The Pelican Institute on behalf of the Louisiana Shrimp Association (LSA), along with John Brown, Larry Helmers, and Penny Zar, is challenging the National Marine Fisheries Service (NMFS) rule that mandates the use of Turtle Excluder Devices (TEDs) on skimmer trawl vessels. The plaintiffs argue that this rule, although designed to protect sea turtles, unfairly burdens the shrimping industry in Louisiana’s inshore waters by imposing significant economic costs, particularly on smaller and part-time shrimpers. They assert that the rule is arbitrary and capricious, exceeds NMFS's statutory authority, and does not adequately consider the minimal interaction between shrimping operations and sea turtles.
In the combined opposition and reply that was recently filed, LSA advanced several arguments to counter the Defendants' claims:
1. Arbitrary and Capricious Standard: Plaintiffs argued that NMFS failed to justify revoking the decades-long tow-time exemption that previously applied to inshore skimmer vessels, which had proven effective at protecting sea turtles without the need for TEDs. NMFS has historically acknowledged that TEDs are less effective in inshore waters due to debris, and this fact remains unaddressed in the new rule.
2. Lack of Data Supporting TED Requirement: The rule imposes a blanket TEDs mandate without sufficient evidence that sea turtles are even present in inshore Louisiana waters where skimmer vessels operate. Plaintiffs pointed out that NMFS failed to demonstrate significant incidental takings of sea turtles in Louisiana’s inshore waters to justify such an economically burdensome requirement.
3. Commerce Clause and Major Questions Doctrine: Plaintiffs argue that the rule improperly extends federal authority to noncommercial, purely intrastate shrimping activities, which traditionally fall under state jurisdiction. The rule threatens the livelihoods of recreational shrimpers who harvest shrimp for personal consumption, raising constitutional concerns. LSA also argues that the rule’s economic and political significance triggers the Major Questions Doctrine, requiring clear congressional authorization, which NMFS has not provided.
Timeline of the Case:
- We filed the original complaint in January 2024.
- We filed our motion for summary judgment on August 2, 2024, and the government responded with a cross-motion on September 5, 2024.
- On September 23, 2024, we filed our combined opposition to the government’s cross-motion and reply in support of our motion for summary judgment.
Upcoming Deadlines:
- On October 3, 2024, the Defendants will file their reply in support of their cross-motion for summary judgment.
- The court may then schedule oral arguments or proceed to issue a ruling based on the filings.
Please feel free to pass this along to the LSA Board, and let me know if they have any further questions or if additional details are needed.
Best,
James Baehr Pelican Institute for Public Policy