US court takes important step in resolving human/wildlife conflict at sea

Sea Otters

California Sea Urchin Commission, et al. v Michael Bean, et al, US District Court, Central District of California (September 18 2015) – read judgment

A Californian court has upheld the protection of marine otters over the interests of commercial fishing.

Sea otters are remarkable marine mammals who live their entire lives at sea, giving birth in the water and clutching their cubs to their bellies as they float in rafts of up to a thousand, holding hands while they sleep to avoid drifting off in the ocean’s currents. But they are not just picturesque; they are essential to the health of the seas. A main component of their diet is the ubiquitous sea urchin, which feeds on kelp. As sea otters have been hunted and killed as by-catch over the centuries, their diminishing numbers have led to the proliferation of the sea urchin population and the consequent disappearance of the kelp forests on the seabed. The damage this does to the marine ecosystem has been inestimable.

This somewhat technical judgment, made on a preliminary application for summary judgment by the fishing industry, therefore marks an important step in the judicial response to marine conservation.

The US Fish and Wildlife Service fulfils broadly the same functions as the UK Marine Management Organisation, although in its capacity as guardian of marine life it is pulled in opposing directions as it is also mandated to look after fishing interests.  This case is a very good example of that conflict.  In 1986 Congress established the “no-otter zone” (Public Law 99-625) as part a plan by Service to translocate sea otters to San Nicolas Island off the Californian coast. At the time it was thought that the translocation program would help southern sea otters, which are protected as a “threatened” species under the Endangered Species Act, to gain protection should a catastrophic event like an oil spill threaten the otter population along parts of the California coast. 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.  Evidence that this imperilled the sea otter even further led to a decision by the Service to get rid of the exemption, which was accordingly challenged in the courts.

The background to this case is drawn from the press summary released by the environmental advocacy group Earthjustice.

Legal and factual background

The translocation program ultimately failed because not enough otters remained at San Nicolas Island to establish a viable population. Many relocated otters swam back to their waters of origin; others died from being captured or transported. U.S. Fish and Wildlife Service subsequently determined that enforcing the no-otter zone would hurt sea otters’ protection and recovery, and the agency decided in 2003 that allowing otters to expand to their natural, historical range south of Point Conception would be necessary to achieve recovery of the species.

That decision was challenged by fishing industry groups.

They argued, inter alia, that they had suffered financial loss due to the sea otters’ consumption of large amounts of shellfish that the various fishing groups harvested after the Service ceased removing sea otters from the management zone.

The defendants responded that the case essentially turned on whether individuals who worked or recreated in Southern California’s waters could be fined and even imprisoned for accidentally harming,harassing, or getting too near a southern sea otter. There was nothing more to it, they argued. Even if the court upheld the plaintiffs’ claim, the Service would not be required to resume translocating the otters or moving any that wandered into the “no-otter” zone.

The Court’s Decision

Because this was a motion by the plaintiffs for summary judgment, the judge was able to base his ruling on the preliminary question of whether the plaintiffs and established sufficient evidence of injury to have standing to pursue the action. He found that they had not. They had failed, in other words, to demonstrate that the discontinuation of their exemptions of “incidental take” (killing or maiming otters in the course of their fishing activities) was, as they had pleaded,

causing them to refrain from pursuing their livelihoods for fear of prosecution for take of otter.

But even assuming that they had standing, he found that the plaintiffs could not prevail on the merits of their claim. It was entirely within the Service’s discretion whether or not to implement any translocation programme, and accordingly whether to cease one once undertaken. If the plaintiffs’ interpretation of the enabling law was correct, it would mean it would override the Service’s mandatory duty

to ensure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species” (16 U.S.C. § 1536(a)(2)), because the Service would be required to continue with the sea otter translocation program without regard to its impact on the species.

Such an “absurd” result is totally inconsistent with US environmental protection law, including the 2003 Recovery Plan for the sea otter, and Public Law 99-625, the purpose of which is to facilitate the conservation of the species. The paramount consideration of the relevant law, said the judge, was to promote the recovery of the sea otter, and the mitigation of risks to fishery resources was an important but secondary consideration.

Therefore the plaintiffs’ Motion for Summary Judgment was denied, and the Defendants’ and Intervenors’ Motion for Summary Judgment were granted.

Comment

We all remember the story of Cecil the lion, whose “canned killing” by an American dentist went viral on the social networks and led to global vilification of the marksman and the closure of his business. There are many morals to be drawn from this story, but one of the least discussed is our contradictory attitudes to carnivores. We love them, but don’t want them in our own back yards – witness our attitude to the few UK carnivores that have survived extinction, such as badgers and foxes. The furore over  “rewilding”– both in Europe and across the Atlantic –  is largely to do with the conflict between livestock and reintroduced wolves, bears and other meat eaters.  In this country the Eurasian otter, hunted and poisoned to near vanishing point until the nineteen seventies, is flourishing in certain parts of the country after successful reintroduction programmes and the withdrawal of organochlorines from agriculture, but as their numbers grow the closer they come to the dangerous tipping point already crossed by badgers and foxes. This is because they eat meat, and modern fish farms and angling zones present an irresistible temptation to these shy, solitary hunters.

The conflict is presented as a stark choice between our food, and their food. We cannot love fisherfolk and farmers, it is said, or indeed the countryside, whilst at the same time promoting the interests of livestock’s enemies: predators of the air, land and water. The wildlife presenter Chris Packham has recently challenged this attitude, attacking conservation groups for sitting on the fence over controversies concerning hen harriers, badgers and the like:

We love wildlife — until it becomes successful or a bit of a nuisance, and then we kill it. (BBC Wildlife, 2 September 2015)

As a consequence the Countryside Alliance and many other organisations are baying for his blood.

This human/wildlife conflict is often more imagined than real, and resolving it is fundamental to wildlife conservation everywhere. If we want to have large cats roaming the African savannah, we in the West must be consistent and find ways of coexisting with carnivores in our own countryside and coastal waters.

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