(The Center Square) – A law firm has called for the U.S. Fish & Wildlife Service to restore protections for California fishermen.
The request comes from the Sacramento-based Pacific Legal Foundation, which is representing the California Sea Urchin Commission.
Attorney Nathan Hotes said the commission is struggling because federal laws such as the Endangered Species Act and the Marine Mammal Protection Act have limited what fishermen can do out of concern for the southern sea otter, also known as the California sea otter.
“We do that regularly for endangered species to a certain extent, but what makes the otter different is that by all known metrics, including the service's own metrics, it's recovered,” Hotes told The Center Square. “So the Sea Urchin Commission and other fishermen in California end up in a position where they can't go out on the water out of risk of even possibly criminal and civil liability for getting an otter to change direction or disturbing its habitat or anything like that.”
According to Hotes, “nobody is trying to intentionally harm otters,” but even going out on the water as the regulations currently stand can be risky.
As a result, Hotes said it “causes all kinds of issues” for fishermen.
That, he added, is why Pacific Legal wants these restrictions lifted.
“We are writing two different petitions to the [U.S.] Fish and Wildlife Service and the [U.S.] Department of Interior,” said Hotes. “We are essentially arguing first that the southern sea otter should be delisted from the Endangered Species Act list, and I should mention the southern sea otter isn't endangered currently. It's threatened, but all of those fall under the Endangered Species Act, even though it's threatened.”
"Threatened" puts sea otters in a lower-risk category than "endangered."
The Pacific Legal Foundation's other petition seeks to restore the fishermen's protections in the southern sea otter management zone.
“There's no lawsuit, so it's a little out of our normal zone, but sometimes you get issues that are lined up like this,” said Hotes.
On its website, Pacific Legal Foundation boasts that it has been “suing the government since 1973.”
This isn't the first time Pacific Legal Foundation has gotten involved with the southern sea otter issue.
Pacific Legal Foundation previously petitioned in 2021 to delist the otter from the Endangered Species Act, but no changes occurred.
"Now, five years later, everything we said is even more true," Hotes told The Center Square. "The otter population has continued to rise, and the threats have continued to decrease."
On the rulemaking petition, Pacific Legal Foundation has previously litigated this issue in the 9th Circuit Court of Appeals but was not successful.
“Agency deference was very different,” said Hotes. “The Fish and Wildlife Service jumps to what would be called Chevron deference, and that was viable at the time, so in our rulemaking petition, we discuss how that logic no longer holds from the earlier court case.”
While this issue may involve California fishermen, Hotes recommended that everyone around the country care about and pay attention to this issue.
“We did something with the pinesnake, the lesser prairie-chicken. We've had a number of cases where industry groups, fishermen, farmers, run-of-the-mill Americans trying to work hard end up getting their efforts completely stonewalled by federal regulation,” said Hotes. “So this is far from the first ESA case that Pacific Legal Foundation has worked on, and by all indications, it won't be the last.”
The Center Square has reached out to agencies and groups for comment, including the U.S. Department of Interior, U.S. Fish and Wildlife, World Wildlife Fund, National Wildlife Federation and the Santa Barbara-based Ocean Futures Society. They did not respond by press time.
