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Federal Court Approves U.S. Fish and Wildlife Service’s Termination of “No-Otter Zone”

March 6, 2017      

 

FEDERAL COURT APPROVES U.S. FISH AND WILDLIFE SERVICE’S TERMINATION OF “NO-OTTER ZONE”

Los Angeles, CA — In a major victory for threatened southern sea otters, U.S. District Court Judge Dolly M. Gee on Friday issued a ruling denying a challenge by commercial fishing organizations to a U.S. Fish and Wildlife Service (FWS) decision that has restored protections for sea otters in Southern California.  The Environmental Defense Center, The Otter Project and Los Angeles Waterkeeper intervened in the case on behalf of the FWS.

This ruling follows Judge Walter’s September 2015 similar ruling, in which the court upheld the FWS’s same decision, noting that to require FWS to continue the “no-otter zone” would be an “absurd result [that] is totally inconsistent with the Endangered Species Act.” That case is now on appeal at the Ninth Circuit. The cases challenge slightly different FWS actions that resulted in the same ultimate decision.

Both cases stem from a 2012 decision by FWS to officially terminate a “no-otter zone” that had been established in 1987 in an attempt to balance sea otter protections with fisheries protections. The intent of the 1987 action was to establish a thriving otter population at San Nicolas Island, and in exchange, to exclude otters from an area extending from Pt. Conception in Santa Barbara County to the Mexican border. Unfortunately, this plan proved deadly to otters that were either killed during translocation efforts or died trying to swim back to their natural habitats, and so FWS rightfully terminated the plan. FWS’s action terminating the “no-otter zone” was taken in response to a lawsuit filed by EDC and The Otter Project. This important FWS decision allowed sea otters to begin to regain a foothold in their natural range in Southern California – an outcome vital to the recovery of the keystone species.

“We applaud this important ruling, in which the federal court has again upheld the Fish and Wildlife Service’s decision to terminate the failed ‘no-otter zone,’ allowing the threatened southern sea otters to reinhabit their historic range in southern California,” said Linda Krop, Chief Counsel with the Environmental Defense Center which represents The Otter Project and Los Angeles Waterkeeper in this case. 

“The commercial fishing groups led by the urchin fishermen were insisting on an unnatural, unhealthy system serving their own narrow commercial interests.  With the judge’s ruling, otters will slowly return and change the system back to the healthier and more complete ecosystem  it once was, with bigger kelp forests and more fin-fish,” said Steve Shimek, Executive Director of The Otter Project.

In the ruling, the judge concluded that the FWS acted appropriately in ending the “no-otter zone” because its interpretation of the law that gave rise to the 1987 policy is reasonable.  Specifically, the judge noted that there is a presumption that “Congress intends for agencies to have flexibility to modify, or if necessary terminate, regulatory programs that have ceased to serve the intended function.”  In addition, it found that FWS has broad discretion to act under this program “consistent with the recovery of the species” and the program is of “little economic significance.” Terminating this program that harmed the very species it was meant to protect is therefore reasonable.

“Our marine ecosystem has been out of balance for decades. Removing the ‘no-otter zone,’ restoring kelp forests, and establishing marine protected areas are critical actions for reversing this degradation,” said Bruce Reznik, Executive Director of Los Angeles Waterkeeper. “The science shows that our fisheries will be much more robust once our habitats are protected and the natural balance of the food chain is restored.”

The southern sea otter population numbers around 2,800 in a range that once supported 12,000 to 16,000 sea otters and is listed as “threatened” under the Endangered Species Act and “depleted” under the Marine Mammal Protection Act.  Sea otter recovery is impossible with the “no-otter zone” in place.

Beginning in 1987, when the “no-otter zone” was established, the FWS moved 140 southern sea otters to San Nicolas Island, the most remote of California’s Channel Islands, in an attempt to establish a reserve population and protect the small and struggling mainland population from a catastrophic event, such as an oil spill.  Shellfish fishermen, the offshore oil industry, and the Navy objected to the plan and as a result the “no-otter zone” (officially called the ‘management zone’) was established.  Unfortunately, the relocation plan failed immediately when all but about 11 of the 140 otters swam away from San Nicolas Island and back to their home waters or perished.  In spite of the failure, the “no-otter zone” stayed in place and wandering otters were trapped and deported for many years.  The failure of the FWS to protect the otters in this area led to the lawsuit filed by The Otter Project and EDC.

The case name and caption is California Sea Urchin Commission v. Bean (C.D. Cal. CV-13-5517-DMG-CWx).

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The Environmental Defense Center, a non-profit law firm, protects and enhances the local environment through education, advocacy, and legal action and works primarily within Santa Barbara, Ventura, and San Luis Obispo counties.  Since 1977, EDC has empowered community based organizations to advance environmental protection.  Program areas include protecting coast and ocean resources, open spaces and wildlife, and human and environmental health.  Learn more about EDC at www.EnvironmentalDefenseCenter.org.

The Otter Project protects our watersheds and coastal oceans for the benefit of California sea otters and humans through science-based policy and advocacy. Founded in 1998, The Otter Project has worked to improve nearshore ocean health and resolve the barriers to sea otter recovery.  Learn more about The Otter Project at www.otterproject.org.

Founded in 1993, Los Angeles Waterkeeper’s mission is to protect and restore Santa Monica Bay, San Pedro Bay, and adjacent waters through enforcement, fieldwork, and community action. We work to achieve this goal through litigation and regulatory programs that ensure water quality protections in waterways throughout L.A. County. LA Waterkeeper’s Litigation & Advocacy, Marine, and Water Quality teams conduct interconnected projects that serve this mission. Learn more about LA Waterkeeper at www.lawaterkeeper.org.

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