SAN FRANCISCO – A lawsuit that
puts fishermen against U.S. Fish & Wildlife in California has been revived
thanks to a decision by a federal appeals court last week.
U.S. Circuit Court of Appeals found that the stature of limitations on the
lawsuit, which was filed in 2013, has not run out.
The case deals
with the translocation of California sea otters, which was undertaken by U.S.
Fish & Wildlife in the late 1980s. The organization has since declared the
project a failure.
One of the
fishermen involved in the case, David Goldenberg, who also manages
the CA Sea Urchin Commission, said the reason they sued was to uphold
protections when they were working in areas where there were sea otters.
government and the otter groups argued that the time limitation – the statue of
limitations – had run out because we should have sued at around 1987, when the
translocation occurred. But we weren’t harmed at that point because we had
protection. It wasn’t until after the failure declaration that they decided to
no longer enforce provisions of Public Law 99-625
that that set up the potential for having our fishermen sued or a fishery
closed down for critical habitat.”
said that after the project was declared a failure, U.S. Fish &
Wildlife abandoned the enforcement of the law that granted fishermen protection
against incidental killing of sea otters.
“With remove of protection in Public Law 99-625 it would
subject our fishermen, and other fishermen in the area, to being prevented from
fishing in those areas because of the incidental take. The incidental take
could be defined as harassing the animal or removing food from them, almost like
you are taking food from their mouths,” he explained, adding if a sea otter was
caught in a fisherman’s net or by a lobster trap that could be seen as
“They would install and use the incidental take as a means
to get us out of those areas because urchin are a favored food source for
said they had an issue with the decision by the government not to uphold the
“A federal agency does not have the authority to or whether
to decide to enforce a law or not. Only Congress can make that decision to
either create a law or to sunset a law. That is what our lawsuit is about.”
A lower court had previously decided to dismiss the case but
will now have to hear it and rule on the merits of the lawsuit.
“We want the protection that is listed in 99-625 that allows
us not to be prosecuted under incidental killing in the areas where the otters
are present. Otherwise, we will be forced out of business,” Goldberg said.
translocation was part of a plan to restore the otters’ population as it is
classified an endangered species. In 2013 officials ceased the program,
declaring it a failure, as it did not increase the number of otters.