Fishermen will get their day in court over sea otter law, federal appeals court rules

By Chandra Lye | Jul 26, 2016

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.


The 9th 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.


“The 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.”


Goldenberg 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 incidental taking.


“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 otters.”


Goldenberg also said they had an issue with the decision by the government not to uphold the law.


“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.


The 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.

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