JERRY E. SMITH, Circuit Judge:
Appellants, the State of Louisiana and the Concerned Shrimpers of Louisiana ("Concerned Shrimpers"), appealed the district court's entry of summary judgment in favor of the Commerce Department, upholding in all respects the Secretary's regulations requiring shrimp trawlers to install and use "turtle excluder devices," also known as "TEDs," in their nets or to limit their trawling to 90 minutes or less at a time. On July 11, 1988, six days after oral argument, we affirmed the judgment of the district court but postponed issuance of an opinion detailing the reasons for our ruling in order that we could immediately notify the parties that we were vacating the district court's order staying execution of its judgment.
Five species of sea turtles — the Kemp's ridley, loggerhead, leatherback, green, and hawksbill — frequent the Gulf of Mexico and the Atlantic Ocean, off the southeast coast of the United States. All of these species are listed as either "endangered" or "threatened" under the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531 et seq.
On June 29, 1987, the Commerce Department, through its National Marine Fisheries Service ("NMFS"), promulgated final regulations requiring shrimp trawlers in the Gulf and South Atlantic to reduce the incidental catch and mortality of sea turtles in shrimp trawls. The regulations attempt to supplement ESA's prohibitions against the "taking" of protected species, and were to become effective for Louisiana on March 1, 1988. Specifically, the regulations require shrimpers operating in offshore waters and in vessels 25 feet or longer to install and use certified "turtle excluder devices," or "TEDs", in each of their trawls. 50 C.F.R. § 227.72(e)(2), (6)(i) (1987). If the vessel is less than 25 feet or is trawling in inshore waters, the shrimper may limit each towing period to 90 minutes or less as an alternative to using a TED. Id. at § 227.72(e)(3), (6)(ii) (1987).
The reason for the regulations is simple: Researchers have found that during shrimping operations sea turtles are caught in the large nets, or trawls, pulled behind commercial shrimping vessels. The nets drag the turtles behind the boats and thereby prevent them from surfacing for air. According to one study, once a turtle is within the mouth of a shrimp trawl, the animal's initial reaction is to attempt to outswim the device. Of course, this strenuous effort consumes oxygen but affords the turtle no opportunity to replenish the supply. Once trapped, if the exhausted turtle is not released quickly, it will drown. Research cited in the administrative record indicates that trawl times in excess of 90 minutes are highly likely to result in the death of a captured turtle.
The TED requirement thus applies without exception to large shrimping vessels that operate offshore, as these vessels frequently pull their nets for long hours prior to bringing their catches aboard. All of the presently certified TEDs
In October 1987, the State of Louisiana filed a complaint in federal district court, contending that both the TED and tow limit requirements are invalid. The State's complaint alleged that the regulations are arbitrary and capricious, unsupported by the record, and were promulgated in violation of the Administrative Procedure Act's procedural requirements and Executive Order 12291's requirement of a regulatory impact analysis. The State further argued that the regulations violate the Louisiana shrimpers' due process and equal protection rights.
In December 1987 the Environmental Defense Fund and the Center for Environmental Education were permitted to intervene as defendants. The parties filed cross motions for summary judgment and orally argued their motions on February 10, 1988. Two days before oral argument, on February 8, Concerned Shrimpers of Louisiana was granted leave to intervene as plaintiff. Concerned Shrimpers neither filed, nor responded to, any summary judgment motion, nor participated in oral argument.
On February 29, 1988, the district court entered summary judgment for the defendants. Louisiana ex rel. Guste v. Verity, 681 F.Supp. 1178 (E.D.La.), aff'd, 850 F.2d 211 (5th Cir.1988). On April 12, 1988, a stay pending appeal was issued. In the present appeal, the appellants again argue that the regulations are arbitrary and capricious.
The district court entered judgment for the Secretary on cross-motions for summary judgment. When reviewing a grant of summary judgment, a court of appeals applies the same legal standard as that which guided the district court. Barbetta v. S/S BERMUDA STAR, 848 F.2d 1364, 1368 (5th Cir.1988); Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987). Review in the first instance of a challenge made to regulations promulgated under the Endangered Species Act, 16 U.S.C. § 1531 et seq., is governed by standards set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and it is thus to these same standards that we will look in conducting our review on appeal. Environmental Coalition of Broward County, Inc. v. Meyers, 831 F.2d 984, 987 (11th Cir.1987). Under the APA, the administrative record is reviewed to determine whether the challenged action was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction, authority or limitation; or without procedure required by law. 5 U.S.C. § 706(2)(A)-(D).
Thus, if the agency considers the factors and articulates a rational relationship between the facts found and the choice made, its decision is not arbitrary or capricious. Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1188 (5th Cir. Unit B Apr. 1981). Indeed, the agency's decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record.
The core of appellants' challenge on appeal concerns the sufficiency of the administrative record to support the TED and trawling-period regulations. In particular, they assert that the record insufficiently demonstrates the impact of shrimp trawling on sea turtle mortality, the efficacy of the regulations as applied to inshore Louisiana waters, and the impact of the regulations on the Louisiana economy. Appellants also challenge the regulations insofar as the administrative record supporting them fails to address serious causes of sea turtle mortality other than shrimping. Based upon the limited scope of our review, we find that the record amply supports the Secretary's decision to issue the regulations in question.
1. The Impact of Shrimp Trawling on Sea Turtle Mortality.
The relationship of shrimping to sea turtle mortality is strongly demonstrated by data contained in the administrative record. Since 1973, on-board observers have documented the capture and drowning of sea turtles by shrimp trawlers. Using extrapolations based upon more than 27,000 hours of shrimp trawl observation, experts have concluded that more than 47,000 endangered and threatened sea turtles are caught in shrimp trawls each year; 11,179 of these turtles drown in the shrimpers' nets.
The capture and mortality statistics for Louisiana waters were derived largely from the so-called Henwood-Stuntz study, a series of extrapolations based upon 16,785 hours of observer effort in the Gulf of Mexico. Of this total, 4,333 hours were spent on shrimp boats off the Louisiana shore. During the Louisiana observation period, 12 sea turtles were taken, 5 of which had died by the time the trawl was retrieved. This mortality rate of 42% is among the highest of any state, the Gulf-wide rate being 29%. More than one-third of the turtles that were observed to have died in Gulf shrimp trawls, died off Louisiana.
Although the observers spent substantial hours on the shrimp boats, their efforts recorded the results of only a small fraction of the annual shrimping effort. Each year, commercial shrimpers are estimated to spend 2,063,074 hours trawling off Louisiana. Using a simple ratio of 5/4,333 = X/2,063,074 and solving for X, a total of 2,381 endangered and threatened turtles would be estimated to be killed annually off Louisiana alone.
"Stranding" data further supports the conclusion that shrimping is responsible for large numbers of sea turtle deaths. Beginning in 1980, volunteers established the Sea Turtle Stranding and Salvage Network ("Network") to monitor the number and types of sea turtle carcasses stranded on beaches and in marshes and bayous. More than 8,300 dead sea turtles, including nearly 600 Kemp's ridleys, were reported to NMFS by the Network. Although determining the precise cause of a stranded sea turtle's death is difficult, a causal link to shrimping appears reasonable in light of the fact that strandings occur predominantly in areas adjacent to shrimping grounds, and that the number of sea turtle strandings increases dramatically with the advent of the shrimping season.
In addition, the administrative record established that, based upon tag returns between 1966 and 1984, 32% of the Kemp's ridley turtles incidentally captured are caught in Louisiana waters, by far the highest rate of any state or country. Twenty-two percent of the Kemp's ridley strandings in the Gulf occur in Louisiana. In a 1984 study, 12 out of 15 Louisiana shrimpers interviewed said they caught from 1 to 2 sea turtles each year.
In challenging the administrative fact-finding that links shrimp trawling to sea turtle mortality, appellants assert that the Secretary failed to consider the best scientific data available before issuing the regulations. The Henwood-Stuntz extrapolations heavily relied upon by the agency are flawed, appellants contend, because one of the field samples on which they are based is unscientifically small. Specifically, appellants point out that researchers conducting the study recorded a mere two capturings of the Kemp's ridley turtles during the entire time test trawls were pulled off Louisiana's shores. The insufficiency of this sample is borne out, they believe, by the discrepancy between the Henwood-Stuntz extrapolations and observations made by the Louisiana Department of Wildlife and Fisheries. From 1967 until 1986, the Louisiana Department conducted a total of 36,837 trawl samples, but in none of these was a single sea turtle ever reported to have been captured. At the very least, appellants conclude, the methodology of Henwood-Stuntz is prone to grossly over-estimating the killing of sea turtles in shrimp trawls.
From our admittedly lay perspective, the Henwood-Stuntz method of extrapolating the magnitude of sea turtle takings in shrimp trawls does not necessarily appear unreasonable. There are more than 18,000 domestic shrimp vessels operating in the Gulf and South Atlantic. Each of these vessels simultaneously pulls from 1 to 4 trawls, generally for 2 to 6 hours at a time. Shrimping occurs in the Gulf year-round, with most activity concentrated between June and December. Therefore, while the 16,785 hours of observer effort invested in the Henwood-Stuntz study represents the equivalent of less than one hour of fishing by the entire shrimping fleet, we recognize that the size of the industry realistically precludes statistical findings based totally upon actual observation rather than extrapolation.
We are also unpersuaded by appellants' mischaracterization of the data base from which Henwood-Stuntz extrapolations were made. Appellants' attack is accomplished by isolating a narrow range of data concerning the most endangered of the five protected species — the Kemp's ridley — and concluding that the data concerning this single species in waters off a single state was insufficient to justify the regulations. As already indicated, however, the regulations are intended to prevent the illegal taking of all of the five endangered and threatened sea turtle species, whose habitats are not confined by state boundaries but may encompass thousands of square miles of sea. Because each local area, indeed each shrimper, is responsible for catching only a few sea turtles each year, it is only by aggregating this information that the relevant statistics can be approximated.
2. The Efficacy of the Regulations as Applied to Louisiana's Inland Waters.
The administrative record amply demonstrates that sea turtles are found in inshore waters. Kemp's ridleys, for example, are known to frequent the inshore waters of the Gulf, which hosts their favorite food species, the blue crab. Kemp's ridleys are most abundant in Louisiana, particularly in the near-shore white shrimp grounds. At least one expert has observed that "Kemp's ridley could logically be labelled the Louisiana turtle, because its greatest abundance is found there.... It is beyond doubt the commonest marine turtle in the state, concentrated in the shallow water from Marsh Island to the Mississippi Delta." Of all tag returns of nesting Kemp's ridley females, 59% are from Louisiana near-shore waters. Other species, including loggerheads and
Sea turtles not only frequent inshore waters; the record is replete with evidence to show that they are captured there as well. Most recoveries of "headstarted" Kemp's ridleys have occurred in inshore waters.
By 1976, as evidence mounted that shrimp trawling is a substantial cause of sea turtle mortality, NMFS began research into equipment modifications that would allow turtles to escape shrimp trawls without causing a significant loss of shrimp.
Data concerning TED effectiveness was based primarily upon tests done in offshore waters, so although the agency had sufficient data that turtles frequent inshore waters and that shrimpers catch them there, the agency was receptive to time limitations on trawling as an alternative measure for inshore areas. During hearings on the proposed regulations, commenters urged
Appellants nevertheless argue that, if the agency had insufficient data to apply the more intrusive TED requirement to inshore shrimping, it automatically had insufficient data to support any other type of regulation. We disagree. Since the data was more than adequate to support the tow-time restriction in inland waters, it follows that the Secretary's decision to give shrimpers the option to use TEDs as an alternative is no less supportable. Inshore shrimpers who find the TED onerous need not use it. On the other hand, should shrimpers who experiment with the TED in inshore waters find the device compatible with their needs, they will be free to use it instead of having to haul aboard their nets after every ninety minutes of fishing. The shrimpers can hardly complain that the agency has given them a choice.
3. The Impact of the Regulations on Louisiana's Economy.
The proposed regulations, which were to be phased in over a two-year period, will require 17,200 shrimpers using certain size nets to install TEDs and use them when fishing in offshore waters during the shrimping seasons. Shrimpers will purchase and install certified TEDs at an expected cost of $200-400 per TED.
Although we do not denigrate appellants' concern with the expense and inconvenience the regulations will visit on Louisiana's shrimping industry, Congress has decided that these losses cannot compare to the "incalculable" value of genetic heritage embodied in any protected living species.
4. The Secretary's Failure To Regulate Other Major Causes of Sea Turtle Mortality.
Appellants argue that the TED regulations are arbitrary and capricious because they do not address other serious causes of sea turtle mortality. As we understand this argument, however, appellants are in fact raising two separate points. First, they appear to be urging us to adopt a novel proposition that regulations failing to address all of the causes of a problem are, for that reason, arbitrary and capricious. In doing so, they ignore the well-established rule that regulations need not remedy all evils, or none. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465-66, 93 L.Ed. 533 (1949); Central Lumber Co. v. South Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164 (1912). Nor must the government "choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 1162, 22 L.Ed.2d 491 (1970).
Appellants' second contention is based upon the proposition enunciated in Connor v. Andrus, 453 F.Supp. 1037, 1041 (W.D.Tex.1978), that regulations issued under the ESA must halt, or even reverse, the population depletion of an endangered species. In Connor, the administrative record was found not to support a finding that banning all duck hunting in designated portions of New Mexico, Texas, and Arizona would increase, or tend to increase, the population of the endangered Mexican duck. The record did demonstrate, however, that the Mexican duck was threatened by other causes not targeted by the regulation, namely, the destruction of its natural habitat and its hybridization with another species, the mallard.
Having thus found that the agency had failed to consider all of the statutorily relevant factors, the Connor court held the challenged regulation to be arbitrary and capricious. Id. Accordingly, appellants believe the administrative record in the instant case is similarly deficient: There is no finding that the regulations will ultimately save sea turtles from extinction; nor does the record show that sea turtles saved from drowning in shrimpers' nets will ultimately survive the other causes of sea turtle mortality for such time as to replenish or increase their numbers.
An essential part of appellants' argument assumes that the ESA authorizes the Secretary to issue protective regulations only if found actually to save an endangered species from extinction. We believe, however, that this assumption finds no support in the statutory grant of regulatory authority, 16 U.S.C. § 1533(d).
In addition to this mandatory duty, however, the ESA also provides the Secretary discretionary authority to prohibit by regulation the taking of any threatened species of fish and wildlife. 16 U.S.C. §§ 1533(d), 1538(a)(1). This regulatory authority supplements the statutory prohibition against the taking of endangered species, see 16 U.S.C. § 1538(a)(1), the enforcement of which is not conditioned upon any showing that the prohibition will itself operate to restore the species to a level considered unendangered. Rather, Congress simply presumes that prohibited takings will deplete the species. We must honor that legislative determination.
In sum, therefore, regulations aimed at preventing the taking of a protected species cannot be invalidated on the ground that the record fails to demonstrate that the regulatory effort will enhance the species' chance of survival. Insofar as Connor v. Andrus, supra, requires such a showing, we disapprove its holding.
The Concerned Shrimpers also challenge the regulations on equal protection grounds. The basic concepts of equal protection as set forth in the fourteenth amendment apply to federal action though the due process clause of the fifth amendment. United States v. Hawes, 529 F.2d 472, 477 (5th Cir.1976). Where administrative classifications are made, absent a fundamental right or suspect classification such as race, equal protection requires only that the classification bear a rational relationship to the legislative purpose of the enabling statute. See Turner v. Weinberger, 728 F.2d 751, 757-58 (5th Cir.1984).
Concerned Shrimpers argue that the regulations cannot meet the "rational basis" test because (1) they do not constrain activity north of North Carolina, even though sea turtles are believed to frequent those waters; (2) they regulate Gulf shrimpers with the same intensity as they regulate Atlantic shrimpers, even though Atlantic shrimpers catch more sea turtles per capita; and (3) they regulate based upon boat size, rather than net size. With respect to the first of these challenges, the Shrimpers themselves provide the best answer: "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." See Railway Express, supra. Nor, as we have already noted, must the agency "choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge, supra. Even assuming, as the Shrimpers assert, that Kemp's ridleys do turn up off Long Island, there is no evidence that they are caught there by shrimp trawlers. Moreover, the government's regulation of a known evil at one place does not become invalid by the discovery of a similar, as-yet-unregulated evil at another.
The Concerned Shrimpers' next argument — that the regulations violate equal protection because they regulate Gulf and Atlantic shrimpers in the same way — is similarly without merit. The agency is under no obligation to treat Atlantic and Gulf shrimpers differently, so long as its rule is reasonably related to its purpose. Here, both Gulf and Atlantic shrimpers apparently cause large numbers of sea turtle deaths. It is the agency's purpose to protect
Finally, the Shrimpers challenge the use of boat size as the trigger for the TED requirement, because, they urge, it is the size of the net, not the boat, that is critical. As originally proposed, the regulations indeed used net size as the basis for the TED requirement, but public comments persuaded the agency that this criterion could not work: It was not only difficult to enforce, but would cause significant intrusions into shrimper operations.
The compromise reached by the agency — to use boat size as a proxy for net size — was entirely reasonable. Boats below 25 feet in length generally do not pull the larger nets. But even if some 24-foot vessels do pull larger nets, as the Shrimpers say, the government need not achieve the "mathematical nicety" the Shrimpers demand in order to meet constitutional requirements. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). Rather, as the Supreme Court has long recognized, "[t]he problems of government are practical ones and may justify, if they do not require rough accommodations." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Although the Kemp's ridley is the most critically endangered sea turtle, the four other species are in serious danger of extinction as well. By 1978, the Secretary of Commerce had listed the Kemp's ridley, leatherback, and hawskbill turtles as endangered species, and the loggerhead and green turtles as threatened. 50 C.F.R. § 222.23 (1987) (list of endangered sea turtles, effective 1974); 50 C.F.R. § 227.4 (1987) (list of threatened sea turtles, effective 1978). Under the Secretary's authority to list endangered or threatened species by region, the green turtle was also listed as endangered in Florida waters. 50 C.F.R. § 222.23 (1987). The Pacific, or Olive ridley, not at issue in this case, is listed as threatened, except for the population off the Pacific coast of Mexico, which is listed as endangered. Id.
NMFS TEDs were tested by paired tows, in which one side of the vessel used a TED and the other did not. After 15,000 hours of testing, the TED was found effective at releasing turtles, without reducing shrimp catch. During the testing, NMFS was able to reduce the TED from a 97-pound rigid frame to a collapsible 37-pound frame.
16 U.S.C. § 1538(a)(1) provides in relevant part as follows: