Fishermen’s Fight for Otter-Free Zone Advances

SAN FRANCISCO (CN) — Fishing industry groups fighting for a "no-otter" zone along the southern coast of California can advance their claims, the Ninth Circuit Court of Appeals ruled on Tuesday, reversing a district court decision to dismiss the case.

The Ninth Circuit's ruling found that four fishing industry groups' 2013 challenge to the U.S. Fish and Wildlife Service's authority to end a sea otter translocation program was not barred by the statute of limitations.

The Ninth Circuit did not rule on the merits of the case, instead asserting that the case should not have been dismissed from federal court on the timeliness issue.

"[T]he operative agency action challenged is the 2012 program termination, and thus that plaintiffs' challenge is timely," U.S. Circuit Judge Ronald Gould wrote for the three-judge panel. "We express no opinion on the merits of plaintiffs' underlying claims."

The underlying dispute stems from a long and fractious battle between environmentalists advocating on behalf of sea otters and fishing industry groups claiming that allowing the mammals unfettered access to coastal areas would compromise or even destroy shellfish fisheries along California's southern coast.

The southern sea otter, also known as the California Sea Otter, was hunted to near extinction in the 18th and 19th centuries, when its fur proved a valuable commodity.

Despite hunting bans passed in the early 1900s, the otter was at approximately 10 percent of historic levels in 1977, when the Fish and Wildlife Service placed it on the Endangered Species List.

However, the fishing industry opposed the expansion of the otter population, saying the creature preyed on abalone, lobster and sea urchin, which fisherman harvest and rely upon for their livelihoods.

In 1987, the Fish and Wildlife Service published its Final Rule, which created an otter-free zone with the intent of translocating the entire population out to San Nicolas Island, the most remote of California's Channel Islands.

Meanwhile, fishermen would not be prosecuted for incidental kills of otters that strayed into the otter-free zone, which encompassed the entire southern stretch of California's coast, from Point Conception to the Mexican border. If the Fish and Wildlife Service spotted otters within the zone, they were directed to use nonlethal means to capture them and convey them to San Nicolas Island.

The translocation program proved a failure, and the experimental population never took hold. Most of the translocated otters either died or left San Nicolas Island in an attempt to reach their former stomping grounds.

In 2009, environmental groups, including the Otter Project and the Environmental Defense Center, filed suit in federal court, arguing that the otter translocation program should be repealed.

Facing mounting public pressure, the Fish and Wildlife Service terminated the program in 2012.

"One hundred and forty sea otters were moved to San Nicolas Island from the population along the Central California coast in 1987, but most left the island within days, many returning to their parent population along the Central Coast," the Fish and Wildlife Service said in a 2012 statement. "Since that time, the population of otters at San Nicolas Island has remained small. Contrary to the primary recovery objective of the program, the translocation of sea otters to San Nicolas Island did not result in an established population that could serve as a source of animals to repopulate other areas of the range if a catastrophic event struck the mainland population."

In 2013, the California Sea Urchin Commission, the California Abalone Association, the California Lobster and Trap Fishermen's Association and the Commercial Fishermen of Santa Barbara filed suit in federal court claiming the Fish and Wildlife Service could not terminate the program without the authorization of Congress.

In March 2014, U.S. District Judge Dolly Gee dismissed the lawsuit, finding that the "failure criteria" that authorized the government to end the program was established when the program was first launched in 1987.

In other words, Gee argued the fisherman should have filed suit within six years of the rule's establishment in 1987.

During a hearing before three Ninth Circuit judges in May, shellfish industry attorney Jonathan Wood argued that his clients could not have filed their lawsuit in 1987 because they suffered no injury until the government terminated the program in 2012.

The government contended that by closing off San Nicolas Island, certain fishermen could have perceived a suffered harm at that time and missed their opportunity to seek recourse.

Now that the Ninth Circuit has sided with the fishermen, a judge or jury will decide the ultimate fate of the program.

The same plaintiffs filed a separate lawsuit in 2014, challenging the U.S. Fish and Wildlife Service's denial of a petition to rescind its decision to terminate the otter-free zone.

That suit is pending appeal with the Ninth Circuit, which denied the government's motion to consolidate the two appeals.

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