Louisiana Court Must Decide: Save the Sea Turtles or Save the Shrimping Industry

To promote sea turtle conservation, on December 20, 2019, the National Marine Fisheries Service (“NMFS”) promulgated a rule requiring Turtle Excluder Devices (“TEDs”) on skimmer trawl vessels greater than forty feet in length operating in inshore waters (“the Final Rule”). TEDs are devices that include an opening to allow sea turtles, which are often unintentionally caught in the nets, to escape from trawler nets. The first TED requirements were implemented in 1987. Historically, TED requirements have focused on the southeastern shrimp fisheries, which have faced stringent restrictions and, at times, closures to protect the endangered sea turtle population. Because of the effects of COVID-19 on travel and the ability of the NMFS to hold in-person TED training sessions, the NMFS postponed the effective date of the Final Rule until August 1, 2021.

Skimmer trawls are commonly used by shrimpers in the Louisiana shrimping industry. Concerned about the impact of the Final Rule on the state’s shrimping industry, the state of Louisiana (“the State”) sought a temporary restraining order to immediately postpone the effective date of the Final Rule. The State argued that the Final Rule would force shrimpers to either sit out the shrimping season, which started August 9, or risk incurring substantial fines. The Louisiana Department of Wildlife and Fisheries estimated that fifty percent (50%) of Louisiana shrimpers were not able to comply with the Final Rule before the shrimping season began. The State claimed that the NMFS’ refusal to delay the effective date beyond August 1 despite the ongoing COVID-19 pandemic and supply chain problems was an arbitrary and capricious decision that violated the Administrative Procedure Act (“APA”). The district court denied the temporary restraining order based on a finding that the State failed to ask the agency to reconsider or postpone the Final Rule.

On August 11th, the State tried again to stop the implementation of the Final Rule by seeking a preliminary injunction enjoining enforcement. Unlike a temporary restraining order, a preliminary injunction has a longer duration and can last until a final order is issued. The State again argued that the effective date was arbitrary and capricious because the NMFS failed to consider the amount of time necessary for shrimpers to come into compliance with the Final Rule. Pursuant to the APA, a court should not overturn an agency rule unless an agency action is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence. This time the district court found that NMFS did not take into consideration the amount of time that net makers would need to hand-make each TED after receiving the training. Also, the court noted that Hurricane Ida exasperated supply chain problems. The court determined that failing to extend the effective date would cause irreparable harm to the economy, predicting a reduction in gross revenues of approximately $2.9 million for the Louisiana shrimping industry.

Ultimately, the court had to determine whether the harms to the Louisiana economy and shrimping industry outweighed the benefits of enforcement beginning on August 1. The court concluded that a brief delay in implementation would allow for greater compliance and not result in unreasonable risk to the sea turtles. Therefore, the court granted the injunction and postponed enforcement of the Final Rule in Louisiana inshore waters until February 1, 2022. As a result, the court decided that saving the Louisiana economy and shrimping industry now will not prevent us from saving the sea turtles in the long run.