946 F.3d 564
9th Cir.2019Background
- The Golden Gate National Recreation Area (GGNRA) includes waters of San Francisco Bay; Park Service regulation (36 C.F.R. § 2.3(d)(4)) prohibits commercial fishing in national parks and violations carry fines and up to six months’ imprisonment.
- In November 2011 and November 2012 the National Park Service (NPS) issued formal Department of Interior notices asserting federal jurisdiction over the GGNRA waters, stating commercial herring fishing there was unlawful, and in 2012 announcing it would monitor and enforce the prohibition.
- The San Francisco Herring Association repeatedly protested; NPS representatives refused to withdraw the position in meetings and calls.
- In January 2013 uniformed NPS rangers and California Department of Fish and Wildlife (CDFW) wardens (allegedly at NPS direction) approached individual fishermen in GGNRA waters and ordered them to stop fishing; fishermen complied to avoid criminal exposure.
- Procedural posture: Association sued under the APA; district court entered judgment for defendants on the merits; Ninth Circuit vacated and remanded for lack of final agency action, instructing dismissal; on remand district court allowed a motion to amend but ultimately denied leave to file the second amended complaint (and denied a new Declaratory Judgment Act count) as futile/unduly delayed. This appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NPS enforcement against individual fishermen constitutes "final agency action" under the APA | The combination of formal NPS notices, repeated refusals to rescind, and in‑water orders to stop fishing constituted consummated agency decisions exposing fishermen to legal consequences | The prior opinions and NPS patrols were tentative; field patrols/communications are not final action and CDFW actions were not federal action absent formal deputization | Held: The alleged in‑water enforcement orders, grounded in prior notices and carried out by NPS/rangers or their agents, satisfy Bennett’s two‑part finality test and allege final agency action; amendment permitted |
| Whether the Ninth Circuit’s prior mandate precluded leave to amend (law of the case/mandate rule) | The prior opinion addressed only patrols and left other issues open; the new in‑water enforcement allegations are distinct and were not decided | The prior remand foreclosed relitigation of finality and renders amendment futile | Held: The prior mandate did not bar new factual allegations; district court erred treating the prior opinion as dispositive on the new enforcement allegations |
| Whether adding a Declaratory Judgment Act count should be allowed | Association sought to add a separate DJA count for declaratory relief | Defendants argued undue delay and the DJA count was duplicative of existing relief requested earlier | Held: District court did not abuse discretion in denying the DJA count due to undue delay and duplicative relief; that denial affirmed |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (sets two‑part finality test: consummation of decisionmaking and legal consequences)
- Sackett v. EPA, 566 U.S. 120 (2012) (agency compliance/order can constitute final agency action)
- U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016) (applies Bennett two‑part test and endorses pragmatic approach to finality)
- Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 1084 (9th Cir. 2016) (agency jurisdictional determinations can satisfy consummation prong)
- Oregon Natural Desert Ass’n v. U.S. Dep’t of Agric., 465 F.3d 977 (9th Cir. 2006) (Bennett’s pragmatic approach: finality may be met without rulemaking)