August 6, 2015

Can agencies ignore Congress and do whatever they want?

By Jonathan Wood Attorney

This week, PLF filed its final brief on the motion for summary judgment in the sea otter case. The case will be argued in L.A. on Sept. 21. Representing fishermen whose livelihood depends on being able to access Southern California’s waters, we argue that the U.S. Fish & Wildlife Service can’t ignore an express command from Congress. Apparently, it believes that anytime Congress orders it to do something, it has the option of saying no.

The case arises out of a program started 30 years ago. The Service devised a plan to save the California sea otter by establishing a new, geographically separate population far enough away that it would not be affected by a catastrophic oil spill. To carry out the plan required congressional authorization.

In 1986, Congress passed a statute allowing the Service to move forward, but also requiring the plan to include protections for Southern California fisheries and the people who work and recreate in those waters. In particular, the statute says that no one who accidentally takes a sea otter while engaged in otherwise lawful activity can be fined or imprisoned. Congress made it absolutely clear that the Service had to accept these conditions if it exercised its new authority. Under a section titled “Implementation of Plan,” the statute says that the agency “shall implement” the protections.

The Service accepted this new authority and established the new population. It also respected Congress’ mandated protections for the next 20 years. Then, in 2012, the Service adopted a regulation disclaiming any obligation to continue implementing these protections. It would leave the new population in place, but terminate all of the protections for the surrounding waters.

That’s illegal.

The government’s argument in the case is indefensible. Its brief somehow manages to avoid referring to the statute’s operative language even once — “shall implement.” Ignoring that language, the government instead argues that, because the statute gave the agency the initial discretion to exercise the power granted in the statute, it must have the authority to disclaim the conditions that Congress imposed at any time thereafter.

That’s rich. This argument would imply that, anytime anyone has the option of accepting or rejecting an offer’s benefits and burdens, they can accept the benefits and later reject the burdens whenever they want. One wonders how the Service would respond if someone holding a permit from it — acceptance of which is voluntary — informed it that she would no longer comply with the conditions the agency imposed on that permit. Shouldn’t what’s good for the goose be good for the gander?

This case is significant for anyone who works or recreates on Southern California’s coasts or waters. It is unspeakably easy to accidentally violate the Endangered Species Act’s broad take prohibition.

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