March 2, 2018

Ninth Circuit: Unelected bureaucrats can do whatever they want, no matter what the law or facts say. See Chevron.

By Jonathan Wood Attorney

In the 80s, Congress enacted a statute authorizing the Service to move otters to southern California on the condition that it implement protections for the surrounding fishery and the fishermen whose livelihoods depend on it, including requirements that the Service exclude otters from parts of the fishery and exempt fishermen from criminal prosecution if they accidentally get near an otter. The Service gladly accepted this new authority, but has never really liked the idea that Congress imposed conditions on it. In 2012, the Service delivered the final blow, announcing that it would no longer honor the statute’s bar on jailing fishermen for incidental “take.” Unfortunately, we learned yesterday that the Ninth Circuit has upheld this unlawful and irrational decision.

To justify its actions, the Service has declared the otter population on San Nicolas Island a “failure” at the same time that another federal agency—the U.S. Geological Survey, which is responsible for measuring the population—says the population is thriving and credits its incredible growth with pushing the species over its recovery goal. According to the USGS:

This population, established by translocation in the late 1980s, struggled at low numbers through the 1990s, but over the last decade has been growing rapidly with a mean growth rate of 13 percent per year. “The sea otters at San Nicolas Island continue to thrive, and some may eventually emigrate to and colonize other Channel Islands in southern California,” says Brian Hatfield, the USGS biologist who coordinates the annual census.

Facts, schmacts! — The U.S. Fish and Wildlife Service (probably).

Trying to understand the Service’s actions could give anyone a headache.

When the Service announced its decision in 2012, it explicitly refused to consider the size and health of the population at that time. Instead, the decision was based exclusively on the population’s failure to achieve a benchmark in its third year, more than a quarter-century ago.

The Service’s decision fares no better under the law than it does the facts. Nothing in the statute even arguably authorizes the Service to disclaim the statute’s requirements. Congress said nearly the exact opposite. The statute says that the plan to establish this otter population “must be developed by regulation” which “shall include” the required protections. For good measure, under a provision titled “IMPLEMENTATION OF PLAN,” the statute also says that, after 1986, the Service “shall implement the plan[.]”

Acknowledging this mandatory language, the Ninth Circuit upheld the Service’s action anyway. According to the court, because Congress wasn’t clear enough in denying this power to the agency, the agency can do what it wants. Here’s the key language from the opinion:

Public Law 99-625, however, does not either expressly require the Service to operate the translocation program in perpetuity or expressly grant authority to the Service to terminate the program. It does not speak to the issue of termination at all.

In other words, nothing in the statute even arguably authorizes the Service’s action. So the case boils down to whether agencies only have the power that Congress chooses to give them or whether agencies can do anything they want, unless Congress anticipates and expressly forbids it. Citing Chevron deference–a controversial judicial doctrine require courts to defer to agencies rather than interpreting the law as enacted by Congress–the Court adopted the latter position. This extreme interpretation, which places the preferences of unaccountable bureaucrats above Congress, threatens to undermine the possibility of future compromises, and therefore undermine the possibility of recovering more species. Having learned that agencies can’t be trusted to uphold their end of a legislative bargain and that courts also won’t hold them to their word, why would anyone agree to a compromise in the future.

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