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Louisiana ex rel. Guste v. Verity

ELR Citation: 18 ELR 21351
Nos. No. 88-3185, 853 F.2d 322/(5th Cir., 08/15/1988) Aff'd

The court holds that regulations requiring shrimp trawlers offshore Louisiana to reduce the incidental catch of sea turtles by using turtle exclusion devices (TEDs) are not arbitrary or capricious and do not violate constitutional guarantees of equal protection. The regulations required trawlers in the Gulf of Mexico and South Atlantic Ocean to either install TEDs in their nets or limit their trawling to 90 minutes or less at a time. The court initially declines to rule on the state's argument that the TED regulations constitute a de facto designation of critical habitat in violation of the Endangered Species Act's (ESA's) procedural requirements, since this argument was not raised in the district court. The court then holds that the regulations are not arbitrary or capricious. First, the relationship of shrimping to sea turtle mortality is amply supported by data in the record. The court rejects the state's argument that the National Marine Fisheries Service (NMFS) failed to consider the best scientific data available before issuing the regulations, since the study the agency relied on involves a technical matter within its area of expertise. Second, the record clearly demonstrates that sea turtles are found in inshore Gulf waters, where the 90-minute towtime restriction applies. It does not follow that if NMFS had insufficient data to impose the TED requirement on shrimp trawling in inshore waters, then it automatically had insufficient grounds for imposing the towtime limitation. Third, the costs imposed by the regulations are rationally related to the goal of protecting sea turtles. Although economic impact may sometimes by considered in assessing the validity of an ESA regulation, neither the state nor the shrimp trawlers have demonstrated that the regulations' protections are achievable by less expensive means. Finally, the agency's failure to address other causes of sea turtle mortality is not arbitrary or capricious. NMFS is not required to regulate every aspect of a problem. Moreover, regulations aimed at preventing the taking of an endangered or threatened species cannot be invalidated on the ground that the record fails to demonstrate that the rule will enhance the species' chances of survival.

The court also holds that the regulations do not violate equal protection guarantees. That the regulations do not restrain shrimping activities north of North Carolina and that sea turtles may frequent unregulated North Atlantic waters do not invalidate the rules, since NMFS may choose to regulate only part of a problem. The agency's decision to regulate Gulf and South Atlantic shrimpers equally is also valid, even though Atlantic shrimpers catch more sea turtles per capita. Finally, the agency's decision to use boat size, rather than net size, as the trigger for the TED requirement was reasonable, since public comments indicated that use of a net size standard would not be effective and the government is not required to regulate with mathematical precision.

[The district court decision is published at 18 ELR 20944.]

Counsel for Plaintiffs
John B. Sheppard Jr., Ass't Attorney General
625 N. Fourth St., Fifth Fl., Suite 540-B, Baton Rouge LA 70802
(504) 342-7900

Counsel for Defendant
Vicky L. Plaut
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2813

Before GEE, DAVIS, and SMITH, Circuit Judges.