“Shall implement.” To most of us, this is perfectly straightforward, mandatory language. But to overreaching bureaucrats at the United States Fish and Wildlife Service, “shall implement” is merely a suggestion that the Service can follow at its leisure.
In a motion filed last Friday, we asked the court to remind the Service that it can’t give these clear words new meaning.
Nearly forty years ago, Congress directed in a federal statute that the Service “shall implement” two critical protections as a condition of establishing a new sea otter population in Southern California’s waters: (1) the Service must keep the otters from migrating into surrounding fisheries, and (2) the lawful activities of fishermen are exempt from broad federal prohibitions against the incidental take of sea otters.
The Service accepted the terms of the compromise and moved dozens of otters to San Nicolas Island. They’re thriving. But in 2012—without authorization from Congress—the Service changed its mind and unilaterally terminated the mandatory protections.
Fortunately, we’ve got the courts to keep rogue agencies in check when they decide they are above the law.
PLF represents sea urchin and abalone divers, lobster trappers, and fishermen who earn their livelihoods in the waters of Southern California. We’ve shown the court in our motion that the Service’s decision not only violates the law, but poses a true threat to the fisheries.
I’ve had the pleasure of speaking with several fishermen and divers who are directly impacted by the Service’s decision to terminate the management zone. They have seen once-abundant coastal fishing grounds decimated by sea otter predation. They are worried that growing otter populations will leave fewer and fewer areas where they can work without risk of incidental take liability. And they are deeply concerned about the future of their livelihoods and of Southern California’s fisheries if the court does not hold the Service accountable.
Sea otter recovery is a worthy cause, but it doesn’t need to come at the expense of healthy, sustainable fisheries and hard-working fishermen. Congress recognized forty years ago that a balance could be struck between these two competing interests, and it codified that balance into law.
The Service is bound by Congress’ clear statutory direction. Now, thanks to the tenacity of the fishermen in this litigation—and PLF’s donors—the court has an opportunity to reaffirm this fundamental principle.