PASADENA, Calif. (CN) — California’s shellfish industry fought the federal government’s termination of a “no-otter zone” along the Southern California coast at a Ninth Circuit hearing on Friday.
Four fishing industry groups sued the U.S. Fish & Wildlife Service in 2013, claiming its decision to end a long-disputed sea otter translocation program would “severely compromise if not destroy” shellfish and other marine fisheries on the southern coast.
Nixing the program would lead more than 300 sea otters to occupy a previously “otter-free zone” within 10 years and prey on the shellfish which fishermen depend on for their livelihood, the plaintiffs claimed in their 2013 complaint.
But environmental groups had long pushed for the government to end the program, claiming it was a disaster from the start and that it bowed to the interests of the oil and fishing industries.
The program relocated 140 sea otters to San Nicholas Island and established an otter-free zone south of Point Conception in Santa Barbara County, where fishermen harvest sea urchin, abalone and lobster.
Under the program, fishermen who accidentally killed otters in the zone could not be federally prosecuted, and the government was to use nonlethal means to capture any otters that wandered into the zone.
Facing mounting pressure to end the program and a lawsuit filed by environmental groups, the federal government terminated the program in December 2012, leading to the fishermen’s lawsuit several months later.
In March 2014, the fishermen’s lawsuit was dismissed as untimely. U.S. District Judge Dolly Gee found the “failure criteria” that authorized the government to end the program was established by a 1987 regulation when the program was first launched.
During a Friday hearing before three Ninth Circuit judges, shellfish industry attorney Jonathan Wood argued his clients could not have filed their lawsuit in 1987 because they suffered no injury until the government terminated the program in 2012.
“The 2012 rule is clearly an agency action which terminates the mandatory protections in the statute,” Wood said.
The fishermen’s attorney said his clients’ position is consistent with the Ninth Circuit’s 2005 ruling in Wind River Mining Corp. v. EPA, which found a plaintiff may challenge a final rulemaking decision within six years of an agency’s action.
Representing the government, attorney Rachel Heron argued the fishermen missed their window to contest the termination of the otter-free zone because the criterion for ending the program was enacted nearly 30 years ago.
“The fishermen’s sole claim should be seen as challenging a terminable creation of a sea otter zone,” Heron said.
Circuit Judge Ronald Gould asked Heron if the fishermen could have challenged the rule back in 1987, given that it established an otter-free zone for them to fish in and that they suffered no real injury at the time.
“I don’t think it’s fair to say that the 1987 rule was net favorable to the fishermen at that time,” Heron said, adding the rule enabled the government to move sea otters to an area that had been a productive commercial fishing area.
“That would impact the fishermen’s ability to do fishing within the translocation zone,” Heron said. “That act certainly aggrieved them, and we submit could have served as a basis for a challenge.”
Wood countered that the agency’s 2012 rule is what caused injury to the fishermen, and that his clients maintain the U.S. Fish & Wildlife Service exceeded its statutory authority by imposing the new rule.
“I’m sympathetic to allow cases to be brought later,” Circuit Judge William Fletcher said. “But what you want to do here is keep part of the rule that allows your clients to do whatever they want in the management zone with the sea otters.”
Fletcher compared Wood’s position to one wanting to “have their cake and eat it, too.”
Wood responded that Public Law 99-625, which Congress enacted in 1987 to “balance the otter’s recovery needs with the interests of fishermen” requires the agency return to Congress to amend the statute before terminating the otter-free zone.
“The statute is framed so they’d have to go back to Congress and ask them to amend the statute,” Wood said. “Congress chose to allow any final agency action to be challenged on these grounds.”
Another appeal is pending in a separate lawsuit filed by the same plaintiffs in 2014, challenging the U.S. Fish & Wildlife Service’s denial of a petition to rescind its decision to terminate the otter-free zone.
The Ninth Circuit denied the government’s motion to consolidate the two appeals.
Plaintiffs include the California Sea Urchin Commission, California Abalone Association, California Lobster and Trap Fishermen’s Association and Commercial Fishermen of Santa Barbara.
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