828 F.3d 1046
9th Cir.2016Background
- The U.S. Fish and Wildlife Service (FWS) established a 1987 experimental translocation program for southern (California) sea otters, including five termination criteria in a Final Rule and a large coastal "management zone" where otters would be excluded and certain take prohibitions relaxed.
- The program experienced high mortality and emigration from the start; removals in the management zone ceased in 1993 though statutory exemptions remained.
- Environmental groups sued for delay; FWS ultimately issued a 2012 rule terminating the program, finding the program met the 1987 rule’s second failure criterion (fewer than 25 otters remaining and causes unremedied).
- Commercial fishing groups (Plaintiffs) sued in 2013 under the Administrative Procedure Act, arguing FWS lacked statutory authority under Pub. L. No. 99-625 to terminate the program and that the 2012 termination exceeded its authority.
- The district court dismissed as time-barred, treating the suit as a facial challenge to the 1987 Final Rule; the Ninth Circuit reversed, holding the 2012 termination was a distinct final agency action and the APA challenge was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of APA challenge | Plaintiffs: 2012 termination is the operative final action; suit filed in 2013 is within six years. | FWS: Challenge is facial attack on 1987 Final Rule; limitations ran from 1987 and is time-barred. | The 2012 termination is a final agency action distinct from the 1987 rule; the challenge is timely. |
| Proper accrual date for limitations | Plaintiffs: limitations begin when agency applies rule and causes injury (2012). | FWS: limitations begin when rule promulgated (1987). | Court: accrual can run from the later application (2012) when agency took action causing concrete legal consequences. |
| Whether prior knowledge of 1987 rule bars later suit | Plaintiffs: prior participation in rulemaking doesn't negate that injury arose only after 2012 action. | FWS: industry knew of 1987 rule; could have sued earlier. | Court: knowledge of rule is immaterial when the operative injury and consummation occurred in 2012. |
| Whether the complaint is a facial challenge requiring earlier suit | Plaintiffs: challenge targets 2012 application and statutory authority, not purely facial attack on 1987 rule. | FWS: characterizes suit as facial attack on the 1987 rule. | Court: characterization affects merits, but does not make the 2013 challenge untimely. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (Sup. Ct. 1997) (defining final agency action criteria)
- Shiny Rock Mining Corp. v. United States, 906 F.2d 1362 (9th Cir. 1990) (limitations run from publication of final agency action)
- Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) (substantive challenge to agency decision may be brought within six years of agency's application of that decision)
- Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir. 2012) (distinguishing challenge to rule itself from challenge to application of rule)
- City of San Diego v. Whitman, 242 F.3d 1097 (9th Cir. 2001) (final agency action imposes obligations or legal consequences)
- Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928 (9th Cir. 2002) (standard of review for dismissal reviewed de novo)