Sea otter case dismissed

March 06, 2014 | By JONATHAN WOOD

This week, a federal district court judge dismissed a challenge brought by fishermen to federal bureaucrats’ decision to illegally expose them to criminal prosecution for continuing to pursue their occupation.The court accepted the government’s argument that, despite the fact that the challenge was brought less than a year after the rule threatening them with jail time was promulgated, the six-year statute of limitations period had run out.

As readers will recall from earlier posts on this case, PLF filed this challenge on behalf of four groups of fishermen to defend a 1986 law passed by Congress to permit the Fish and Wildlife Service to move otters into Southern California which expressly exempts lawful activities, like fishing, from criminal prosecution if they accidentally harm or annoy otters. In December 2012, the Service decided to renege on the deal that Congress struck between the Service, conservationists, and fishermen. Despite having exercised the authority which Congress conditioned on the fishermen’s exemption from criminal prosecution, the Service rescinded the exemption. In effect, the Service declared that a 1987 regulation asserting it had the authority to do so trumped the bill passed by Congress.

The timeline is rather simple. In 1986, Congress passed the law. A year later, the Service exercised the authority given to it, accepting the conditions — including the exemption — but asserting that it could later rescind the conditions. In 2012, the Service adopted a rule exercising this purported authority, violating the 1986 law for the first time. Less than a year later, the fishermen sued. As PLF’s opposition to the government’s motion to dismiss explained, the fishermen’s challenge to the 2012 rule was clearly timely.

The court’s decision that any challenge had to be brought to the 1987 regulation leads to anomalous results. Since the Service didn’t actually terminate the protections for fishermen in the 1987 regulation, no one could have challenged this illegal assertion of authority. This is because of a doctrine known as “standing” which prohibits anyone from filing a lawsuit in federal court unless they can show that they have been injured by a challenged action. The mere prospect that an injury may occur in the future is not enough. It must have already occurred or be imminent. That’s not the case when an agency merely asserts that it may do something in the future. So no one could have brought the fishermen’s challenge to the 1987 regulation.

The consequences of that result are significant. Appearing to recognize this, the court noted that the fishermen could file a petition asking the Service to rescind the 2012 rule and the offending assertions in the 1987 regulation. The problem with this approach, as PLF’s brief explained, is that there’s no deadline for the Service to respond to the petition. The brief provides examples of government agencies repeatedly ignoring petitions like the one the court proposes for as long as five years.

The fishermen shouldn’t have to wait that long to finally have their day in court. And the law doesn’t require them to. The Administrative Procedures Act allows a party to challenge any agency action within 6 years of it becoming final. This includes the 2012 rule. Therefore, the judge shouldn’t have dismissed the fishermen’s timely challenge to the 2012 rule.