There Are No Otters Here

The story behind the otter-exclusion zone, a stretch of water on the California coast from Point Conception to the Mexican border where otters are barred by Congress from swimming

Sea otter with her pup.     Photo: Michael "Mike" L. Baird/Flickr

Fishermen who have spent decades at sea can't compete with an animal whose entire life is structured around grooming and eating

The red sea urchin looks more like a ball of pins than a delicacy. But hidden behind a hard circular shell and hundreds of possibly poisonous spines are five gonads treasured for their taste by humans and otters alike.

Along the California coast, beach-goers pick up live urchins and attack them with scissors to expose their goopy innards. They then slurp them up with the tongue, uncooked. Connoisseurs, however, focus in on the reproductive organs, which supposedly taste like butter. The females have a gritty creamed wheat texture and the males a more silky one.

The Japanese are the largest consumers of this delicacy otherwise known as uni, and after they depleted their natural sea urchin stock, they turned to U.S. imports. Here, sea urchins are harvested by individual divers operating from small boats. The annual catch reliably totals 10-12 million pounds with a wholesale value of $19.7 million, representing a small but important fraction of the California economy.

In the absence of predators, sea urchin harvesting off of the California coast has proven highly sustainable. The urchins have a glut of food, and the industry is tightly regulated. In place of diverse kelp forests, the seafloor is now a barren, albeit profitable sea urchin wasteland. Without human intervention, that wouldn’t be the case. Sea otters would decimate the fields and kelp would abound. Not only are otters expert at finding urchins, they’re voracious eaters, consuming up to 35 percent of their body weight a day with urchins providing 40 percent of that total.

That sea urchins and sea otters today coexist in California is not a miracle. Instead, it’s the result of government protectionism and the fur trade. Like any industry facing competition from a highly skilled and charismatic opponent—not only are the otters dexterous, tool-wielding and social, they’re also cute—fishermen appealed to the government for protection.

So 24 years ago, a consortium of business, environmental and military interests teamed up to move a population of 140 otters to San Nicholas Island. But the proposal came with an important caveat: Otters were banned from Point Conception to the Mexican border, and the Fish and Wildlife Service was required to trap and remove any trespassers. The otter-exclusion zone was born.

While the final decision won’t come until December, it looks like otters will once again be free to swim south of Point Conception. A lawsuit filed against the Fish and Wildlife service may spell the end of the no-otter zone. But in May, Representative Elton Gallegly introduced the Military Readiness and Southern Sea Otter Conservation Act (H.R 4043). And like any well-named congressional act, the bill was intended to do exactly the opposite of what its title suggests: declaw environmental regulations and prolong the decision-making period on the exclusion zone. The bill failed to gain traction, and was integrated into the National Defense Reauthorization Act (H.R. 4310).

While some of the more stringent language was excised, the bill—according to environmental advocates—still takes the bite out of environmental legislation. The Senate needs to draft its own version of the bill, and then the bills will head to reconciliation, where otter advocates think they stand a good chance of removing language pertaining to fishermen. But as things stand, it isn't looking so great for the otters.

In a stunning about-face, fishermen are no longer worried that they’ll suddenly lose their jobs with the decommissioning of the no-otter zone. Instead, otters are again in the line of fire. The battle currently raging reveals the delicate status of the still-endangered sea otter as well as its vital role in the local ecosystem and economy. The no-otter zone is more than an arbitrary line drawn across the sea; it’s a window into one of nature’s most fascinating creatures and the failings of U.S. environmental law.

THE IDEA OF PENNING otters in imaginary ocean borders may sound ridiculous, but the genesis of the idea was far from it; the goal was to add redundancy to their population by creating a new colony, a second beachhead. At the time (and many would argue the same is true now), sea otters were seriously threatened. In fact, they were only years removed from coming back from the brink of extinction. The no-otter zone was a compromise born out of pressing need; the threat of a catastrophic event—say an Exxon Valdez style oil spill—weighed against commercial interests, explained Steve Shimek, the founder of The Otter Project, a non-profit dedicated to the recovery of the California sea otter.

To understand how a single oil spill could destroy an entire population of hardy animals, you must go back hundreds of years. In the 18th and 19th centuries, the world entered an otter-pelt consumption binge. And Russian traders discovered that Aleuts made excellent hunters (so excellent that they were enslaved to hunt otters). Up and down the Pacific Coast, otters were hunted to the brink. An international moratorium on hunting was finally ratified in 1911. But by then the California subspecies was thought to be extinct.

Miraculously, a colony of 50 animals managed to survive at Big Sur and was discovered in 1938. Over the next decades, the population increased. But the turning point came with the passage of the Endangered Species Act. Congress had finally given teeth to otter advocates, and fishermen were not too pleased about it. Otters are tough competition, especially when they’re protected by the law. And oilmen recognized the law as a threat. Stringent regulations, they feared, would hamper their offshore exploration. Both interests worried about fines, says Lilian Carswell, the Fish and Wildlife Service’s Southern sea otter recovery and marine conservation coordinator.

In particular, oil presents a unique threat to otters. Unlike other marine mammals, they rely on fur, not blubber, for warmth. But dirty fur doesn’t trap heat, so oil makes it impossible to stay warm. Essentially, oil and otters don’t mix. With the Endangered Species Act as a moral and legislative foundation, the Fish and Wildlife services eventually proposed the creation of a second sea otter colony off of the California coast at San Nicholas Island to serve as a reserve population in the event of a catastrophic spill.

FOR RESEARCHERS, NAP TIME is the best time to attempt a capture. But that’s little help; it’s nearly impossible to catch an otter alive, no matter the hour. They flee at the first sign of danger and can evade some of the best trackers. As a result, each mission costs $10,000. Successful operations require scientists to stealthily approach, trap the animals in nets, and use sedatives to limit stress. But with even the most delicate care, animals die.

And that’s where the law came in conflict with the Fish and Wildlife Service’s plan to create a second otter colony. “If you're going to trap and move an endangered species you run the risk of some of the animals dying in the process,” says Shimek. “You're trying to do a good thing, but you're potentially killing some animals. It’s against the very nature of the law.”

Because the Marine Mammal Act doesn’t provide for incidental take—the accidental death of an animal—scientists couldn’t move the animals to San Nicholas unless Congress acted. So researchers turned to Congress to declare the otters an experimental population. With this new designation, they would not be subject to incidental take laws.

It set off a cascade of concessions. Fishermen didn’t want to have to deal with otters, so they petitioned for an exclusion zone—a stretch of sea from Point Conception to Mexico where otters would be banned from entering. In turn, the Fish and Wildlife Service was required to trap any otters entering the region. And any otter entering the zone, even if it clearly swam from elsewhere, would be designated part of the experimental population. As a result, the Navy—which has a large presence in the area—wouldn’t face fines for accidentally killing the animals because of their status. A great idea was shut down in implementation, but it took years for people to fully realize what was at stake. And sea urchin divers slowly moved to the forefront, replacing an oil industry all too well acquainted with bad press.

SEA URCHIN DIVING IS not a path to great wealth. In fact, it’s hardly a living. A skilled diver will invest over $100,000 in equipment just to get started on a job where he grosses $45,000 a year and works 220 days a year—not out of laziness, but because of state limits. Add in tight regulatory controls that require all collected urchins to be over 3 1/4 inches in diameter (in Southern California) and annual business-related costs of $29,330 and it gets even worse. Then throw in the otters, who can outhunt divers by eating urchins of any size and at nearly any hour of the day. And that isn’t the worst of it. When fishermen finally make a catch, otters have no qualms about stealing food right from their nets.

Fishermen like Harry Liquornic have spent over 30 years at sea, but even they can't compete with an animal whose entire life is structured around grooming and eating. So to protect fishermen like Liquornic, the no-otter zone was thrown into the translocation bargain. But after two animals were killed during a 1993 operation, the Fish and Wildlife Service stopped trapping animals that entered the zone. Liquornic was left to fend for himself.

Even before the trappings were suspended, otters were moving into the exclusion zone. Surprisingly, nobody seemed to mind. The oil industry had come to grips with the animal. And the Department of Defense didn’t care so long as the animals kept their designation as an experimental population. Even the fishermen were content. “Everything was sitting in flux,” says Liquornic. “But we weren’t complaining about them doing nothing.” The status quo was accepted with the exclusion zone serving as an unenforced border.

And for the otters, things went on as usual. The “management zone or ‘no-otter zone’ has had little effect on the southern sea otter population,” says Andrew Johnson, manager of the Monetary Bay Aquarium’s Sea Otter Research and Conservation program. The animals naturally expanded their range, and the zone was irrelevant due to non-enforcement. Meanwhile, the translocation at San Nicholas proved a failure. Of the 140 animals moved, only 32 remained within the first months. Some died and others simply swam home, says Carswell.

But when a raft of 100 otters from the main population entered the exclusion zone in 1998, the case exploded. Fishermen wanted them removed because they realized the significant damage they could do. And the Fish and Wildlife Service was unwilling to intercede.

“When it came time to protect our fishing grounds, they completely walked away from it,” says Liquornic. “It’s frustrating to watch. They just want to leave the animals at San Nicholas and walk away from their containment.”

The result was a lawsuit and protracted period of agency responses. In August of 2011, in response to a U.S. District Court ruling, the Fish and Wildlife Service declared the translocation a failure. After a lengthy comment period, the zone was to be dissolved and otters would be stripped of their experimental population designation.

The response was riotous. The Department of Defense protested the decision. Fishermen said they would incur massive costs to comply with the new net regulations. Sea urchin divers feared they’d be out-fished. Of all the voices, the Department of Defense’s was loudest, followed by shellfish interests. “It has turned into a big deal now because there will be animals in that area, and their status will revert back to threatened,” says Carswell.

The bill heading for reconciliation is intended to balance Naval, otter, and fishery interests. If the zone is dissolved, as predicted, the Navy will be required to apply for zero incidental take exemptions every time they conduct an operation in the area, says Brad Hunt, the program manager at The Otter Project. H.R. 4310 gives the Navy an exemption from the zero incidental take law. While that annoys some otter advocates, it’s largely beside the point. Their primary issue is that the bill expands those same exemptions to commercial fishermen. According to Tom Pfeifer, Representative Gallegly’s communications director, the idea is to promote balance.

“It requires the Fish and Wildlife Service to coordinate with California and the Secretary of Commerce in continuing a viable shellfish industry and any other vulnerable species in the environment,” Pfeifer says. “But this is not a blanket exemption for the shellfish fishermen. While it gives them a chance of survival, if the state of California decides that the fishermen are harming the otters, the state retains the right to shut down the fisheries.”

When Pfeifer mentions the shellfish industry, he’s speaking about sea urchins and abalone, among other animals. Otters and abalone have existed together for millions of years. And their relationship is what partly leads to the otters’ notoriety; they use stones as tools to crack abalone shells or to pry them off the rocks. And generally speaking, they love eating the largest of the abalone.

Paradoxically, the decline in the otter population from the 1700s on led to an explosion in the size of abalone. Without otters to eat them, they could grow to be very, very large, and with peaked shells unsuitable for hiding in crevasses. With the reintroduction of the otter and surging human consumption, the result was predictable: the population plummeted. The exclusion zone was intended to protect the Southern abalone population (sharks took care of northern expansion).

IT'S HARD TO IMAGINE how to adequately balance both the needs of fishermen and otters. And while giving California the right to shut down the fisheries means the bill doesn’t grant fishermen a blanket exemption, the reality is muddier. Nobody knows how difficult it will be to end the exemption once it’s put in place. Politics will get in the way—the no-otter zone shows just how political things can get.

Clearly, allowing a blanket incidental take exemption for fishermen is not in the otters’ best interests. It also goes against legal precedent. But the current setup that allows for no incidental take exemption is also, according to many, untenable. It drives incidental take underground and makes fishermen feel that they’re incredibly threatened, says Shimek.

Fisherman say they’re facing a dual threat: the movement of otters into their shellfisheries and human-imposed fishing regulations that might spring up in the presence of fully-protected marine mammals. Currently, there is no provision for incidental take. If a single otter is killed, the fishery can be shut down. Or California may ban the nets within the zone reducing fishermen income by over $10,000 a year per small business. Such sweeping shutdowns have happened in the past, says Hunt.

While that is a worst-case scenario, it does have real-world implications. Before the National Defense Reauthorization Act was repurposed, Shimek offered to help negotiate a settlement. The fishermen didn’t bite. “I actually feel the zero take provision is inappropriate,” he says. “I have offered to talk about the zero incidental take provision: I've said that publicly and privately. The fishermen have not taken me up on that offer, so I don't know if their problem is a red herring or real.”

The message hasn’t reached the other side. Liquornic finds it implausible that Shimek reached out, and he thinks now isn’t the logical time to forge an agreement. “If you look at the original suit, it held the Fish and Wildlife’s feet to the fire. That would have been a good time to come in and negotiate,” says Liquornic. We could have all sat down and crafted language to change the law.”

Regardless of what happens in court, it’s just a matter of time before some otters enter Liquornic’s fishing territory. And there is nothing he can do to stop them. Unless the Fish and Wildlife Service starts shooting animals, the exclusion zone will be overrun. “Sea otters will reoccupy areas within the current management zone, whether or not the zone still exists.” says Johnson. The question is what that means for men like Liquornic.

IT'S A DIRTY SECRET, but otters are voracious eaters, and they destroy urchin beds. All along, fishermen suspected this, but it wasn’t proven until 1998 when otters moved into Port San Luis. The results were shocking: urchin populations declined over 99 percent within 27 months, and fishermen were devastated. To find new urchin territories, they had to sail further to sea. Profits declined by as much as 50 percent.

Therefore, the biggest threat to Liquornic’s business is range expansion. But he may have less to fear than he thinks. It’s unclear how far south otters will migrate, in what numbers they will move and how long it will take for them to reach him.

People don’t expect a plague of endangered animals to inundate the exclusion zone. “There are not 2,000 otters with their faces against the window at the line waiting to get into the Southern California islands,” says Shimek. “It's not going to be a flood gate."

Otters don’t “sweep through an area like locusts, eat all the prey, and leave the fishing communities bereft,” says Johnson. Instead, they “consume herbivorous creatures and other benthic organisms in a manner that will support greater productivity within kelp forest systems.” They turn a field of urchins into a highly diverse kelp forest.

That’s great for the environment, but problematic for fishermen who depend on urchin beds for their living. Unfortunately for the fishermen, the expansion of otter territory is an unavoidable reality, and they realize this. But things weren’t supposed to be this way. The exclusion zone was supposed to balance shellfishery and the struggling sea mammals.

WHILE OTTER COLONIES CAN grow by as much as 20 percent, California’s have traditionally grown by a much smaller margin—three to five percent. The otters can eat, but there might not be enough of them to immediately repopulate the no-otter zone. In fact, their numbers are stagnating. California should be able to handle 16,000 otters. Instead, the numbers are closer to 3,000.             

For years, scientists struggled to explain why otters in California weren’t recovering as quickly as expected. In Alaska, the animals thrived, and their numbers exploded when they were moved ahead of a major nuclear test in 1968. Scientists discovered that otters are reproducing as they should be, but they’re dying at insanely high rates and “because many of the dead otters are prime-age females, the effect on the population trend is even more pronounced,” says Johnson.

It turns out that otters in California are dying for the same reasons that they die of elsewhere, just at higher rates. The leading explanation is dual pronged—chronic stresses from human activity combined with pathogens introduced by human pollution.

“Think of a common cold,” says Shimek. “If there are a lot of germs in the air, you might catch one. But if you just finished finals and your immune system is weakened, the odds are higher. That’s probably what’s going on with the otters.” Stress and pollution weaken the animals, and the “disease de jure” finally knocks them out.

In theory, the U.S. has laws limiting pollution caused by rain runoff. But farms produce plenty of nasty waste that goes unregulated. “Irrigated discharges are exempted from America’s Clean Water Act,” says Shimek. “So they can pour plain crap into the sea.”

In the Central Coast area, agricultural runoff is regulated by waiver, says Sara Aminzadeh, the policy director at 
California Coastkeeper Alliance. After three years of struggle, new rules were voted into place to tighten the polluting effects of run-off. But the compromise has left few people happy. There are still no hard limits in place on nitrogen runoff, a leading cause of pollution.

THE OTTERS AT THE HEART of this policy-oriented scientific debate continue to dive in polluted waters for sea urchins. They captivate onlookers and amaze scientists with their use of tools and complex social structures. Sure, they’re adorable, have been featured on South Park and eat clams off of their bellies, but to fishermen they’re a threat. So along the shore, humans continue to argue about what can be done to save them with minimal economic impact.

Ending the exclusion zone was supposed to be the answer, but it isn’t the entire solution. Since 1993, the Fish and Wildlife Service hasn’t been trapping animals, and they’re not going to start anytime soon. The otters are free to roam—arbitrary borders aren’t preventing range expansion. Now, it looks like their rights will be protected when they travel.

Ending the zone won’t save otters, but keeping it in place didn’t save the fishermen either. Range expansion is natural, and it will not be stopped unless they are delisted and hunted. Removal never was going to work. “To adequately do what they wanted to do, you’re going to have to kill animals,” says Liquornic. You cannot just push them back. It’s a nasty solution. But if you’re gonna do it right, that’s how you’re gonna have to do it.”

The bill heading for reconciliation doesn’t call for an otter massacre, but it does put them in peril. What some say amounts to a blanket exemption for fishermen means there will be few repercussions if an otter is accidentally killed. A blanket ban on incidental take pushes otter deaths underground where they cannot be discussed or documented.

The reality for fishermen is that the otters are a social issue. And that means people won’t protect fishing grounds because they’re simply “a little too cute and cuddly,” says Liquornic. Killing sea otters is nasty businesses, and it has few supporters—in the scientific community and general population.

The translocation program was a good idea implemented to failure. In an attempt to please everyone, nobody was made happy. Congress said everyone could win: Fishermen could have their grounds, the Navy could do their testing and the otters could have their second colony. But the balance couldn’t be maintained as the otters moved south and the Fish and Wildlife Service proved unable to stop them. It was a program built on an illusion. And now its collapse has real economic effects.

“Twenty-five years ago, when they dreamed this thing up, they could have just said you guys are going to lose your grounds and not done the translocation,” says Liquornic. “If you want to have shellfisheries and sea otters, you have to manage the sea otters. If you just want sea otters, let them run free.”

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