Center for Biological Diversity; Pesticide Action Network North America, non-profit organizations, Plaintiffs-Appellants,
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.
and Submitted May 9, 2016 San Francisco, California
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
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
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.
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
Before: Kim McLane Wardlaw, Richard A. Paez, and Carlos T.
Bea, Circuit Judges.
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
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.
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.
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
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
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
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.
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.
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. 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.
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
of these core issues, the district court ruled in favor of
the EPA. 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.
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.
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.
and Intervenors (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.
CBD filed a hefty 437-page Amended Complaint. 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
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.
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
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.
claim centers on one pesticide active
ingredient.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. Id.
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.
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.
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.
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.
entry of a final judgment on Claims for Relief one through
thirty-one pursuant to Rule 54(b), CBD timely