883 F.3d 1173
9th Cir.2018Background
- Congress in 1986 enacted Public Law 99-625 authorizing the U.S. Fish and Wildlife Service to develop and implement an experimental relocation program for California (southern) sea otters, including a designated translocation zone and surrounding management zone with relaxed incidental-take liability and a requirement to use feasible non-lethal means to remove wayward otters.
- In 1987 the Service implemented the program, designated San Nicolas Island as the translocation site, and promulgated regulatory "failure conditions" that would justify terminating the experiment.
- The experimental population never established a viable independent colony; by 2012 the San Nicolas population was small (≈50 otters) and the Service concluded a failure condition was met and terminated the program, ending the management‑zone exemptions and capture‑and‑return operations.
- Fishing industry groups sued, arguing the Service lacked statutory authority to terminate the program; consolidated district courts upheld the Service under Chevron deference and the Ninth Circuit affirmed.
- Standing disputes: plaintiffs advanced two theories — (1) imminent risk of increased liability from loss of incidental‑take exemptions, and (2) economic harm from otter predation on shellfish within the management zone; the court accepted the latter but rejected the former.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — risk of prosecution/liability from loss of incidental‑take exemptions | Plaintiffs claimed an imminent, concrete threat of prosecution and regulatory burden from elimination of management‑zone exemptions | Service argued plaintiffs alleged only speculative risk without concrete plan, warning, or enforcement history | Rejected — plaintiffs failed to show a "genuine threat" of prosecution; no standing on this theory |
| Standing — economic harm from sea‑otter predation on shellfish | Plaintiffs alleged concrete, particularized business harms from reduced shellfish stocks within the management zone | Service argued redressability was speculative because reinstatement might not restore capture operations or alter population impacts | Accepted — plaintiffs alleged concrete harm and reinstatement would remove at least one legal barrier, satisfying redressability |
| Statutory interpretation — whether Public Law 99‑625 forbids termination of the program once implemented | Plaintiffs read mandatory statutory language as requiring perpetual maintenance of the program, management zone, and exemptions once implemented | Service argued statute authorizes an experimental plan and grants discretion to implement and (implicitly) to terminate when purposes are no longer served; statute is silent on termination | Held — Chevron step one: statute silent on termination; step two: Service's interpretation that it may terminate a failed experimental program is reasonable and lawful |
| Non‑delegation/constitutional avoidance — statute provides no termination criteria and thus is an unlawful delegation | Plaintiffs argued absence of explicit termination standards raises non‑delegation problems | Service pointed to statutory guidance (conservation focus, section 7/ESA considerations, feasible non‑lethal means, minimizing fishery conflict) as an intelligible principle | Rejected — statute supplies sufficient guiding principles; no serious constitutional question requiring avoidance |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (agency deference framework)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (non‑delegation/intelligible principle doctrine)
- Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167 (standing — injury, traceability, redressability)
- Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir.) (standing — genuine threat of prosecution test)
- L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir.) (standing where regulation imposes concrete burdens)
- Abbott Labs. v. Gardner, 387 U.S. 136 (standing for regulated parties facing direct regulatory burdens)
- Ibrahim v. Department of Homeland Security, 669 F.3d 983 (9th Cir.) (redressability standards)
- Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir.) (reasonableness standard for agency statutory construction)