Case: 22-30799 Document: 00516788903 Page: 1 Date Filed: 06/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2023
No. 22-30799 Lyle W. Cayce
Clerk
Louisiana State, by and through Louisiana Department of Wildlife and
Fisheries,
Plaintiff—Appellant,
versus
National Oceanic & Atmospheric Administration,
Richard Spinrad, Administrator; Chris Oliver, in his
official capacity as Assistant Administrator for Fisheries; Samuel D.
Rauch, III, in his official capacity as Deputy Assistant Administrator for
Regulatory Programs; National Marine Fisheries Service;
Department of Commerce, Gina Raimondo, Secretary,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-1523
Before Smith, Clement, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Before us is the narrow question of whether the district court erred in
holding that, based on the summary judgment record, the State of Louisiana
failed to establish standing to challenge a National Marine Fisheries Service
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No. 22-30799
(NMFS) rule that requires certain shrimping vessels in Louisiana waters to
use turtle excluder devices (TEDs). We affirm.
I.
A.
There have long been TED requirements for shrimping. In 1987,
NMFS promulgated a rule requiring shrimp trawlers 25 feet or longer
operating in offshore waters from North Carolina to Texas to install TEDs,
subject to a few preconditions. See 52 Fed. Reg. 24,244 (June 29, 1987). Our
circuit upheld that rule over Louisiana’s challenge. See State of La., ex rel.
Guste v. Verity, 853 F.2d 322, 324 (5th Cir. 1988). But the 1987 rule exempted
skimmer trawlers and inshore shrimpers from its requirements, so long as the
exempted vessels followed tow-time restrictions. 50 C.F.R.
§ 223.206(d)(2)(ii)(A)(3).
In 2012, NMFS proposed a more restrictive rule requiring TEDs for
skimmer trawlers, 77 Fed. Reg. 27,411 (May 10, 2012), but withdrew it in
2013, 78 Fed. Reg. 9,024 (Feb. 7, 2013). In 2016, the agency proposed
another rule, again largely requiring all skimmer trawlers to use TEDs
regardless of length or whether they operated inshore. 81 Fed. Reg. 91,097
(Dec. 16, 2016). NMFS justified this newest iteration in part based on a
conclusion that tow-time restrictions were “inherently difficult to enforce.”
NMFS promulgated a tailored version of its proposed 2016 rule in
December 2019 (the Final Rule). The Final Rule required TEDs on all
skimmer trawlers over 40 feet, including those that operate inshore. See 84
Fed. Reg. 70,048 (Dec. 20, 2019). The Final Rule’s environmental impact
statement (EIS) estimates that:
For the 1,047 vessels in the Gulf of Mexico that are expected to
be affected by this regulatory action, the aggregate loss in gross
revenue from shrimp loss is about $2.29 million, which
represents about 2.9% of their gross revenue. Including the
costs of purchasing TEDs, which are about $1.36 million, the
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total adverse effect in the first year is about $3.65 million,
which represents about 4.6% of their gross revenue in the
aggregate.
The EIS projects that 178 vessels will shut down throughout the Gulf of
Mexico as a result of these costs. Further, the EIS predicts a shrimp loss per
vessel of 6.21%, with a total adverse effect of $3,482 per vessel in the first year
in the Gulf of Mexico. These losses would be less in subsequent years, once
TEDs are initially purchased and installed. Cumulatively, the EIS forecasts
that the “expected annual loss in food shrimp landings is approximately
870,000 lbs under this regulatory action,” approximately 0.3% of all food
shrimp processed in the Gulf.
According to NMFS, changes incorporated in the Final Rule
compared to the proposed 2016 version reduced the number of vessels
impacted by more than 80% and the total economic effect by 73%. Neither
NMFS nor Louisiana has offered data specific to Louisiana’s shrimping
industry.
B.
The Final Rule was to go into effect on April 1, 2021, but on March
31, 2021, NMFS delayed the effective date to August 1, 2021, citing the
COVID-19 pandemic as justification for the delay. On August 11, 2021, ten
days after the rule’s deferred effective date, Louisiana’s Department of
Wildlife and Fisheries (LDWF) sued NMFS 1 under the Administrative
Procedure Act, challenging the Final Rule as arbitrary and capricious. 2
1
Louisiana also sued the National Oceanic and Atmospheric Administration,
Department of Commerce, and various administrators and secretaries in their official
capacities. For ease of reference we focus, as the parties do, on NMFS as the principal
defendant, as it promulgated the Final Rule.
2
While the State, through LDWF, has vigorously pursued this action, to date, no
shrimpers, presumably most directly impacted by the Final Rule, have attempted to
intervene in this action.
3
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After denying Louisiana’s request for a temporary restraining order,
the district court preliminarily enjoined enforcement of the Final Rule in
Louisiana inshore waters until February 1, 2022. In its order the court stated,
in a footnote, that “‘[t]he State of Louisiana ha[d] standing to sue in [its]
quasi-sover[e]ign capacity because of its interest in and ownership of its
marine resources.’” Louisiana v. Dep’t of Commerce, 559 F. Supp. 3d 543,
548 n.19 (E.D. La. 2021) (quoting State of La. ex rel. Guste v. Verity, 681 F.
Supp. 1178, 1181 (E.D. La. 1988), aff’d, 850 F.2d 211 (5th Cir. 1988)). The
State did not seek an extension when the injunction expired.
Instead, Louisiana moved for summary judgment, focusing on the
merits of its claims. NMFS opposed and filed a cross-motion for summary
judgment. In its motion, NMFS defended the merits of the Final Rule but
further asserted that Louisiana lacked standing to bring this action. In the
State’s last summary judgment brief (it both supported its motion and
opposed NMFS’s motion in the same filing), Louisiana devoted a mere two
pages to standing.
The State urged that it had standing on four bases. First, citing Verity,
it asserted that it had standing based on its “interest in and ownership of its
marine resources.” Louisiana cited no record evidence to support its
assertion. Second, the State contended that it “suffer[ed] direct injury from
the enforcement resources it will have to expend to comply with the [Final
Rule].” Relatedly, Louisiana asserted that the Final Rule “undermine[d] the
State’s ability to enforce its existing laws by requiring the massive
reallocation of resources away from other LDWF activities[,
which] . . . places substantial pressure on the State to change its policies and
enforcement priorities.” For support, Louisiana relied on allegations in its
complaint, referenced a declaration from Colonel Chad Hebert, with
LDWF’s enforcement division, and cited caselaw. Specifically, the State
cited Hebert’s statement that “[f]ull capacity for LDWF Enforcement staff
and field agents is 234, however LDWF Enforcement is currently holding
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206 positions due to ongoing funding constraints.” Finally, Louisiana
asserted that it had parens patriae standing “to vindicate the economic
interests . . . of the entire State.” Again, the State relied on its complaint and
caselaw for support.
The district court granted NMFS’s motion, holding that Louisiana
had not carried its summary judgment burden to establish standing. The
court rejected Louisiana’s assertion that it had standing in its “quasi-
sovereign” capacity because after the court entered the preliminary
injunction, Louisiana had “made no attempt to show any injury to its marine
resources resulting from the Final Rule.” The court acknowledged that it
had previously accepted “an interest in and ownership of its marine
resources,” see Verity, 681 F. Supp. at 1181, as a basis for standing at the
preliminary injunction stage, but the court held that “at the summary
judgment stage, more [was] required,” Louisiana v. Dep’t of Commerce, No.
21-CV-1523, 2022 WL 17251152, at *2 (E.D. La. Nov. 28, 2022) (citing Lujan
v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992)). The district court faulted
Louisiana for citing “only to the allegations of its [c]omplaint [and] ma[king]
no attempt to show any injury to its marine resources resulting from the Final
Rule,” id., by offering evidentiary support for the State’s alleged injury.
The district court also rejected Louisiana’s arguments related to
increased law enforcement costs and reallocation of resources. The court
characterized Hebert’s declaration as “insufficiently vague, speculative, and
conclusory[.]” Id. at *3 (citing Crane v. Johnson, 783 F.3d 244, 252 (5th Cir.
2015)). Analogizing to Crane, the court found that, even considering
Hebert’s statements, “[t]here [was] no evidence of how the Final Rule will
burden the LDWF or even any proof that it will not receive federal funding
to offset that burden.” Id. And the district court similarly rejected
Louisiana’s parens patriae argument, faulting the State for relying only on its
complaint allegations and failing to “provide any evidence of economic harm
to the State’s economy caused by the Final Rule.” Id.
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Louisiana timely appealed. We review only whether the district court
erred in concluding that Louisiana lacked standing to challenge the Final
Rule. It did not.
II.
On appeal, Louisiana asserts that it has standing because the Final
Rule infringes on its sovereign, quasi-sovereign, and proprietary interests.
See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982).
In Alfred L. Snapp & Son, the Supreme Court differentiated those three types
of interests based on how a State is injured. Id. at 600–08. Sovereign
interests are “based on [the State’s] sovereign character.” Id. at 601. The
Court identified two kinds of sovereign interests: “First, the exercise of
sovereign power over individuals and entities within the relevant
jurisdiction—this involves the power to create and enforce a legal code, both
civil and criminal; second, the demand for recognition from other
sovereigns—most frequently this involves the maintenance and recognition
of borders.” Id. States have sovereign interests by virtue of their being co-
sovereigns in our Nation’s federalism.
Related, but distinct, quasi-sovereign interests “consist of a set of
interests that the State has in the well-being of its populace.” Id. at 602.
“First, a State has a quasi-sovereign interest in the health and well-being—
both physical and economic—of its residents in general. Second, a State has
a quasi-sovereign interest in not being discriminatorily denied its rightful
status within the federal system.” Id. at 607. Only the first is at play here. 3
In either case, a plaintiff-State may sue as parens patriae, i.e., in a
3
The second type of quasi-sovereign interest centers on “ensuring that the State
and its residents are not excluded from the benefits that are to flow from participation in
the federal system.” Id. at 608. “Federal statutes” create these “benefits” “that a [S]tate
will obviously wish to have accrue to its residents.” Id. Thus, there is a distinction between
a State’s sovereign interest in enforcing its own law and a State’s quasi-sovereign interest
in obtaining benefits under federal law on its residents’ behalf.
6
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representative capacity, to vindicate an injury to a “sufficiently substantial
segment of its population.” Id. at 607.
Finally, a State may have proprietary interests sufficient to confer
standing, much like a private litigant. After all, a State can enter into
contracts, own land, and participate in business ventures. See id. at 601; see
also Chisholm v. Georgia, 2 U.S. 419 (1793). “And like other such proprietors
it may at times need to pursue those interests in court.” Alfred Snapp & Son,
458 U.S. at 601–02. These proprietary interests have been extended, e.g., to
a State’s collection of excise tax revenues, at least as against other States. See
Wyoming v. Oklahoma, 502 U.S. 437, 447–50 (1992). And we have held that
a State suffered injury to a proprietary interest when a change in federal law
would have required the State to issue additional driver’s licenses at a loss.
Tex. v. United States, 809 F.3d 134, 155 (5th Cir. 2015), aff’d by an equally
divided court, 579 U.S. 547 (2016).
We examine the State’s proffered interests and concomitant injuries
as follows.
III.
We review summary judgments de novo. Norman v. Apache Corp., 19
F.3d 1017, 1021 (5th Cir. 1994). A party is entitled to summary judgment
when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[F]acts that are subject to genuine dispute are viewed in the
light most favorable to [the non-moving party].” Taylor v. Riojas, 141 S. Ct.
52, 53 n.1 (2020) (per curiam).
We likewise review whether a plaintiff has Article III standing de novo.
Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 264 (5th Cir.
2015). As plaintiff, Louisiana bears the burden of establishing standing. Tex.
v. United States, 50 F.4th 498, 513 (5th Cir. 2022). To do so, a plaintiff must
“have (1) suffered an injury in fact, (2) that is fairly traceable to the
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challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Inclusive Cmtys. Project, Inc. v. Dep’t of
Treasury, 946 F.3d 649, 655 (5th Cir. 2019) (quotation marks and citation
omitted). Here, the major sticking point is whether Louisiana has presented
evidence of an injury-in-fact that satisfies Article III.
Louisiana contends its sovereign interests are injured by the Final
Rule’s preemption of state laws, interference with Louisiana’s enforcement
of its own wildlife laws, and interference with the marine resources in the
State’s territorial waters (as well as with the State’s regulation of those
resources). Louisiana next argues that its quasi-sovereign interests in the
economic well-being of its populace suffer injury because the Final Rule
inflicts adverse economic consequences upon its citizens. Lastly, Louisiana
asserts that the Final Rule injures the State’s proprietary interests because of
increased LDWF enforcement costs.
A.
Casting a bit deeper into Louisiana’s asserted sovereign interests, the
State urges on appeal that it has standing based on: (1) “the Final Rule’s
preemption of state laws regulating the harvesting of shrimp in Louisiana
waters”; (2) the rule’s “interference with Louisiana’s enforcement of its
own wildlife laws”; (3) the State’s “sovereign interest in the shrimp in its
waters,” cf. Verity, 681 F. Supp. at 1181; 4 and, relatedly, (4) Louisiana’s
interest in regulating those marine resources. The first and last grounds
readily escape the net because Louisiana failed to raise these arguments
4
Specifically, the Verity district court held that “Louisiana ha[d] standing to sue in
the quasi-sover[e]ign capacity because of its interest in and ownership of its marine
resources.” 681 F. Supp. at 1181. Louisiana adopted that characterization before the
district court in this case but rebrands this species of interest as “sovereign” on appeal.
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before the district court. The State’s other asserted sovereign interests
likewise yield no catch, for the reasons discussed in turn.
1. and 4.
Generally, “arguments not raised before the district court . . . cannot
be raised for the first time on appeal,” Webster v. Kijakazi, 19 F.4th 715, 720
(5th Cir. 2021) (quotation marks and citation omitted), “absent
extraordinary circumstances,” Chevron USA, Inc. v. Aker Mar. Inc., 689 F.3d
497, 504 (5th Cir. 2012). However, “[a]n argument is not [forfeited] . . . if
the argument on the issue before the district court was sufficient to permit
the district court to rule on it.” Webster, 19 F.4th at 720 (quotation marks
and citation omitted).
Louisiana’s contentions based on the Final Rule’s preemption of state
laws and its interference with the State’s regulation of marine resources
nowhere appear in the State’s opposition to NMFS’s motion for summary
judgment. Nevertheless, Louisiana asserts that it did not forfeit either basis
for standing because the State alleged in its complaint that it “sue[d] to
vindicate its sovereign, quasi-sovereign, proprietary, and parens patriae
interests.” But alleging grounds for standing in a complaint is not the same
as asserting—and substantiating—those theories when resisting summary
judgment, because the district court cannot “rule on” mere allegations at the
summary judgment stage of litigation. Webster, 19 F.4th at 720; see also
Chevron USA, Inc., 689 F.3d at 504. Louisiana therefore failed to preserve
these grounds for standing by first adequately urging them in the district
court.
Of course, there are exceptions to every rule. We have limited
discretion to reach an issue first raised on appeal when it presents “a purely
legal matter and failure to consider the issue will result in a miscarriage of
justice.” Rollins v. Home Depot USA, 8 F.4th 393, 398 (5th Cir. 2021)
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(quotation marks and citation omitted). Louisiana urges us to exercise our
discretion in this instance. Presuming the State’s unpreserved bases for
standing involve purely legal questions, we focus on whether extraordinary
circumstances warrant doing so.
Louisiana maintains that it “had no reason to press the relevant
argument[s] more specifically” at summary judgment because the district
court had already determined that the State had standing in granting the
preliminary injunction. The State thus “simply had no reason” to litigate
the “standing issue more vigorously and raise[] the argument[s] more
specifically.” While on the surface, Louisiana’s position resonates
somewhat—the district court had previously held the State had standing,
after all—we discern no extraordinary circumstance that justifies
consideration of the forfeited arguments.
Louisiana had the burden of establishing standing in the district court.
See Lujan, 504 U.S. at 561. When NMFS cross-moved for summary
judgment, in response to Louisiana’s own dispositive motion, it argued that
Louisiana lacked standing. Louisiana was therefore on notice that NMFS
was contesting Louisiana’s standing—and seeking summary judgment on
that basis. Cf. id. (The elements of standing are “an indispensable part of
the plaintiff’s case, [such that] each element must be supported . . . with the
manner and degree of evidence required at the successive stages of the
litigation.”). In the State’s combined opposition to NMFS’s motion and
reply in support of its own, Louisiana engaged, briefly, on the standing issue.
That the State failed to conjure all its grounds for standing for the district
court’s consideration is not itself an exceptional circumstance. And
Louisiana offers no reason for its omission that rises to such a circumstance.
Therefore, we discern no “miscarriage of justice,” Rollins, 8 F.4th at 398, in
declining to consider the Final Rule’s purported preemption of state laws or
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its interference with the State’s regulation of its marine resources in
evaluating Louisiana’s standing.
2. and 3.
We turn now to the merits of Louisiana’s preserved arguments: its
Verity-based assertion that the State’s interests in its natural resources are
harmed by the Final Rule, and its contention that increased enforcement
costs caused by the rule will pressure Louisiana to change its enforcement
priorities. In the end, neither of these arguments nets standing for the State.
In Verity, the district court held that “the State of Louisiana ha[d]
standing to sue in the quasi-sover[e]ign capacity because of its interest in and
ownership of its marine resources.” See 681 F. Supp. at 1181. Because we
did not address standing in the appeal of that case, this court’s decision “does
not stand for the proposition that no [jurisdictional] defect existed.” Lefebure
v. D’Aquilla, 15 F.4th 650, 657 (5th Cir. 2021) (citation omitted). Regardless,
assuming arguendo that Verity articulated a sovereign interest that could
support standing, Louisiana’s argument fails for lack of evidentiary support.
To resist summary judgment, Louisiana was required to present
evidence of a “concrete and particularized invasion of a legally protected
interest.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273
(2008) (quotation marks and citation omitted). Under Verity, Louisiana’s
relevant interest is its ownership or trustee interest in its marine resources as
“property” of the State. It follows that Louisiana must show an injury to
those marine resources. But the State does not identify competent summary
judgment evidence that substantiates any alleged injury that the Final Rule
inflicts on Louisiana’s marine resources. On the contrary, under the Final
Rule, less shrimp will be extracted from Louisiana waters and fewer turtles
will ostensibly be caught inadvertently in shrimpers’ nets. Besides, while
Louisiana directs us to the Final Rule’s EIS, which forecasts the impact on
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shrimp harvests Gulf-wide, the State offers no evidence specific to its own
shrimp harvests, in its own waters, much less an injury to its resources. We
therefore agree with the district court that Louisiana “has made no attempt
to show any injury to its marine resources resulting from the Final Rule,”
such that this argument fails.
Louisiana also urges that “the Final Rule interferes with Louisiana’s
enforcement of its own wildlife and fisheries laws, and in so doing, places
pressure on Louisiana to change those laws” thereby causing a separate
injury to its sovereign interest. Louisiana tethers this argument to Colonel
Hebert’s declaration testimony that the Final Rule places “additional strain”
on the LDWF’s enforcement resources and relies on Texas v. EEOC, 933
F.3d 433, 447 (5th Cir. 2019), to support the notion that the Final Rule
“pressures [Louisiana] to abandon its laws and policies.”
This argument is necessarily contingent on a finding that the Final
Rule will increase LDWF enforcement costs. Setting aside complaint
allegations, the sum of Louisiana’s proof on that score is drawn from
Hebert’s declaration. He states that additional enforcement duties triggered
by the Final Rule “could substantially burden and interfere with LDWF
Enforcement’s ability to effectively perform its various other enforcement
duties.” He also avers that LDWF does not expect to receive “additional or
commensurate” funding to defray the “additional LDWF Enforcement
efforts.” But Hebert’s declaration does not explain the “pressure” this
might bring to bear on Louisiana’s sovereign prerogatives; i.e., the
declaration does not “connect the dots” so as to create a genuine issue of
material fact as to the State’s ostensible sovereign injury. Instead, as further
discussed in III.C. below, Hebert’s testimony is couched in speculative,
general language (the rule “could” burden LDWF) that is flatly belied by the
Final Rule, which by its terms does not require Louisiana to enforce it, and
unrefuted evidence from NMFS that demonstrates that the agencies
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annually coordinate enforcement efforts, including funding to cover federal
priorities. See infra n.6. Louisiana’s lack of competent summary judgment
evidence fatally undermines its assertion of standing on this basis.
B.
Next, we consider Louisiana’s parens patriae argument, i.e., that the
Final Rule injures its quasi-sovereign interests. The State correctly asserts
that it has a quasi-sovereign interest in the general economic well-being of its
residents. See Alfred L. Snapp & Son, 458 U.S. at 607. More specifically,
Louisiana asserts that the Final Rule injures that interest because of the
“significant adverse economic impact” the Final Rule will have on
Louisiana’s shrimping industry, a significant component of the State’s
economy. Still, Louisiana must show that any such injury affects “a
sufficiently substantial segment of its population.” Id. Louisiana falters on
this requirement, again for lack of evidence.
In its opposition to NMFS’s motion for summary judgment,
Louisiana pointed to its complaint to substantiate its assertion that the Final
Rule will affect a sufficiently substantial segment of Louisiana residents. But
complaint allegations are insufficient at summary judgment because
“pleadings are not summary judgment evidence.” Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (“Once a summary judgment
motion is made and properly supported, the nonmovant must go beyond the
pleadings and designate specific facts in the record showing that there is a
genuine issue for trial.”). Moreover, while the Final Rule’s EIS noted that
the rule would adversely affect the shrimping industry across the Gulf of
Mexico, Louisiana failed to provide evidence particularly substantiating the
rule’s impact on its shrimping industry or, ergo, “a sufficiently substantial
segment of its population.” See Alfred L. Snapp & Son, 458 U.S. at 607.
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Nor does Louisiana’s invocation of the “special solicitude” afforded
States in the standing analysis, see Texas, 50 F.4th at 514, rescue this
argument, or for that matter the State’s other arguments. Special solicitude
merely changes “the normal standards for redressability and immediacy,” id.
(citation omitted); it is not a standing shortcut when standing is otherwise
lacking. In other words, it countenances some uncertainty as to both the
efficacy of a judicial remedy and the timing of the injury alleged by a State.
See id. But “special solicitude” does not absolve States from substantiating
a cognizable injury, and neither the Supreme Court nor this court has held
that it alters the requirements that the injury must be concrete and
particularized. See Massachusetts v. EPA, 549 U.S. 497, 517–20 (2007); Texas,
50 F.4th at 514. The district court did not err in holding that Louisiana failed
to support its standing based on a parens patriae theory. 5
5
Additionally, it is dubious that Louisiana may maintain its parens patriae suit
against the federal government at all. The D.C. Circuit has held that neither the APA nor
Massachusetts v. EPA invalidates the “so-called Mellon bar, [under which] a State lacks
standing as parens patriae to bring an action against the federal government.” Gov’t of
Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (citing Massachusetts v. Mellon,
262 U.S. 447, 485–86 (1923) (“While the state, under some circumstances, may sue as
parens patriae for the protection of its citizens, it is no part of its duty or power to enforce
their rights in respect of their relations with the federal government.” (cleaned up)).
Indeed, the Massachusetts v. EPA Court explained that “there is a critical difference
between allowing a State to protect her citizens from the operation of federal statutes
(which is what Mellon prohibits) and allowing a State to assert its rights under federal law
(which it has standing to do).” 549 U.S. at 520 n.17 (quotation marks omitted). There,
Massachusetts did not “dispute that the Clean Air Act applie[d] to its citizens; it rather
[sought] to assert its rights under the Act.” Id. Here, Louisiana’s parens patriae argument
appears to fall in the first category, and not the second. Regardless, because the parties do
not brief the nuanced applicability of the Mellon bar with any granularity, and our decision
does not turn on it, we decline to address this point further.
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C.
To finish, we consider whether Louisiana’s alleged increased
enforcement costs impinge on the State’s proprietary interests. The State’s
argument is as follows: LDWF enforces laws relevant to the shrimping
industry. Per Hebert, the Final Rule “could result in significant
noncompliance from the shrimping industry.” And while LDWF “will
endeavor to enforce any and all regulations resulting from” the Final Rule,
the additional enforcement duties imposed by the Final Rule “could
substantially burden and interfere with LDWF Enforcement’s ability to
effectively perform its various other enforcement duties.” Moreover,
Hebert averred that LDWF does not expect to receive “additional and
commensurate” funding from NMFS “despite the additional LDWF
Enforcement efforts imposed by implementation of [the Final Rule].” As a
result, the Final Rule “will result in additional strain on LDWF Enforcement
resources,” injuring Louisiana’s proprietary interests.
NMFS counters that Hebert’s declaration does not contain sufficient
detail to create a genuine issue of material fact as to Louisiana’s injury.
Additionally, NMFS asserts that the Final Rule, by its terms, does not require
Louisiana to enforce it, so any additional enforcement burden would be self-
inflicted, especially because Louisiana could ask NMFS for additional
funding to offset increased enforcement costs.
Louisiana’s rejoinder is that, at summary judgment, the district court
was required to consider Hebert’s declaration in the light most favorable to
the State. And Louisiana asserts that in fact it is required to enforce the Final
Rule, citing Louisiana Revised Statute § 56:493. That statute provides that
“[t]he exclusive control of the shrimp fishery and the shrimp industry in
Louisiana is vested in [LDWF], which shall enforce the laws regulating
same.”
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The district court rejected Louisiana’s position, relying on Crane v.
Johnson. We begin there.
In Crane, we considered Mississippi’s challenge to the Deferred
Action for Childhood Arrivals (DACA) program. 783 F.3d at 247.
Mississippi urged that it had standing to challenge DACA as injurious to its
proprietary interests. Id. at 252. In support, Mississippi relied on a 2006
report that showed that illegal aliens had cost the state over $25 million
annually in social benefits. Id. Mississippi contended that because DACA
allowed a certain class of those illegal aliens to remain in the state, the
program caused the state to incur further costs. Id. Problematically, the
report was from 2006, while the suit was filed in 2012. Id.
We affirmed the district court’s conclusion that “Mississippi’s
alleged fiscal injury was purely speculative because there was no concrete
evidence that Mississippi’s costs had increased or [would] increase as a result
of DACA.” Id. We faulted Mississippi for failing to submit evidence that
DACA-eligible immigrants resided in the state or would move to the state.
Id. Noting that for Article III standing, Mississippi had to show a “concrete
and particularized injury that [was] fairly traceable to DACA,” we held that
“Mississippi was required to demonstrate that the state [would] incur costs
because of the DACA program.” Id. (citation omitted). And we concluded
Mississippi’s alleged injury was purely speculative because it was “not
supported by any facts[.]” Id.
While this case is not precisely on all fours with Crane, the same result
obtains. Hebert’s declaration is speculative on the material points, merely
describing what “could” happen, and is thus insufficient by itself to forestall
summary judgment. And while Hebert asserts that additional federal funding
is not expected, so that the Final Rule will cost the State enforcement
resources, Louisiana fails to provide sufficient facts, either through Hebert’s
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No. 22-30799
testimony or otherwise, to support those assertions. See Ctr. for Biological
Diversity v. EPA, 937 F.3d 533, 545 (5th Cir. 2019) (“Article III demands
more than such conclusory assertions.”); see also, e.g., Clark v. Am.’s Favorite
Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (“Unsupported allegations or
affidavit or deposition testimony setting forth ultimate or conclusory facts
and conclusions of law are insufficient to defeat a motion for summary
judgment.”).
By way of illustration, Hebert’s assertion that LDWF will incur
increased law enforcement costs as a result of the Final Rule is dependent
upon LDWF’s actually enforcing the Final Rule. Before the district court,
Louisiana provided neither evidence nor argument in support of its assertion
that it is required to enforce the Final Rule. If Louisiana’s enforcement of
the rule is discretionary, any increased enforcement costs would be self-
inflicted and therefore insufficient to confer standing. See Zimmerman v. City
of Austin, Tex., 881 F.3d 378, 389 (5th Cir. 2018) (“[S]tanding cannot be
conferred by a self-inflicted injury.”).
Louisiana’s belated argument on appeal that it is required to enforce
the Final Rule under § 56:493, such that any increased enforcement costs
would not be self-inflicted, does not change the calculus, for three reasons.
First, Louisiana did not raise that argument before the district court, and
“[a]rguments not raised in the district court will not be considered [on
appeal] absent extraordinary circumstances.” Chevron, 689 F.3d at 504
(quotation marks and citation omitted). Additionally, NMFS represented
during oral argument that it would offset costs incurred by the State in
enforcing the Final Rule, and unrebutted record evidence supports that
contention. 6 Thus, even if Louisiana is required by state law to enforce the
6
Emanuel Antonaras, the Assistant Director of the Southeast Division of NMFS’s
law enforcement arm, submitted a declaration describing the Joint Enforcement
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No. 22-30799
Final Rule, the record indicates that the State would suffer no cognizable
injury because NMFS would provide commensurate funding to LDWF for
its additional enforcement efforts. Third, Louisiana cannot manufacture
injury with a novel interpretation of a general state statute. There is nothing
in the record to suggest that Louisiana has previously interpreted § 56:493 to
require the State to enforce federal regulations. 7 Doing so now, in the context
of this litigation, gives rise to self-inflicted injury, if it gives rise to injury at
all. Louisiana’s argument as to its proprietary injury therefore fails. 8
* * *
Based on the record and procedural history of this case, the district
court did not err in concluding that Louisiana failed to establish that it has
standing to challenge the NMFS’s Final Rule. The district court’s summary
judgment in favor of NMFS dismissing the State’s claims is therefore
AFFIRMED.
Agreements (JEA) NMFS enters with States. Per Antonaras, LDWF and NMFS negotiate
a JEA once a year that delineates coordinated enforcement efforts and provides funding to
LDWF for federal enforcement priorities. For example, the 2020 JEA provided
$293,538.40 to LDWF for coordinated TED enforcement.
7
In fact, § 56:493 peacefully coexisted for years with now-repealed Louisiana
Revised Statute § 56:57.2, which forbade LDWF from “enforc[ing] any federal law or
regulation which requires any commercial or recreational fishermen to use TEDs in
Louisiana waters until” several conditions had been satisfied.
8
Nor is the anti-commandeering doctrine applicable. The doctrine applies when a
federal law “directly command[s] the executive or legislative branch of a state government
to act or refrain from acting without commanding private parties to do the same[.]”
Brackeen v. Haaland, 994 F.3d 249, 299 (5th Cir. 2021) (en banc). The Final Rule, by its
text, does not require Louisiana to “act or refrain from acting,” and § 56:493, as a state
statute, does not support any anti-commandeering argument.
18