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Old 08-02-2013, 02:02 AM   #1
Awabiman
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New Sea Otter Law Suit Filed

Perhaps kudos are in order to the commercial guys for filing the latest law suit, filed July 30th, that may end with the USFWS being told to do their job with Sea Otters. This new suit just very well may save our shellfish fishery for both interests, i.e. recreational and commercial.

From the Santa Barbra Independent.
http://www.independent.com/news/2013...d-stop-otters/

"As expected, a coalition of fishing organizations has banded together to sue the federal government in hopes of keeping the southern sea otter out of Southern California waters.

The lawsuit against the U.S. Fish & Wildlife Service — which, due to previous lawsuits from the environmental community, recently ended the 25-year-old “translocation” program that was supposed to move otters who swam south of Point Conception far offshore to San Nicolas Island — was filed on July 30 by the Pacific Legal Foundation (PLF). The property rights firm is representing the California Sea Urchin Commission, the California Abalone Association, and California Lobster and Trap Fishermen’s Association, and the Commerical Fishermen of Santa Barbara, all of which believe that an expanded otter range would be a death knell for their business.

The translocation program was developed in 1986 as special law to strike a compromise between environmentalists and fishermen. Under the program’s provisions, otters — which are federally recognized as a threatened species and have struggled for decades to recover to sustainable levels — received the full protections of the Endangered Species Act in waters north of Point Conception. There was also a supplemental population established down south on San Nicolas Island, in the event that a catastrophic oil spill wiped out the entire Central Coast population.

In exchange for allowing that infringement on Southern California waters, where the species had not lived for years, the feds appeased fishermen by capturing any otter that swam south of Point Conception and moving it to San Nic, labeling all of those waters a special management zone. On top of that, otters that swam below Point Conception were not given full endangered species protections, so fishermen who accidentally killed the species in Southern California waters could not be federally prosecuted.

But the San Nic population never really took off, so in 2003, the Fish & Wildlife Service determined that allowing the species to spread as its only chance of survival. They stopped translocating otters around that time.

The complaint, which can be read here, argues that the Fish & Wildlife Service overstepped its jurisdiction when it ended the program because Congress had created it and Congress is the only body that could end it. “Congress adopted a law expressly requiring the creation of a management zone,” said PFL attorney Jonathan Wood, “so only Congress can repeal that.”

Calls to Fish & Wildlife were not returned as of press time, but Friends of the Sea Otter’s Jim Curland pledged to fight against the lawsuit in defense of the federal government. His group has enlisted the legal services of Earthjustice, which will seek to sign on as an intervener in the case. “The obligation of the Fish & Wildlife Service is not to protect shellfish interests, but to help species to recover,” said Curland. “Sea otters need expansion of their range to recover their population, and to limit their expansion by having a ‘no otter zone’ is counter to recovering the species.”

Wood believes that his case is not a complicated one and should move fairly quickly, with hopes for a decision as soon as the end of the year, and possible appeals to follow, depending on the outcome. “We think it’s a pretty basic case of statutory interpretation and shouldn’t require a trial,” said Wood. “The important thing is to stop the otters as soon as we can. If we wait until the conflict begins, it will be too late.”

So one might ask, just who is Earth Justice right ? Well I can not think of a better clip than this to tell you just who Earth Justice is and what they do:
EPA's Secret Deals with Environmentalists - YouTube
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Old 08-02-2013, 08:17 AM   #2
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Re: New Sea Otter Law Suit Filed

Good to hear. This would be a huge win!
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Old 08-02-2013, 12:08 PM   #3
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Re: New Sea Otter Law Suit Filed

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Good to hear. This would be a huge win!
Well I'll bet since the announcement of the new otter suit the other day do you think (want a bet) secret e-mails are once again flowing between the Earth Justice and Friends of the Otters and the USFWS Otter folks.

Once again just as a reminder to keep new readers to the post on target of the subject matter. Thanks SDDiver5 for the quick understanding of the big picture here.
EPA's Secret Deals with Environmentalists - YouTube
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Old 08-02-2013, 02:24 PM   #4
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Re: New Sea Otter Law Suit Filed

IMO the only commercial fishermen who truly benefit from keeping the sea otters out of Southern California are the urchin divers. Personally, I'm not interested in spending federal tax dollars on a futile attempt to keep sea otters out of their historic range merely to protect an industry that primarily exports urchins to Japan. It was a fools errand from the start and I'm glad USFWS stopped wasting their time and money on it.

I understand that the urchin divers want to protect their business and I don't disrespect them for trying, but their interests are not at all aligned with mine as a spear fisherman.
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Old 08-02-2013, 03:16 PM   #5
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Re: New Sea Otter Law Suit Filed

Otters in southern California have little to no effect on the urchin divers, the Santa Barbara urchin divers work the Channel Islands 95% of the time and the otters have stayed on the coast. However, abalone will never have a chance to recover with otters around. The abalone farm just north of Santa Barbara seeded many young abalone along the coast in the area lost through their outflow pipes. A sizable isolated population of abalone was thriving in the nearby coastal waters, then a group of otters found the area and wiped it clean.
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Old 08-02-2013, 03:38 PM   #6
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Re: New Sea Otter Law Suit Filed

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Originally Posted by arice View Post
IMO the only commercial fishermen who truly benefit from keeping the sea otters out of Southern California are the urchin divers. Personally, I'm not interested in spending federal tax dollars on a futile attempt to keep sea otters out of their historic range merely to protect an industry that primarily exports urchins to Japan. It was a fools errand from the start and I'm glad USFWS stopped wasting their time and money on it.

I understand that the urchin divers want to protect their business and I don't disrespect them for trying, but their interests are not at all aligned with mine as a spear fisherman.
With all due respects thank you for expressing your interest, spearfishing and thus I can understand your position and interest assuming as an recreational sportsmen/spearfisherman if that's all you do with your diving interest is just spearfishing. Funny thing about diving and divers, yes there are sub groups of us, recreational divers. Some are non consumptive as we know, some technical divers, some bubble bowers and there are divers who do both, shellfish dive and spearfish as well. Besides myself as an recreational divers who both spearfishes and shellfish dives I can see the expansion of the Sea Otter into the So-Cal bite a real danger to the diving I like to do besides spearfishing, i.e. that other diving interest, shellfish diving for lobsters, crabs, scallops, uni and as of late I am going to go after Whelk. Nothing is simple anymore as it tuns out. What will the Otters dine on next should they occupy in numbers. Urchin, then recovering abalone, then lobster?? Pismo clams ??
Thank you arice for your perspective.
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Old 08-02-2013, 03:58 PM   #7
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Re: New Sea Otter Law Suit Filed

And thank YOU for the respectful reply. What a pleasure it is not to have everything devolve into a flame war on Spearboard.

I lobster dive. And I take scallops. And I used to take abs back when it was legal. My own feeling is that the ecosystem can support otters and allow for us to have our take, too. Certainly THIS GUY managed to find a number of abs right in the heart of otter territory.

To me it's not like they're talking about INTRODUCING something that is unnatural here. They're just stopping a foolish and expensive program of trying to keep a recovering species out of its historic range. I'd rather they spend the money on something else.

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Originally Posted by Awabiman View Post
With all due respects thank you for expressing your interest, spearfishing and thus I can understand your position and interest assuming as an recreational sportsmen/spearfisherman if that's all you do with your diving interest is just spearfishing. Funny thing about diving and divers, yes there are sub groups of us, recreational divers. Some are non consumptive as we know, some technical divers, some bubble bowers and there are divers who do both, shellfish dive and spearfish as well. Besides myself as an recreational divers who both spearfishes and shellfish dives I can see the expansion of the Sea Otter into the So-Cal bite a real danger to the diving I like to do besides spearfishing, i.e. that other diving interest, shellfish diving for lobsters, crabs, scallops, uni and as of late I am going to go after Whelk. Nothing is simple anymore as it tuns out. What will the Otters dine on next should they occupy in numbers. Urchin, then recovering abalone, then lobster?? Pismo clams ??
Thank you arice for your perspective.
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Old 08-02-2013, 07:22 PM   #8
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Re: New Sea Otter Law Suit Filed

Arice the pleasure was mine to not "flame war" as you put it. But I disagree, not foolish, just an agreement (law, be it right or wrong) made years ago to protect fishery interest where both recreational interest and commercial interest benefit. The argument is just like "THAT GUY" the Central coast black abalone poacher. Neither party, agency, etc, has the right to disobey the law. And in fact in this case attorney's can argue the USFWS could or should be cited and fined for not obeying the law; one can argue and in fact the issue of not following the law is taking place in court as we converse. Furthermore yes, the USFW can and did determine that the best interest of the Sea Otters would to be to end the trans location management program as they did. But you know what, in this case the argument will go to court. USFWS does not have the authority to disobey the law or implement policy change all on there own just like you and me. Do I believe or think it is possible people inside the USFWS could of conspired with Earth Justice to use the court system to get it there way, and do what they wanted to do it regardless of what you or I may think, you bet. I think it is possible and perhaps time will prove it so.
EPA's Secret Deals with Environmentalists - YouTube

Last edited by Awabiman; 08-02-2013 at 10:58 PM.
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Old 08-04-2013, 12:01 PM   #9
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Re: New Sea Otter Law Suit Filed

Just out of curiosity I went and pulled up the original law authorizing the relocation program. I think the urchin fishermen are out of luck on this one. The key sentence authorizing the law says, "The Secretary (meaning Sec of Interior) MAY develop and implement, in accordance with this section, a plan for the relocation and..."

Now, they'll argue differently, but the general principle in legal jargon is that "may" is permissive, meaning it allows someone to do something and "shall" is directive, meaning it must be done.

The way it's written looks to me like they authorized the NFWS through the Dept. of Interior, but they left the details up to the discretion of the agencies.
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Old 08-04-2013, 01:45 PM   #10
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Re: New Sea Otter Law Suit Filed

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Just out of curiosity I went and pulled up the original law authorizing the relocation program. I think the urchin fishermen are out of luck on this one. The key sentence authorizing the law says, "The Secretary (meaning Sec of Interior) MAY develop and implement, in accordance with this section, a plan for the relocation and..."

Now, they'll argue differently, but the general principle in legal jargon is that "may" is permissive, meaning it allows someone to do something and "shall" is directive, meaning it must be done.

The way it's written looks to me like they authorized the NFWS through the Dept. of Interior, but they left the details up to the discretion of the agencies.
Interesting! Was keenly aware of May, Can, Shall, Must, legal meaning. Now if accurate what you say the original law states, yes very interesting indeed. "May" being permissive still requires authorization. Someone is accountable for the decision to stop the trans location program. Who that was, and did that person(s) conspire with NGO's; well I am not all that interested in looking to find out. The other thing is, Judges get discretion, within bounds of law and often can rule in favor of what the intent of the law was and what the law is intended to do or accomplish. Yes this will be interesting.
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Old 08-05-2013, 11:12 PM   #11
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Re: New Sea Otter Law Suit Filed

Arice- how many times have you seen the coastal populations of otters eating urchins? I haven't. All I see them eating is lobster. However I did see one on Saturday eating a huge scallop. Oh yeah, anyone know what happened to all the abs on the northern SB coast? Most are gone now, but at least there's a bunch of cute otters to photograph.
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Old 08-06-2013, 02:23 PM   #12
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Re: New Sea Otter Law Suit Filed

Only place I've ever spent a lot of time in proximity to otters is in Santa Cruz. There they seem to always be munching on clams.

But, anyway, my position isn't about the merits of otters or lack of them. My point is that otters are a recovering species that is merely returning to a historic range. And the idea that you can simply draw a line in the ocean and keep them out of it is total folly and the relocation idea was a failure. Don't keep throwing money and resources at a plan that didn't work. The only way people are going to stop the otters from re-taking southern california waters is with a gun, and that's a non-starter for a lot of reasons.

Given who the law firm is that is representing the urchin divers and lobster fishermen I think what they're really doing is trying to position themselves for future takings claims against the Federal government in the event their business takes a dive because of the recovering otter population. I'm sympathetic to anyone who loses a job or sees a business fail, especially in tough economic times, but things change.

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Arice- how many times have you seen the coastal populations of otters eating urchins? I haven't. All I see them eating is lobster. However I did see one on Saturday eating a huge scallop. Oh yeah, anyone know what happened to all the abs on the northern SB coast? Most are gone now, but at least there's a bunch of cute otters to photograph.
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Old 08-06-2013, 11:56 PM   #13
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Re: New Sea Otter Law Suit Filed

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a non-starter for a lot of reasons.
Hum "non-starter"
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Old 08-07-2013, 10:27 AM   #14
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Re: New Sea Otter Law Suit Filed

Thanks for sharing about the lawsuit Bill Bernard / Awabiman. It will be interesting to see how it plays out.
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