holding that the agency impermissibly “glossed over” prior policy where it failed to “even to acknowledge its past practice and formal policies . . . let alone to explain its reversal of course”
How later courts described this case
- holding that the agency impermissibly “glossed over” prior policy where it failed to “even to acknowledge its past practice and formal policies . . . let alone to explain its reversal of course”
- holding that, under GDF Investments, Ltd., the FWS’s regulation of bone cave harvestman as related to petition to remove harvestman from endangered species list did not exceed Congress’s Commerce Clause authority
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUISIANA SHRIMP ASSOCIATION, ET AL. CIVIL ACTION
VERSUS NO: 24-0156
JOSEPH R. BIDEN, JR., ET AL. SECTION “H”
ORDER AND REASONS
Before the Court are Cross-Motions for Summary Judgment (Rec. Docs.
30, 31). For the following reasons, Defendants’ Motion for Summary Judgment
is GRANTED (Rec. Doc. 31). Plaintiffs’ Motion for Summary Judgment is
DENIED.
BACKGROUND
Plaintiffs Louisiana Shrimp Association (“LSA”), John Brown, Larry L.
Helmer, and Penny Zar bring this action for declaratory judgment and
injunctive relief based on Administrative Procedure Act (“APA”) claims arising
out of the National Marine Fisheries Service (“NMFS”)’s 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; Donald J. Trump, in his official
1
capacity as President of the United States; and Gina Raimondo, in her official
capacity as United States Secretary of Commerce.1
1. Statutory and Regulatory Framework
The Endangered Species Act (“ESA”) was enacted “to provide a means
whereby the ecosystems upon which endangered species and threatened
species depend may be conserved, [and] to provide a program for the
conservation of such endangered species and threatened species . . . .”2 To
accomplish this goal, Congress directed the Secretary of the Interior and the
Secretary of Commerce to list endangered and threatened species and
designate their critical habitat.3 An endangered species is one that is in danger
of extinction throughout all or a significant portion of its range,4 and a
threatened species is one that is likely to become endangered within the
foreseeable future throughout all or a significant portion of its range.5 Once a
species is listed as endangered or threatened, a number of provisions of the
statute help ensure the survival and recovery of the species.6 One way the
ESA protects covered species is by making it unlawful to “take” those species.7
The ESA defines the term “take” as “to harass, harm, pursue, hunt, shoot,
1 President Donald J. Trump was automatically substituted as Defendant in place of
former President Joseph R. Biden. FED. R. CIV. P. 25(d).
2 16 U.S.C. § 1531(b).
3 See id. § 1533.
4 Id. § 1532(6).
5 Id. § 1532(20).
6 See, e.g., id. § 1533(f); § 1536.
7 Id. § 1538(a).
2
wound, kill, trap, capture, or collect, or to attempt to engage in any such
conduct.”8
“Federal agencies may ‘promulgate such regulations as may be
appropriate’ to protect against the unlawful taking of a protected animal.”9 For
protected marine animals, the relevant agency is NMFS.10 The ESA provides
that the Secretary may permit “otherwise prohibited” takings if they are
“incidental to . . . an otherwise lawful activity.”11
Five species of sea turtles occur in U.S. waters (Kemp’s ridley,
loggerhead, leatherback, green, and hawksbill sea turtles), each of which have
been listed by NMFS as either endangered or threatened under the ESA.12
Incidental takings occur during commercial shrimping when shrimpers cast
trawl nets into the sea and accidentally ensnare sea turtles.13 If the sea turtles
cannot escape, they drown.14 But trawl nets can be fitted with a TED, which
8 Id. § 1532(19). “The Secretary of Commerce, who is responsible for most marine
species, including sea turtles in the ocean, has delegated her responsibility to NMFS.” Rec.
Doc. 31-1 at 9 n.1. NMFS has the discretion to extend those prohibitions to threatened species
or to issue other regulations to protect threatened species. 16 U.S.C. § 1533(d). The Secretary
of Commerce extended the prohibition against takings to threatened sea turtles through 50
C.F.R. § 223.205. Rec. Doc. 31-1 at 10.
9 Ctr. for Biological Diversity v. Nat’l Marine Fisheries Serv., No. 22-5295, 2024 WL
3083338, at *2 (D.C. Cir. June 21, 2024) (quoting 16 U.S.C. § 1540(f)); see also 50 C.F.R. §
222.101(a)(1).
10 Id. at *1.
11 16 U.S.C. § 1539 (a)(1)(B). “The Act prohibits captures of endangered sea turtles
within the United States, within the U.S. territorial sea, and on the high seas, except as
authorized by the Secretary of Commerce or the Secretary of the Interior.” 52 Fed. Reg. 24244
(June 27, 1987). “Incidental takes of threatened and endangered sea turtles during shrimp
trawling are exempt from the taking prohibition of section 9 of the ESA so long as the
conservation measures specified in the sea turtle conservation regulations (50 CFR 223.206;
50 CFR 224.104) are followed.” AR009464.
12 Rec. Doc. 31-1.
13 AR001734–35.
14 AR010989; AR012484−85.
3
are essentially escape hatches for sea turtles captured in nets.15 TEDs
generally consist “of a metal grid installed in a trawl that mechanically
separates sea turtles and other large bycatch species, which are then excluded
from the net through an escape opening, while the shrimp are retained in the
trawl’s tail bag.”16
2. Factual and Procedural Background
Since 1987, NMFS has required TEDs to be installed on most, but not
all, shrimp trawls in the southeastern U.S. shrimp fisheries.17 NMFS
promulgated a rule in 1987 requiring shrimp trawlers 25 feet or longer
operating in offshore waters from North Carolina to Texas to install NMFS-
approved TEDs, subject to a few preconditions.18 The 1987 rule exempted
skimmer trawlers and inshore shrimpers from its requirements, so long as the
exempted vessels followed tow time exemptions.19 The United States Court of
15 Rec. Doc. 33 at 5.
16 Rec. Doc. 30-1 at 7. The regulations define a TED as “a device designed to be
installed in a trawl net forward of the cod end for the purpose of excluding sea turtles from
the net, as described in 50 C.F.R. [§] 223.207.” 50 C.F.R. § 222.102.
17 “Shrimp trawler means any vessel that is equipped with one or more trawl nets and
that is capable of, or used for, fishing for shrimp, or whose on-board or landed catch of shrimp
is more than 1 percent, by weight, of all fish comprising its on-board or landed catch.” 50
C.F.R. § 222.102.
18 52 Fed. Reg. 24244 (June 29, 1987).
19 Id. at 24246. The 1987 proposed rule defined “inshore” as “marine or tidal waters
landward of the baseline from which the territorial sea of the United States is measured.”
Rec. Doc. 30-1 at 7 (citing 52 Fed. Reg. 6179 (Mar. 2, 1987). The United States Court of
Appeals for the D.C. Circuit has explained that the “Fisheries Service regulations have never
required every shrimper to use a [TED]. Before 2019, deep-water shrimpers using ‘otter
trawls’ were required to install [TEDs], but shallower-water shrimpers using ‘skimmer
trawls,’ ‘pusher-head trawls,’ and ‘butterfly trawls’ were not.” Ctr. for Biological Diversity,
2024 WL 3083338, at *3 (internal quotations omitted). Deep-water shrimpers operate “out
of large, commercial vessels in deeper waters offshore; these vessels predominantly fish using
nets called otter trawls, which use boards to hold the net open as it is pulled through the
water.” Id. at *4 n.2 (internal quotations omitted). Other shrimpers sail closer to shore, and
4
Appeals for the Fifth Circuit upheld this rule in the 1988 decision Louisiana,
ex rel. Guste v. Verity.20 In 2012, NMFS proposed a more restrictive rule
requiring TEDs for certain additional trawl types, including skimmer trawls,21
but withdrew it in 2013.22 In 2016, the agency proposed another rule to require
TEDs on almost all vessels in the southeastern U.S. shrimp fisheries.23 The
2016 proposal considered seven regulatory options ranging from preserving the
status quo; to requiring additional shrimpers to use turtle excluder devices
based on vessel length, type of trawl used, and fishing location; to requiring all
shrimpers to use TEDs.24
On December 20, 2019, NMFS promulgated the Final Rule at issue,
which requires TEDs on skimmer trawlers greater than 40 feet in length,
including those operating inshore. The Final Rule’s Environmental Impact
Statement (“EIS”) estimates that for the 1,047 vessels in the Gulf of Mexico
that are expected to be affected,
the aggregate loss in gross revenue from shrimp loss is about $2.3
million, which represents about 2.9% of their gross revenue.
Including the costs of purchasing TEDs, which are slightly less
than $1.4 million, the total adverse effect in the first year is almost
many of them use skimmer trawls. Pusher-head trawls and wing nets (butterfly trawls) are
fished similarly to skimmer trawls; however, these gear types are rare in Southeastern U.S.
shrimp fisheries. AR009414. “A skimmer trawl consists of a net attached to a rigid frame on
each side of the vessel that is pushed through the water column, typically at night.” Id. “Once
the frames and nets are lowered into the water, only the cod ends are retrieved to remove the
catch, while the mouths of the simmer trawls continuously fish.” Id.
20 853 F.2d 322 (5th Cir. 1988).
21 77 Fed. Reg. 27411 (May 10, 2012).
22 78 Fed. Reg. 9024 (Feb. 7, 2013).
23 81 Fed. Reg. 91097 (Dec. 16, 2016).
24 AR001676–79.
5
$3.7 million, which represents about 4.5% of their gross revenue in
the aggregate.25
The original effective date of the Final Rule was April 1, 2021. On March
31, 2021, the NMFS delayed the 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 NMFS to hold in-person TED training sessions.26 On April 20,
2021, NMFS published an advance notice of proposed rulemaking (“ANPR”)
to solicit comments on further modification of the TED requirements for
skimmer trawl vessels shorter than 40 feet operating in the southeast U.S.
shrimp fisheries.27 NMFS has not yet published a proposed rule or taken
further regulatory action regarding the ANPR.28
On January 17, 2024, Plaintiffs filed this instant action requesting that
this Court set aside and/or vacate the Final Rule and issue an injunction
against its continued enforcement.29 In their Complaint, Plaintiffs allege that
25 AR001848–49.
26 Rec. Doc. 31-1 at 12 (citing 86 Fed. Reg. 16676-01 (Mar. 31, 2021)). The State of
Louisiana challenged the Final Rule in 2021. Louisiana ex rel. La. Dep’t of Wildlife &
Fisheries v. Nat’l Oceanic & Atmospheric Admin., 559 F. Supp. 3d 543, 545 (E.D. La. 2021).
On September 9, 2021, this Court granted Louisiana’s motion for a preliminary injunction
and briefly delayed the Final Rule in Louisiana inshore waters until February 1, 2022,
reasoning that the pandemic delayed the construction and installation of TEDs. Id. at 549.
On November 28, 2022, this Court dismissed the case on standing grounds; the Fifth Circuit
affirmed on June 15, 2023. Louisiana ex rel. La. Dep’t of Wildlife & Fisheries v. Nat’l Oceanic
& Atmospheric Admin., No. 21-1523, 2022 WL 17251152, at *3 (E.D. La. Nov. 28, 2022), aff’d,
70 F.4th 872, 880 (5th Cir. 2023).
27 AR012638.
28 Rec. Doc. 32 at 5.
29 Rec. Doc. 1.
6
the Final Rule (1) is arbitrary and capricious and (2) violates Plaintiffs’ rights
under the Commerce Clause and/or Major Questions Doctrine.30
On August 1, 2024, Plaintiffs filed a Motion for Summary Judgment
requesting that this Court hold unlawful and vacate the Final Rule.31 On
September 5, 2024, Defendants filed a Cross-Motion for Summary Judgment.32
On September 12, 2024, the Center for Biological Diversity, Defenders of
Wildlife, and Turtle Island Restoration Network (the “Conservation Groups”)
filed an Amici Curiae Brief in support of Defendants’ Motion.33
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”34 “Under Rule 56,
a court normally considers whether the record, viewed in the light most
favorable to the non-moving party, evinces a genuine dispute of material
fact.”35
Summary judgment is the appropriate mechanism for reviewing the
final action of a government agency under the APA.36 In such a case, a “‘motion
30 Id.
31 Rec. Doc. 30. Defendants also filed an Opposition to this Motion. Rec. Doc. 32.
32 Rec. Docs. 31, 32.
33 Rec. Doc. 33.
34 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
35 Holy Cross Sch. v. Fed. Emergency Mgmt Agency, 648 F. Supp. 3d 747, 752 (E.D.
La. 2023) (Fallon, J.).
36 Clark v. Dep’t of the Army, No. 17-7757, 2019 WL 917597, at *2 (E.D. La. Feb. 25,
2019).
7
for summary judgment stands in a somewhat unusual light, in that the
administrative record provides the complete factual predicate for the court’s
review.’”37 The court must decide, as a matter of law, whether an agency’s
action is supported by the administrative record and consistent with the APA
standard of review.38
LAW AND ANALYSIS
Plaintiffs first argue that the Final Rule is arbitrary and capricious
because the agency: (1) failed to justify revoking the prior tow time exemption,
(2) disregarded the reliance interests of Louisiana shrimpers and the costs and
benefits of the Final Rule, and (3) failed to demonstrate that there are
incidental takings occurring in Louisiana inshore waters. Finally, they argue
that the Final Rule violates the Commerce Clause and implicates the Major
Questions Doctrine.
1. Whether the Final Rule Is Arbitrary and Capricious
A challenge to an agency action such as this one is subject to judicial
review on specific grounds set forth in the APA. The APA states, in pertinent
part, that
[t]o 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
37 Holy Cross Sch., 648 F. Supp. at 752 (quoting Town of Abita Springs v. U.S. Army
Corps of Eng’rs, 153 F. Supp. 3d 894, 903 (E.D. La. 2015)).
38 See id.
8
(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[.]39
The Fifth Circuit has mirrored this language, finding that courts should only
overturn rules pursuant to the APA if an agency action “is arbitrary,
capricious, and abuse of discretion, not in accordance with law, or unsupported
by substantial evidence on the record taken as a whole.”40 A rule is arbitrary
and capricious “‘only where the agency has considered impermissible factors,
failed to consider important aspects of the problem, offered an explanation for
its decision that is contrary to the record evidence, or is so irrational that it
could not be attributed to a difference in opinion or the result of agency
expertise.’”41 As the Supreme Court has explained, agency decisions will be
upheld so long as the “agency ‘examine[d] the relevant data and articulate[d]
a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.’”42 “The scope of this review ‘is
39 5 U.S.C. § 706.
40 Buffalo Marine Servs., Inc. v. United States, 663 F.3d 750, 753 (5th Cir. 2011)
(internal citations omitted).
41 BCCA Appeal Grp. v. E.P.A., 355 F.3d 817, 824 (5th Cir. 2003) (quoting State Farm,
463 U.S. at 43). Additionally, “An agency action qualifies as ‘arbitrary’ or ‘capricious’ if it is
not ‘reasonable and reasonably explained.’” Ohio v. EPA, 603 U.S. 279, 292 (2024) (quoting
FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)).
42 FDA v. Wages & White Lion Invs., L.L.C., 604 U.S. ----, 145 S. Ct. 898, 917 (2025)
(quoting Motor Vehicles Mfr. Ass’n of United States, Inc. v. State Farm Mut. Auto. Inv. Co.,
463 U.S. 29, 43 (1983)); BCCA Appeal Grp., 355 F.3d at 824 (citing Burlington Truck Lines
v. United States, 371 U.S. 156, 168 (1962)).
9
narrow,’ and reviewing courts must exercise appropriate deference to agency
decisionmaking and not substitute their own judgment for that of the
agency.”43
a. Whether the “change in position doctrine” renders the
Final Rule arbitrary and capricious
Plaintiffs first contend that NMFS previously justified maintaining tow-
time requirements by citing to the lack of data on incidental takings of sea
turtles and that NMFS cannot now use such a lack of data to “justify the
opposite course.”44 Plaintiffs therefore invoke the so-called “change-in-position
doctrine.”45 As the Supreme Court has stated, under the change-in-position
doctrine, “[a]gencies are free to change their existing policies as long as they
provide a reasoned explanation for the change, display awareness that [they
are] changing position, and consider ‘serious reliance interests.’”46
“The change-in-position doctrine asks two questions. The first is whether
an agency changed existing policy.”47 Here, no party disputes that NMFS, in
revoking the prior tow time exemption, changed its position. As such, the next
question is whether NMFS “display[ed] awareness that it is changing position
and offer good reasons for the new policy?”48 As to this point, Plaintiffs contend
that the agency must “provide a more detailed justification than would suffice
43 Wages & White Lion Invs., 145 S. Ct. at 917 (quoting State Farm, 463 U.S. at 43).
44 Rec. Doc. 30-1 at 22.
45 See Wages & White Lion Invs., 145 S. Ct. at 917.
46 Id. (internal quotations omitted) (quoting Encino Motorcars, LLC v. Navarro, 579
U.S. 211, 221–22 (2016)).
47 Id. at 918.
48 Id. (internal quotations omitted).
10
for a new policy created on a blank slate.”49 The Supreme Court has stated,
however, that the “mere fact that an agency interpretation contradicts a prior
agency position is not fatal.”50 In F.C.C. v. Fox News Television Stations, the
Court explained that while an agency must “show that there are good reasons
for the new policy,” it need not always “demonstrate to a court’s satisfaction
that the reasons for the new policy are better than the reasons for the old one.”51
Sometimes it must, however, such as when “its new policy rests upon factual
findings that contradict those which underlay its prior policy,” or “when its
prior policy has engendered serious reliance interests that must be taken into
account.”52
The upshot is that an agency action is not subject to a heightened or more
searching standard of review than that under the APA simply because it
represents a change in administrative policy.53 Thus, NMFS need only provide
an adequate justification for the change.
i. Whether NMFS adequately justified revoking the
prior tow time exemption
Here, NMFS adequately explained its decision. The November 4, 2019,
Final Environmental Impact Statement (“FEIS”) estimated that 7,794 sea
turtles are captured annually by Gulf of Mexico skimmer trawls, pusher-head
49 Rec. Doc. 30-1 at 17 (quoting F.C.C. v. Fox News Television Stations, 556 U.S. 502,
513 (2009)).
50 Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996).
51 Fox News Television Stations, 556 U.S. at 515.
52 Id. The Court further note that “[i]t would be arbitrary or capricious to ignore such
matters.” Id.
53 Id. “[I]t is not that further justification is demanded by the mere fact of policy
change.” Id. at 516. Rather, “a reasoned explanation is needed for disregarding facts and
circumstances that underlay or were engendered by the prior policy.” Id.
11
trawl, and wing net fisheries, resulting in nearly 3,000 total sea turtle
mortalities per year.54 To reach this number, NMFS “calculated sea turtle
catch per unit effort rates based on observed effort in the skimmer trawl
fisheries,” and then estimated sea turtle mortality “based on observed
mortality rates and taking into consideration the effects of post-interaction
mortality on captured and released sea turtles.”55
When the 1987 rule was issued regulating certain shrimp trawling
vessels, NMFS acknowledged that it had limited scientific data on the
incidental mortality of sea turtles and TED effectiveness in certain areas. At
the time, skimmer trawls were exempted in part because NMFS assumed that
these gear types posed less of a threat to sea turtles because nets would be
pulled from the water in a short enough time that turtles would not drown.
NMFS therefore stated that it was not appropriate at that time to require
TEDs on both inshore and offshore waters by all shrimp trawlers.56 In State of
Louisiana ex rel. Guste v. Verity, the Fifth Circuit upheld the 1987 rule based,
in part, on that assumption.57 Since then, however, NMFS gathered new data
supporting the Final Rule.
54 AR001796–97.
55 AR002169.
56 52 Fed. Reg. 24244, 24246 (June 29, 1987).
57 Guste, 853 F.2d at 331. Plaintiffs argue that the Guste court upheld the rule based
on information that “TEDs will not be effective inshore because the TEDs will clog with debris
that reportedly lines the bottom of these waters,” as well as the lack of data on inshore
interactions. Rec. Doc. 30-1 at 8. The Conservation Groups point out that “the Fifth Circuit
upheld NMFS’s 1987 distinction between TED regulations in offshore waters and inshore
waters based on the now-disproven assumption that limiting tow times in inshore waters
would prevent turtle mortality.” Rec. Doc. 33 at 15 (citing Guste, 853 F.2d at 330–331). As
such, Guste does not foreclose NMFS from modifying TED regulations in the future.
Moreover, NMFS responded to comments stating that TEDs may encounter debris in 2016.
See, e.g., AR009466.
12
In 2011, tow time restrictions were applicable to all skimmer trawls.
NMFS observed an elevated level of strandings and stated that necropsy
results revealed that stranded turtles likely “perished due to forced
submergence (drowning), which is commonly associated with fishery
interactions.”58 NMFS’s data also indicated that none of the stranded turtles
showed signs “of external oiling to indicate effects associated with the
Deepwater Horizon (DWH) oil spill event.”59
Concurrent with the 2012 proposed rule, NMFS collected observer data
that documented the capture of sea turtles by skimmer trawls. The federal
observer data, which was published in 2012, 2013, and 2014, indicated
widespread noncompliance with tow time restrictions and documented sea
turtle mortality resulting from tows that exceeded those restrictions.60 As the
Conservation Groups point out, difficulties with enforcement reduce the
likelihood of compliance.61 Most tow time violations go unobserved and
unenforced,62 and even law enforcement observation is unlikely to find
violators.63 NMFS noted that enforcement personnel would need to remain
undetected for at least 55 minutes—which is “practically impossible at sea”—
or else their very presence may cause skimmer trawls to adhere to tow time
58 AR000266.
59 Id. Plaintiffs contend that because NMFS stated that “stranding coverage has
increased considerably due to the [Deepwater Horizon] oil spill event, which has increased
the likelihood of observing stranded animals,” NMFS “acknowledged that the year-over-year
data wasn’t comparable at all.” Plaintiffs’ attempt to cherry-pick statements from NMFS is,
at best, misleading. Indeed, Plaintiffs fail to include NMFS’s above-cited statements that the
stranded sea turtles likely died due to fishery interactions.
60 AR010924; AR010893; AR010955.
61 AR000267; AR009491.
62 AR009491.
63 Id.
13
restrictions when they would not otherwise do so.64 And less compliance means
an increased likelihood that turtles will be forcibly submerged and towed,
become comatose, and eventually drown.65
Further, NMFS assessed the data collected during the observer program
in conjunction with scientific studies and concluded that even full compliance
with tow times resulted in turtle mortality.66 NMFS also considered data
indicating that post-interaction mortality for the trawl fisheries could be “more
than triple the number estimated based on dead and comatose turtles alone.”67
In their response to public comments, NMFS noted that even though many
turtles were often released alive during the observer program, studies and
expert opinion indicated that the “persistent or delayed effects” of the time that
sea turtles spent submerged could lead to “deaths of some turtles that appear
to be in good health at the time of release.”68 NMFS therefore concluded that
64 AR000267; AR001671.
65 AR012113. “Mortality rates increase rapidly when tow times exceed 50 minutes, as
they regularly have since the tow time limits were implemented.” Rec. Doc. 33 at 20 (citing
AR010990).
66 “Within 30 minutes of being forcibly submerged, a turtle’s heart rate sharply
declines, blood lactate levels increase, and blood oxygen depletes to very low levels.” Rec. Doc.
33 at 20 (citing AR012115; AR010989). “Thus, a sea turtle released alive from a net that
complied with the 55- or 75-minute tow time limit may still die from the traumatic
physiological effects of capture.” Id. at 20–21 (citing AR001794). “Moreover, it takes around
20 hours for the blood lactate level in a sea turtle to return to baseline after a trawl
encounter.” Id. at 21 (citing AR010991; AR012484). “This long recovery time indicates that
repeatedly captured sea turtles are likely even more susceptible to dying from a subsequent
encounter.” Id. (citing AR012115). “NMFS did not account for these post-interaction
mortalities in its 1987 decision to impose tow time limits.” Id.
67 AR002052.
68 AR009466.
14
“tow time limits may not be as effective in reducing sea turtle bycatch and
mortality as previously thought.”69
In support of that response, NMFS cited a 2017 NMFS Procedural
Directive 02-110-21 (“2017 Directive”) and a 2016 conference report (the “Stacy
Report”), both of which focused on post-interaction mortalities. Plaintiffs argue
that these citations were insufficient to justify departing from tow time
exemptions.70 The Court disagrees.
Plaintiffs aver that the Stacy Report relies upon information that was
available at the time of the 2013 withdrawal rule and argue that “old data
cannot provide new reasons to justify a policy change.”71 But NMFS did obtain
new data since the 2013 withdrawal rule. In 2015, NMFS held an expert
workshop that was centered around post-interaction sea turtle mortality and
informed the development of national criteria for assessing such mortality; this
workshop resulted in the Stacy Report.72 The Conservation Groups point out
that the report synthesized both historic and more recent studies73—including
new data collected after the withdrawal of the 2012 rule”74—as well as “expert
opinions and recommendations regarding post-interaction mortality from the
2015 workshop.”75
69 Id.; AR001796.
70 Plaintiffs suggest that NMFS failed to adequately respond to public comments as to
this issue. “An agency must consider and respond to significant comments received during
the period for public comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). The
Court finds that NMFS considered the relevant data and adequately responded to public
comments.
71 Rec. Doc. 30-1 at 22.
72 AR010976.
73 Rec. Doc. 33 at 23 (citing AR010980–84; AR010989–901).
74 Id. (citing AR011084–89; AR011036; AR011081).
75 Id. (citing AR010980–84; AR011002–13).
15
After the workshop, NMFS issued the 2017 Directive to “provide the
process and criteria for assessing post-interaction mortality.”76 Plaintiffs
contend that NMFS’s citation to the 2017 Directive is misplaced because it
states that “sea turtles that are captured in fisheries and subsequently
released cannot be directly measured.”77 Plaintiffs argue that NMFS cannot
reverse course after acknowledging a “lack of data” when a lack of data
previously justified tow time exceptions.
The 2017 Directive, however, did not necessarily admit a lack of data.
Rather, it noted that
[b]ecause the survival or death of sea turtles that are captured in
fisheries and subsequently released cannot be directly measured
in most instances, the likelihood of mortality is primarily based on
activity level and the presence or absence of any abnormal behavior
or injuries. This information is largely collected by observers on
board commercial fishing vessels; observers are trained to
document the condition of bycaught sea turtles amid a number of
other duties.78
The 2017 Directive also cited to and considered studies and information on
post-interaction mortality published after the 2013 rule withdrawal.79 But
even without the 2017 Directive or Stacy Report, as explained above, NMFS
did collect new data indicating (1) widespread noncompliance with tow times
and (2) high collections of sea turtles in inshore waters. Thus, the agency did
not “reverse course” absent sufficient data.
76 PROCESS FOR POST-INTERACTION MORTALITY DETERMINATIONS OF SEA TURTLES
BYCAUGHT IN TRAWL, NET, AND POT/TRAP FISHERIES, NMFS PROCEDURAL INSTRUCTION 02-
110-21 at 2 (Mar. 23, 2017, renewed Mar. 23, 2022).
77 Id. at 4.
78 Id. at 9 (emphasis added).
79 Id. at 9–10.
16
Additionally, the 2013 withdrawal rule indicates that NMFS withdrew
the rule largely because the turtles observed in the federal observer program
were small enough to pass between the required maximum bar spacing in the
grid of the TEDs, which negated much of the conservation benefit estimated
from the 2012 proposed rule.80 The 2016 proposed rule explained that after the
2013 withdrawal rule, NMFS initiated additional TED testing to evaluate
“both small sea turtle exclusion and shrimp retention within the skimmer
trawl fisheries.”81 NMFS noted that this testing “produced several TED
configurations that all use a TED grid with 3-inch (7.6 cm) bar spacing (i.e.,
less than the current 4-inch bar spacing maximum) and escape-opening flap
specifications that would allow small turtles to effectively escape the trawl net,
which could be employed by trawl vessels in areas where these small turtles
occur.”82
Based on new information about the difficulty of enforcing tow time
restrictions,83 the lack of effectiveness of tow times in avoiding sea turtle
mortality,84 TED bar spacing,85 and turtle mortality,86 NMFS adopted the
Final Rule in 2019. In sum, NMFS had sufficient information justifying the
Final Rule and made scientific assessments “based upon its evaluation of
complex scientific data within its technical expertise.”87
80 AR00289-90.
81 AR002168.
82 Id.
83 Id.
84 AR002169.
85 AR002168.
86 AR009466.
87 BCCA Appeal Grp., 355 F.3d at 824. Additionally, in an Issues Advisory
Memorandum, the Regional Administrator for the Department of Commerce stated that
17
ii. Whether NMFS “glossed over prior precedents”
Next, Plaintiffs argue that the Final Rule failed to address the findings
in a 2014 Biological Opinion (“2014 BiOp”). The 2014 BiOp addressed the
effects of (1) “the continued implementation of the sea turtle regulations
applicable to shrimp trawling” at the time and (2) “continued authorization of
Southeast U.S. shrimp fisheries in federal waters” on sea turtle populations
and their “critical habitat.”88
Plaintiffs point out that the 2014 BiOp noted that maintaining the status
quo was not likely to “jeopardize the continued existence” of sea turtles,89 citing
caselaw explaining that if “‘an agency glosses over or swerves from prior
precedents without discussion it may cross the line from the tolerably terse to
the intolerably mute.”’90 Here, however, the BiOp is not a “prior precedent”
that NMFS failed to adequately explain.91
First, the BiOp was issued under a separate section of the ESA, which
directs each federal agency, in consultation with NMFS, to ensure that actions
by the agency is not likely to “jeopardize the continued existence,” or threaten
the critical habitat of, an ESA-listed species.92 The Final Rule was
there was information indicating that skimmer trawl vessels have “increased the size and
amount of gear over time” and that use of such larger skimmer trawl nets “creates the
possibility that a sea turtle could be captured within the mouth of the net and not be visible
during a cursory cod inspection, a scenario compounded by the fact that many vessels fish at
night.” AR009414.
88 AR011145.
89 AR00111369–70.
90 Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 928 (D.C. Cir. 2017)
(quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 852 (D.C. Cir. 1970)).
91 C.f. id. (holding that the agency impermissibly “glossed over” prior policy where it
failed to “even to acknowledge its past practice and formal policies . . . let alone to explain its
reversal of course”).
92 16 U.S.C. § 1536(a)(2).
18
promulgated under ESA sections 4(d) and 11(f), which directs NMFS to issue
such regulations deemed necessary to provide for the “conservation” of such
species, as well as to enforce the ESA.93 The Final Rule concludes that “the
most effective protective measure for threatened and endangered sea turtle
populations is to reduce the total time sea turtles are entrained in a skimmer
trawl by using TEDs.”94
Put simply, the BiOp’s finding that maintaining current regulations
would not jeopardize the existence of sea turtles or result in the destruction of
their critical habitat does not necessarily conflict with NMFS’s decision to issue
the Final Rule in order to protect sea turtles, which remain listed as
endangered or threatened.95
Second, the 2014 BiOp did estimate an annual skimmer trawl bycatch
mortality of 2,017 sea turtles; as Defendants point out, the number of
interactions and captures exceeded this number.96 The Final Rule estimated a
conservation benefit of 1,168 sea turtles.97 And a recent NMFS biological
opinion from 2021 estimated an annual bycatch mortality of 1,364 sea turtles
93 16 U.S.C. § 1533(d) (emphasis added); id. § 1540(f)
94 84 Fed. Reg. 70048, 70050 (Dec. 20, 2019) (emphasis added).
95 Plaintiffs contend that NMFS ignored contrary data indicating an increase in the
turtle population in the period before TEDs were required in inshore waters (despite the
Deepwater Horizon oil spill). The Court finds this argument without merit. First, as stated
above, NMFS considered all relevant data and public comments. Second, such data does not
undermine the data on captures or sea turtle mortality. Because sea turtles remain listed as
endangered or threatened, NMFS may issue regulations to protect them. And as NMFS
noted, “as sea turtle populations increase, interactions between skimmer trawl vessels and
sea turtles are expected to likewise increase.” AR009466.
96 AR011324.
97 84 Fed. Reg. 70048, 70049.
19
even after implementation of the Final Rule.98 If anything, the BiOp lends
further support to the Final Rule and indicates that even with implementation
of the Final Rule, sea turtles will continue to die as a result of interactions with
shrimp trawlers.
iii. Whether NMFS failed to consider “serious reliance
interests”
Plaintiffs next argue that the Final Rule was unreasonable because
NMFS failed to consider the shrimpers’ “substantial reliance” on their long-
standing approach to TEDs, and point out that shrimpers, particularly those
who trawl part time, will suffer economic consequences. Plaintiffs further
argue that NMFS did not adequately consider the Final Rule’s costs and
benefits. Again, this Court disagrees.
First, it is unclear whether Plaintiffs have established the existence of
any justifiable, detrimental reliance on the 1987 rule’s tow time exemption for
inshore waters. In Mozilla Corp. v. FCC, the United States Court of Appeals
for the D.C. Circuit held that reliance on an agency’s determination was not
reasonable in part because the regulation had been subject to legal
challenges.99 In the present case, in the 1987 rule, NMFS stated that it
“believes that if a TED effectively excludes turtles in offshore waters, it will
function as effectively in inshore waters.”100 NMFS acknowledged, however,
98 Defendants also state that “sea turtle mortality caused by skimmer trawl vessels
represents only a portion of sea turtle mortality caused by all gears combined” and that
“[n]on-lethal interactions are higher still.” Rec. Doc. 38 at 9. They contend that “even with
the use of TEDs by vessels 40 feet and greater in length, skimmer trawls will continue to kill
a significant number of sea turtles.” Id.
99 940 F.3d 1, 64 (D.C. Cir. 2019) (per curiam).
100 52 Fed. Reg. 24244, 24246 (June 29, 1987).
20
that “TEDs have not been tested for turtle exclusion in inshore waters,” and
that “[t]he final regulations do not require shrimpers to use TEDs in inshore
waters at this time.”101 NMFS has continued to develop and test TEDs and has
periodically issued proposed new versions of the 1987 rule. Given this
uncertain regulatory environment, Plaintiffs have not established that their
purported reliance interests are reasonable.
But even if those interests were reasonable, NMFS adequately
considered them. Where a “prior policy has engendered serious reliance
interests,” an agency must only provide a reasoned explanation for its change
in policy.102 The record confirms that NMFS considered public comments on
the potential costs and benefits of TEDs and modified the minimum vessel
length covered by the requirement from 26 feet (in the proposed rule) to 40 feet
in response.103 NMFS also considered comments addressing, among other
things, the additional benefits of TEDs (such as the fact that they clear
additional debris and bycatch),104 the economic benefits of sea turtles in coastal
communities,105 as well as comments from shrimpers who supported their
implementation.106
Further, in 2022, the Center for Biological Diversity and other
conservation groups sued NMFS in the U.S. District Court for the District of
Columbia on the basis that the Final Rule was not protective enough of
101 Id.
102 Wages & White Lion, 145 S. Ct. at 918.
103 AR009472.
104 See, e.g., AR002213–002229.
105 See, e.g., AR003010; 008614.
106 See, e.g., AR002196.
21
imperiled sea turtles.107 They argued that the Final Rule should have covered
at least as many shrimpers as the 2016 proposed Rule and requested that the
rule be remanded without vacatur.108 The district court upheld the TED Rule,
finding in part that the rule was “an appropriate way to protect sea turtles,
while limiting the incidental effects on the shrimping industry.”109 The United
States Court of Appeals for the D.C. Circuit affirmed, holding that the TED
Rule “reflects a policy choice, which was adequately explained by [NMFS’s]
consideration of the rule’s costs and benefits.”110
Plaintiffs argue that Defendants’ reliance on the D.C. Circuit’s decision
is misplaced because that decision preceded the Supreme Court’s decision in
Loper Bright Enters. v. Raimondo. In Loper, the Supreme Court overruled its
prior decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council
Inc.,111 holding that in deciding whether an agency has acted within its
statutory authority, courts may not defer to the agency’s interpretation of the
law simply because the statute is ambiguous; rather, courts must “exercise
their independent judgment in deciding whether an agency has acted within
its statutory authority.”112
In the present case, Loper Bright does not apply because the Court is not
required to interpret an ambiguous statutory term. Again, NMFS is authorized
107 Ctr. for Biological Diversity v. NMFS, 628 F. Supp. 3d 189 (D.C. Cir. 2022), aff’d,
No. 22-5295, 2024 WL 3083338 (D.C. Cir. June 21, 2024).
108 Id.
109 Id. at 214.
110 Ctr. for Biological Diversity, 2024 WL 3083338, at *3 (emphasis added).
111 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369
(2024).
112 Loper, 603 U.S. at 398–99.
22
to regulate the incidental “taking” of sea turtles, and a “take” is clearly
defined.113 That is why Plaintiffs do not challenge NMFS’s definition in their
Complaint.114 And the D.C. Circuit court, in holding that the Final Rule was
not arbitrary and capricious, did not rely on “Chevron deference”—because it
was irrelevant to the case before them. The same is true here. After reviewing
the record, the Court agrees with the D.C. Circuit court that NMFS properly
considered the costs and benefits of the Final Rule, including any purported
“reliance interests.”115
Plaintiffs argue that NMFS failed to consider contrary data presented in
a May 2021 comment letter from the Louisiana Department of Wildlife &
Fisheries (“LDWF”) (“2021 Comment Letter”), which references a state-
conducted bycatch monitoring program and database.116 Plaintiffs aver that
this data indicated that sea turtles rarely encounter trawlers and that NMFS
therefore failed to justify the Final Rule’s costs.
First, the 2021 Comment Letter and database relied on by Plaintiffs are
not in the administrative record and should not be considered by this Court.117
Second, the 2021 Comment Letter post-dates the Final Rule, so it was not
available at the time of NMFS’s decision. Third, even assuming this Court
113 Again, “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
114 Rather, Plaintiffs challenge the Final Rule substantively and argue that NMFS
has no authority to extend regulations to inshore trawlers. In their Opposition, however,
Plaintiffs confusingly suggest that NMFS’s definition is overly broad. Rec. Doc. 36 at 20. For
the same reasons, the Court rejects that argument.
115 See, e.g., AR001654 (2019 EIS Abstract).
116 Plaintiffs also rely upon an extra-record affidavit regarding LDWF’s shrimp trawl
database.
117 Guste, 853 F.2d at 334 n.8 (citing Camp v. Pitts, 411 U.S. 138, 142–43 (1973)).
23
could consider it, the data referenced in the 2021 Comment Letter is irrelevant
because it concerns smaller vessels that are not impacted by the Final Rule.
Fourth, even assuming the data were relevant, LDWF’s statement that
bycatch data suggests little to no turtle interactions directly contradicts data
that NMFS (1) collected and/or assessed prior to the Final Rule and (2)
subsequently considered prior to promulgating the Final Rule.118
As Plaintiffs acknowledge, agencies have the discretion to choose
between studies.119 Although Plaintiffs correctly note that an agency does not
have “free rein to use inaccurate data,” the state’s data indicating a lower
number of captures does not, as Plaintiffs suggest, indicate that the federal
observer program data is overly inflated or otherwise unreliable.120 If
anything, as the Conservation Groups point out, the federal observer program
data would underestimate the number of captures. Logically, “[b]ecause only a
tiny percent of skimmer trawl fishing is observed, the actual number of sea
turtles captured by the skimmer trawl fishery in Louisiana is exponentially
greater than the number of observed captures.”121
Finally, to the extent that Plaintiffs argue that NMFS did not consider
the costs as outlined in comments from the LSA, as well as comments from
118 See, e.g., AR010893, AR10924, AR010955.
119 See Dist. Hosp. Partners v. Burwell, 786 F.3d 46, 56 (D.C. Cir. 2015).
120 Plaintiffs contend that “LDWF pointed out that Defendants’ calculations likely
overstated both numbers because they extrapolated deep-water skimmer-trawl data into
shallow water shrimping.” Rec. Doc. 30-1 at 14.
121 Rec. Doc. 33 at 14. “For example, observer coverage in the skimmer trawl fishery
from 2012 to 2015 amounted to only about 0.5% of the hours that the fishery spent fishing in
a similar five-year period.” Id. (citing AR001796 and AR001808).
24
Mississippi officials and the LDWF, the Court rejects that argument.122
Nothing in the record suggests that NMFS ignored the costs and benefits or
otherwise ignored “contrary data.”
In Guste, the Fifth Circuit stated that “[a]lthough we do not denigrate
appellants’ concern with the expense and inconvenience the regulations will
visit on Louisiana’s shrimping industry, Congress has decided that these losses
cannot compare to the ‘incalculable’ value of genetic heritage embodied in any
protected living species.”123 Here, NMFS properly considered the costs and
benefits of the Final Rule and determined in its discretion that the benefits of
species conservation justified the costs of TEDs.
b. Whether NMFS failed to demonstrate that there are
incidental takings occurring in Louisiana inshore
waters
Plaintiffs also contend that inshore shrimpers do not pose a threat to sea
turtles because they do not encounter one another and argue that NMFS failed
to establish incidental takings were occurring in Louisiana inshore waters.
Evidence in the record, however, belies Plaintiffs’ contention.
In the Final Rule, NMFS stated that it “conducted extensive fishery-
independent and fishery-dependent testing during the 2013, 2014, 2015, and
122 AR003168 (LDWF); AR008616 (LSA); AR008608 (Mississippi officials). None of the
comments provided “new data” but rather argued that (1) the costs of TED implementation
were too high, (2) estimations as to turtle mortality were overinflated, and/or (3) TEDs were
ineffective. NMFS clearly considered (by modifying the 2016 proposed rule), and/or
appropriately rejected (based on a valid interpretation of the most current data), those
arguments. Additionally, NMFS considered a range of management alternatives. AR001675-
81.
123 Guste, 853 F.2d at 331.
25
2016 fishing seasons using a variety of TED configurations and under a variety
of fishery conditions off Louisiana, Mississippi, Alabama, and North
Carolina.”124 NMFS also stated that “[f]isheries observer data from skimmer
trawl vessels demonstrate that sea turtles occur within areas defined as inside
waters by the Louisiana Statutes” and that “[t]he inside/outside waters
definition also does not correlate with bathymetric or other sea turtle habitat
preferences in a manner that lends itself to practical consideration.”125
Plaintiffs contend that there is no data supporting NMFS’s statements.
Their argument is, at best, disingenuous. As the Conservation Groups point
out, sea turtles are highly migratory and travel thousands of miles between
the habitats where they are born, forage, and reproduce.126 Females come
ashore to lay eggs on sandy beaches along the Gulf coast, often the same
beaches where they were born.127 Most sea turtle species also return to their
same foraging areas in the Gulf year after year.128 Skimmer trawls more than
26 feet in length fish in water approximately 8 feet and deeper where sea
turtles, especially Kemp’s ridleys (the most critically endangered of the above-
mentioned sea turtles species),129 tend to forage.130 In 2012, observer data for
the Gulf of Mexico skimmer trawl fishery documented that the highest
concentration of sea turtle captures occurred in southeastern Louisiana’s
124 AR009470.
125 AR009473.
126 See, e.g., AR001698; AR001724–25.
127 See, e.g., AR001700; AR001706
128 See, e.g. AR001701.
129 AR001712.
130 AR001658; AR001803.
26
inshore waters.131 In 2013, all sea turtle captures documented by observers
occurred in Louisiana inshore waters.132 Notably, Plaintiffs frequently cite to
the Fifth Circuit’s decision in Guste, but fail to acknowledge the court’s finding
that the “administrative record amply demonstrates that sea turtles are found
in inshore waters” and that “[s]ea turtles not only frequent inshore waters; the
record is replete with evidence to show that they are captured there as well.”133
Thus, contrary to Plaintiffs’ assertion, observer data confirms that sea turtles
are captured in Louisiana’s inshore waters.
As the Court of Appeals for the D.C. Circuit has explained, “agencies may
change their minds in the course of a rulemaking, even though those affected
may be disappointed.”134 Here, NMFS’s decision to revoke the prior tow time
exemption via implementing the Final Rule may constitute a change in policy
with which Plaintiffs disagree, but that change was not arbitrary and
capricious.
2. Whether the Final Rule Violates the Commerce Clause and Major
Questions Doctrine
Next, Plaintiffs argue that the Final Rule violates the Commerce Clause
because it will impact skimmers who are not engaged in interstate commerce.
Defendants respond that Plaintiffs do not have standing and that even
assuming Plaintiffs had standing, under the Supreme Court’s decision in
131 AR010924. “Between 2010 and 2019, the majority of all sea turtle captures
documented in Alabama, Mississippi, and Louisiana inshore waters occurred in Louisiana.”
Rec. Doc. 33 at 14. “Of the sea turtles caught over the past decade, a majority have been
Kemp’s ridleys, increasing the mortality pressure on this critically endangered species.” Id.
132 AR010907.
133 Id. at 329.
134 PSWF Corp. v. FCC, 108 F.3d 354, 357 (D.C. Cir. 1997).
27
United States v. Lopez, Defendants need set forth only a “rational basis” for the
conclusion “that a regulated activity sufficiently affected interstate commerce,”
which they have done.135
The Court agrees that Plaintiffs have not satisfied their burden of
showing standing. A plaintiff “bears the burden of showing that he has
standing for each type of relief sought.”136 To satisfy the standing requirements
of Article III of the Constitution, a plaintiff must establish an injury that is (i)
“concrete, particularized, and actual or imminent”; (ii) “fairly traceable to the
challenged action”; and (iii) “redressable by a favorable ruling.”137 Moreover,
“the ‘injury in fact’ test requires more than an injury to a cognizable interest.
It requires that the party seeking review be himself among the injured.”138 “To
survive a summary judgment motion,” Plaintiffs “must set forth by affidavit or
other evidence specific facts to support their claim.”139
Here, Plaintiffs contend that the Final Rule impacts noncommercial
skimmer trawl operations that engage in shrimping for personal and family
consumption, which they contend are activities that are purely intrastate.
Plaintiffs attach an affidavit from Acy Cooper, president of the LSA, who states
that the LSA’s membership “consists of individuals who shrimp for commercial
purposes as well as those who engage in shrimping for personal and family
consumption.”140 Cooper does not, however, explicitly state that he or any
135 514 U.S. 549 (1995).
136 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
137 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal quotations marks
and citations omitted).
138 Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).
139 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
140 Rec. Doc. 36-1 at 3.
28
specific member141 engages in purely noncommercial shrimp fishing using
boats large enough to be subject to the new TED requirements. As Defendants
point out, the TED Rule does not affect recreational fishers because, under
Louisiana law, all skimmer trawls 40 feet and greater engage in commercial
fishing.142 Plaintiffs therefore likely fail to demonstrate standing.
Plaintiffs counter that “this classification is a matter of federal
regulation, not an inherent characteristic of the activity itself.”143 But even
considering this argument (and accepting that Plaintiffs have established
standing), the Final Rule does not run afoul the Commerce Clause.
Under the Commerce Clause, Congress may “regulate Commerce . . .
among the several States.”144 The Supreme Court has consistently stated that
the Commerce Clause permits congressional regulation of three categories: (1)
the channels of interstate commerce; (2) the instrumentalities of interstate
commerce, and persons or things in interstate commerce; and (3) activities that
141 Plaintiffs also argue that the members of the LSA have demonstrated associational
standing.
142 “[S]kimmer trawls are not an authorized gear for recreational fishers” and “[a]ny
fishers using skimmer trawl gear would, therefore, be considered a commercial fisherman,
even if using the gear only to harvest for personal consumption.” Rec. Doc. 32-1 (quoting
AR009437).
143 Defendants, however, note that NMFS does not issue permits for either commercial
or recreational vessels to shrimp in state waters. 50 C.F.R. § 622.50(a) (“For a person aboard
a vessel to fish for shrimp in the Gulf [exclusive economic zone (“EEZ”)] or possess shrimp in
or from the Gulf EEZ, a commercial vessel permit for Gulf shrimp must have been issued to
the vessel and must be on board.”). Rather, that is left to the state. Rec. Doc. 38 at 6 (citing
2024 LOUISIANA RECREATIONAL FISHING REGULATIONS, available at
https://www.wlf.louisiana.gov/assets/Resources/Publications/Regulations/2024-LDWF-
Fishing-Regulations.pdf).
144 U.S. CONST. art. I, § 8, cl. 3.
29
‘substantially affect’ interstate commerce.”145 In Gonzalez v. Raich, Justice
Scalia explained that, as to the third category, “Congress may regulate even
noneconomic local activity if that regulation is a necessary part of a more
general regulation of interstate commerce.”146
In assessing the scope of Congress’ authority under the Commerce
Clause, a court assesses whether a “rational basis” exists for the conclusion
that a regulated activity substantially affects interstate commerce.147 In GDF
v. Realty Investments Ltd. v. Norton, the Fifth Circuit found that the
application of the ESA’s “taking” prohibition to land containing six regulated
species which were found only in Texas did not exceed Congress’ authority
under the Commerce Clause.148 The court found that although the proposed
takings at issue did not themselves substantially affect interstate commerce,
takings of endangered species, when viewed in the aggregate, did.149 The court
reasoned that the “ESA’s protection of endangered species is economic in
nature,” that the “ESA’s drafters were concerned by the ‘incalculable’ value of
the genetic heritage that might be lost absent regulation,” and observed that
the majority of takes of species “result from economic activity.”150
Plaintiffs contend that specific instances of noncommercial shrimping
are not interstate commerce; however, “where a general regulatory statute
bears a substantial relation to commerce, the de minimis character of
145 Gonzalez v. Raich, 545 U.S. 1, 33–34 (2005) (Scalia, J., concurring) (quoting Perez
v. United States, 402 U.S. 146 (1971)).
146 Id. at 37.
147 Raich, 545 U.S. at 22.
148 326 F.3d 622 (2003).
149 Id. at 640.
150 Id. at 639.
30
individual instances arising under that statute is of no consequence.”151 Here,
the NMFS promulgated the Final Rule pursuant to explicit authority under
the ESA. And Plaintiffs do not challenge the constitutionality of the ESA itself.
As such, the Final Rule does not violate the Commerce Clause.152
Finally, for this same reason, Plaintiffs are incorrect that the Major
Questions doctrine renders the Final Rule unconstitutional. Under that
doctrine, that “Congress must ‘speak clearly if it wishes to assign to an agency
decisions of vast economic and political significance.’”153 While some have
interpreted the doctrine as a presumption against certain sweeping agency
actions, Justice Barrett has explained that “the doctrine serves as an
interpretive tool reflecting common sense as to the manner in which Congress
is likely to delegate a policy decision of such economic and political magnitude
to an administrative agency.”154 Plaintiffs, for their part, argue that “due to
the significant constitutional questions raised by the Final Rule, Defendants
151 Raich, 545 U.S. at 22.
152 See Am. Stewards of Liberty v. Dep’t of the Interior 370 F. Supp. 711, 732 (W.D.
Tex. 2019) (holding that, under GDF Investments, Ltd., the FWS’s regulation of bone cave
harvestman as related to petition to remove harvestman from endangered species list did not
exceed Congress’s Commerce Clause authority). In American Stewards of Liberty v.
Department of the Interior, the plaintiff challenged the U.S. Fish and Wildlife Services’
regulations of the bone cave harvestman under the ESA. Id. The plaintiff argued, inter alia,
that the regulation violated the Commerce Clause and contended that Raich and other
Supreme Court precedent “altered the applicable test for evaluating regulations of
noncommercial intrastate activity ‘from a traditional Commerce Clause analysis,’ analyzed
under rational-basis scrutiny, to one that more closely scrutinizes regulations under the
Necessary and Proper Clause.” Id. at 733. The court held that although Raich “mention[s]
the Necessary and Proper Clause . . . these passing references are not enough to shift the
well-established Commerce Clause analysis.” Id. at 735 (internal citations omitted).
153 BST Holdings, L.L.C. v. OSHA, 17 F.4th 605, 617 (5th Cir. 2021) (quoting Util. Air
Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).
154 Biden v. Nebraska, 600 U.S. 477, 511 (2023) (internal quotations omitted).
31
were required to identify clear statutory authority for regulating purely
intrastate activities.” 155
But regardless of the doctrine’s application, here, Congress has clearly
delegated NMFS the authority to administer the ESA—and the Final Rule is
a result of precisely that. Thus, the Major Questions doctrine does not
undermine this Court’s determination that the Final Rule passes
constitutional muster.
CONCLUSION
For the reasons just set forth, Plaintiffs’ Motion for Summary Judgment
(Rec. Doc. 30) is DENIED. Defendants’ Motion for Summary Judgment (Rec.
Doc. 31) is GRANTED. Plaintiffs’ claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 27th day of June, 2025.
UNITED STATES DISTRICT JUDGE
155 Rec. Doe. 30-1 at 29 (citing BST Holdings 17 F.Ath at 617).