Can agencies overrule Congress?

April 05, 2016 | By JONATHAN WOOD

Today, PLF filed its opening brief in a challenge to the Fish and Wildlife Service’s denial of a petition demanding that the agency follow the law. This case centers on a sea otter compromise that Congress struck between the Service, environmentalists, and those who work and play in Southern California waters. Recently, the Service has destroyed that compromise, by unilaterally disclaiming compliance with Congress’ commands.

The California sea otter is a threatened species under the Endangered Species Act. In the early 80s, the Service concocted a plan to protect the species from oil spills, by establishing a second population of otters in Southern California. This proposal proved controversial, however, because sea otters are voracious predators that could wipe out surrounding shell fisheries and their presence could subject anyone who works and plays in surrounding waters to the Endangered Species Act’s harsh take prohibition.

Congress addressed these conflicting concerns by enacting Public Law No. 99-625, a compromise statute that had been worked out between the agency, environmental groups, and groups representing fishermen (and others) who work and play in Southern California waters. The statute authorized the Service to establish the new population. But, to reduce the population’s negative externalities, Congress conditioned this authority on protections for the surrounding fishery. In particular, the Service was required to establish a zone around the new population, from which it must remove otters that wander into it (to prevent predation) and must exempt incidental take of otters.

Congress left no doubt that these protections are mandatory. Not only did it say that they “must” be included in the regulation establishing the new population, but it specifically commanded that the Service “shall implement” them.

Unfortunately, the Service’s plan was not as initially successful as it had hoped. Due to a high dispersal rate, the population on San Nicolas Island (where the new population was established) was smaller than anticipated. However, it was established. As of 2012, there was a population of 50 otters on the island, which was growing at approximately 7% per year.

Despite the population’s persistence, the Service issued a rule in 2012 unilaterally terminating the protections for the surrounding fishery. The basis for this decision was that the population did not reach sufficient size within the first three years (which was by that point more than 20 years earlier).

As a result of that decision, a population of sea otters has been established in Southern California, yet there are no protections for the surrounding fishery. What’s worse, is that people who work and play in the surrounding waters also enjoy no protection. This is precisely the result forbidden under the statute.

This severely impacts fishermen, in particular. Our clients are several fishing groups whose members’ livelihoods depend on the restoration of these protections. Without the statute’s protections, they could be subject to substantial civil and criminal fines — and even imprisonment! — should they accidentally catch or get too near a sea otter. They are also vulnerable to environmentalists lawsuits seeking to put a stop to their work.

We are confident that the Ninth Circuit will recognize that federal agencies are not free to simply ignore the constraints that Congress puts on them. In this case, Congress enacted a carefully crafted compromise and the Service enjoyed its benefit of that compromise by establishing a sea otter population on San Nicolas Island. As a consequence, it is bound to respect the conditions Congress imposed on that authority.