New Op-Ed by David Goldenberg, California Sea Urchin Commission

Bureaucrats ignore sea otter’s progress to avoid limits on their power

This has been a very good year for the California sea otter. For the first time, the species’ population exceeded its recovery goal, a key step for it under the Endangered Species Act. If the population remains above this threshold for two more years, it may no longer need the statute’s protection.

Much of this recent growth has occurred on San Nicolas Island, where the sea otter population has grown by 13% a year over the last decade. A biologist with the U.S. Geological Survey, which is responsible for the population survey, summed it up well: “The sea otters at San Nicolas Island continue to thrive.”

In light of the San Nicolas Island population’s incredible growth, it is deeply ironic that another federal agency, the U.S. Fish and Wildlife Service, recently declared the population “a failure.” By doing so, the Service, which implements the Endangered Species Act, has attempted to avoid its obligations under a federal statute.

Decades ago, the Service, the state, environmental groups, and fishermen agreed on a deal, which Congress adopted into law, that authorized the Service to establish the San Nicolas Island population on the condition that it implement protections for surrounding waters and those who use them. The main protection was an exemption from the Endangered Species Act’s and Marine Mammal Protection Act’s broad “take” prohibition for those who incidentally cause take while engaged in lawful activities in surrounding waters.

This protection is essential to the continued health of Southern California’s economy. It is what allows fishermen to pursue their work, free of the threat of lawsuits, fines, and even imprisonment if they accidentally encounter a sea otter. It also protects whale watchers, boaters, and anyone else who operates on Southern California waters.

So many people are affected because the “take” prohibition that would apply without the exemption is very broad indeed. It forbids anyone from doing anything that affects a single sea otter, even unintentionally. Simply disturbing an otter by accidentally getting near it could be a federal crime under this broad prohibition. As otters expand further into Southern California, just about any sort of commercial or recreational activity off the coast could be affected by this prohibition.

Four years ago, the Service declared the San Nicolas Island population a failure and announced that it would no longer respect the conditions Congress imposed on its authority. It did so despite the fact that Congress was quite clear that these conditions were not optional. Federal law says that, in exchange for the authority to establish the San Nicolas Island population, the Service “must” adopt a regulation that “shall” contain the required protections. As if that weren’t clear enough, Congress reiterated the point, providing that the Service “shall implement” these protections. In contrast, nothing in the law authorizes the Service to unilaterally decide to violate the compromise. The Service’s decision is therefore lawless.

Federal agencies are not free to do whatever they please. They only have the power Congress chooses to give them, subject to the limits Congress chooses to impose. Since these agencies, and the legion of bureaucrats who staff them, are not politically accountable, it is imperative that their powers be limited and those limits enforced by the courts.

Pacific Legal Foundation is representing several California fishing organizations in a challenge to the Service’s lawless decision. Last week, they asked a federal district court declare the decision unlawful and restore Congress’ compromise.

The Service’s decision to declare the San Nicolas Island population “a failure” and terminate the legally required protections for surrounding waters was illegal when it was made four years ago. But it has only become more indefensible since, as that population has continued to grow and contribute to the sea otter’s recovery.

We should all celebrate that recovery. But, at the same time, we should not lose sight of the severe threat posed by unelected bureaucrats acting as if they are above the law. We can maintain both the rule of law and protect species. Congress chose to do just that when it enacted the compromise that established the thriving San Nicolas Island sea otter population, while also protecting fishermen and others who work off Southern California’s coast.