U.S. District Court Rejects Challenges to Final Rule Terminating Sea Otter Translocation Program.

On September 18, 2015, the U.S. District Court for the Central District of California rejected the assertion by the California Sea Urchin Commission, California Abalone Association, and Commercial Fishermen of Santa Barbara (Plaintiffs) that the U.S. Fish and Wildlife Service (Service) lacked authority to issue a final rule terminating the California sea otter (Enhydra lutris nereis) translocation program.  The program was developed to establish a translocated population of sea otters remote from the main population, to help ensure that the entire species would not be wiped out by a single catastrophic oil spill.  Because sea otters are listed under the Endangered Species Act (ESA), the program also included incidental take exemptions for fisheries that operate in the waters surrounding the newly translocated population.  The Service terminated the program in 2012 after determining that it was unsuccessful.

Plaintiffs challenged the Service’s termination of the program, arguing the Service caused Plaintiffs to “refrain from pursuing their livelihoods for fear of prosecution for take of otter.”  Despite Plaintiffs’ arguments, the court held that the Service was authorized to terminate the program.  The court reasoned that, because the Service was authorized by statute to establish the program to create the new sea otter population, it must therefore have the discretion to terminate the program, including the exemptions associated therewith, at any time thereafter.

The court also held that Plaintiffs lacked standing because they failed to establish injury in fact, as required by Article III of the Constitution.