U.S. Fish and Wildlife Service can end failed otter protection program, 9th Circuit rules

In a significant victory for activists trying to protect California's sea otters, the 9th U.S. Circuit Court of Appeals ruled Thursday that the U.S. Fish and Wildlife Service was acting legally when it dismantled an experimental protection program for the animals that the agency later deemed a failure.

Writing for a unanimous three-judge panel of the court, Judge Ronald M. Gould said that the agency was entitled to unilaterally end the program after determining that it was no longer effective.

Gould wrote that fishing industry groups who brought the lawsuit in an effort to keep the program running had, in effect, argued that the program could never end until Congress itself intervened. California Sea Urchin Commission v. Bean, 2018 DJDAR 1928 (9th Cir., filed Nov. 3, 2013).

The program had been implemented by the Fish and Wildlife Service in 1987 after Congress gave the agency special authority to protect sea otters, which were listed as an endangered species in 1977.

In an effort to protect the dwindling otter population off the coast of California, the Fish and Wildlife Service established a protected zone near San Nicolas Island. The plan also created a management zone between Point Conception and Santa Barbara, wherein the agency was required to relocate otters to the protected zone by non-lethal means.

Fishermen were immune from liability for killing any otters in the management area while fishing.

But by 2009, the program was deemed a failure. Many otters that were relocated to San Nicolas died, often while attempting to swim back to their habitat closer to the coast. In 2012, the program was discontinued, a decision which made fishermen liable for any incidental takings in the formerly immune fishing area.

Litigation over the decision to end the program came to the 9th Circuit in 2016, when the fishing industry appealed a summary judgment granted to the Fish and Wildlife Service.

The circuit court reversed the timeliness ruling, allowing the fishing groups to continue with their suit, which alleged that a special law passed by Congress allowing for otter protection programs did not include explicit language authorizing internal decisions to end the protection efforts.

In two cases that were later consolidated on appeal, U.S. District Judges John F. Walter and Dolly M. Gee ruled under the Chevron doctrine that the government had acted within its bounds by deciding to stop the experimental otter program.

Gould agreed. He said that under Chevron, which requires the courts to defer to agency interpretation of law when Congress does not provide a clear answer to uncertainty in legislation, the agency had responded to the intent of the statute, which was meant to equip the Fish and Wildlife Service with the tools to effectively protect sea otters.

He also wrote that the fishing industry groups' position would require the government to continue the program, even if the protected area no longer contained any otters.

"That reading would have the effect of turning a statute with an express purpose of protecting otters into one that harmed otter populations where, as here, the range of the parent population has expanded," Gould wrote. "And that interpretation cannot be squared with the statute's stated purpose of containing the experimental population."

Andrea A. Treece, a staff attorney at Earthjustice, which intervened as a defendant in the case, hailed the decision as a significant victory that would serve the otter population of California well.

"The 9th Circuit really got the central logic of what the ... [fishing industry groups] were trying to do, which was to force the reestablishment of a program that was started to help the species, but failed," she commented. "It turned out that the industry groups wanted to perpetually implement the program. The court really got that that would thwart the purpose of the Endangered Species Act and the statute itself."

Jonathan Wood, an attorney at the Pacific Legal Foundation who represented the fishing industry groups on appeal, said in a telephone interview Thursday that the decision "dangerously" interpreted the Chevron doctrine as a "blank check for agencies to do anything that Congress hasn't expressly forbidden."

He also said that the decision poses a significant financial problem for California fishermen, calling otters "voracious predators of shellfish."

While the actual population of otters at San Nicolas has thrived in recent years, the legal requirement that the Fish and Wildlife Service remove otters from the management zone off the coast of Central California has been harmful to the species, as many die as a result of the process.

The most recent numbers from the U.S. Geological Survey, which were released in September, show that a three-year running population average of southern sea otters has gone down by 2.6 percent.

The Justice Department, which represented the Fish and Wildlife Service, did not respond to a request for comment.

In addition to Gould, Judge Kim McLane Wardlaw and U.S. District Judge Lawrence L. Piersol, visiting from South Dakota, sat on the panel considering the case.