Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Louisiana denounces federal rule for shrimp boats at Fifth Circuit

Our waters, our shrimp, Louisiana argued in its push for another shot to challenge a federal rule requiring some shrimpers to install devices to prevent netting endangered sea turtles.

(CN) — From po’ boy sandwiches to jambalaya, etouffee and gumbo, shrimp is a staple in Louisiana’s and New Orleans’ celebrated cuisine.

The small shellfish are big business in Louisiana with 15,000 residents employed in the industry, which has an annual economic impact of $1.3 billion for the state, according to its Seafood Promotion and Marketing Board.

But Louisiana shrimpers who followed their fathers and grandfathers into the trade say it is dying as wild-caught and farm-raised imports from Thailand, Vietnam, Indonesia and India into the U.S. have exceeded 1 billion pounds annually in recent years.

And importers’ low labor costs – some exploit child and enslaved workers – and ability to use antibiotics and steroids banned in the U.S. on their farmed shrimp, is making the trade less lucrative for American shrimpers who are moving on to other careers, an exodus reflected in the diminishing Louisiana haul over the past two decades.

The annual Louisiana shrimp catch dropped from 147.4 million pounds in 2000 to 74.06 million pounds in 2021, the Lafourche Gazette reported in January, citing data from the state Department of Wildlife and Fisheries, or LDWF.

Shrimpers use boats called skimmer trawlers outfitted with handstitched nets they drag through the water to scoop up the crustaceans.

Since 1987, the National Marine Fisheries Service has required shrimp trawlers in some circumstances to install turtle excluder devices, which separate sea turtles, sharks and other large bycatch so they can escape through an opening in the netting.

The NMFS implemented a new rule on Aug. 1, 2021, requiring installation of the devices on all skimmer vessels 40 feet and longer.

Ten days later, Louisiana sued the NMFS and officials of its parent agencies, the National Oceanic and Atmospheric Administration and the Commerce Department, in New Orleans federal court, seeking an injunction against the rule it claims violates the Administrative Procedure Act.

LDWF had unsuccessfully lobbied the feds to designate the waters of Louisiana – extending 3 nautical miles from its land – as an exclusion zone from the turtle-saver device rules, given its data indicated an absence of sea turtles there.

Louisiana has tow-time restrictions which set a maximum amount of time a boat can trawl before its crew must check its net and release any turtles. LDWF believes that rule is sufficient to protect turtles.

“Based upon historical observations, it is highly improbable that there will be significant sea turtle interactions with skimmer vessels in Louisiana waters,” LDWF’s Colonel Chad Hebert said in a declaration submitted in the litigation, “and virtually no sea turtle mortality as a result of skimming activity if tow times restrictions remain in place.”

But U.S. District Judge Jane Triche Milazzo, a Barack Obama appointee, dismissed the lawsuit last November. She found Louisiana did not have standing because it had not proven it would suffer any injury from the rule.

Louisiana appealed to the Fifth Circuit and a three-judge panel of the New Orleans-based appeals court heard arguments Thursday.  

Noting the feds’ admission the rule would cause a 6% loss in shrimp catch for Louisiana shrimpers, Jordan Bailey Redmon, the state's assistant solicitor general, argued the state has standing “when a federal agency unlawfully regulates the taking of Louisiana shrimp in Louisiana’s waters in a manner that is harming Louisiana’s shrimping industry.” He said the reduced catch would result in a drop of excise tax revenue.

Senior U.S. District Judge Edith Brown Clement, a George W. Bush appointee, questioned why Louisiana had not invited shrimpers to be plaintiffs to overcome the standing hurdle.

Redmon said given the low profit margins of shrimpers it made sense for the state, through LDWF, to bring the lawsuit.

He told the panel the department interprets a state law vesting it with exclusive control of Louisiana’s shrimping industry as mandating it must also enforce the federal rule.

Justice Department attorney Andrew Bernie stressed that LDWF does not have to enforce the regulation and contended its opposite conclusion is a misreading of state law. “As far as we’re concerned they can just ignore this rule completely,” he added.

U.S. Circuit Judge Cory Wilson made clear he believes Louisiana has a case.

“The regulation details it’s going to change the amount of shrimp taken in Louisiana waters … Certainly there’s the economic harm. … So how is there not standing?” the Donald Trump appointee stated.  

His colleagues, including third panelist U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, did not indicate how they would rule. The judges gave no timeline for an order.

Follow @cam_langford
Categories / Appeals, Employment, Environment, Government, Law

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.