A Ninth Circuit Court of Appeals ruling has granted the Pacific Legal Foundation’s (PLF) request to reinstate rules set in place 30 years ago designed to protect abalone and other shellfish resources from sea otters off of the coast of Southern California.
Targeting the U.S. Fish and Wildlife Service for allegedly illegally eliminating a “sea otter management zone” established by Congress under a 1986 statute, the lawsuit was lodged by PLF on behalf of fishermen, a California state commission and several nonprofit organizations dedicated to ensuring healthy shellfish populations.
In 1986, an experimental population of the California sea otter on San Nicolas Island – approximately 65 miles southwest of Point Mugu in Ventura County – was established on the condition “that sea otters be restricted from spreading to surrounding waters, and that fishermen be exempted from Endangered Species Act liability for accidentally catching or harming an otter during their work,” recounted PLF. The U.S. Fish and Wildlife Service agreed to the compromise, but stated that it reserved the authority to terminate the agreement, and did so 2012.
A trial court had ruled beforehand that the lawsuit – California Sea Urchin Commission, et al. v. Jacobson, et. al. – was filed too late in 2013, and should have been brought to bear two decades earlier, when regulators first claimed they had authority to set aside the sea otter management zone.
The latest appeals court reversal asserts that “an agency should not be able to sidestep a legal challenge to one of its actions by backdating the action.” The decision comes as a big win for the California shellfishing community, said PLF attorney Jonathan Wood.
“The Ninth Circuit’s ruling is a victory for the California fishermen who want to protect California abalone and other shellfish, and it is also a victory for everyone who values the rule of law,” said Wood in a prepared statement. “The Ninth Circuit struck a blow for the rule of law and agency accountability. The decision makes clear that every final agency action may receive judicial review. Scofflaw bureaucrats cannot avoid scrutiny by citing times they got away with violating the law in the past.”
“This victory is an important step toward defending Southern California’s fishermen pursuing their livelihoods,” added David Goldenberg, executive director of the California Sea Urchin Commission. “The decision recognizes that we have a right to have our day in court, and agency bureaucrats are not above the law.”
PLF has represented the following organizations and groups in the resulting legal battle:
- The California Sea Urchin Commission, a state panel, created by the state legislature, to promote sustainable sea urchin harvests, balance sea urchin harvests with environmental protection, and foster education about the high nutritional value of sea urchin.
- The California Abalone Association, a nonprofit corporation with a mission to restore and steward a market abalone fishery in California that utilizes modern management concepts and seeks sustainable resource for the future.
- The California Lobster and Trap Fishermen’s Association, a nonprofit association that advocates for a sustainable lobster resource, and for the fishermen and communities that depend on the resource. The organization is concerned about unregulated otter expansion that threatens the lobster population, and the loss of fishermen’s exemption from “incidental take” liability under the Endangered Species Act (ESA), because of the risks that fishermen’s traps will unintentionally “take” otters.
- Commercial Fishermen of Santa Barbara, a nonprofit corporation organized to integrate regional efforts of fishing communities with the aim of improving the economic and biological sustainability of fisheries. The organization is concerned about unregulated otter expansion, due to the threat to shellfish and other species. The organization is also concerned about fishing operations being exposed to ESA liability in the event of unintentional harm to sea otters.
