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California Sea Urchin Commission v. Bean

United States Court of Appeals, Ninth Circuit

March 1, 2018

California Sea Urchin Commission; California Abalone Association; Commercial Fishermen Of Santa Barbara, Plaintiffs-Appellants,
v.
Michael Bean, in his official capacity as Acting Assistant Secretary for Fish & Wildlife & Parks, Department of Interior; Department of Interior; Daniel M. Ashe, in his official capacity as Director of the United States Fish & Wildlife Service; United States Fish & Wildlife Service, Defendants-Appellees, and Center for Biological Diversity; Defenders of Wildlife; Environmental Defense Center; Friends of the Sea Otter; Humane Society of the United States; Los Angeles Waterkeeper; The Otter Project, Intervenor-Defendants-Appellees. California Sea Urchin Commission; California Abalone Association; California Lobster and Trap Fishermen's Association; Commercial Fishermen of Santa Barbara, Plaintiffs-Appellants,
v.
Rachel Jacobson, in her official capacity as Acting Assistant Secretary for Fish and Wildlife & Parks, Department of Interior; U.S. Department of the Interior; Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, Defendants-Appellees, Friends of the Sea Otter; Humane Society of the United States; Defenders of Wildlife; Center for Biological Diversity; The Otter Project; Environmental Defense Center; Los Angeles Waterkeeper, Intervenor-Defendants-Appellees.

          Argued and Submitted December 4, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding D.C. No. 2:13-cv-05517-DMG-CW

         Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding D.C. No. 2:14-cv-08499-JFW-CW

          Jonathan Wood (argued), Pacific Legal Foundation, Arlington, Virginia; M. Reed Hopper, Damien M. Schiff, and Johanna B. Talcott, Pacific Legal Foundation, Sacramento, California; for Plaintiffs-Appellants.

          Rachel E. Heron (argued), Alison C. Finnegan, John L. Smeltzer, Andrew Mergen, and Matthew Littleton, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C.; Lynn Cox and Kerry O'Hara, Office of the Solicitor, Pacific Southwest Region, United States Department of the Interior, Sacramento, California; for Defendants-Appellees.

          Andrea A. Treece (argued) and Irene V. Gutierrez, Earthjustice, San Francisco, California; Margaret M. Hall (argued) and Linda Krop, Environmental Defense Center, Santa Barbara, California; for Intervenor-Defendants-Appellees.

          Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Lawrence L. Piersol, [*] District Judge.

         SUMMARY[**]

         Environmental Law

         The panel affirmed the district courts' decisions in favor of the U.S. Fish and Wildlife Service in consolidated cases brought by fishing industry groups challenging the Service's decision to end a 1987 sea otter translocation program.

         Pursuant to discretionary authority granted by Congress, Public Law 99-625, the Service created an experimental reserve population of southern sea otters some distance from the main population. In 2012, the Service deemed the program a failure and terminated it. The district courts held that the Service's interpretation of the statute allowing termination was reasonable, and upheld the decision to end the program.

         The panel held that the plaintiffs had standing. The panel rejected plaintiffs' contention that they had standing due to the potential liability that they faced due to the elimination of exemptions for incidental takes in the management zone because plaintiffs did not allege a concrete and particularized harm. The panel held that plaintiffs did allege a concrete and particularized harm based on the harms they suffer because of sea otter predation of shellfish.

         On the merits, the panel held that the Service acted lawfully in terminating the translocation program in 2012 because it was based on a reasonable interpretation of the statute. The panel further held that in the circumstances here, where the agency had discretion to implement an experimental program, the agency could reasonably interpret the statute to allow it to terminate that program if the statute's purpose was no longer being served. The panel rejected plaintiffs' argument that the Service's interpretation raised a serious constitutional question and should be rejected on constitutional avoidance grounds. Specifically, the panel rejected plaintiffs' argument that the statute did not provide any criteria to guide a decision on termination of the program, and that the Service's interpretation would therefore violate the non-delegation doctrine. Finally, the panel rejected plaintiffs' contention that a 1994 amendment to the Marine Mammal Protection Act, relaxing restrictions on incidental takes, supported their view.

          OPINION

          GOULD, CIRCUIT JUDGE

         In these consolidated cases, several fishing industry groups challenge the U.S. Fish and Wildlife Service's ("Service") decision to end a 1987 sea otter translocation program. The program was established under discretionary authority granted by Congress in 1986 to create an experimental reserve population of southern sea otters some distance from the main population. If the Service exercised its discretion to establish the program, Public Law 99-625 required the creation of a management zone surrounding the experimental population in which liability under the Marine Mammal Protection Act and Endangered Species Act would be relaxed. The law also required the Service to use "feasible non-lethal means" to remove wayward sea otters from this management zone. As part of its 1987 rule establishing the experimental translocation program, the Service adopted specific criteria by which the program would be deemed a failure and terminated. In 2012, the Service determined that the failure conditions had been met and it ended the program. The fishing industry groups sued in two separate federal district court cases, alleging that the Service exceeded its statutory authority by terminating the program. Both district courts held that the Service's interpretation of the statute as allowing the failed program to be terminated was reasonable, and under the Chevron doctrine upheld the Service's decision to end the translocation program. We affirm.

         I

         The southern sea otter, or California sea otter, was hunted to near extinction in the 1700s and 1800s for its fur, and was listed as an endangered species in 1977 under the Endangered Species Act ("ESA"). Cal. Sea Urchin Comm'n v. Bean, 828 F.3d 1046, 1047 (9th Cir. 2016). In 1982 the Service prepared a recovery plan for the sea otter. Under the plan a new colony would be created far enough away from the parent population so that an environmental catastrophe like an oil spill would not endanger the entire species. Id.; 52 Fed. Reg. 29, 754 (Aug. 11, 1987). Concerned with whether it had sufficient authority to carry out the plan, the Service asked Congress to extend its powers. In 1986 a responsive Congress passed Public Law 99-625, which clearly authorized the Service's implementation of its plan for the relocation and management of otters. Cal. Sea Urchin Comm'n, 828 F.3d at 1047. The correct interpretation of this law is the subject of this litigation and the appeals before us.

         The relevant parts of Public Law 99-625 are set forth below:

Section 1(b) states:
PLAN SPECIFICATIONS. - The Secretary may develop and implement, in accordance with this section, a plan for the relocation and management of a population of California sea otters from the existing range of the parent population to another location. The plan, which must be developed by regulation and administered by the Service in cooperation with the appropriate State agency, shall include the following:
(1) The number, age, and sex of sea otters proposed to be relocated.
(2) The manner in which the sea otters will be captured, translocated, released, monitored, and protected.
(3) The specification of a zone (hereinafter referred to as the "translocation zone") to which the experimental population will be relocated. The zone must have appropriate characteristics for ...

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