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March 6, 2018  |  Written by Michelle E. Chester

Ninth Circuit Upholds Decision to End Failed Endangered Species Relocation Program

On March 1, 2018, the Ninth Circuit Court of Appeals concluded that the federal government has an obligation to end a federal program intended to protect endangered species once it was clear that the program was no longer effective.  Cal. Sea Urchin Comm’n v. Bean (2018) 2018 U.S. App. LEXIS 5230.  The decision was a consolidated review of two separate federal district court cases, each brought by fishing industry groups alleging that the United States Fish and Wildlife Service (FWS) exceeded its authority by terminating a 1987 sea otter translocation program.  Both district courts held that the FWS’s interpretation of the authorizing statute as allowing the failed program to be terminated was reasonable.

The sea otter translocation program at issue was created in 1986 when Congress passed Public Law 99-625, granting FWS the authority to implement its relocation and management plan for the endangered southern sea otter.  In 1987, the FWS adopted regulations implementing the translocation program and designating San Nicolas Island as the home for the experimental population.  See 52 Fed. Reg. 29,754 (Aug. 11, 1987).  The fishing industry opposed the translocation program because sea otters prey on commercially valuable shellfish populations, and because the industry was subject to liability under the Marine Mammal Protection Act and the Endangered Species Act for incidental takes of southern sea otters.

The FWS’s regulations also acknowledged that the experimental population may not succeed, and so included five specific “failure conditions,” any one of which, if realized, would be a sufficient basis for ending the program.  52 Fed. Reg. 29,784 (Aug. 11, 1987).  In fact, the San Nicolas experimental population of sea otters never developed into a viable, independent colony.  The FWS issued a decision in 2012 terminating the program based on one of the failure conditions contained in the 1987 rule.

In July 2013 the California Sea Urchin Commission and other fishing industry groups sued the FWS over the 2012 decision, claiming that the FWS did not have authority under Public Law 99-625 to terminate the program.  The court ultimately found FWS’s interpretation that the statute granted them the authority to terminate the program to be reasonable.  Cal. Sea Urchin Comm’n v. Bean (2015) 2015 U.S. Dist. LEXIS 136453.

The same fishing industry groups petitioned the Department of the Interior and the FWS to rescind portions of the 1987 regulation establishing the five failure criteria and the 2012 decision ending the program.  The FWS denied the petition, and the fishing industry groups brought a separate suit challenging the denial of their petition.  In September 2015, a different district court granted summary judgement on the grounds that the plaintiffs lacked standing and that the FWS’s interpretation of Public Law 99-625 was reasonable.  Cal. Sea Urchin Comm’n v. Bean (C.D. Cal. 2017) 239 F.Supp.3d 1200, 1209.

The two cases were consolidated on appeal to the Ninth Circuit.  Cal. Sea Urchin Comm’n v. Bean (2018) 2018 U.S. App. LEXIS 5230.  The Ninth Circuit held that the plaintiffs had standing based upon the concrete and particularized harm they suffer because of sea otter predation of shellfish.  Ibid.  As to whether the FWS’s decision to terminate the program exceeded their statutory authority, the court applied the two-step “Chevron” test, under which the court first asks whether Congress has addressed the precise question at issues and, if not, whether the agency’s interpretation of the statute is permissible.  Ibid.; see also Chevron U.S.A. Inc., v. Natural Resources Defense Council (1984) 467 U.S. 837, 842-44.  The Ninth Circuit held that, under the particular circumstances of this case, where the agency has discretion to implement an experimental program, it can reasonably interpret the statute to allow it to terminate that program if the statute’s purpose is no longer being served.  Cal. Sea Urchin Comm’n v. Bean, supra.  Therefore, the FWS did not violate its statutory duties by terminating the program.

A copy of the Ninth Circuit’s opinion can be found here.

For additional information please contact Michelle Chester at

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