U.S. Supreme Court in 2017 (Wikipedia)

U.S. Supreme Court in 2017 (Wikipedia)

When the U.S. Fish and Wildlife Service launched a program in Southern California to reintroduce an otter population, imposing penalties for encroaching on the animal’s habitat, Congress passed a law to protect the fishing industry.

Federal officials, however, want to penalize fisherman who accidentally encroach on the otters, and now the U.S. Supreme Court will decide how much power those bureaucrats possess.

The case, California Sea Urchin Commission v. U.S. Fish and Wildlife, stems from the Fish and Wildlife Service’s plan in 1986 to widen the territory supporting the otter population.

Congress granted permission for the expansion, but among other things, forbade the agency from criminally prosecuting anyone who accidentally got too near an otter in the fishery.

It was “a key protection allowing fishermen to continue their work,” explained Jonathan Wood of the Pacific Legal Foundation, which is arguing at the Supreme Court that bureaucrats have simply decided to ignore the law.

Today, the otter population is healthy and growing, as documented by the U.S. Geological Survey, but the Wildlife Service says the population is “a failure” and wants to ignore the protections that Congress imposed, PLF warned.

The 9th Circuit Court of Appeals backed the Wildlife Service’s assertion, even while noting that nothing in the law could be read to give the agency authority to ignore its requirements.

“This reasoning turns administrative law on its head,” PLF argued. “If administrative agencies can constitutionally exercise any government power, they must derive it from an express grant from Congress. They can’t seize it based on Congress’ mere failure to anticipate the agency’s actions and preemptively object.”

PLF pointed out that every other court to consider the question “has correctly held that agency power must have some basis in a statute; if a statute is silent, that means Congress has not given the agency power.”

Wood argued that the  fundamental principles of the Constitution are that “government power must be divided up, rather than concentrated, and those who exercise it must be accountable to the people.”

“That’s why the founding fathers divided power between the federal and state governments and further distributed federal power among three independent branches,” he said. “They saw all too clearly that the concentration of too much power in too few hands is the greatest threat to individual liberty.”

Wood said the United States has strayed far from that ideal.

“Today, countless federal agencies have consolidated legislative, executive, and judicial powers and are not accountable to the people,” he said. “Bureaucrats, and not our elected representatives in Congress, make most of the laws that govern us. They have a free hand to enforce the laws they write and can even change those laws through creative interpretation. And they largely do this outside of the courts, relying instead on administrative law judges that agencies themselves select.”

Wood explained that the U.S. Fish and Wildlife Service is using the “Chevron deference,” a precedent he said was “invented” by the courts to let agencies do what they want.

Under that precedent, courts must defer to an agency’s interpretation of a statute unless the court finds it patently unreasonable, which he said, “they are not wont to do.”

“When Chevron deference applies, agencies win nearly 80 percent of cases, compared to 38 percent when courts don’t put a thumb on the scale in the government’s favor,” he explained.

Wood said the Chevron deference “is doubly harmful: it discourages courts from properly scrutinizing agency actions and makes it harder for Congress to limit their power in the first place.”

“If the meaning of a statute is principally determined by the bureaucrat rather than a neutral judge, it’s a pretty safe bet that she’ll maximize her power and minimize restraints regardless of what Congress actually wanted.”

‘Give power back to Congress’

PLF said the U.S. Supreme Court should use the otter case to begin limiting the damage of Chevron deference.

“This case demonstrates how difficult it would be for Congress to limit agency power under the Ninth Circuit’s theory. In allowing the Service to establish the otter population, Congress was clear about the conditions imposed. According to the statute, the Service ‘must’ issue a regulation that ‘shall include’ the mandatory fishery protections and, for good measure, the Service ‘shall implement’ those protections.”

The legal team said it’s time for the Supreme Court “to enforce the Constitution and give power back to Congress where it belongs.”

PLF argued that when Congress authorized the otter project in 1986, it was “conditioned on several mandatory protections for surrounding fishery.”

“Twenty-five years after accepting this authority and reintroducing sea otters into these waters, the Service repealed the regulation and terminated the statute’s protections,” PLF said.

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