Adverse decision in sea otter case

September 21, 2015 | By JONATHAN WOOD

Late Friday afternoon, the district court issued an adverse decision in PLF’s challenge to the termination of the sea otter management zone in Southern California. This zone was required under a statute that authorized the Service to establish a new population of sea otters, on the condition that it institute and implement protections for surrounding fisheries and those who work and recreate on Southern California’s waters.

Unfortunately, the court ruled that, because Congress gave the U.S. Fish and Wildlife Service discretion to initially accept the deal by creating the new population, it must therefore have intended to give it the discretion to terminate the protections anytime thereafter. According to the Court, “[t]here is nothing in the statute that would suggest” that the Service couldn’t terminate these protection.

Contrary to the Court’s conclusion, there is something in the statute that would suggest that the Service can’t invalidate these key protections—the statute’s express language. In enacting the statute, Congress commanded that, once the Service made the initial decision to go forward with the plan, it “shall implement” it, including the protections. Therefore, we believe the Court was mistaken and our clients are considering their options on appeal.

The Court seemed to think that it would be strange to give the Service the discretion to make the initial decision but mandate that it implement the protections thereafter. But, actually, this is the only way that the statute would have worked. The establishment of a new sea otter population was controversial, because they decimate shellfish populations and expose anyone who works or recreates on nearby waters to criminal prosecution for accidentally taking one. Therefore, Congress only authorized the program after all sides had reached a compromise that balanced sea otter recovery and the costs for affected individuals.

Absent this mandate, anyone concerned about those costs would have had no reason to agree. The Service could have established the new population of sea otters (getting its benefit of the bargain) then disclaimed all of the protections. In fact, that’s what it did. The Service has established a new population of sea otters on San Nicolas island that is healthy and growing (though not as quickly as had been hoped). And yet, contrary to the clear intent of Congress, none of the protections apply.

Consider what the government’s (now the Court’s) reasoning would mean if applied in similar circumstances. When the government offers someone a permit to do something that she otherwise couldn’t, it often imposes conditions on that permit. The enforceability of these conditions is key because the permittee gets all of the benefits upfront (by building their project or taking whatever action is being permitted). She has every incentive to take those benefits then disclaim compliance with the conditions that were imposed on the permit. The same is true under this statute. The Service’s benefit is the establishment of the new otter population. That leads to long term costs and burdens for those who work and recreate on Southern California waters, which can only be remedied if there is a long term, enforceable commitment to the protections. Or, as Congress put it, if the Service “shall implement” those protections.