and marine resources. The general rule is:

"that a state may not attempt as parens patriae to enforce rights of its citizens in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae when such representation becomes appropriate, and to the former, and not to the latter, they must look for such protective measures as flow from that status." Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 600, 67 L.Ed. 1078 (1923).

See also, Jones, Governor, ex rel. Louisiana v. Bowles, Price, Administrator, 322 U.S. 707, 64 S.Ct. 1043, 88 L.Ed. 1551 (1944); Pennsylvania v. Porter, 659 F.2d 306 (3d Cir.1981). Neither may the State of Louisiana bring against the United States claims that the State's due process or equal protection rights have been violated. The state has no such rights. Pennsylvania, supra; South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

However, the State of Louisiana has standing to sue in the quasi-soverign capacity because of its interest in and ownership of its marine resources. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). In McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1876) the court stated:

"The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty." Id. at 394 (citations omitted).

Toomer, supra reaffirmed this principle. See also, State of Louisiana v. Baldridge, 538 F.Supp. 625 (E.D.La.1982).

The State also brings this action as parens patriae on behalf of its citizens, the Louisiana Shrimpers. Section 5.3 of the plaintiff's complaint asserts that the Louisiana Shrimpers' equal protection and due process rights have been violated. The State does not have standing to represent interests of a distinct group of people (the Louisiana Shrimpers) who are capable of raising their own claims. See Massachusetts v. Mellon, supra. In addition, since the filing of these motions for summary judgment the Concerned Shrimpers of Louisiana, Inc. have intervened on their own behalf. Accordingly, any claim made by the State on behalf of the Louisiana Shrimpers is dismissed.

In plaintiff's complaint at 5.2 the plaintiff claims that the Secretary did not comply with Executive Order 12291 (5 U.S. C. § 601 note) which requires an agency to develop a Regulatory Impact Analysis. However, plaintiff's motion for summary judgment omits any reference to this claim.

The E.O. # 12291 (5 U.S.C. § 601 note) in Sec. 9 entitled Judicial Review states:

Sec. 9. Judicial Review. This Order is intended only to improve the internal management of the Federal government,
681 F. Supp. 1182
and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person. The determinations made by agencies under Section 4 of this Order, and any Regulatory Impact analyses for any rule, shall be made part of the whole record of agency action in connection with the rule.

Courts have held that the order provides no basis for judicial review. State of Michigan v. Thomas, 805 F.2d 176, 187 (6th Cir.1986). Given the above unequivocal and clear language of the order, this Court may not review the agency's compliance with this order.

II. Standard of Review:

Regulations promulgated under the authority of the Endangered Species Act (ESA)1 are reviewed under the standards of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). Such regulations may be overturned where the regulations are 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;
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  • West Virginia ex rel. Mcgraw v. Minnesota Mining, No. CIV.A.2:03-2161.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 25 Enero 2005
    ...the proceeding." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Anchor Hocking, 681 F.Supp. at 1178 (citing Ford Motor, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389); West Virginia v. Haynes, 348 F.Supp. 1374, 1377 (S.D.W.Va.1972) (citing 32......
  • State of La., ex rel. Guste v. Verity, No. 88-3185
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    • 15 Agosto 1988
    ...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 ......
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    • 19 Julio 1990
    ...the proceeding." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Anchor Hocking, 681 F.Supp. at 1178 (citing Ford Motor, 323 U.S. 459, 65 S.Ct. 347); West Virginia v. Haynes, 348 F.Supp. 1374, 1377 (S.D.W.Va.1972) (citing 32 Am.Jur.2d, Fe......
  • Iberia Parish Gov't v. Romero, CIVIL NO. 14-2985
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 11 Mayo 2015
    ...other political subdivision held to be protected by the . . . the Fourteenth Amendment. At 188. In State of La. ex rel. Guste v. Verity, 681 F.Supp. 1178 (E.D. La.,1988), the Court said:Page 12 Neither may the State of Louisiana bring against the United States claims that the State's due pr......
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8 cases
  • West Virginia ex rel. Mcgraw v. Minnesota Mining, No. CIV.A.2:03-2161.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 25 Enero 2005
    ...the proceeding." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Anchor Hocking, 681 F.Supp. at 1178 (citing Ford Motor, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389); West Virginia v. Haynes, 348 F.Supp. 1374, 1377 (S.D.W.Va.1972) (citing 32......
  • State of La., ex rel. Guste v. Verity, No. 88-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Agosto 1988
    ...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 ......
  • State of W. Va. v. Morgan Stanley & Co. Inc., Civ. A. No. 2:89-1463.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 19 Julio 1990
    ...the proceeding." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Anchor Hocking, 681 F.Supp. at 1178 (citing Ford Motor, 323 U.S. 459, 65 S.Ct. 347); West Virginia v. Haynes, 348 F.Supp. 1374, 1377 (S.D.W.Va.1972) (citing 32 Am.Jur.2d, Fe......
  • Iberia Parish Gov't v. Romero, CIVIL NO. 14-2985
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    • 11 Mayo 2015
    ...other political subdivision held to be protected by the . . . the Fourteenth Amendment. At 188. In State of La. ex rel. Guste v. Verity, 681 F.Supp. 1178 (E.D. La.,1988), the Court said:Page 12 Neither may the State of Louisiana bring against the United States claims that the State's due pr......
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