The U.S. Supreme Court today declined to review a Ninth Circuit decision that upheld the U.S. Fish and Wildlife’s termination of a failed experimental program known as the “No Otter Zone.” The U.S. Fish and Wildlife Service had determined the program would harm the California sea otter by excluding the animals from their historic range along the Southern California coast.
The high court’s decision marks the end of years of litigation by fishing groups, represented by the Pacific Legal Foundation, aimed at forcing the government to reinstate the program even though it would harm sea otters and prevent the species from recovering.
“It’s a relief to see common sense win the day. The decision to end the “No Otter Zone” was not only reasonable—it was the only option for protecting otters and complying with the law,” said Earthjustice attorney Andrea Treece. “Otters are an irreplaceable part of our coastal ecosystem—otters need kelp forest and seagrass habitat, and those habitats need otters. Allowing otters to expand their population southward without human interference helps sea otters and coastal habitats.”
Earthjustice, on behalf of Friends of the Sea Otter, Defenders of Wildlife, The Humane Society of the United States and Center for Biological Diversity, intervened to help defend the Service’s decision.
Several fishing industry groups sued the U.S. Fish and Wildlife Service multiple times, arguing that it was obligated to continue to implement the “No Otter Zone,” even after the agency determined that doing so would jeopardize the species’ chances at survival and recovery. Two district courts ruled against the industry groups and they appealed the previous rulings (PDF).
The Ninth Circuit ruled against these industry groups, confirming that the agency acted fully within its authority by ending the experimental sea otter translocation and management program when it determined it was preventing sea otter recovery rather than promoting it.
"This decision is a win for sea otters and endangered species everywhere,” said Anna Frostic, managing attorney for wildlife and animal research for the Humane Society of the United States. “The court reinforced that the government has the obligation to amend or terminate a program when it is no longer helping the imperiled species that the government is required to protect."
"The Supreme Court's decision confirms the ruling that the Fish and Wildlife Service made the right decision to let sea otters expand their range naturally, without artificial barriers. If this species is to recover, wider distribution throughout the historic sea otter range is essential," said Friends of the Sea Otter Board Chair Jennifer Covert. “It is gratifying that the fight we have been involved in for approximately two decades to end the no otter zone has now been confirmed by the courts.”
The conservation groups defending the decision opposed high court review, pointing out that the decision was also fully consistent with the Fish and Wildlife Service’s independent obligation to protect and recover listed species under the Endangered Species Act.
“It’s great to see the Supreme Court deferring to wildlife professionals on ending this ill-conceived program. Sea otters and the people who love them should be applauding this victory,” said Miyoko Sakashita, oceans program director for the Center for Biological Diversity. “This decision helps keep California’s sea otters on the path toward recovery.”
“If we want threatened sea otters to make a comeback in California, we need programs that encourage recovery instead of hindering it,” said Kim Delfino, director of California programs for Defenders of Wildlife. “The U.S. Fish and Wildlife Service recognized that the ‘No Otter Zone’ would do more harm than good to sea otters by blocking their access to vital habitat. The court’s decision reaffirms that fact.”
Congress established the “No Otter Zone” in 1986 as part of a plan by U.S. Fish and Wildlife Service to translocate sea otters to San Nicolas Island to establish a second population. At the time, the agency suggested the translocation program would aid the recovery of the California sea otter, protected as a threatened species under the Endangered Species Act. The “No Otter Zone” was established by Congress in response to complaints from fishermen that moving otters to a new location could interfere with their fishing activities.
Many relocated otters swam back to their waters of origin; others died as the result of being captured or transported. The U.S. Fish and Wildlife Service ultimately determined that enforcing the “No Otter Zone” was hurting the sea otter’s recovery chances. In 2003, the agency determined again that eliminating the zone and allowing otters to expand to their natural, historical range south of Point Conception was necessary to achieve recovery of the species.
Fishing industry groups sought in two lawsuits to force the Service to re-establish the “No Otter Zone.” In September 2015, U.S. District Court Judge Walter found that forcing the Service to continue the failed program would be absurd, given that the purpose of the program had been to protect otters and the program was now known to harm their survival and recovery.
In March 2017, Judge Dolly M. Gee of the U.S. District Court, Central District of California, also ruled in favor of the U.S. Fish and Wildlife Service’s decision to end the program.
In March 2018, the Ninth Circuit upheld both of the district courts’ decisions.
While the California sea otter population has rebounded from historical lows, the species remains threatened by pollution, disease, and competition with fisheries. The California sea otter population is believed to have been between 14,000 and 16,000 animals before fur traders arrived. In recent years, it has hovered around 3,000 animals.