559 F.Supp.3d 543
E.D. La.2021Background:
- Louisiana (through its Department of Wildlife and Fisheries) sued NMFS and related federal officials after NMFS promulgated a 2019 Final Rule requiring Turtle Excluder Devices (TEDs) on skimmer trawls on vessels >40 feet.
- The Final Rule originally had an effective date of April 1, 2021; the agency issued a Delay Rule on March 31, 2021 moving effectiveness to August 1, 2021 citing COVID-19 travel restrictions and the need for in‑person training.
- Louisiana filed suit on August 11, 2021 claiming (1) the Delay Rule and its August 1 effective date were arbitrary and capricious for failing to account for time needed for compliance (supply‑chain and training issues), and (2) the Final Rule itself was arbitrary and capricious.
- The state submitted evidence (declaration from a net maker) of material shortages and that TEDs must be hand‑made and require training; the court noted Hurricane Ida would further worsen compliance difficulties.
- The Court found Louisiana likely to succeed on the merits as to the Delay Rule, found irreparable economic harm to Louisiana’s shrimp industry, determined the equities and public interest favored a brief delay, and enjoined enforcement of the Final Rule in Louisiana inshore waters until February 1, 2022.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Delay Rule a final, reviewable agency action? | Delay Rule is the agency’s final decision fixing the compliance date and is reviewable. | Delay Rule is not a final, reviewable action. | Delay Rule is a final, reviewable agency action. |
| Was the Delay Rule arbitrary and capricious for failing to account for time needed to comply? | Agency failed to consider supply‑chain shortages, hand‑made TED production time, and lack of in‑person training (evidence from net maker). | Agency considered training delays and implemented a modified (virtual) outreach plan; selected Aug 1 date reasonably. | Agency failed to consider an important aspect (production/compliance time); plaintiff likely to succeed on this claim. |
| Is the Final Rule itself arbitrary and capricious (policy reversal)? | Final Rule is a policy reversal contrary to findings. | Agency defends the Final Rule as lawful and necessary for turtle conservation. | Court did not decide this claim; not necessary given ruling on the Delay Rule. |
| Do irreparable harm, balance of equities, and public interest support injunctive relief? | Economic harm to Louisiana shrimping industry; sovereign‑immunity limits monetary relief. | Rule prevents substantial annual sea turtle mortality; public interest favors enforcement. | Court found irreparable economic harm and that equities/public interest support a limited delay; preliminary injunction issued for Louisiana until Feb 1, 2022. |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (formulates arbitrary-and-capricious review standards)
- Texas Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923 (5th Cir. 1998) (applies State Farm standard to agency decisions)
- Buffalo Marine Services, Inc. v. U.S., 663 F.3d 750 (5th Cir. 2011) (standards for overturning agency action)
- Veldhoen v. U.S. Coast Guard, 35 F.3d 222 (5th Cir. 1994) (defines final agency action)
- Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (delay of a rule’s effective date can be reviewable as final agency action)
- Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192 (5th Cir. 2003) (preliminary injunction factors)
- Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) (irreparable harm concept for injunctions)
- Nat’l Ass’n of Indep. Television Producers & Distributors v. Fed. Commc’ns Comm’n, 502 F.2d 249 (2d Cir. 1974) (courts may review agency effective dates when affected parties need compliance time)
- Am. Fed’n of Lab. & Cong. of Indus. Organizations v. Chao, 298 F. Supp. 2d 104 (D.D.C. 2004) (similar review of effective‑date delay issues)