260 F. Supp. 3d 1338
D. Or.2017Background
- Plaintiffs (Friends of the Wild Swan; Alliance for the Wild Rockies) sued after the Fish and Wildlife Service and Department of the Interior published a Recovery Plan for bull trout, alleging violations of ESA §4(f) and the APA.
- Defendants moved to dismiss; Magistrate Judge Acosta recommended granting the motion. Plaintiffs objected; the district judge adopted the F&R but provided supplemental analysis.
- Plaintiffs brought eight ESA-based claims alleging the Plan failed to satisfy 16 U.S.C. §1533(f)(1)(B)’s requirements and one APA claim alleging the Plan was a final agency action.
- Magistrate Judge (and the district court) concluded the asserted deficiencies challenged discretionary aspects of plan content and thus were not actionable under the ESA citizen-suit provision.
- The court held the Recovery Plan is not a "final agency action" under the APA (Bennett test) because it is nonbinding and does not determine rights or immediate legal obligations.
- Result: Plaintiffs’ first eight claims dismissed for lack of jurisdiction (leave to amend granted); the APA claim dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether content of recovery plan is reviewable under ESA citizen-suit when plan allegedly fails to "incorporate to the maximum extent practicable" §1533(f)(1)(B) items | The Secretary’s incorporation of §1533(f)(1)(B) requirements into a plan is reviewable; plaintiffs contend the Plan fails to meet nondiscretionary statutory mandates and frustrates ESA purpose and public participation | The Secretary’s duty to include the listed items exists, but how those items are incorporated involves agency discretion and is not subject to citizen-suit under §1540(g) | Court: incorporation methods are discretionary and not reviewable under ESA citizen-suit; plaintiffs’ first eight claims fail (dismissed with leave to amend) |
| Whether alleged failure to follow ESA public-participation obligations provides a separate nondiscretionary basis for suit | Plaintiffs suggest public-participation rights would be undermined if plan-content claims are nonreviewable | Defendants note the public-participation duty (notice/comment and consideration) is a separate, nondiscretionary, reviewable duty but plaintiffs did not plead such a claim here (and would be time-barred if asserted now) | Court: public-participation duty remains judicially reviewable, but plaintiffs did not plead it; their content-based claims do not proceed |
| Whether a recovery plan constitutes "final agency action" under the APA (Bennett test) | Plaintiffs argue nonbinding plans can nonetheless be final when they have concrete real-world effects on agency conduct and third parties | Defendants argue recovery plans are nonbinding, do not create legal rights/obligations or require immediate compliance, and thus are not final | Court: Plan is not final agency action because it lacks legal force and does not determine rights/obligations; APA claim dismissed with prejudice |
| Whether dismissal should be with or without prejudice / whether leave to amend should be granted | Plaintiffs seek leave to pursue claims further | Defendants argue APA claim is incurable; ESA content claims lack jurisdiction but may be amendable if nondiscretionary duty alleged | Court: ESA content claims dismissed for failure to state a nondiscretionary violation but with leave to amend; APA claim dismissed with prejudice |
Key Cases Cited
- Thomas v. Arn, 474 U.S. 140 (discussing district court review of magistrate recommendations)
- United States v. Reyna-Tapia, 328 F.3d 1114 (standards for review of magistrate findings in the Ninth Circuit)
- Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (explaining ESA purposes and agency obligations)
- Desoto v. Yellow Freight Sys., Inc., 957 F.2d 655 (leave to amend after failure to state a claim)
- Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977 (reciting Bennett finality factors and pragmatic inquiry)
- Bennett v. Spear, 520 U.S. 154 (establishing two-part final agency action test)
- Conservation Cong. v. Finley, 774 F.3d 611 (Ninth Circuit: FWS recovery plans not binding)
- Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105 (confirming recovery plans are generally nonmandatory)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (distinguishing subject-matter-jurisdiction from merits dismissal implications)
- Coos County Bd. of Cty. Comm'rs v. Kempthorne, 531 F.3d 792 (discussing waiver of sovereign immunity and relation of Rule 12(b)(6) and 12(b)(1) analyses)