California Sea Urchin Comm'n v. Michael Bean

Plaintiffs, California Sea Urchin Commission and other commercial fishing groups, appeal the district court’s dismissal of their complaint alleging that the U.S. Fish and Wildlife Service (FWS) violated its statutory authority under Public Law 99-625 by terminating a translocation program for the southern sea otter. The district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. Reviewing the dismissal de novo, Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002), we reverse and remand for the reasons that follow.

I

The southern sea otter, also known as the California sea otter, historically ranged throughout the California coast, but was hunted to near extinction for its fur in the 1700s and 1800s. The southern sea otter was listed as a threatened species under the Endangered Species Act (ESA) in 1977. Although the sea otter’s population and range had increased since federal and state bans on hunting in the early 1900s, it was still only about 10% of its historical level at the time of listing. 52 Fed. Reg. 29,754 (Aug. 11, 1987) (“Final Rule”). In 1982, FWS finalized a…