Working Together is the Only Way
Working Together is the Only Way
The Sea Otter File
A Big Win
Some good news! After nearly 7 years of litigation, advocates for sea otter conservation have finally succeeded in laying to rest the lawsuit that threatened recovery of the southern sea otter population along California’s coast. In the final action on this matter, the U.S. Supreme Court recently declined to hear the appeal of the lawsuit over the “No Otter Zone” in southern California waters. This litigation had been brought by several shellfishery organizations in an attempt to contain sea otters to central California waters and prohibit them from recovering back into their historic range that included southern California.
The Supreme Court’s refusal to take up the appeal leaves standing as the last word on the matter the 9th Circuit Court of Appeals decision that found in favor of the U.S. Fish and Wildlife’s sea otter conservation program which terminated the “No Otter Zone” and set the stage for sea otters to re-populate southern California waters over time. The decision concluded the agency’s approach complied with all applicable laws. The court even stated that the shellfisheries’ argument interpreting the law would require the “No Otter Zone “to continue even if…it was counter-productive and harmed, rather than protected, threatened or endangered species.” The court concluded “That would make no sense whatsoever.”
At issue in the case was the Sea Otter Translocation Program, begun in the mid-1980’s. At that time, the Fish and Wildlife Service implemented a program created by Congress to capture and move 140 southern sea otters from central California waters to southern California around San Nicolas Island (one of the Channel Islands near Santa Barbara). The idea was to create a backup colony of sea otters so that in the event a disaster – like a big oil spill – killed the few remaining sea otters along our central California coast, the species could still survive and re-populate.
A political tradeoff was agreed to when that program was created, as shellfishery representatives for southern California waters weren’t thrilled at the idea of re-introducing sea otters since they had been absent, due to hunting, for decades. The shellfisheries’ concern was that sea otters would compete for shellfish and harm the commercial operations’ profitability. It was agreed that there would be a “No Otter Zone,” essentially everywhere other than San Nicolas Island would be declared to be off-limits to sea otters. Any sea otters that strayed into those prohibited waters were to be removed by the Fish and Wildlife Service. In addition, sea otters’ protections under the Endangered Species Act (ESA) were suspended, meaning there were no effective ESA penalties for killing or injuring sea otters in those waters.
After several years, it became apparent that the experimental, translocated population was not succeeding, and eventually Fish and Wildlife terminated the program, restored the ESA protections, and ended the “No Otter Zone.” This action opened the way for sea otters to begin a very slow expansion into southern California waters. And it triggered the shellfisheries’ lawsuits.
After years of litigation, and multiple decisions in favor of the Fish and Wildlife Service, we’ve finally come to the end of the legal battle. In the course of many hearings and briefings, sea otter interests were ably represented by lawyers from EarthJustice, the Center for Biological Diversity, and the U.S. Fish and Wildlife Service.
In the final analysis, there is no guarantee that sea otters will succeed in expanding back into their historic range, which included southern California waters and Baja California, as well as north of our central coast area. But removing human-made barriers, such as the “No Otter Zone,” provides the best chance. After all, it is the human-made problem that created this population crisis in the first place – our having hunted sea otters nearly to extinction, for their fur.
There are other legal battles on the horizon, but today we can take comfort in this significant step forward.
The Sea Otter File
Some Good News and Some Bad News
This year’s 16th annual National Sea Otter Awareness Week, held during the last week of September, saw a wide range of well-attended events in the Monterey bay area and up and down the California coast. It is heartening to know that awareness of these keystone creatures is still a focal point for large number of people. That’s good, because it will take many advocates and a high level of commitment, sustained over a long period of time, to help assure the recovery of this species that was nearly hunted to extinction.
Is the recovery going to succeed? The challenges are big. The 2018 sea otter census numbers were released during Sea Otter Awareness Week. This year’s count declined slightly from last year. In turn, last year’s number was a slight decline from the year before. While each year’s decline has been just a few percentage points, the actual number is just 3,128 sea otters remaining. This unfortunate slight downward trend has been reported in various ways, including as a “good news” story about sea otter recovery. We should not be misled however: it is not good news that the number is declining.
What is sometimes reported, I think, as good news is that even though declining, the number has stayed over 3,090 for a third year in a row. The focus on that 3,090 number is because that is the figure identified in the long-term recovery plan used by the U.S. Fish and Wildlife Service to serve as the trigger for consideration of de-listing the southern sea otter from its protected status under the Endangered Species Act. The plan calls for consideration of de-listing if, for three years in a row, there are more than 3,090 sea otters. It does not mean that they will be de-listed and lose the protections, but they are eligible to be considered by the agency for that change in their status.
While the “magic” number has now been reached for a third year in a row, we can see from the declining numbers that the recovery is not progressing to an ultimately sustainable number of sea otters along our coast. Researchers have found that the food supply in the narrow, several hundred-mile range sea otters currently occupy, simply cannot support a number that is significantly greater than about 3,000, give or take a couple of hundred. This is why great emphasis has been placed on the need for expansion of sea otters into a broader portion of their historic range. Originally, sea otters were found from Japan all the way around the northern Pacific rim through Alaska and down the West Coast of United States and into Baja California.
Recovery of the southern sea otter into something beyond its current range, such as southward into the southern California waters, is necessary to create the expanded territory that will allow for additional food resources that can, in turn, support additional numbers. It is only through this type of expansion that sea otter numbers will get significantly above 3,000 and be able to become a sustainable species once again.
The Endangered Species Act, the United States’ premier wildlife protection law, was carefully designed to be sure that actions taken either in placing creatures under protection of the act or removing them from protection would not be done without adequate scientific basis. It is for that reason the specific number of any creature is not actually the only factor to be considered under the law. It is only one of several factors. The other factors involve questions like: is there disease or predation affecting the population? Is there present or threatened destruction, modification, or curtailment of the species' habitat or range? Is there overutilization for commercial, recreational, scientific, or educational purposes? Are there other natural or manmade factors affecting its continued existence? While the number is the trigger for consideration, it is not the sole factor in the final decision.
This is where it gets even more interesting. Given the political climate right now, it will be critical for those who are passionate about the conservation of sea otters to make sure the government agencies involved in this process adequately take into account those factors other than number. Unfortunately, there has been an aggressive movement in the last two years, largely anti-government and anti-environmental protection, that aims at reducing conservation efforts and reducing the number of animals that are protected. It is possible to envision a scenario in which the there is an attempt to prematurely remove the sea otter from federal protection as a result of this political dynamic. Citizens and experts will have to watch carefully and weigh in to assure that all the factors are considered. Only time will tell whether good science and the conservation ethic to protect and conserve species will prevail or whether it will be necessary to resort once again to litigation to try to help assure full compliance with the Endangered Species Act and the goals it embodies.
The Sea Otter File
Sea Otters and Humans: A Dangerous Mix?
The story of the recovery of the sea otter has always been defined primarily by this beautiful and important creature’s relationship with humans. From the time when we hunted them nearly to extinction for their luxurious fur, killing more than one million around the Pacific Rim, to today, this continuing drama is more about us than we often care to admit.
After near-extinction in the early 1900s – the southern (or California) sea otter subspecies was down to about 40 remaining animals just off the coast of Big Sur – the surviving handful began a slow recovery only because hardly any humans knew of their continued existence. Almost everyone, including the general public, researchers, and scientists, believed all three of the subspecies of sea otter were extinct. With the exception of a few local residents, their location near Big Sur was out of sight of humanity. Highway 1 wasn’t opened along that stretch of coast until construction was completed in 1938, and the period of lack of visibility and accessibility for the prior decades saved them, allowing the few remaining sea otters to survive and recover without disturbance.
During the two centuries prior to the early 1900s, the hazards of the rocky coastline and dangerous waters along the Big Sur coast had prevented them from being easily hunted, unlike the colonies along the coast both to the north and to the south. In these other waters, ships (and their hunting canoes) could more readily get at them.
Hunting sea otters was outlawed in 1911, although by then their numbers had plummeted. After 1938, once Highway 1’s opening brought more sets of eyeballs to that stretch of coast, they were re-discovered. Once again, our impact on this vulnerable species was renewed. Today we can see the many ways.
We threaten the quality of the water and the air of the ecosystem in which they live. Climate change, with its effect of global warming, impacts the ocean temperature and affects the food chain upon which they rely. Increasing acidification at the surface of the ocean makes it harder for shellfish to grow and maintain their (calcium carbonate) shells, which are very sensitive to that acidification. Sea otters rely on shellfish as their primary source of food.
We also compete directly with sea otters for the limited food resources that are found along their near shore ocean waters. We eat what they eat, and vice versa. Limitations in the food supply are now limiting their possible recovery to sustainable numbers. There is simply not sufficient food within the narrow range along the coast in which the sea otters live to support a population much larger than the approximately 3,200 we have today.
Despite some successes in controlling commercial and residential development along the coastline and the discharge of toxic runoff into the ocean, we nonetheless contribute vast quantities of dangerous substances into the sea otter’s habitat. This is doubly true of pollution in general, such as plastics. We also have greater risks of devastating oil spills which pose perhaps the greatest single danger to the small remaining population along our coast.
If these problems weren’t enough to wreak havoc with recovery of a species that has been listed as threatened under the Endangered Species Act since 1977, some of our policies designed to help protect the species have in some instances backfired and led to higher risk and greater uncertainty. In this category is the litigation I have reported on so often in this column. Unfortunately, once again there are new developments to report.
I reported several months ago that after 6 years of litigation the Ninth Circuit Court of Appeals had sided with sea otter conservation advocates, ruling that the U.S. Fish and Wildlife Service had properly restored the sea otter protections under the Endangered Species Act in southern California waters in 2012. For many years, these protections had been suspended under a special program. The Court also held that the agency had properly ended the “No Otter Zone,” a program under which they had been obligated to remove any sea otters that strayed into southern California waters from a prescribed area.
These lawsuits had been brought by representatives of southern California shellfisheries, who had been arguing for restoration of the “No Otter Zone” along southern California’s coast. The Court found that to “require the program to continue even if . . . it was counter-productive and harmed, rather than protected, threatened or endangered species . . . would make no sense whatsoever.” It rejected the shellfisheries’ arguments (which were legally insufficient, and not based on scientific or economic grounds).
That was the good news. The bad news update today is that this victory has been appealed to the U.S. Supreme Court. Once again, the outcome of the litigation is uncertain.
While it is unlikely that the U.S. Supreme Court will take up the case, which would mean the current decision would stand, it remains a possibility. There are political undercurrents to the lawsuits that make it an attractive case for the court to take up if it wants to weigh in on issues unrelated to sea otters but to how agencies make their decisions and how courts review such decisions. Thus, politics plays a role in decisions affecting how we as humans try to “manage” nature, even with the best of intentions. After all, the program that has been in litigation for all these years was a program begun by Fish and Wildlife for the purpose of helping preserve sea otters – not halt their recovery.
We will have to see how the story unfolds from here, but it shifts the focus of the sea otter survival story right back on humans, policymaking, and the law. We may not be hunting the sea otters anymore, but our decisions and actions have the same force and effect on their recovery as spears and guns had in the past.
Two final notes: First, this year’s annual count of sea otters should be released within the next few weeks, which will be a very important indicator of where the recovery stands. Second, National Sea Otter Awareness Week is the last week of this month. I will provide more information on the story at a special Sea Otter Awareness Week presentation at the Seymour Marine Discovery Center in Santa Cruz on Sunday, September 30, at 4 pm. Hope to see you there!