June 17, 2015

Agencies can't ignore Congress' command

By Jonathan Wood Attorney

PLF recently filed a motion for summary judgment on behalf of fishermen who are being threatened with possible criminal punishment by the Fish & Wildlife Service, despite the fact that Congress passed a statute to specifically forbid the Service from doing so. This is a clear case of abusive bureaucratic overreach, that we hope the courts will strike down.

The saga began in the mid-1980s. The Service was concerned that a catastrophic oil spill could decimate the California sea otter, a threatened species protected by the Endangered Species Act. To mitigate this risk, it came up with a plan to establish a new colony of otters in Southern California that could be used to repopulate the species, should the worst happen.

This plan required congressional authorization, however. And Congress was deeply concerned about the consequences of introducing otters into Southern California’s fishery. The otter is a voracious predator that decimates shellfish populations. The otter’s introduction also potentially subjected the numerous individuals who earn their livelihoods on Southern California’s waters to criminal punishment, should they accidentally get to close to an otter, bother one, or catch one in a fishing net or trap.

Ultimately, Congress passed a statute that cemented a deal struck between the Service, the state, conservation groups, and fishermen. That statute required the Service to identify a zone around the new population from which the Service must humanely remove otters that wander into the zone and in which no person can be prosecuted under the Endangered Species Act for accidentally violating that statute’s broad “take” prohibition. Congress clearly made these protections mandatory. It provided that, if the Service accepted the authority to move otters into Southern California, it “shall” implement the statute’s protections.

The Service gladly accepted this new power, but has recently decided to welch on its obligations under the bargain. In 2012, it formally declared that it would cease to implement the statute’s protections.

But, as on the playground, in law there are no take backs. Our motion explains that, when Congress imposes a mandatory obligation on an agency, only Congress can remove it. The Service’s decision to act like it’s above the law also raises another troubling problem — it’s unconstitutional.

Nothing in Public Law No. 99-625 grants the Service authority to terminate the management zone’s protections for fishermen. As a consequence, its  assertion of such authority raises a significant constitutional question—the  lack of criteria or principles to guide its exercise would render the statute unconstitutional under the nondelegation doctrine. To avoid this result, the Court should interpret the statute according to its plain text. When Congress provided that the Service “shall” implement the management zone’s protections, it meant it. The Service’s violation of this command is unlawful and the fishermen’s petition seeking to compel the Service to conform its conduct to the statute must be granted.

This case is extremely important for several reasons. First, subjecting every fishermen who accidentally “takes” a sea otter to criminal punishment could spell the end to Southern California’s commercial fishery, and the $7.9 million it injects into Southern California’s economy each year. Second, if the Service is allowed to violate its agreements — even when Congress orders it not to — it will be exceedingly unlikely that future problems that require compromise will ever be solved. You can’t negotiate with a party that has demonstrated it’s untrustworthy.

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