This Friday, May 6th, the Ninth Circuit will consider whether federal bureaucrats can escape judicial review of their illegal acts by pointing to their prior violations of the law. The U.S. Fish and Wildlife Service argues that PLF’s challenge to an illegal rule regarding the sea otter should not be heard because this isn’t the first time that the Service has exceeded its authority under the statute. Let’s call this absurd argument the “Scofflaw defense.”
But first, some background: In the early 80s, the Service decided that, to recover the California sea otter (a threatened species), it needed to establish a new population of otters in Southern California. Since the law at the time forbade that, the Service had to go to Congress for permission. The plan proved to be very controversial because (1) sea otters are voracious predators that could decimate nearby fisheries and (2) the new population threatened to stop recreation, fishing, and other productive activities in surrounding waters due to application of the Endangered Species Act’s take prohibition. Congress ultimately enacted a compromise that permitted the Service to establish the population but required it to also implement protections for the surrounding fishery and those who work and play in it.
In 2012, the Service violated this compromise. Despite having established the Southern California population more than 20 years earlier, the Service issued a rule unilaterally terminating all of the statutorily-mandated protections for the surrounding fishery.
Under the Administrative Procedure Act, any agency action can be challenged as exceeding an agency’s authority, so long as the case is filed within 6 years. PLF challenged the rule, on behalf of several fishermen groups, within 8 months. So there shouldn’t be a problem, right?
The Service moved to dismiss the case anyway. It asserted that the challenge could only have been brought in the 80s, when the Service issued a regulation suggesting that it might, possibly, someday terminate these protections. Because this regulation exceeded the Service’s statutory authority in a similar way as the 2012 rule, the Service argues the regulation shields all similarly-illegal subsequent actions from judicial review. (Talk about chutzpah!) The scofflaw defense sounds like madness but, unfortunately, the district court accepted it.
We’ve appealed that decision to the Ninth Circuit. As we explained in our opening and reply briefs, the scofflaw defense is contrary to the APA and basic common sense. You can find the other briefs in the case here. The oral argument will be in Pasadena on Friday morning. Details are available here.