Disabling the No-Otter Zone
UPDATE: In March 2017, U.S. District Court Judge Dolly M. Gee issued a ruling denying a challenge by commercial fishing organizations to the U.S. Fish and Wildlife Service (FWS) decision to terminate the no-otter zone and protect sea otters in Southern California. This decision follows another court’s decision to uphold the no-otter zone termination in September 2015. These great decisions will ensure the sea otters retain full protections in Southern California waters. Read more about the history of the no-otter zone using the tabs above.
The No-Otter Zone was terminated in January 2013. Despite numerous legal challenges to this termination from commercial shellfishing organizations and other interests, the courts continue to uphold the decision by the Fish and Wildlife Service to terminate the no-otter zone. FSO continues to serve as an intervening defendant in challenges to the termination decision, and will fight tirelessly to ensure it is not reinstated.
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Friends of the Sea Otter (FSO) has been tirelessly working with its partners for the past 26 years, pushing for the termination of the No-Otter Zone off the coast of southern California which stretches south from Point Conception in Santa Barbara County to the Mexican border.
We welcome you to explore the current status of the No-Otter Zone, background information, and the opposition to expanding the legal range of the southern sea otter.
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FSO, and the sea otters want to thank you for speaking out!
Currently, there are no actions required because the No-Otter Zone was eliminated in December 2012 (see “Status Update”).
BACKGROUND: THE NO-OTTER ZONE AND TRANSLOCATION
The No-Otter Zone was originally created by the U.S. Fish and Wildlife Service (the Service) in 1987 to appease fishing interests while establishing an “experimental” population of sea otters in the kelp forests surrounding San Nicolas Island. It was intended that this population would serve as a “backup” for the species in case a major disaster, like an oil spill, devastated the original, narrow range of the southern sea otter. In that event, sea otters from San Nicolas Island, thought at the time to be out of the range from any likely oil spill (this was later proven wrong), would repopulate the original range.
This experimental population around San Nicolas Island was expected to grow independently from an initial “translocated” group of sea otters. The original law called for up to 250 sea otters to be captured and transported from their parent population along the coast of California and released at San Nicolas Island, located within historic sea otter habitat However, by August of 1990 the Fish and Wildlife Service decided to halt the “capture, transport, and release” phase of the program. By then, 140 sea otters had already been translocated to San Nicolas Island, but only 13 of the animals are known to have remained at the island.
Public Law 99-625, the rule that created the No-Otter zone and the translocated sea otter population, stipulated 5 criteria that, if any were not met, would mean the translocation program had failed. Those 5 criteria are:
- If, after the first year following initiation of translocation or any subsequent year, no translocated otters remain within the translocation zone, and the reasons for emigration or mortality cannot be identified and/or remedied;
- If, within three years from the initial transplant, fewer than 25 otters remain, and the reasons for emigration or mortality cannot be identified or remedied;
- If, after two years following the completion of the translocation phase, the experimental population is declining at a significant rate, and the translocated otters are not showing signs of successful reproduction (i.e., no pupping is observed); however, termination of the project under this and the previous criterion may be delayed, if reproduction is occurring, and the degree of dispersal into the management zone is small enough that no effort to remove otters from the management or no-otter zone would be acceptable to the Service and the affected State;
- If the Service determines, in consultation with the affected State and the Marine Mammal Commission that sea otters are dispersing from the translocation zone and becoming established within the management zone in sufficient numbers to demonstrate that containment cannot be successfully accomplished. This standard is not intended to apply to situations in which individuals or small numbers of otters are sighted within the management zone or temporarily manage to elude capture. Instead it is meant to be applied when it becomes apparent that, over time (one year or more), otters are relocating from the translocation zone to the management zone in such numbers that:1. an independent breeding colony is likely to become established within the management zone or2. they could cause economic damage to fishery resources within the management zone. It is expected that the Service could make this determination within a year, provided that sufficient information is available; and
- If the health and well-being of the experimental population should become threatened to the point that the colony’s continued survival is unlikely, despite the protection given to it by the Service, State and applicable laws and regulations. An example would be if an overriding military action for national security was proposed that would threaten to devastate the colony and the removal of otters was determined to be the only viable way of preventing loss of the colony.
The Service found that the translocation program had failed under Criteria 2 and 3 in its Biological Opinion published in 2000.
Furthermore, in the 2003 Final Recovery Plan for the Southern Sea Otter, the Service identified 4 key criteria that have altered the need and rationale for a translocation program and No-Otter Zone:
- Active intervention in the form of a translocation was considered necessary to expedite sea otter range expansion to ensure recovery. With renewed population growth from the late 1980s to the mid-1990s, however, additional translocations were no longer believed to be an efficient means of recovering the southern sea otter population, in large measure because of their high cost and low probability of success. This assessment represents a fundamental change in recovery strategy. The fact that the population is not increasing reinforces the need for this changed recovery strategy.
- The Exxon Valdez oil spill confirmed many of the worst fears about the consequences of such events….The distance over which the oil rapidly spread during the…disaster indicates that the translocated colony at San Nicolas Island could not provide a reasonable safeguard against an oil spill of this magnitude.
- The translocation of southern sea otters to San Nicolas Island has been less successful than originally hoped for as a means of establishing a second, self-sustaining population of southern sea otters…even if the population at San Nicolas Island persists, many years will be required before the population is large enough to be considered an effective reserve to buffer against possible local extinction. In addition, our earlier assumption that the mainland population, if decimated by an oil spill or other event, could be restored using small numbers of animals from the San Nicolas Island colony may not be realistic given the tendencies of translocated sea otters to disperse.
- Maintenance of a management or “no-otter” zone using non-lethal means has proven costly and ineffective. Large numbers of otters…have been observed frequenting the northern end of the management zone…[and the] animals appear to move into and out of the zone seasonally from areas along the mainland to the north… [and] it is clear that it did not occur as a result of the population increasing in size….The rapidity with which southern sea otters can move throughout their range makes maintenance of a management zone difficult if not impossible.
In eleven out of the last twenty three years, there have been fewer than 25 sea otters at San Nicolas Island, which, alone, is sufficient to support that the translocation effort was unsuccessful. It was expected that there would be between 150 to 500 sea otters in 11 and to 30 years from when the last sea otter was translocated in 1990. Although more than 70 births are known to have occurred at SNI from 1987 to 2002, “the population size has remained small and its future prospects are uncertain”(2003 Recovery Plan, at p. viii).
The sea otter census in 2008 found that only 42 sea otters remained at San Nicolas Island, while the southern sea otter population as a whole had actually decreased according to a three-year average in 2010. The sea otter population at San Nicolas Island has grown slightly in recent years with an estimate of over 50 animals in 2012.
In October 2005, the Service published a Draft Supplemental Environmental Impact Statement (DSEIS) for the Translocation of Southern Sea Otters. The stated purpose of the supplement is to “evaluate the impacts of the southern sea otter translocation plan as described in [the Service’s] 1987 environmental impact statement, using information obtained over the 18 years since the plan’s inception, and to evaluate alternatives to the current translocation program, including termination of the program or revisions to it.”
The proposed action in the DSEIS, alternative 3C, is to “[t]erminate the southern sea otter translocation program based on a failure determination…and do not remove sea otters residing within the translocation of management zones at the time the decision to terminate is made.” It called for termination of zonal management based on a failure determination and leaving all sea otters in the translocation and management zones.
A supplement to the 2005 DSEIS was published on August 18, 2011. Along with this updated DSEIS, the Service indicated that it intended to move forward with Alternative 3c, which would terminate the No-Otter Zone and leave in place the translocated population.
Friends of the Sea Otter and its partners are adamant about ending the No-Otter Zone while extending to those otters remaining at San Nicolas Island the same rights afforded to all sea otters under the Endangered Species Act and the Marine Mammal Protection Act. Please consider joining FSO in supporting the Service’s proposed decision!
In our mission to free the southern sea otter and end the No-Otter Zone, we have come upon a few groups who oppose FSO’s proposed actions to aid in the recovery of the southern sea otter south of Santa Barbara. For various reasons, these groups have made it their priority to maintain the No-Otter Zone and thus contain the southern sea otter to only a portion of their historic range.
THE CALIFORNIA SEA URCHIN COMMISSION
Caption: A sea urchin. Photo by BlueRidgeKitties, Flickr
The California Sea Urchin Commission (CSUC) opposes the termination of the No-Otter Zone simply based on the natural feeding habits of the southern sea otter. Their opposition stems from the unnatural condition of the nearshore environment within the No-Otter Zone created by the near-extermination of the southern sea otter in the 18th and 19th centuries.
Historically, the sea otter’s habitat stretched from the Kamchatka Peninsula in Russia, through the cold fjords of Alaska and British Colombia, and down south to the warm waters of Baja California. Throughout this range, the sea otter preyed on a variety of species including one of their favorite meals: sea urchins. Because sea urchins feed primarily on kelp, sea otters maintained a coexistence that allowed kelp forests to thrive and support an abundant ecosystem.
Without a robust sea otter population, sea urchins are left devoid of a major predator to manage their population. As a result of the fur trade and the subsequent collapse of sea otter populations in southern California, sea urchin numbers exploded. Unchecked, the sea urchin population grew to unnatural levels, destroying kelp forests and creating what scientists call “urchin barrens.”
Since the decline of the southern sea otter, urchin fisheries have grown up around these unnatural “urchin barrens” in southern California. They claim that undue economic hardship for those who extract sea urchins would result with the return of sea otters. A report by Dr. John Loomis prepared for the Defenders of Wildlife, though, forecasts an overall economic gain of $100 million for the expansion of southern sea otters into the No-Otter Zone.
Friends of the Sea Otter maintains that the promulgation of unnatural conditions within the No-Otter Zone for the benefit of the sea urchin industry and at the expense of southern sea otter recovery is bad policy and contrary to the requirements for species recovery under the Endangered Species Act. Furthermore, the overall economic benefits of restoring a natural ecosystem to the waters of southern California through sea otter expansion and kelp growth, as well as revenue realized through tourism and the value placed on the sea otter by its mere existence outweighs the cost to fishers of increased competition from sea otters.
CALIFORNIA ABALONE ASSOCIATION, et al
Various groups, including CSUC and the California Abalone Association, oppose the expansion of sea otters due to the sea otter’s voracious diet on endangered species, in particular the white abalone. Increased numbers of sea otters and their expansion, they argue, would mean the utter collapse of these abalone populations.
Friends of the Sea Otter, again, bases its opinion on the best available science. There is no evidence that sea otters have contributed to the decline of the white abalone, mostly because the decline occurred where sea otters were not, at the time, present. The Final White Abalone Recovery Plan states:
“Predation by sea otters is not likely to have been a major factor in the decline of white abalone due the absence of sea otters within the range of white abalone during their decline,” (pg. 39) and,
“Abalone are important prey of sea otters; however, there is no evidence that sea otter predation has resulted in extirpation of abalone.” (pg. 33).
Furthermore, before humans began to alter California’s nearshore environment , abalone and sea otters coexisted for thousands of years. Therefore, Friends of the Sea Otter suggests that other factors, not sea otter predation, have resulted in the decline of white abalone off the coast of California to endangered status. The expansion of the southern sea otter range will not directly result in the extinction of the white abalone because, in the past, the two species have coexisted.
OIL AND GAS INDUSTRIES
Caption: 1969 Santa Barbara Oil Rig Blowout released 3 million barrels of crude oil into the Santa Barbara Channel.
Oil and gas industries operating vast offshore drilling operations in the waters south of Point Conception have a long history of opposing sea otter expansion. Because sea otters are federally listed under the Endangered Species Act, a federal agency and the Secretary of the Interior must initiate Section 7 consultation when a proposed action can adversely affect sea otters. The issuing of drilling licenses and permits by the Department of the Interior and the Minerals Management Service falls under this requirement. Friends of the Sea Otter maintains that, based on the best available science, oil drilling poses a major threat to sea otters. The U.S. Fish and Wildlife Service has agreed with this assertion many times in the past (see resources below) . Indeed, the rationale for the Translocation Program was to establish a viable colony of sea otters who are safe from any potential oil spill and can be used to repopulate the parent range should an oil spill seriously harm the southern sea otter population. With new light being shed on the potential for major oil spills to devastate even the failing translocated colony (based on the Exxon-Valdez incident and Event Horizon blowout in the Gulf of Mexico), further expansion of oil operations in sea otter habitat should be avoided.
UPDATE: March 2017: U.S. District Court Judge Dolly M. Gee upholds FWS decision to terminate the no-otter zone.
UPDATE: September 2015: Courts uphold FWS decision to terminate the no-otter zone.
UPDATE: February 2015: Once again, Friends of the Sea Otter, represented by EarthJustice, and joined by Center for Biological Diversity, The Humane Society of the United States, and Defenders of Wildlife filed a motion to intervene in the case so that we can defend U.S. Fish and Wildlife Service’s decision to end the no otter zone.
UPDATE: November 2014: The California Sea Urchin Commission has filed a second case challenging the U.S. Fish and Wildlife decision to end the no otter zone.
UPDATE: 3 March 2014: On March 3, 2014, Judge Dolly M. Gee dismissed the California Sea Urchin Commission’s (CSUC) case challenging U.S. Fish and Wildlife Service’s (FWS) decision to end the no otter zone. She agreed with FWS that it was too late now to challenge the 1987 FWS regulation implementing the no otter zone and the translocation program. She has, however, given CSUC leave to amend its complaint to make a valid claim against FWS. The plaintiffs, CSUC, have until March 24 to amend their complaint, should they choose to do so. If they do file an amended complaint, our groups, as intervenors, will have 21 days from the date they file the amended complaint to file our response and continue any efforts to defend FWS’s decision to end the no otter zone.
UPDATE: 23 October 2013: On October 23, 2013, U.S. Fish and Wildlife Service (FWS) asked the court to throw out the case based on the theory that the fishing groups were challenging the 1987 regulation that set up the No Otter Zone, and the legal time period for filing such a challenge has passed. We are waiting for the court’s decision on FWS’s motion. Assuming the court decides to keep the case, they will then focus on the central issue of whether the FWS had the authority to end the No Otter Zone. Friends of the Sea Otter and our partners will fight, along with FWS, to ensure that the government is not forced to revive the failed No Otter Zone and translocation program.
UPDATE: 14 August 2013: On July 30, 2013 the California Sea Urchin Commission, California Abalone Association, the California Lobster and Trap Fishermen’s Association, and the California Fishermen of Santa Barbara filed a lawsuit against the U.S. Fish and Wildlife Service. The lawsuit is to challenge the decision by U.S. Fish & Wildlife Service to end the 2.5 decade old No Otter Zone, which was officially eliminated in January 2013. Friends of the Sea Otter will be represented by EarthJustice, and we will be joined by Center for Biological Diversity, The Humane Society of the United States, and Defenders of Wildlife to legally uphold the decision by the Service to allow sea otters to reoccupy historic habitat in Southern California. Click here to read the press release!
UPDATE: 4 March 2013: As of December 18, 2012 U.S. Fish and Wildlife Service has eliminated the No-Otter Zone and it became official on January 18, 2013. Sea otters are now legally free to go where they need to go to recover their population, with no restrictions. And, sea otters in California now have the full protection of the Endangered Species Act.
UPDATE: 15 February 2012: Rep. Gallegly (R – Ventura and Santa Barbara Counties) has introduced legislation that would stall the current process to end the No-Otter Zone and bar sea otters from reestablishing their former range and habitat. Click here to learn more about H.R. 4043, and click here to take action against this bill!
UPDATE: 21 November 2011: The coalition of sea otter groups (Friends of the Sea Otter, Defenders of Wildlife, The Humane Society, Monterey Bay Aquarium, and Oceans Public Trust Initiative) joined the thousands of people who spoke up for sea otters and submitted comments on the No-Otter Zone to the Fish and Wildlife Service (FWS) on 21 November 2011. Now we wait while FWS reviews all submitted comments to the draft Supplemental Environmental Impact Statement and subsequently release a final Environmental Impact Statement and final determination by December 7, 2012.
UPDATE: August 17, 2011: By working with the Fish and Wildlife Service, Friends of the Sea Otter and our partners achieved an initial decision by the Service to end the no-otter zone while allowing the San Nicolas Island population to remain in place. Read more here.