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California Sea Urchin Commission v. Bean

ELR Citation: 46 ELR 20120
Nos. 14-55580, (9th Cir., 07/12/2016)

The Ninth Circuit reversed and remanded a lower court's dismissal of a lawsuit filed by commercial fishermen challenging FWS' decision to terminate the southern sea otter translocation program off the coast of California. Due to the threatened species' vulnerability to extinction from oil spills, environmental contamination, disease, shooting, and entanglement in fishing gear, FWS began the translocation program in 1987. Under the program, the creation of which was authorized by the U.S. Congress under Pub. L. No. 99-625, FWS would relocate southern sea otters found in waters south of Santa Barbara and north of the Mexico border—the "management zone"—to California's Nicolas Island. The fishermen alleged that FWS violated its statutory authority under Pub. L. No. 99-625. But the district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. The appellate court disagreed. The fishermen's challenge, filed in 2013, was timely because the operative agency action challenged was the FWS' 2012 promulgation of a rule terminating the translocation program. The fishermen were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. On remand, the lower court must decide if there was merit to the fishermen's claim that FWS was without congressional authority to terminate the translocation program.