August 5, 2013

Sea otter roundup

By Jonathan Wood Attorney

There has been a lot of coverage of our Sea Otter suit over the last week, not all of it fair. As we explained when we announced the filing, this case is fundamentally about the rule of law and balance in environmental regulation. It’s not about opposing the otter’s recovery.

In 1986, Congress passed a law to promote the recovery of the otter while also protecting Southern California fisheries and fishermen from some of the negative effects of otter expansion. This law requires, as a condition of moving otters into Southern California, that the Fish and Wildlife Service establish a management zone. The Service must use all non-lethal means to remove otters that roam into this zone and cannot punish people who accidentally harm an otter in the zone while engaged in lawful activities, like fishing. Last December, the Service announced that it was abandoning the Congressional compromise, terminating the management zone, and disclaiming any of its obligations under the law.

This sort of bureaucratic lawlessness is inconsistent with basic notions of the rule of law. So far, opposition to the suit hasn’t challenged this objection. Instead, it has expressed disagreement with the policy chosen by Congress in the 1986 law. For example, representatives of environmental groups have argued in radio interviews that the law should be more protective of the otter than the 1986 compromise is. Fair enough. But that ignores the question of who these policy arguments should be directed to. The answer to that question is Congress. It adopted the 1986 law and only it can decide whether the balance it struck should be changed. It’s certainly not up to bureaucrats at the Service to throw out that balance entirely. And that’s what our suit is really about.

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