While Fish and Wildlife scoffs at the law, otters scarf urchins
“Shall implement.” To most of us, this is perfectly straightforward, mandatory language. But to overreaching bureaucrats at the United States Fish and Wildlife Service, “shall implement” is merely a suggestion that the Service can follow at its leisure.
In a motion filed last Friday, we asked the court to remind the Service that it can’t give these clear words new meaning.
Nearly forty years ago, Congress directed in a federal statute that the Service “shall implement” two critical protections as a condition of establishing a new sea otter population in Southern California’s waters: (1) the Service must keep the otters from migrating into surrounding fisheries, and (2) the lawful activities of fishermen are exempt from broad federal prohibitions against the incidental take of sea otters.
The Service accepted the terms of the compromise and moved dozens of otters to San Nicolas Island. They’re thriving. But in 2012—without authorization from Congress—the Service changed its mind and unilaterally terminated the mandatory protections.
Fortunately, we’ve got the courts to keep rogue agencies in check when they decide they are above the law.
PLF represents sea urchin and abalone divers, lobster trappers, and fishermen who earn their livelihoods in the waters of Southern California. We’ve shown the court in our motion that the Service’s decision not only violates the law, but poses a true threat to the fisheries.
I’ve had the pleasure of speaking with several fishermen and divers who are directly impacted by the Service’s decision to terminate the management zone. They have seen once-abundant coastal fishing grounds decimated by sea otter predation. They are worried that growing otter populations will leave fewer and fewer areas where they can work without risk of incidental take liability. And they are deeply concerned about the future of their livelihoods and of Southern California’s fisheries if the court does not hold the Service accountable.
Sea otter recovery is a worthy cause, but it doesn’t need to come at the expense of healthy, sustainable fisheries and hard-working fishermen. Congress recognized forty years ago that a balance could be struck between these two competing interests, and it codified that balance into law.
The Service is bound by Congress’ clear statutory direction. Now, thanks to the tenacity of the fishermen in this litigation—and PLF’s donors—the court has an opportunity to reaffirm this fundamental principle.
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California Sea Urchin Commission v. Jacobson
A federal statute requires the U.S. Fish and Wildlife Service to exempt lawful fishing activities from the broad prohibitions against the incidental taking of sea otters. This compromise between the Service’s desire to establish a new sea otter population and the fishing industry reflects Congress’s recognition that introducing sea otters into Southern California waters could severely impair the health and sustainability of local fisheries, threatening the livelihood of those who depend on them. The Service ignored this Congressional balancing of interests and PLF sued on behalf of sea urchin and abalone divers, lobster trappers, and other fishermen whose livelihoods are threatened by Service’s unilateral termination of protection for lawful fishing activities.Read more
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Next week, the House Committee on the Judiciary’s Subcommittee on Regulatory Reform, Commercial and Antitrust law will hold a hearing entitled “Rulemakers Must Follow the Rules, Too: Oversight of Agency Compliance with the Congressional Review Act.” PLF’s Todd Gaziano has been invited to testify at the hearing.
Shed a (crocodile) tear for Luke Skywalker today, as Mark Hamill’s much ballyhooed Autograph Law is set to be undone and reformed by the same California officials who made the mistake to pass it in the first place. AB 228 has arrived at the Governor’s desk, and in all likelihood will be signed into law any day.