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Center for Biological Diversity v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

February 2, 2017

Center for Biological Diversity; Pesticide Action Network North America, non-profit organizations, Plaintiffs-Appellants,
v.
U.S. Environmental Protection Agency, Defendant-Appellee, Croplife America; Responsible Industry for a Sound Environment ("Rise"); Southern Crop Production Association; Western Plant Health Association; Midamerica Croplife Association; American Farm Bureau Federation; American Chemistry Council; National Agricultural Aviation Association; National Alliance of Forest Owners; National Corn Growers Association; National Cotton Council; National Council of Farmer Cooperatives; National Potato Council; Oregonians for Food and Shelter; USA Rice Federation; Washington Friends of Farms and Forests, Intervenor-Defendants-Appellees.

          Argued and Submitted May 9, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California D.C. No. 3:11-cv-00293-JCS Joseph C. Spero, Magistrate Judge, Presiding

         COUNSEL

          Stephanie Parent (argued), Center for Biological Diversity, Portland, Oregon; Justin Augustine, Center for Biological Diversity, San Francisco, California; Collette Adkins Giese, Center for Biological Diversity, Circle Pines, Minnesota; for Plaintiffs-Appellants.

          Anna Katselas (argued), Kevin McArdle, Bridget Kennedy McNeil, and Ellen J. Durkee, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendant-Appellee.

          David B. Weinberg (argued), R. Steven Richardson, and Roger H. Miksad, Wiley Rein LLP, Washington, D.C.; Seth Goldberg and Cynthia L. Taub, Steptoe & Johnson LLP, Washington, D.C.; Kirsten L. Nathanson and Thomas R. Lunquist, Crowell & Moring LLP, Washington, D.C.; for Intervenor-Defendants-Appellants.

          Before: Kim McLane Wardlaw, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

         SUMMARY[*]

         Environmental Law

         The panel affirmed in part, and reversed in part, the district court's dismissal of plaintiffs' claims arising from their citizen suit alleging that the U.S. Environmental Protection Agency violated the Endangered Species Act ("ESA") when it registered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the United States Fish and Wildlife Service (collectively "the Service").

         The ESA requires federal agencies to consult with the Service to ensure that their discretionary actions do not jeopardize endangered and threatened species, or adversely modify a listed species' critical habitat. The Federal Insecticide, Fungicide and Rodenticide Act charges the EPA with the obligation to register and reregister pesticide active ingredients and pesticide products.

         Plaintiffs framed thirty-one failure-to-consult claims for relief with each claim centering on one pesticide active ingredient. With each pesticide active ingredient, plaintiffs identified four categories of agency actions which allegedly triggered the EPA's duty to consult under Section 7(a)(2) of the ESA, and these comprised the sub-claims.

         Concerning plaintiffs' category one sub-claims, which identified the EPA's issuance of the Reregistration Eligibility Decisions as an agency action, the panel held that all category one sub-claims were properly dismissed by the district court as either time-barred or jurisdictionally barred. Specifically, the panel held that where, as here, the plaintiffs alleged that an agency failed to comply with the ESA's procedural requirements, the general six-year statute of limitations period, set forth in 28 U.S.C. § 2401(a), applied. The panel also held that an ESA Section 7 claim raised after the EPA undertook public notice and comment must comply with the jurisdictional provisions of the Federal Insecticide, Fungicide and Rodenticide Act, and a plaintiff must file a petition for review in the court of appeals within 60 days of the entry of the contested final order.

         Concerning plaintiffs' category two sub-claims, which alleged that the EPA's continued discretionary control of the pesticide's registration constituted agency action, the panel affirmed the district court's dismissal of all category two sub-claims because they failed to identify an affirmative agency action that would trigger a Section 7 consultation.

         Concerning plaintiffs' category three sub-claims, which alleged that the EPA's completion of pesticide reregistration for a specific pesticide active ingredient was an agency action, the panel held that the completion of the reregistration was simply a fact, and therefore it could not trigger Section 7 consultation. The panel affirmed the dismissal of category three sub-claims.

         Concerning plaintiffs' category four sub-claims, which alleged that the EPA's approval of individual pesticide products was an agency action, the panel reversed the district court's dismissal of all category four sub-claims. The panel agreed with the district court that pesticide product reregistration was an affirmative agency action, but disagreed that those claims were barred by the collateral attack doctrine. The panel remanded for further proceedings.

         Judge Bea dissented in part. Judge Bea agreed with most of the majority opinion, but dissented from the conclusion that the category four sub-claims were not a collateral attack on the EPA's prior approval of the pesticides in those products. Judge Bea would affirm the district court's dismissal of the category four sub-claims.

          OPINION

          PAEZ, Circuit Judge

         The Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") charges the Environmental Protection Agency ("EPA") with the obligation to register and reregister pesticide active ingredients and pesticide products.[1] In this case, the Center for Biological Diversity and the Pesticide Action Network North America (collectively, "CBD") allege that the EPA violated the Endangered Species Act ("ESA") when it reregistered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the Fish and Wildlife Service (collectively, "the Service") as required by 16 U.S.C. § 1536(a)(2) ("ESA Section 7" or "Section 7"). The object of CBD's lawsuit is to require the EPA to undertake consultation with the Service regarding the impact of the reregistration process of pesticide active ingredients and pesticide products on endangered or threatened species.

         We must decide three core issues. First, we must reconcile the disparate limitations periods and jurisdictional provisions of the ESA and FIFRA for citizen suits that challenge the EPA's failure to consult with the Service as required by ESA Section 7 when reregistering pesticide active ingredients and pesticide products. Second, we must determine whether plaintiffs alleged any affirmative agency actions by the EPA that triggered the EPA's obligation to undertake Section 7 consultation with the Service. And third, we must decide whether any of CBD's claims are barred by the collateral attack doctrine.

         On each of these core issues, the district court ruled in favor of the EPA.[2] The court, however, granted CBD leave to amend to add facts that would demonstrate that the reregistration of pesticide products, although affirmative agency actions, were not simply impermissible collateral attacks on prior Reregistration Eligibility Decisions' ("RED") analyses or conclusions. CBD declined to amend. At CBD's request, however, the district court entered a final judgment under Federal Rule of Civil Procedure 54(b) for the thirty-one failure-to-consult Claims for Relief. CBD timely appealed.

         Although we agree with many of the district court's rulings in this complex environmental case, we conclude that the court erred in its application of the collateral attack doctrine and in requiring CBD to amend the operative Complaint. We therefore affirm in substantial part, reverse in part, and remand for further proceedings.

         I.

         A.

         CBD filed a citizen suit in district court alleging that the EPA had failed to comply with the ESA's consultation requirement in its ongoing involvement with 382 pesticides. Ctr. for Biological Diversity v. EPA, No. 11-cv-00293-JCS, 2013 WL 1729573, at *4 (N.D. Cal. Apr. 22, 2013); see ESA § 7, 16 U.S.C. §§ 1536(a) (consultation requirement), 1540(g) (citizen suit provision). Relying on the ESA's jurisdictional provisions regarding citizen suits, CBD asserted that the district court had jurisdiction over the alleged claims. Ctr. for Biological Diversity, 2013 WL 1729573, at *14; 16 U.S.C. §§ 1540(g)(1) ("The district courts shall have jurisdiction . . . to enforce any [ESA] provision or regulation, or to order the Secretary to perform such act or duty . . . ."), 1540(g)(3)(A). Although CBD framed the Complaint as an enforcement action under the ESA, its Section 7 claims effectively challenged the EPA's final pesticide product reregistration decisions under FIFRA. In the course of reregistering pesticide products, the EPA issues a RED for each pesticide active ingredient included in the pesticide product.

         The EPA and Intervenors[3] (collectively, "Defendants") filed a motion to dismiss for (1) failure to state a claim under the ESA, (2) lack of subject matter jurisdiction under FIFRA, and (3) lack of Article III standing. Ctr. for Biological Diversity, 2013 WL 1729573, at *1. In its Complaint, CBD alleged that the "EPA retains ongoing discretionary control and involvement over all of these pesticides, which constitute[] 'agency action' subject to consultation under Section 7(a)(2) of the ESA." Ctr. for Biological Diversity, 65 F.Supp.3d 742, 752 (N.D. Cal. 2014) (emphasis omitted). Dismissing the Complaint with leave to amend, the district court faulted CBD for failing to allege any affirmative agency action by the EPA, as required by Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (en banc), that would necessitate consultation with the Service. Ctr. for Biological Diversity, 2013 WL 1729573, at *8-10. The district court held that "[m]ere discretionary control and involvement" is not enough to trigger ESA Section 7 consultation. Id. at *10. The court also addressed subject matter jurisdiction, standing, and the statute of limitations, but reserved resolution of these issues until CBD filed an amended complaint. See id. at *12-22. The district court directed CBD to allege a specific affirmative act by the EPA that would trigger Section 7 consultation for each of the alleged pesticide active ingredients or pesticide products. Id. at *10.

         Subsequently, CBD filed a hefty 437-page Amended Complaint.[4] In response, Defendants moved for a more definite statement under Rule 12(e), asserting that they could not properly respond to the Amended Complaint because CBD's allegations were too vague and ambiguous. Ruling on the motion, the district court agreed with Defendants that CBD's Amended Complaint was "vague and ambiguous" because it failed to specify which affirmative acts by the EPA triggered ESA Section 7 consultation. The court ordered CBD to clarify its allegations and explained that "[t]he affirmative agency actions must be clearly identified so [Defendants] may fairly evaluate whether to assert a facial challenge to standing, statute of limitations or jurisdiction . . . [and] [t]he affirmative acts must also appear on the face of the Complaint."

         In response to the court's order, CBD filed another weighty 464-page Second Amended Complaint, in which it alleged the precise actions by the EPA that required Section 7 consultation. Defendants again moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Defendants identified four bases for dismissal. First, Defendants argued that the statute of limitations barred any challenge to a RED issued prior to January 20, 2005. Second, they argued that FIFRA's jurisdictional provisions, 7 U.S.C. § 136n(a)-(b), controlled, depriving the district court of jurisdiction for any reregistration decision made after notice and comment.

         Third, Defendants argued that ongoing discretionary control and involvement over pesticides do not constitute affirmative action that triggers Section 7 consultation. Fourth, Defendants argued that CBD's allegations challenging individual product reregistrations were nothing more than an improper collateral attack on the underlying REDs, and therefore barred. As explained below, the district court granted in part and denied in part Defendants' motion to dismiss. Ctr. for Biological Diversity, 65 F.Supp.3d at 772.

         B.

         To guide our discussion of the district court's ruling as well as facilitate our own analysis, we briefly explain how CBD framed the thirty-one failure-to-consult Claims for Relief in the Second Amended Complaint.

         Each claim centers on one pesticide active ingredient.[5]For each pesticide active ingredient, CBD "identif[ies] four categories of 'agency actions' which allegedly trigger the EPA's duty to consult under [S]ection 7(a)(2)." Ctr. for Biological Diversity, 65 F.Supp.3d at 755. In our discussion below, we refer to each of these categories as a "category one, two, three, or four" sub-claim for relief. The four categories are identical for all thirty-one Claims for Relief. Category one sub-claims identify "the EPA's issuance of the RED or amended RED" as an agency action, and provide a date on which the EPA issued the RED or amended it. Id. Category two sub-claims allege that the EPA's "continued discretionary control and involvement in this [pesticide active ingredient's and pesticide product's] registration" constitute agency action. Id. (internal quotation marks omitted). Category three sub-claims allege that the "EPA's completion of [pesticide] product reregistration for [a] [specific] pesticide [active ingredient]" is an agency action. Id. (internal quotation marks omitted). Each such sub-claim provides the date for when product reregistration was completed. And, finally, category four sub-claims allege that the "EPA's approvals of [pesticide] products containing [a] pesticide [active ingredient]" constitute an agency action and provide dates for when the EPA approved each pesticide product's reregistration. Id. (internal quotation marks omitted). In ruling on Defendants' motion to dismiss, the district court analyzed the four categories of sub-claims separately. The court began with category one sub-claims-the issuance of the RED or amended RED-and dismissed all thirty-one as either time-barred or jurisdictionally barred. Ctr. For Biological Diversity, 65 F.Supp.3d at 756-57. The district court concluded that because the ESA does not provide a limitations period for Section 7 challenges, it would apply the general six-year statute of limitations for civil actions contained in 28 U.S.C. § 2401(a). Id. at 756. Applying that statute of limitations, the court determined that fifteen of the thirty-one alleged REDs were time-barred.[6] Id.

         Next, the court turned to whether there was subject matter jurisdiction for the sixteen category one sub-claims that remained. Id. The court concluded that because CBD's claims were "'inextricably intertwined' with the EPA's pesticide actions governed under FIFRA, [they were] subject to FIFRA's more specific jurisdictional provisions . . . ." Id. (citation omitted); see Am. Bird Conservancy v. Fed. Commc'ns Comm'n, 545 F.3d 1190, 1193 (9th Cir. 2008) ("American Bird"). In applying FIFRA's jurisdictional provision, 7 U.S.C. § 136n(a)-(b), the court reasoned that the review of any "registration actions that follow a notice and public comment period" falls within the exclusive jurisdiction of the court of appeals, and therefore ruled that it lacked subject matter jurisdiction over the remaining sixteen Claims for Relief. Ctr. for Biological Diversity, 65 F.Supp.3d at 756-57; see United Farm Workers v. EPA, 592 F.3d 1080, 1082-83 (9th Cir. 2010) ("UFW"); see also In re Pesticide Action Network N. Am., 798 F.3d 809, 811 (9th Cir. 2015) (applying UFW's reasoning where petitioners sought to challenge the EPA's pesticide safety determinations). Because all of the remaining category one sub-claims involved REDs that the EPA issued after a period of notice and comment, the district court dismissed them for lack of subject matter jurisdiction. Ctr. for Biological Diversity, 65 F.Supp.3d at 756-57.

         The district court then addressed and rejected all of CBD's category two-"continued discretionary control"- sub-claims. Id. at 757-58. The court ruled that "[t]he retention of discretionary control is necessary but insufficient to trigger" the EPA's consultation with the Service. Id. at 758. The court reasoned, largely in line with our en banc opinion in Karuk Tribe, that although affirmative actions can be ongoing, CBD must allege an affirmative agency action and maintaining discretionary control and involvement in a pesticide's registration is not sufficient. Id. at 757-58.

         Next, the district court discussed and rejected all category three-the completion of pesticide product reregistration for a particular pesticide active ingredient-sub-claims. Id. at 758-59. The court concluded that completion of pesticide product reregistration "is not an affirmative act of any sort; it is a fact." Id. at 758. The court therefore dismissed all thirty-one category three sub-claims. Id. at 759.

         Finally, the district court addressed CBD's category four-reregistration of pesticide products-sub-claims. Id. at 759-60. Analyzing the statute governing reregistrations of pesticide products, 7 U.S.C. § 136a-1(g)(2)(C), the district court agreed with CBD that pesticide product reregistration is an affirmative agency action that triggers ESA Section 7 consultation. Id. at 760. However, the court also held that any category four sub-claim that fell within the statute of limitations and attacked a RED's analyses or conclusions was an impermissible collateral attack on the RED and therefore barred. Id. at 764. The court granted CBD leave to amend to clarify what new actions by the EPA, aside from analyses and conclusions contained in the RED, demonstrated that pesticide product reregistrations constituted an agency action for purposes of Section 7 consultation. Id. at 764. CBD declined to amend.

         Following entry of a final judgment on Claims for Relief one through thirty-one pursuant to Rule 54(b), CBD timely appealed.[7]

         II.

         A.

...


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