ELR Citation: ELR 20944
No(s). 87-4948 (E.D. La. Feb 29, 1988)

The court holds that Louisiana has standing in its quasi-sovereign capacity to challenge the Secretary of Commerce's regulations requiring shrimp trawlers to reduce the incidental catch of sea turtles by using turtle exclusion devices (TEDs), and that the regulations are not arbitrary and capricious. The court first holds that the state may bring the action in its sovereign capacity, since it has an interest in both the protection and development of its coastal waters and marine resources. The court holds that the state does not have standing as parens patriae for the shrimp trawlers, since they are capable of bringing their own claims. The court holds that it may not review the agency's compliance with Executive Order No. 12291, which requires agencies to prepare a regulatory impact analysis, since the order does not provide a basis for judicial review. The court holds that the regulations are not arbitrary and capricious. The agency collected scientific information, conducted its own studies, and provided for the applicable comment period. The court holds that the Secretary of Commerce was not required to hold a new comment period for a tow time limitation that was in the final rule but was not mentioned in the proposed regulations. Although the proposed rule dealt with only the use of TEDs, the broader issue of reducing mortalities of turtles by shrimp trawling, which was also raised, is sufficiently related to the tow time limitations. Moreover, reduced tow times were mentioned in the public comments and in a draft environmental impact statement.

Counsel for Plaintiff
Elizabeth R. Megginson, Ass't Attorney General
Department of Justice, P.O. Box 94005, Baton Rouge LA 70804-9005
(504) 342-7013

Counsel for Defendant
Donald A. Carr, James C. Kilbourne, Michael Kuruc
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352