PLF sues FWS for turning sea otters loose on Southern California shellfish

SACRAMENTO, CA;  July 30, 2013: Federal bureaucrats have illegally abandoned their statutory duty to protect abalone and other shellfish resources — and the industries dependent on them — from being ravaged by sea otters in the waters off the Southern California coast.

So argues a federal lawsuit filed today by attorneys with Pacific Legal Foundation, on behalf of a California state commission and several non-profit organizations that have a direct interest in maintaining healthy populations of shellfish in what is known as the Southern California Bight (i.e., the waters off the California Coast from Point Conception to the Mexican Border).

PLF’s lawsuit targets the U.S. Fish and Wildlife Service (FWS) for eliminating the “sea otter management zone” in the Southern California Bight that Congress required in a 1986 statute.

The statute (Public Law 99-625) authorized the Service to set up an experimental population of the California sea otter. The Service exercised that power by creating an experimental population at San Nicolas Island, one of the Channel Islands, off of the Ventura County coast. The law also directed that, should the Service choose to establish an experimental population, it should also establish a “no otter” management zone, to ensure that the introduced otters would not ravage shellfish and other fishery resources. Further, the law directed that otherwise lawful activity (such as commercial fishing) be allowed to proceed within the management zone, even if this activity accidentally harmed otters. The Service exercised this authority by designating all of the Southern California Bight (except for San Nicolas Island) as the management zone.

The 1986 statute remains in effect, but FWS has unilaterally — without congressional approval or authorization — stopped obeying and implementing it. Under a rule that the agency issued on its own in December, 2012, FWS excused itself from removing sea otters from the management zone and cancelled the exemption from liability when sea otters in the zone are unintentionally harmed.

“This case is about balance in environmental policies, and adherence to the rule of law,” said PLF attorney Jonathan Wood. “Congress spoke clearly: The sea otter could be protected by establishing a population on San Nicolas Island without ravaging nearby fisheries and destroying local economies. But this could only be done if the otters were kept out of fragile nearby fisheries. So Congress required the Fish and Wildlife Service to keep the otters within the proper zone. Unelected regulators at FWS have decided to thumb their noses at this congressional command, while placing themselves above the law.

“If this bureaucratic lawlessness isn’t stopped, endangered abalone will be wiped out by the voracious otter,” Wood continued. “A generation of fishermen will find themselves out of work and unable to provide for their families. The bureaucracy’s decision to terminate the sea otter management program is not only unlawful, it’s patently unreasonable and harmful to the environment, the economy and local communities.”

As with all our clients, PLF represents the plaintiffs in this lawsuit without charge. In challenging FWS’s violation of its duty to contain the sea otter population, PLF attorneys represent:

• The California Sea Urchin Commission, a state panel, created by the Legislature, to promote sustainable sea urchin harvests, balance sea urchin harvests with environmental protection, and foster education about the high nutritional value of sea urchin.
• The California Abalone Association, a non-profit corporation with a mission to restore and steward a market abalone fishery in California that utilizes modern management concepts, protects and enhances the resource, and guarantees a sustainable resource for the future.
• The California Lobster and Trap Fishermen’s Association, a non-profit association that advocates for a sustainable lobster resource, and for the fishermen and communities that depend on the resource. The organization is gravely concerned about unregulated otter expansion, which threatens the lobster population, and the loss of the “incidental take” exemption under the ESA, because of the risks that traps will unintentionally “take” the otter.
• Commercial Fishermen of Santa Barbara, a non-profit corporation organized to integrate regional efforts of fishing communities with the aim of improving the economic and biological sustainability of fisheries. The organization is seriously concerned about unregulated otter expansion, due to the threat to shellfish and other species. The organization is also concerned about fishing operations being exposed to ESA liability in the event of unintentional harm to sea otters.

 Statement by Commercial Fishermen of Santa Barbara:

“Congress established the management zone to balance interactions between fishermen and a threatened species, the sea otter,” said Chris Voss, a spokesperson for Commercial Fishermen of Santa Barbara. “Without the management zone, shellfish sustainability, associated economic vitality and an important California culture is at risk. The law that established the management zone mandates certain protections to fishermen when interacting with the sea otter, and these protections are an integral part of the balance that Congress intended. All who enjoy shellfish and a vibrant marine community are grateful to Pacific Legal Foundation for representing us in this very important case.”

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts nationwide. PLF is a nonprofit public interest organization that never charges clients for attorneys fees.