California Sea Urchin Comm'n. v. Michael Bean

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CALIFORNIA SEA URCHIN                  No. 15-56672
COMMISSION; CALIFORNIA ABALONE
ASSOCIATION; COMMERCIAL                   D.C. No.
FISHERMEN OF SANTA BARBARA,            2:14-cv-08499-
              Plaintiffs-Appellants,      JFW-CW

                 v.

MICHAEL BEAN, in his official
capacity as Acting Assistant
Secretary for Fish & Wildlife &
Parks, Department of Interior;
DEPARTMENT OF INTERIOR; DANIEL
M. ASHE, in his official capacity as
Director of the United States Fish &
Wildlife Service; UNITED STATES
FISH & WILDLIFE SERVICE,
               Defendants-Appellees,

                and

CENTER FOR BIOLOGICAL DIVERSITY;
DEFENDERS OF WILDLIFE;
ENVIRONMENTAL DEFENSE CENTER;
FRIENDS OF THE SEA OTTER;
HUMANE SOCIETY OF THE UNITED
STATES; LOS ANGELES
WATERKEEPER; THE OTTER PROJECT,
   Intervenor-Defendants-Appellees.
2         CAL. SEA URCHIN COMM’N V. BEAN

      Appeal from the United States District Court
         for the Central District of California
       John F. Walter, District Judge, Presiding

CALIFORNIA SEA URCHIN                    No. 17-55428
COMMISSION; CALIFORNIA ABALONE
ASSOCIATION; CALIFORNIA LOBSTER            D.C. No.
AND TRAP FISHERMEN’S                    2:13-cv-05517-
ASSOCIATION; COMMERCIAL                   DMG-CW
FISHERMEN OF SANTA BARBARA,
              Plaintiffs-Appellants,
                                           OPINION
                 v.

RACHEL JACOBSON, in her official
capacity as Acting Assistant
Secretary for Fish and Wildlife &
Parks, Department of Interior; U.S.
DEPARTMENT OF THE INTERIOR;
DANIEL M. ASHE, in his official
capacity as Director of the United
States Fish and Wildlife Service;
UNITED STATES FISH AND WILDLIFE
SERVICE,
               Defendants-Appellees,

FRIENDS OF THE SEA OTTER;
HUMANE SOCIETY OF THE UNITED
STATES; DEFENDERS OF WILDLIFE;
CENTER FOR BIOLOGICAL DIVERSITY;
THE OTTER PROJECT;
ENVIRONMENTAL DEFENSE CENTER;
LOS ANGELES WATERKEEPER,
   Intervenor-Defendants-Appellees.
             CAL. SEA URCHIN COMM’N V. BEAN                         3

        Appeal from the United States District Court
           for the Central District of California
          Dolly M. Gee, District Judge, Presiding

          Argued and Submitted December 4, 2017
                   Pasadena, California

                       Filed March 1, 2018

  Before: Kim McLane Wardlaw and Ronald M. Gould,
 Circuit Judges, and Lawrence L. Piersol, * District Judge.

                    Opinion by Judge Gould




     *
       The Honorable Lawrence L. Piersol, United States District Judge
for the District of South Dakota, sitting by designation.
4             CAL. SEA URCHIN COMM’N V. BEAN

                          SUMMARY **


                      Environmental Law

    The panel affirmed the district courts’ decisions in favor
of the U.S. Fish and Wildlife Service in consolidated cases
brought by fishing industry groups challenging the Service’s
decision to end a 1987 sea otter translocation program.

    Pursuant to discretionary authority granted by Congress,
Public Law 99-625, the Service created an experimental
reserve population of southern sea otters some distance from
the main population. In 2012, the Service deemed the
program a failure and terminated it. The district courts held
that the Service’s interpretation of the statute allowing
termination was reasonable, and upheld the decision to end
the program.

    The panel held that the plaintiffs had standing. The panel
rejected plaintiffs’ contention that they had standing due to
the potential liability that they faced due to the elimination
of exemptions for incidental takes in the management zone
because plaintiffs did not allege a concrete and particularized
harm. The panel held that plaintiffs did allege a concrete and
particularized harm based on the harms they suffer because
of sea otter predation of shellfish.

   On the merits, the panel held that the Service acted
lawfully in terminating the translocation program in 2012
because it was based on a reasonable interpretation of the

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            CAL. SEA URCHIN COMM’N V. BEAN                    5

statute. The panel further held that in the circumstances
here, where the agency had discretion to implement an
experimental program, the agency could reasonably interpret
the statute to allow it to terminate that program if the
statute’s purpose was no longer being served. The panel
rejected plaintiffs’ argument that the Service’s interpretation
raised a serious constitutional question and should be
rejected on constitutional avoidance grounds. Specifically,
the panel rejected plaintiffs’ argument that the statute did not
provide any criteria to guide a decision on termination of the
program, and that the Service’s interpretation would
therefore violate the non-delegation doctrine. Finally, the
panel rejected plaintiffs’ contention that a 1994 amendment
to the Marine Mammal Protection Act, relaxing restrictions
on incidental takes, supported their view.



                         COUNSEL

Jonathan Wood (argued), Pacific Legal Foundation,
Arlington, Virginia; M. Reed Hopper, Damien M. Schiff,
and Johanna B. Talcott, Pacific Legal Foundation,
Sacramento, California; for Plaintiffs-Appellants.

Rachel E. Heron (argued), Alison C. Finnegan, John L.
Smeltzer, Andrew Mergen, and Matthew Littleton,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General, United
States Department of Justice, Washington, D.C.; Lynn Cox
and Kerry O’Hara, Office of the Solicitor, Pacific Southwest
Region, United States Department of the Interior,
Sacramento, California; for Defendants-Appellees.
6           CAL. SEA URCHIN COMM’N V. BEAN

Andrea A. Treece (argued) and Irene V. Gutierrez,
Earthjustice, San Francisco, California; Margaret M. Hall
(argued) and Linda Krop, Environmental Defense Center,
Santa Barbara, California; for Intervenor-Defendants-
Appellees.


                         OPINION

GOULD, Circuit Judge:

    In these consolidated cases, several fishing industry
groups challenge the U.S. Fish and Wildlife Service’s
(“Service”) decision to end a 1987 sea otter translocation
program. The program was established under discretionary
authority granted by Congress in 1986 to create an
experimental reserve population of southern sea otters some
distance from the main population. If the Service exercised
its discretion to establish the program, Public Law 99-625
required the creation of a management zone surrounding the
experimental population in which liability under the Marine
Mammal Protection Act and Endangered Species Act would
be relaxed. The law also required the Service to use
“feasible non-lethal means” to remove wayward sea otters
from this management zone. As part of its 1987 rule
establishing the experimental translocation program, the
Service adopted specific criteria by which the program
would be deemed a failure and terminated. In 2012, the
Service determined that the failure conditions had been met
and it ended the program. The fishing industry groups sued
in two separate federal district court cases, alleging that the
Service exceeded its statutory authority by terminating the
program. Both district courts held that the Service’s
interpretation of the statute as allowing the failed program to
be terminated was reasonable, and under the Chevron
            CAL. SEA URCHIN COMM’N V. BEAN                    7

doctrine upheld the Service’s decision to end the
translocation program. We affirm.

                               I

    The southern sea otter, or California sea otter, was
hunted to near extinction in the 1700s and 1800s for its fur,
and was listed as an endangered species in 1977 under the
Endangered Species Act (“ESA”). Cal. Sea Urchin Comm’n
v. Bean, 828 F.3d 1046, 1047 (9th Cir. 2016). In 1982 the
Service prepared a recovery plan for the sea otter. Under the
plan a new colony would be created far enough away from
the parent population so that an environmental catastrophe
like an oil spill would not endanger the entire species. Id.;
52 Fed. Reg. 29,754 (Aug. 11, 1987). Concerned with
whether it had sufficient authority to carry out the plan, the
Service asked Congress to extend its powers. In 1986 a
responsive Congress passed Public Law 99-625, which
clearly authorized the Service’s implementation of its plan
for the relocation and management of otters. Cal. Sea
Urchin Comm’n, 828 F.3d at 1047.                   The correct
interpretation of this law is the subject of this litigation and
the appeals before us.

    The relevant parts of Public Law 99-625 are set forth
below:

Section 1(b) states:

       PLAN SPECIFICATIONS. — The Secretary
       may develop and implement, in accordance
       with this section, a plan for the relocation and
       management of a population of California sea
       otters from the existing range of the parent
       population to another location. The plan,
       which must be developed by regulation and
8       CAL. SEA URCHIN COMM’N V. BEAN

    administered by the Service in cooperation
    with the appropriate State agency, shall
    include the following:

       (1) The number, age, and sex of sea otters
       proposed to be relocated.

       (2) The manner in which the sea otters
       will be captured, translocated, released,
       monitored, and protected.

       (3) The specification of a zone
       (hereinafter referred to as the
       “translocation zone”) to which the
       experimental     population will        be
       relocated. The zone must have
       appropriate characteristics for furthering
       the conservation of the species.

       (4) The specification of          a zone
       (hereinafter referred to          as the
       “management zone”) that —

           (A) surrounds the translocation zone;
           and

           (B) does not include the existing
           range of the parent population or
           adjacent range where expansion is
           necessary for the recovery of the
           species.

    The purpose of the management zone is to
    (i) facilitate the management of sea otters and
    the containment of the experimental
            CAL. SEA URCHIN COMM’N V. BEAN                9

       population within the translocation zone, and
       (ii) to prevent, to the maximum extent
       feasible, conflict with other fishery resources
       within the management zone by the
       experimental population. Any sea otter found
       within the management zone shall be treated
       as a member of the experimental population.
       The Service shall use all feasible non-lethal
       means and measures to capture any sea otter
       found within the management zone and
       return it to either the translocation zone or to
       the range of the parent population.

           (5) Measures, including an adequate
           funding mechanism, to isolate and
           contain the experimental population.

           (6) A description of the relationship of the
           implementation of the plan to the status
           of the species under the Act and to
           determinations of the Secretary under
           section 7 of the Act.

Section 1(c)(2) states:

       For purposes of section 7 of the Act, any
       member of the experimental population shall
       be treated while within the management zone
       as a member of a species that is proposed to
       be listed under section 4 of the Act. Section 9
       of the Act applies to members of the
       experimental population; except that any
       incidental taking of such a member during the
       course of an otherwise lawful activity within
       the management zone, may not be treated as
10          CAL. SEA URCHIN COMM’N V. BEAN

       a violation of the Act or the Marine Mammal
       Protection Act of 1972.

Section 1(d) states:

       IMPLEMENTATION OF PLAN. — The
       Secretary shall implement the plan developed
       under subsection (b) —

       (1) after the Secretary provides an opinion
       under section 7(b) of the Act regarding each
       prospective action for which consultation
       was initiated by a Federal agency or
       requested by a prospective permit or license
       applicant before April 1, 1986; or

       (2) if no consultation under section 7(a)(2) or
       (3) regarding any prospective action is
       initiated or requested by April 1, 1986, at any
       time after that date.

    In 1987, under the authority granted by Public Law 99-
625, the Service adopted a final rule implementing the
translocation program and designating San Nicolas Island as
the home for the experimental population. 52 Fed. Reg.
29,754 (Aug. 11, 1987). The fishing industry was opposed
to the translocation program because sea otters prey on
commercially valuable shellfish populations, and because
the industry could face liability under the Marine Mammal
Protection Act (“MMPA”) and the ESA for incidental takes
of southern sea otters. Cal. Sea Urchin Comm’n, 828 F.3d
at 1047. Because of these concerns, Public Law 99-625
required the Service to adopt a management zone
surrounding the experimental population in which fishermen
who incidentally harmed otters would be exempt from
            CAL. SEA URCHIN COMM’N V. BEAN                 11

liability under the MMPA and ESA. 52 Fed. Reg. 29,787
(Aug. 11, 1987). Public Law 99-625 also required the
Service to use “feasible non-lethal means” to capture and
remove otters from the management zone “to prevent, to the
maximum extent feasible, conflict with other fishery
resources.” Public Law 99-625 § (1)(b). The Service
adopted a management zone that extended north to Point
Conception, west by northwest of Santa Barbara. 52 Fed.
Reg. 29,782 (Aug. 11, 1987).

    The 1987 final rule, however, recognized that the
experimental population might not thrive, and that the
purpose of the translocation program might not be realized.
For that reason, the 1987 final rule included five specific
“failure conditions,” any one of which would be a basis for
ending the program, including its management zone liability
exemptions and the Service’s attempts to use feasible non-
lethal means to remove otters from the management zone.
52 Fed. Reg. 29,784 (Aug. 11, 1987).

    Unfortunately, the San Nicolas population never took off
and there never developed a viable independent colony that
could continue if an oil spill or other environmental disaster
were to threaten the main colony. A 2012 assessment put
the population at about fifty otters, a number insufficient to
achieve the program’s purpose. 77 Fed. Reg. 75,278 (Dec.
19, 2012). In 2009, Friends of the Sea Otter and other
environmental organizations sued the Service for
unreasonable delay in terminating the translocation program.
Cal. Sea Urchin Comm’n, 828 F.3d at 1048. The parties
reached a settlement requiring the Service to issue a final
decision on program termination by the end of 2012. Id.
That year, the Service determined that one of the failure
conditions in the 1987 rule had been satisfied, and it ended
the program, thereby eliminating any exemptions from
12          CAL. SEA URCHIN COMM’N V. BEAN

incidental take liability and any future capture and release
activities. 77 Fed. Reg. 75,266 (Dec. 19, 2012).

                              II

    The California Sea Urchin Commission and several
fishing industry groups (“the plaintiffs”) first filed a suit in
July 2013 challenging the Service’s 2012 decision to
terminate the relocation program. In March of 2014, the
district court dismissed the plaintiffs claim as untimely. Cal.
Sea Urchin Comm’n v. Jacobson, No. CV 13-05517, 2014
U.S. Dist. LEXIS 34445, at *26 (C.D. Cal. Mar. 3, 2014).
That decision was appealed, and in July 2016, we reversed
and remanded, holding that the time to challenge the agency
action ran from the 2012 decision to end the program rather
than from the 1987 adoption of the failure conditions. Cal.
Sea Urchin Comm’n, 828 F.3d at 1052. On remand, the
district court found that the plaintiffs had standing, but that
at Chevron step two the Service’s interpretation of the statute
was reasonable. Cal. Sea Urchin Comm’n v. Bean, 239 F.
Supp. 3d 1200, 1209 (C.D. Cal. 2017). The court thus
granted the Service’s motion for summary judgment. Id. at
1210.

    While the prior appeal of the original case was pending,
the plaintiffs petitioned the Department of the Interior and
the Service to rescind the portions of the 1987 regulation
establishing failure criteria, and the 2012 rule terminating
the translocation program. The Service denied the petition,
and the plaintiffs brought a new suit. In September 2015, a
different district court granted summary judgment for the
Service, both on grounds that the plaintiffs lacked standing,
and on grounds that the Service’s interpretation of the statute
was reasonable at Chevron step two. Cal. Sea Urchin
Comm’n v. Bean, No. CV 14-8499, 2015 U.S. Dist. LEXIS
136453, at *18, *31 (C.D. Cal. Sept. 18, 2015).
            CAL. SEA URCHIN COMM’N V. BEAN                  13

    In both of these consolidated cases we are asked to
address two questions: whether the plaintiffs have standing,
and whether the Service’s decisions to terminate the
translocation program was allowed under Public Law 99-
625.

                             III

    We review a grant of summary judgment and rulings on
standing and statutory interpretation de novo. Phoenix
Mem’l Hosp. v. Sebelius, 622 F.3d 1219, 1224 (9th Cir.
2010); Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171
(9th Cir. 2018). Under the Administrative Procedure Act, an
agency decision will be set aside if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Brower v. Evans, 257 F.3d 1058,
1065 (9th Cir. 2001) (internal quotation marks omitted).
But, on questions of statutory interpretation we apply the
deferential two-step test set forth in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984).

                              IV

    In order to have standing, a plaintiff must show: “(1) it
has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000).

    Here, the plaintiffs present two different theories of
standing. First, they contend that they have standing because
14          CAL. SEA URCHIN COMM’N V. BEAN

of the potential liability that they face due to the elimination
of exemptions for incidental takes in the management zone.
Second, they argue that they have standing because the otters
prey on commercially valuable shellfish, thereby harming
their business interests.

                               A

    The plaintiffs’ first theory—that they face an increased
risk of liability because of the elimination of exemptions for
incidental takes in the management zone—fails because it
does not allege a concrete and particularized harm. We have
held that to show a concrete and particularized harm a
plaintiff must do more than allege a potential risk of
prosecution. A plaintiff must show that there is a “genuine
threat of imminent prosecution.” Sacks v. Office of Foreign
Assets Control, 466 F.3d 764, 773 (9th Cir. 2006) (quoting
San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121,
1126 (9th Cir. 1996)). In assessing whether a threat of
prosecution is “genuine,” courts considers three factors:
(1) “whether the plaintiffs have articulated a ‘concrete plan’
to violate the law in question,” (2) “whether the prosecuting
authorities have communicated a specific warning or threat
to initiate proceedings,” and (3) “the history of past
prosecution or enforcement under the challenged statute.”
Id. (quoting Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134, 1139 (9th Cir. 2000)).

    Here, the plaintiffs offer declarations from persons
working in the fishing industry. At bottom, however, these
declarations do not point to any concrete degree of risk, or
show that liability is likely. They do not allege that the
Service has issued any warning or threat, nor do they allege
any past prosecutions for incidental takes of southern sea
otters. This is not enough to establish a “genuine” threat of
prosecution.
            CAL. SEA URCHIN COMM’N V. BEAN                  15

    The plaintiffs also offer a different line of argument for
why the threat of prosecution is enough to grant them
standing. Specifically, they claim that they have standing as
the objects of regulation. And they claim that the object of
a regulation is presumed to have standing. In support of this
claim they cite L.A. Haven Hospice, Inc. v. Sebelius,
638 F.3d 644, 655 (9th Cir. 2011) and Abbott Labs. v.
Gardner, 387 U.S. 136, 154 (1967). These cases, however,
do not support the plaintiffs’ broad conclusion. In both
cases, the challenged regulation imposed a clear burden on
the plaintiff. In L.A. Haven Hospice, a hospital was required
to repay $2.3 million it had received in excess of the annual
cap on reimbursement for hospice care. 638 F.3d at 649. In
Abbott Labs, the agency imposed specific labeling
requirements on drug manufacturers. 387 U.S. at 138. The
Supreme Court held that the plaintiffs had standing because
the regulation was “directed at them in particular,” and
“require[d] them to make significant changes in their
everyday business practices.” Id. at 154.

    Here, in contrast, the regulations do not require any
particular change in the fishing industry’s practices. And the
plaintiffs have pointed to no specific cost that they must bear
because of the increased risk of liability for incidental takes
of otters. Properly understood, L.A. Haven and Abbot Labs
do not create an exception to the requirement that a party for
standing must show a concrete and particularized injury, or
the rule that mere fear of prosecution is not enough for
standing. Rather, these cases simply demonstrate that where
an agency imposes concrete and particular burdensome
requirements on a party—e.g. paying over $2.3 million
dollars, or adopting specific labeling requirements—a party
will have standing.
16          CAL. SEA URCHIN COMM’N V. BEAN

                               B

    The plaintiffs’ second theory of standing is based on the
harms they suffer because of sea otter predation of shellfish.
Here the plaintiffs have alleged a concrete and particularized
harm. For instance, one declarant states that sea otter
predation has significantly reduced shellfish populations
between Point Conception and Santa Barbara (an area within
the management zone). Another alleges that otters have
substantially reduced the shellfish populations between
Gaviota and Government Point (also within the management
zone).

     The Service contends that the plaintiffs lack standing
because the harm to shellfish populations will not be
redressed by the relief sought. At most, it claims, a favorable
decision for the plaintiffs would require the Service to revisit
its independent decision in 1993 to cease capture and release
operations because there were no feasible non-lethal means
to remove sea otters from the management zone. See 77 Fed.
Reg. 75,269 (Dec. 19, 2012); Public Law No. 99-625,
§ (1)(b). And the Service contends that it is likely to come
to the same conclusion if it reconsiders that decision. We
have held that in order to have standing a plaintiff need not
show that the requested relief will inevitably alleviate the
harm complained of. Where there are legal impediments to
the recovery sought, it is enough for standing that the relief
sought will remove some of those legal roadblocks, even if
others may remain. See Ibrahim v. Dep’t of Homeland Sec.,
669 F.3d 983, 993 (9th Cir. 2012). Here, if the translocation
program is reinstated, one substantial legal roadblock will be
removed. We hold that the plaintiffs have standing based on
the alleged harm to shellfish populations.
              CAL. SEA URCHIN COMM’N V. BEAN                         17

                                  V

    On the merits, we consider whether the Service acted
lawfully in terminating the translocation program in 2012.
The plaintiffs contend that the Service’s creation of the
management zone, its obligation to use feasible non-lethal
means to remove otters from the management zone, and the
exemption from incidental take liability within the
management zone became mandatory once the relocation
project was started; having started the program, the Service
had no authority to end it. Under the plaintiff’s theory the
program would have to go on forever absent new
congressional action. We disagree. For the reasons
explained below, we hold that the Service’s decision to
terminate the program was based on a reasonable
interpretation of the statute, and was therefore lawful. 1 We
affirm both district court decisions on the merits.

                                  A

    In its 1987 regulations implementing Public Law 99-
625, the Service specified several “failure” conditions for the
program. These failure conditions set criteria for assessing
when the relocation program would be deemed unsuccessful
and terminated. Under the regulations, if a failure
determination was made the Service would terminate the
experimental population (i.e. end the program), make
reasonable efforts to capture healthy otters remaining in the
translocation zone and management zone, and return them to
the parent population. 52 Fed. Reg. 29,784 (Aug. 11, 1987).



     1
       The parties do not challenge the Service’s determination that the
failure conditions were satisfied.
18           CAL. SEA URCHIN COMM’N V. BEAN

    At issue is whether the Service’s decision to terminate
the program exceeded the authority given to it under Public
Law 99-625. All parties agree that this question should be
assessed under the two-step Chevron analysis. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–44
(1984). Under that test a court first asks whether Congress
has spoken to the precise question at issue. If so, that is the
end of the matter. Id. at 842–43. Otherwise, the court asks
whether the agency’s interpretation of the statute is a
permissible. Id. at 843. “An agency interpretation that
enjoys Chevron status must be upheld if it is based on a
reasonable construction of the statute.” Nw. Ecosystem All.
v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1143 (9th Cir.
2007).

    The plaintiffs contend that the statutory language clearly
speaks to the issue at hand, and is unambiguous. They claim
that Public Law 99-625 gives the Service discretion in
deciding whether to implement the program, but once
implemented requires the Service to maintain the program’s
features indefinitely, including the management zone,
removal of otters from that area, and exemption from
liability for incidental takes of southern sea otters in the area.
In support of this conclusion, they point to some scattered
mandatory language in the statute. Section 1(b) of Public
Law 99-625 says that the translocation plan “shall include”
a specified management zone. And section 1(d) says that the
Secretary “shall implement” the plan after providing an
opinion under section 7(b) of the ESA that addresses
consultations initiated before April 1, 1986, or if no such
consultations are initiated, at any time thereafter. This
mandatory language, the plaintiffs claim, requires the
conclusion that the program cannot be terminated once it has
been instituted.
            CAL. SEA URCHIN COMM’N V. BEAN                   19

    In contrast, the Service counters that the statute gives it
discretion to develop and implement the plan, and that the
plan is styled as “experimental.” See Public Law 99-625
§ 1(b). The Service also notes that the statute provides broad
discretion to prescribe the specifics of the plan. For
example, it lets the Service determine how many otters
would be relocated, what area would be appropriate as a
management zone and what additional policies to adopt as a
result of notice and comment rulemaking. Id. These
discretionary provisions, the Service argues, support the
conclusion that the Service has clear statutory authority to
terminate the program.        Hence, it contends that its
interpretation is compelled at Chevron step one.

    Public Law 99-625, however, does not either expressly
require the Service to operate the translocation program in
perpetuity or expressly grant authority to the Service to
terminate the program. It does not speak to the issue of
termination at all. Because “the statute is silent or
ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a
permissible construction of the statute.” Chevron, 467 U.S.
at 843.

     At Chevron step two we hold that it is reasonable to
interpret the statute as implicitly giving the Service authority
to terminate the program when it determines that the
purposes of the statute would no longer be served, or when
its continuation would be at odds with the goals of the ESA
or the MMPA. The statute itself makes repeated references
to the ESA. For instance, Public Law 99-625 tells the
Secretary to include, as part of a plan, a “description of the
relationship of the implementation of the plan to the status
of the species under [the ESA] and to determinations of the
Secretary under section 7 of [the ESA].” Public Law 99-625
20          CAL. SEA URCHIN COMM’N V. BEAN

§ 1(b)(6). Section 7 of the ESA requires the Secretary to
ensure that agency actions are in harmony with the
protection of endangered and threatened species. 16 U.S.C
§ 1536. Given this language, it is reasonable for the Service
to interpret the provisions of Public Law 99-625 as
authorizing it to act in harmony with the goals of the ESA.
Terminating the failed translocation program is in keeping
with this authority. The plaintiffs’ interpretation, by
contrast, would require the program to continue even if the
Service determined that it was counter-productive and
harmed, rather than protected, threatened or endangered
species. That would make no sense whatsoever.

    Moreover, the statutory language suggests that the
purpose of the management zone was to limit conflict
between the fishing industry and the translocated otters
around San Nicolas Island. The zone was not intended to
limit expansion of the northern parent population. See
Public Law 99-625 § 1(b) (“The purpose of the management
zone is to (i) facilitate the management of sea otters and the
containment of the experimental population within the
translocation zone, and (ii) to prevent, to the maximum
extent feasible, conflict with other fishery resources within
the management zone by the experimental population.”
(emphasis added)). In light of the statute’s focus on the
experimental population, it is reasonable for the Service to
end the program once it has determined that the San Nicolas
population has failed and that continuing the program now
would pose a threat to the currently expanded parent
population. On the plaintiff’s unwise interpretation of the
statute, the Service would be required to continue the
program even if no otters remained in the transplanted San
Nicolas population. That reading would have the effect of
turning a statute with an express purpose of protecting otters
into one that harmed otter populations where, as here, the
            CAL. SEA URCHIN COMM’N V. BEAN                  21

range of the parent population has expanded. And that
interpretation cannot be squared with the statute’s stated
purpose of containing the experimental population.

    The plaintiffs interpret the Service as defending the
broad principle that if the implementation of a regulation is
discretionary, then the agency always has discretion to end
the regulation at any time and for any reason. Nothing
requires us to adopt this broader principle, and we are
skeptical that such a principle would be sound. Rather, we
hold only that in the circumstances here, where the agency
has discretion to implement an experimental program, it can
reasonably interpret the statute to allow it to terminate that
program if the statute’s purpose is no longer being served.
And it follows with stronger logic that termination is
permissible at the agency’s discretion if the agency
concludes that continuing the program would undermine the
stated purpose of the statute that authorizes it.

    In light of the expressly stated goals of Public Law 99-
625, it is reasonable to interpret the “mandatory” language
in the statute as conditioned on an ongoing successful
translocation program. The Service did not violate its
statutory duties by terminating the program. The plaintiffs’
alternative reading would turn a statute aimed at preservation
of the otter population into one that impedes that goal where
the experimental population does not thrive. We hold that
Public Law 99-625 does not require this result.

                              B

    The plaintiffs also argue that the Service’s interpretation
raises a serious constitutional question and so should be
rejected on constitutional avoidance grounds. Specifically,
the plaintiffs argue that the statute does not provide any
criteria to guide a decision on termination of the program,
22          CAL. SEA URCHIN COMM’N V. BEAN

and that the Service’s interpretation would therefore violate
the non-delegation doctrine. We reject this argument
because it is unconvincing. As the Supreme Court held in
Whitman v. American Trucking Associations, to survive
constitutional scrutiny under the non-delegation doctrine a
statute need provide only an intelligible principle for
promulgating associated regulations. 531 U.S. 457, 472
(2001). And as the Whitman court explained, an intelligible
principle can still be somewhat vague without offending the
Constitution. Id. at 473–74 (citing cases). Here, Congress
has given substantial guidance to the agency. Public Law
99-625 instructs the agency to institute a translocation zone
“with appropriate characteristics for furthering the
conservation of the species” and it announces specific
purposes for the management zone—to contain otters in the
translocation zone and to prevent conflict (to the extent
feasible) with fisheries. Public Law 99-625 § 1(b). The
statute also instructs the Service to use only feasible non-
lethal means to relocate otters. It is evident that the statute
has two guiding principles: (1) a concern to protect and
preserve a threatened species and (2) a concern to minimize
unnecessary conflict with fisheries arising from the
experimental population.

    The plaintiffs are mistaken in believing that this
guidance only relates to the institution of the management
zone and that there is no guidance relating to the elimination
of that zone once established. The plaintiffs have given no
reason to think that these same criteria do not apply equally
to both a decision to implement the program and a decision
to end it. Looking at the language of the statute and the
broader statutory scheme, it is clear that agency decisions
regarding both the implementation and termination of a
relocation program should be guided by considerations of
otter conservation, and avoidance of conflict between the
            CAL. SEA URCHIN COMM’N V. BEAN                23

experimental population and fisheries. That is more than
enough to pass constitutional muster, and there is no serious
constitutional question to avoid here. See Whitman, 531 U.S.
at 474–75 (“[W]e have almost never felt qualified to second-
guess Congress regarding the permissible degree of policy
judgment that can be left to those executing or applying the
law.” (citation and internal quotation marks omitted)).

                             C

    The plaintiffs also contend that a 1994 amendment to the
Marine Mammal Protection Act relaxing restrictions on
incidental takes supports their view. See 16 U.S.C.
§ 1387(a)(4). They argue that this amendment specifically
exempts southern sea otters from the relaxed restrictions on
grounds that the otters are independently governed by Public
Law 99-625. The effect of rescinding the 1987 regulations,
they urge, is to make sea otters subject to the baseline
MMPA rules, which, the plaintiffs assert, are less lenient
with regard to incidental takes. The plaintiffs contend that
this could not be allowed under the statutory scheme, since
that gives otters more protections than it gives other marine
mammals, whereas Public Law 99-625 clearly contemplates
that they will have fewer protections, at least within the
management zone.

    This argument is unconvincing. The termination
conditions were established in 1987, seven years before the
MMPA’s amendment. Hence, Congress was on notice that
the agency interpreted Public Law 99-625 to allow
termination of the program. Yet Congress left things in
place, specifically providing that the amendment “shall not
be deemed to amend or repeal [Public Law 99-625].”
16 U.S.C. § 1387(a).
24         CAL. SEA URCHIN COMM’N V. BEAN

                            VI

    For the reasons set forth above, we affirm both district
courts’ conclusions that the Service acted lawfully in
terminating the southern sea otter relocation program
authorized by Public Law 99-625.

     AFFIRMED.