## Facts

- Congress enacted Public Law 99-625 (1986), authorizing the U.S. Fish & Wildlife Service to create an experimental translocation program for threatened southern sea otters, including an experimental population and a surrounding management zone.
- The management zone relaxed ESA and MMPA “take” liability for incidental takes and required the Service to use feasible non-lethal means to remove otters from the zone.
- In 1987, the Service implemented the program at San Nicolas Island, created the management zone, and adopted failure criteria for determining when the program should end.
- Over time, the experimental population did not establish as intended and otters moved into the management zone despite removal efforts.
- In 2012, the Service terminated the translocation program and eliminated the management zone.
- Commercial fishing industry groups challenged the termination, asserting economic harm from otter predation and increased exposure to ESA/MMPA liability without the management zone protections.
- Two district courts upheld the termination rule; the consolidated appeals followed.

## Issues

1. Whether the fishing industry plaintiffs had Article III standing to challenge termination of the translocation program and management zone.
2. Whether Public Law 99-625, once the Service established the experimental program, required continued maintenance of the program and management zone, eliminating the Service’s authority to terminate them.
3. Whether the Service reasonably interpreted the statute and its 1987 implementing rule to permit termination when the program failed to serve its conservation purpose.

## Decision

- The Ninth Circuit held plaintiffs had standing based on concrete economic injury from sea otter predation on commercially valuable shellfish.
- The court rejected standing based solely on asserted increased regulatory exposure to ESA/MMPA enforcement as too speculative.
- On the merits, the court affirmed, holding the Service lawfully terminated the program and management zone.
- The court applied Chevron deference, concluding the statute was at least ambiguous as to termination authority and the Service’s interpretation was reasonable.

## Legal Principles

- Economic injury caused by wildlife impacts on commercial interests can constitute a concrete and particularized injury-in-fact for Article III standing.
- Alleged injury based on potential future regulatory enforcement, without sufficiently concrete facts, is generally too speculative to support standing.
- When Congress grants an agency discretion to implement an experimental program, statutory “mandatory” duties tied to that program may reasonably be read as contingent on the program’s continued operation and effectiveness.
- Under Chevron, statutory silence or ambiguity on whether an agency may terminate a discretionary program permits deference to a reasonable agency interpretation allowing termination consistent with statutory purposes.
- An agency may rely on program failure criteria adopted in an implementing rule as part of administering and ending an experimental program when the criteria indicate the program is not achieving its objectives.

## Conclusion

The Ninth Circuit upheld the Service’s 2012 rule ending the southern sea otter translocation program and management zone, finding standing only for concrete predation-related economic harms and concluding the agency reasonably interpreted Public Law 99-625 to allow termination of a discretionary experimental program that was not fulfilling its conservation purpose.


California Sea Urchin Comm’n v. Bean, 883 F.3d 1173 (9th Cir. 2018)