San Francisco Herring Ass'n v. U.S. Department of the Interior
683 F. App'x 579
| 9th Cir. | 2017Background
- SF Herring Association (SFHA) sued the National Park Service (NPS) / DOI seeking declaratory and injunctive relief, challenging enforcement activity in the Golden Gate National Recreation Area (GGNRA).
- SFHA did not challenge the 1983 regulation (36 C.F.R. § 2.3(d)(4)) directly, but alleged that NPS’s increased patrols and enforcement against SFHA members constituted unlawful agency action.
- The district court granted summary judgment to the United States Department of the Interior. SFHA appealed to the Ninth Circuit under 28 U.S.C. § 1291.
- The Ninth Circuit considered whether the SFHA’s claim presented a challenge to “final agency action” under the Administrative Procedure Act (APA), 5 U.S.C. § 704, such that federal courts have jurisdiction.
- The court concluded that patrols and increased enforcement presence were not the consummation of agency decisionmaking and thus not final agency action; SFHA had not invoked any agency action made reviewable by statute.
- Because subject-matter jurisdiction was lacking, the Ninth Circuit vacated the district court’s judgment and remanded with instructions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NPS enforcement patrols are "final agency action" under the APA | Patrols (actual enforcement) are final agency action that impose immediate obligations and penalties on SFHA members | Patrols are preliminary enforcement steps, not the consummation of agency decisionmaking; no final action identified | Patrols are not final agency action; no jurisdiction under the APA |
| Whether SFHA exhausted administrative remedies | SFHA contends it pursued available administrative avenues and thus should be heard in court | Government argues SFHA did not file required petitions/complaints and did not seek agency review under §553(e) | SFHA did not exhaust and exhaustion doctrine is distinct from finality; regardless, no final action exists |
| Whether ripeness saves the claim despite lack of finality | Enforcement produced immediate, significant changes to conduct, so claim is ripe for review | Ripeness is separate from finality; absence of final agency action cannot be cured by ripeness | Court declined to decide ripeness because finality is lacking; ripeness does not substitute for finality |
| Whether any failure-to-act or denial-of-petition theory applies | SFHA implied an ongoing unlawful enforcement policy that could amount to reviewable agency action | No statutory duty identified that the agency failed to perform; not a denial-of-petition appeal | No such duty or denial was pled; cited precedents inapposite |
Key Cases Cited
- Sackett v. E.P.A., 566 U.S. 120 (agency enforcement against specific parties can be final agency action)
- Bennett v. Spear, 520 U.S. 154 (final agency action requires consummation of decisionmaking and legal consequences)
- Wild Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir.) (agency operational acts not final when decisionmaking not consummated)
- Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir.) (challenge to an adopted rule, not mere physical closure)
- Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217 (10th Cir.) (agency’s failure to perform a mandatory duty may be final agency action)
- Darby v. Cisneros, 509 U.S. 137 (distinguishing exhaustion from finality)
- Abbott Labs. v. Gardner, 387 U.S. 136 (ripeness doctrine and immediate compliance burdens)
- O’Keeffe’s, Inc. v. U.S. Consumer Prod. Safety Comm’n, 92 F.3d 940 (9th Cir.) (agency denial of petition reviewed as final agency action)
- Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir.) (appeal from denial of petition for review is reviewable)