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Otters, Urchins, and Congressional Authority

August 23, 2018

by Adi Dynar
August 23, 2018

Imagine you are a teenager and your parents left you in charge of the house while they went out over the weekend. They failed to mention that you shouldn’t call your friends over and party while they are gone. Did they, by their silence, authorize you to have a party? Obviously not.

But the U.S. Fish and Wildlife Service might think otherwise. It thinks congressional silence authorizes them to do bad things to the good guys, and that their interpretation should be rubber-stamped without consequence by the U.S. Supreme Court. This is what’s at stake in California Sea Urchin Commission v. Combs, a case currently pending in the Supreme Court.

To protect southern sea otters, Congress passed a law allowing the Service to resettle otters from central California waters to southern California. That presented a problem, though, because the introduction of otters in southern California waters meant they would eat other protected species found in southern California seas—specifically, white abalone. Resettlement also meant that fishermen would be subject to civil and criminal penalties under environmental regulations if they happened to “encounter” otters, inadvertently catch them, or get too close to them.

Being subject to these penalties and fines would have doomed the livelihood of the sea urchin divers—a unique group of fishermen that catch sea urchins in the region where the otters were to be relocated. So Congress decided to require the Service to exempt southern California fishermen from the civil and criminal penalties if they inadvertently captured or got too near an otter.

The Service did what Congress asked. It relocated over a hundred otters in southern California seas and protected the fishermen by passing a regulation exempting them from the penalties.

Most of the relocated otters swam back to central California, but a few remained and established a thriving population on San Nicholas Island. By the early 2000s, the population was growing at a healthy rate of 7 percent per year (compare that to the human population growth rate of 1.09 percent per year in 2018). In 2016, the growth rate doubled to 13 percent per year, and the otter program reached (and exceeded) its goal.

Yet in response to a lawsuit brought by an environmental group, the Service declared the program a failure—because some otters swam up north —and repealed the fishery protections. They did this despite the fact that Congress conditioned the otter program on extending those protections.

But it’s true, the Act that Congress passed did not actually say whether the Service could repeal those protections. And that’s where the lawsuit comes in.

The fishermen sued, arguing that the Service had no authority to abolish the protections for them, and now the Supreme Court must decide whether congressional silence means that an agency may take an action or not. That raises an issue we’ve blogged about before: the deference doctrine called Chevron deference. Under Chevron deference, courts will rubber-stamp a federal agency’s actions except in the rarest circumstances. The doctrine has led to a vast expansion of federal agency power.

Recently, prominent judges and academics—including Supreme Court Justice Anthony Kennedy—have questioned the continued validity of Chevron deference.

In the Sea Urchin case, we’ve joined the Cato Institute and Cause of Action Institute in an amicus brief arguing that extending Chevron to apply to cases where Congress has been silent turns every law into an open-ended delegation to unelected bureaucrats with no limiting principle. And it would require Congress to anticipate and fill every statutory gap with an explicit prohibition—but even then, unelected bureaucrats would, like kids, take things too literally anyway, and exploit alleged ambiguity to expand their power. Attorneys General of 16 states and the Governor of one state support the fishermen and argue in favor of getting rid of Chevron deference once and for all.

While courts are far from reaching the crux of the problem—delegation of lawmaking authority to unelected bureaucrats—the days of Chevron are numbered, and the plight of California fishermen might just be the case to resolve the problems caused by the Chevron doctrine. Last year, Arizona enacted Goldwater Institute-drafted legislation eliminating Chevron deference at the state level. It’s time for the U.S. Supreme Court to do the same.

Adi Dynar is a staff attorney at the Goldwater Institute.



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