## Facts

- Five species of sea turtles in the Gulf of Mexico and the Atlantic off the southeastern United States were listed as endangered or threatened under the Endangered Species Act (ESA).
- The National Marine Fisheries Service (NMFS), within the Department of Commerce, found that shrimp trawling contributed to sea turtle deaths when turtles became trapped in trawl nets and drowned.
- NMFS issued rules requiring shrimp trawlers to comply by either (1) installing and using turtle excluder devices (TEDs) or (2) limiting each tow to 90 minutes or less.
- The State of Louisiana (through its attorney general) and an intervenor association of shrimpers challenged the rules, including their application to inshore Louisiana waters and their economic effect on the shrimping industry.
- Plaintiffs alleged the rules were arbitrary and capricious, unsupported by the record, and adopted in violation of the Administrative Procedure Act (APA).
- The district court granted summary judgment for the federal defendants and upheld the regulations; Louisiana and the shrimpers appealed.

## Issues

1. Whether NMFS’s TED/tow-time regulations exceeded the agency’s authority under the ESA to prevent unlawful “take” of listed sea turtles.
2. Whether the regulations were arbitrary or capricious under the APA given challenges to the scientific record, the application to inshore Louisiana waters, and asserted economic burdens.
3. Whether NMFS complied with APA notice-and-comment requirements in promulgating the final rules.

## Decision

- The Fifth Circuit affirmed summary judgment for the Department of Commerce and upheld the TED/tow-time regulations.
- The court held the regulations were a lawful exercise of NMFS’s ESA authority to address turtle mortality associated with shrimp trawling.
- The court concluded the agency’s action was not arbitrary or capricious because the administrative record supported a rational connection between the problem identified (turtle deaths in trawl nets) and the chosen measures (TEDs or shortened tow times).
- The court rejected the argument that NMFS needed highly localized proof specific to inshore Louisiana waters before regulating there.
- The court held NMFS satisfied APA procedural requirements, including adequate notice, opportunity for comment, and a final rule that was a logical outgrowth of the proposal.

## Legal Principles

- Under the ESA, once a species is listed, the statute broadly prohibits “take” of that species in U.S. waters and on the high seas, and federal agencies may adopt measures reasonably aimed at preventing take.
- APA “arbitrary and capricious” review is deferential; a court asks whether the agency considered relevant factors and articulated a rational basis, not whether the court would weigh the scientific evidence differently.
- An agency may regulate across a region without conducting separate exhaustive studies for each sub-area when the record reasonably supports regulation to prevent harm to protected species.
- Economic impacts may be considered in rulemaking, but ESA-focused conservation measures are not invalid merely because compliance imposes significant industry costs, so long as the agency’s consideration is reasonable.
- Notice-and-comment rulemaking is satisfied when affected parties have a fair opportunity to participate and the final rule remains within the scope reasonably foreshadowed by the proposal.

## Conclusion

The Fifth Circuit sustained NMFS regulations requiring shrimp trawlers to use TEDs or limit tow time to reduce sea turtle mortality, holding the rules were authorized by the ESA, supported by the record under deferential APA review, and adopted through proper notice-and-comment procedures.


State of Louisiana ex rel. Guste v. Verity, 853 F.2d 322 (5th Cir. 1988)