A history of ignoring the law is no defense

Yesterday PLF filed a brief opposing the government’s motion to dismiss a challenge to the termination of protections for southern California fishermen from prosecution as sea otters expand into their fishery. As readers will recall, the case arose because the U.S. Fish and Wildlife Service decided to renege on a deal struck by Congress between environmentalists and fishermen to promote the recovery of the sea otter while also protecting industry. The bill allowed the Service to translocate sea otters to an island off of the southern California coast only if it established an area around this island from which it would remove any otters that wandered in and fishermen would not be exposed to criminal penalties if their operations accidentally harmed otters. Late last year, the Service decided to excuse itself from these statutory obligations—exposing California fishermen to imprisonment for pursuing their livelihoods.

The Service moved to dismiss the case on statute of limitations grounds, even though the statute of limitations is six years and the Service terminated these protection less than a year ago. This might seem bizarre, because it is. The Service argues that the statute of limitations began to run in 1987 when it originally created the sea otter management zone. In the 1987 regulation, the Service asserted that it might terminate the zone and fishermen protections if certain conditions were met. Because the fishermen’s legal argument would mean that the 1987 assertion was also illegal, the Service argues that they can’t now challenge its decision to actually terminate these protections. In effect, the Service is arguing that its illegal actions in 1987 immunize it from challenge for any further actions in violation of the law.

If the Service was right, it would condone bureaucratic tyranny. Any agency that didn’t like restrictions imposed on it by Congress could annul these limits by simply asserting the authority to violate them. If it didn’t actually violate them within the first six years no one could challenge the agency because they wouldn’t satisfy the injury requirement for standing. Once six years had passed, the agency, in the Service’s view, could violate the law with impunity.

The Service’s position is clearly wrong and contrary to precedent. A party can challenge any illegal agency action within six years of when it becomes final. No previous illegal action can shield the agency from scrutiny. Because the Service terminated the sea otter management zone—exposing fishermen to imprisonment for putting food on America’s tables—only 11 months ago, fishermen cannot be denied their day in court.