Appeals court affirms Fish and Wildlife Service lawfully ended otter program

By Tomas Kassahun | Mar 30, 2018

A federal appeals court said the U.S. Fish and Wildlife Service Service has authority to stop the southern sea otter relocation program.

SAN FRANCISCO — The U.S. Court of Appeals for the 9th Circuit held March 1 the U.S. Fish and Wildlife Service has authority to stop the southern sea otter relocation program authorized by Public Law 99-625.

“The panel affirmed the district courts’ decisions in favor of the U.S. Fish and Wildlife Service in consolidated cases brought by fishing industry groups challenging the Service’s decision to end a 1987 sea otter translocation program,” the court wrote. 

The plaintiffs include California Sea Urchin Commission, California Abalone Association and Commercial Fishermen of Santa Barbara. 

The defendants include the Center for Biological Diversity, Defenders of Wildlife, Environmental Defense Center, Friends of the Sea Otter, Humane Society of the United States, Los Angeles Waterkeeper and the Otter Project. 

According to, the Fish and Wildlife Service moved an experimental population of sea otters to San Nicolas Island in 1987, as part of a plan to save sea otters in case of an oil spill on the California Coast.

In 2012, the Fish and Wildlife Service deemed the program a failure and terminated it, saying the program was actually making it difficult to protect and recover the species, according to the court.

With the Fish and Wildlife Service allowing otters to go where they were previously not allowed to go, fish industry groups argued they are more likely to be held liable for accidentally harming otters.

The court said the plaintiffs have to prove more than just the potential risk of being held liable to have a valid claim.

“Here, the plaintiffs offer declarations from persons working in the fishing industry,” the opinion stated. “At bottom, however, these declarations do not point to any concrete degree of risk, or show that liability is likely.”

Because there are no new laws enforced for the fishing industry’s methods, the court added that there is no reason for the plaintiffs to believe they will have a greater risk of being held liable.

The fishing industry groups also alleged that the shellfish industry will be harmed because the otters will prey on shellfish when the otter-free zone is eliminated. 

According to the court’s opinion, this allegation is more concrete.

The plaintiffs said there is evidence to show that sea otter predation has significantly reduced shellfish populations between Point Conception and Santa Barbara, as well as shellfish populations between Gaviota and Government Point, which are areas within the management zone, according to information in the opinion.

The defendants said the plaintiffs don’t have a standing because it will be difficult to protect the shellfish no matter what the court decides.

“We have held that in order to have standing a plaintiff need not show that the requested relief will inevitably alleviate the harm complained of,” the opinion stated.

Still, the court said Congress gave agency the power to implement programs and end them when necessary. 

Particularly in this case, the court said “where the agency has discretion to implement an experimental program, it can reasonably interpret the statute to allow it to terminate that program if the statute’s purpose is no longer being served.”

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