LOS ANGELES (CN) — A federal judge upheld the feds’ right to shutter a sea-otter-relocation program that almost everybody agreed was doing more harm than good to the endangered species.
U.S. District Judge John Walter dismissed a case brought by groups of Southern California fisherman who claimed the U.S. Fish and Wildlife Service and the U.S. Department of Interior did not have the authority to cease the long-controversial Southern Sea Otter Recovery Plan in 2012.
A group of environmental organizations including Defenders of Wildlife, Friends of the Sea Otter and the Center for Biological Diversity intervened on behalf of the federal agencies, asserting they acted appropriately and well within their authority.
“The decision helps the sea otters and coastal habitat by allowing otters to expand their population southward without human interference,” said Earthjustice attorney Andrea Treece in a prepared statement.
The California Sea Urchin Commission, the California Abalone Association and the Commercial Fisherman of Santa Barbara sued Fish and Wildlife after the agency elected to end the sea otter recovery plan, saying while the agency had the authority to commence recovery plans it did not have the power to end them.
It was actually the second lawsuit the fisherman trade groups filed in the Central District of California, after U.S. District Judge Dolly Gee dismissed the first case as untimely.
In both cases, the fisherman argued the cessation of the program, which mandated the relocation of otters from fishing zones along the coast of Southern California to the Channel Islands, harmed their livelihood by abetting growth of the otter population, which feeds on shellfish, sea urchins and abalone they are attempting to catch and sell.
But in the case before Walter, the fisherman shifted their legal argument by claiming that their true concern was prosecution if they accidentally killed an otter while conducting their commercial operations.
In his Sept. 18 decision, Walter said fear of potential and theoretical prosecution is insufficient when considering whether the trade groups have standing to sue.
“Standing based on a fear of prosecution requires a ‘genuine threat of imminent prosecution’ and not merely an ‘imaginary or speculative fear of prosecution,'” Walter wrote in the 12-page decision.
But Walter added that the fishermen would have lost on the merits as well, because the service did have the authority to end a discretionary species-recovery program.
“It is undisputed that it was within the service’s discretion to determine whether such a program would ever be developed,” Walter wrote. “Because implementing the program is discretionary, the service had the discretion to both commence and cease implementation of the program.”
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 just 10 percent of historic levels when the Fish and Wildlife Service placed it on the Endangered Species List in 1977.
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 a final rule creating 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.
The rule also said 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 coast from Point Conception to the Mexican border. If the service spotted otters within the zone, they were directed to use nonlethal means to capture and convey them to San Nicolas Island.
The translocation program proved a failure, and the experimental population never took hold. Most of the 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 a federal lawsuit arguing that the otter translocation program should be repealed.
Facing mounting public pressure, the feds 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,” Fish and Wildlife 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.”
Soon after, fisherman trade groups sued claiming the service did not have the authority to cease the translocation program — it required an act of Congress.
That lawsuit, presided over by Gee, again focused on whether the service retained the necessary authority to cease the program without congressional approval.
Gee dismissed the case in March 2014, saying the statute of limitations had run out regarding the recovery plan, and that the fishermen should have sued within six years of when the “failure criteria” for the program was created by Fish and Wildlife in 1987.
However, the Ninth Circuit Court of Appeals reversed Gee’s dismissal this past July, saying the statute of limitations had not expired on the fishermen’s complaint and remanded the case back to district court, where both sides will prepare for the next round.
Meanwhile, the fishermen filed a petition with Fish and Wildlife asking them to reverse the termination of the no-otter zone, which the service summarily denied.
The fishermen then filed the present case claiming the service did not follow proper administrative procedure in denying their petition.
Treece of Earthjustice said there is more similarity than difference between the two cases.
“Their legal arguments are the same in both cases, which is basically that Fish and Wildlife lacks the statutory authority to terminate the program,” she said in a telephone interview.
The legal victory was not the only good news for the California sea otter this week.
The United States Geological Survey conducted a population count for the creature and found its numbers at the highest levels since 1982.
The three-year average for otters found along the continent and at San Nicolas Island was 3,272.
“This is the first year that the official index has exceeded 3,090, the Endangered Species Act delisting threshold suggested by the U.S. Fish and Wildlife Service,” Tim Tinker and Brian Hatfield, who authored the survey for the survey, said.
However, the otter’s range is still limited and hasn’t expanded in five years, according to the study.
Limitation of the otter’s range rather than mere population counts are more responsible for the threatened listing, as officials have long feared that a catastrophic oil spill along the Central Coast could have devastating consequences and even lead to extinction.
Photo: “Mike” Michael L. Baird
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