Ninth Circuit revives fishermen’s lawsuit for abalone protection

SAN FRANCISCO, CA;  July 13, 2016: Overruling a trial court, the Ninth U.S. Circuit Court of Appeals yesterday reinstated Pacific Legal Foundation’s lawsuit to protect abalone and other shellfish resources — and the industries dependent on them — from being ravaged by sea otters in the waters off the Southern California coast.

The lawsuit — California Sea Urchin Commission et al. v. Jacobson et. al. — targets the U.S. Fish and Wildlife Service for illegally eliminating a “sea otter management zone” (i.e., a zone of protection for shellfish off the Southern California coast) which Congress established under a 1986 statute.

PLF attorneys represent fishermen, a California state commission, and several nonprofit organizations with a direct interest in maintaining healthy populations of shellfish.

A trial court had ruled that the lawsuit, filed in 2013, came too late, and should have been filed two decades earlier, when regulators first claimed they had authority to set aside the sea otter management zone — not when they actually took that step four years ago.

But the Ninth Circuit has now reversed that decision, holding that “an agency should not be able to sidestep a legal challenge to one of its actions by backdating the action” to an earlier time when it merely published an assertion that it could take such an action.

“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 PLF attorney Jonathan Wood.  “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.”

Background:  regulators disobey Congress, putting shellfish — and fishing families — at risk

At issue is the Service’s violation of the terms of Public Law 99-625, the 1986 statute that authorized regulators to set up an experimental population of the California sea otter on San Nicolas Island, approximately 65 miles southwest of Point Mugu in Ventura County.  It included requirements that sea otters be restricted from spreading to surrounding waters, and that fishermen be exempted from Endangered Species Act (ESA) liability for accidentally catching or harming an otter during their work.

The Service accepted this compromise in the late 1980s, by moving otters to San Nicolas Island and adopting a regulation to implement the protections for the surrounding fishery.

However, the Service included in its regulation an assertion that it has authority to terminate these protections (even though Congress said it “must” adopt and “shall implement” them).

Nearly 20 years later, in 2012, the Service did precisely that — unilaterally reneging on the deal and repealing all of the protections for shellfish and the fishing industry.

In challenging the Service’s violation of its legal mandate to contain the sea otter population, PLF attorneys represent:

• The California Sea Urchin Commission, a state panel, created by the 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, protects and enhances the resource, and guarantees a 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 gravely 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 seriously 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.

Responding to this week’s Ninth Circuit ruling, David Goldenberg, Executive Director of the California Sea Urchin Commission, said, “This victory is an important step toward defending Southern California’s fishermen pursuing their livelihoods.  The decision recognizes that we have a right to have our day in court, and agency bureaucrats are not above the law.”

Filed in the U.S. District Court for the Central District of California, the lawsuit is entitled, California Sea Urchin Commission et al. v. Jacobson et. al.  More information, including the complaint, the Ninth Circuit’s ruling, a video, and podcast, may be found at PLF’s website:  www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts nationwide.  PLF represents all clients without charge.

Read the original release: https://www.pacificlegal.org/