CALIFORNIA SEA URCHIN COMMISSION; California Abalone Association; California Lobster and Trap Fishermen‘s Association; Commercial Fishermen of Santa Barbara v. Michael BEAN, in his official capacity as Acting Assistant Secretary for Fish and Wildlife & Parks, Department of Interior; Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service; United States Fish & Wildlife Service; Friends of the Sea Otter; Humane Society of the United States; Defenders of Wildlife; Center for Biological Diversity; The Otter Project; Environmental Defense Center; Los Angeles Waterkeeper
No. 14-55580
United States Court of Appeals, Ninth Circuit
July 12, 2016
828 F.3d 1046
Rachel Heron (argued), Daniel J. Pollak, John L. Smeltzer, and Vivian H.W. Wang, Attorneys; Sam Hirsch, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Lynn Cox, Office of the Solicitor, United States Department of the Interior; for Defendants-Appellees.
Before: ALEX KOZINSKI, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges.
OPINION
GOULD, Circuit Judge:
Plaintiffs, California Sea Urchin Commission and other commercial fishing groups, appeal the district court‘s dismissal of their complaint alleging that the U.S. Fish and Wildlife Service (FWS) violated its statutory authority under
I
The southern sea otter, also known as the California sea otter, historically ranged throughout the California coast, but was hunted to near extinction for its fur in the 1700s and 1800s. The southern sea otter was listed as a threatened species under the Endangered Species Act (ESA) in 1977. Although the sea otter‘s population and range had increased since federal and state bans on hunting in the early 1900s, it
In 1986, Congress authorized FWS to develop and implement “a plan for the relocation and management of a population of California sea otters from the existing range of the parent population to another location.”
The Final Rule acknowledged that there was some chance the translocation program would not succeed. To determine whether the project should be continued or terminated, FWS included in the Final Rule five termination criteria.1 52 Fed. Reg. at 29,784. FWS planned to terminate the experimental population if it found that any one of the criteria was met. Id.
From the start of the translocation program, the experimental sea otter population was plagued by high mortality and emigration. 53 Fed. Reg. 37,577, 37,579 (Sept. 27, 1988). In 1993, FWS stopped removing sea otters that were found in the management zone, though the ESA and MMPA exemptions remained in effect. FWS prepared several environmental impact statements on the effects of terminating the program and reinitiated ESA consultation, culminating in a Biological Opinion concluding that resumption of otter removal in the management zone would likely jeopardize the otter‘s continued existence. 77 Fed. Reg. 75,266, 75,270 (Dec. 19, 2012).
Despite the recognized failures of the translocation program, the management zone‘s ESA and MMPA take exemptions continued as before. In 2009, Intervenor-Defendants Friends of the Sea Otter and other environmental organizations sued FWS for unreasonable delay in terminating the translocation program. The parties reached a settlement that required FWS to issue a final decision on program termination by the end of 2012. On December 19, 2012, FWS promulgated a rule terminating the program based on application of the Final Rule‘s termination criteria. 77 Fed. Reg. at 75,266. FWS‘s analysis concluded that the translocation program met the 1987 Final Rule‘s second failure criterion: “fewer than 25 otters remain and the reasons for emigration or mortality cannot be identified and/or remedied.” Id. at 75,267; 52 Fed. Reg. at 29,772.
Plaintiffs filed suit in early 2013, alleging that the program‘s termination exceeded FWS‘s statutory authority under
The Administrative Procedure Act (APA) authorizes judicial review of final agency actions.
Plaintiffs’ complaint claims that FWS lacks the statutory authority to terminate the translocation program—that
We conclude that the operative agency action challenged is the 2012 program termination, and thus that Plaintiffs’ challenge is timely. We express no opinion on the merits of Plaintiffs’ underlying claims. We hold only that Plaintiffs may challenge FWS‘s termination of the program within six years of the decision to terminate the program, and were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. To hold otherwise would require Plaintiffs to have filed suit nearly a decade before FWS took the action that caused their injury.
The 1987 Final Rule was clearly a final agency action, but so too was the 2012 program termination. Although the 1987 Final Rule laid out the criteria through which the translocation program could be terminated at some future date, FWS did not terminate the program until 2012, when it “determined that the southern sea otter translocation program has failed to fulfill its purpose....” 77 Fed. Reg. at 75,266. Although Plaintiffs cannot now challenge the 1987 Final Rule, they can challenge its application in the 2012 program termination as exceeding the agency‘s statutory authority. See Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 904 (9th Cir. 2012) (holding that while the plaintiffs were time-barred from challenging a 1983 regulatory definition, “they can challenge [FWS‘s] alleged application of that definition in the 2008 Chukchi Sea regulations as exceeding the agency‘s statutory authority“).
FWS contends that because Plaintiffs’ challenge is brought against FWS‘s underlying authority as asserted in the 1987 Final Rule, the challenge existed at the time the Final Rule was promulgated and Plaintiffs unjustifiably waited more than 25 years to sue. We disagree. Plaintiffs did not “wait” to sue, because the issue did not become salient until FWS actually terminated the program, in 2012. A plaintiff
Our cases on this topic determine the timeliness of APA challenges according to when the applicable agency action was taken. We have held that a statute of limitations may run against a plaintiff even if it is not injured until more than six years after the relevant agency action became final. Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1363 (9th Cir. 1990). In Shiny Rock, the Bureau of Land Management (BLM) published a 1964 Public Lands Order withdrawing certain federal lands from mineral extraction. Id. More than fifteen years later, a mining company applied to the BLM for a mineral patent, which the agency rejected in part because the company‘s claim was in the area that the Public Land Order had withdrawn from mining. Id. The company contended that the statute of limitations period should not begin to run until a plaintiff is injured and acquires standing. Id. at 1364-66. We disagreed, holding that the statute of limitations period runs from when the agency action becomes final and is published in the Federal Register. Id. at 1365. We reasoned that considering standing to sue a prerequisite to the running of the limitations period would render the limitations period meaningless by extending it indefinitely. Id.
FWS contends that this case is analogous to Shiny Rock. Just as the clock started running on the mining company‘s claim when the BLM‘s land withdrawal order was published, FWS reasons, here Plaintiffs’ claim that FWS lacks authority to terminate the program accrued in 1987, when FWS published the rule containing the failure criteria. We disagree. In Shiny Rock, the government‘s land withdrawal order was a prospective decision that put all interested parties on notice of an agency action. This case is different because while the 1987 Final Rule put fishing groups on notice that FWS may at some later date terminate the program, the operative agency action did not happen until 2012, when FWS actually terminated the program. Unlike the BLM‘s rejection of the company‘s mineral patent application in Shiny Rock, which was a straightforward application of the land withdrawal order to a particular company, the 2012 program cancellation was a generally applicable rule, published in the Federal Register, that reflected new agency decisionmaking based on the program‘s failure to realize its objectives. See 77 Fed. Reg. at 75,266. Shiny Rock does not foreclose Plaintiffs from reaching the merits of their 2013 APA challenge to FWS‘s 2012 agency action.
Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991), is more analogous to this case because it involved the present application of an earlier rule that allegedly contradicted the agency‘s statutory authority. In Wind River, the BLM published a 1979 rule in the Federal Register establishing 138 Wilder-
FWS contends that Wind River is inapposite to this case. It is true that this case does not concern the validity of a regulation as applied to a specific challenger; the 2012 program cancellation is instead a generally applicable agency rule. But Wind River is otherwise analogous to this dispute. As in Wind River, Plaintiffs seek to challenge a recent agency action applying an earlier rule. As in Wind River, Plaintiffs contend that the earlier rule went beyond the agency‘s statutory authority, and thus that the agency lacked the statutory authority to take the recent action. Finally, it is the recent action, not the earlier rule, that caused Plaintiffs’ injury. While an injury creating standing to sue is not a prerequisite to the running of the limitations period, see Shiny Rock, 906 F.2d at 1365, here Plaintiffs point to a recent and independent agency action causing their injury. FWS may well defend its 2012 cancellation as a straightforward application of the 1987 Final Rule‘s failure criteria, but that application was nonetheless a final agency action, with its own limitations period beginning in 2012.
The justification for the Wind River rule is that an agency should not be able to sidestep a legal challenge to one of its actions by backdating the action to when the agency first published an applicable or controlling rule. If the operative dispute does not arise until decades later, when the agency applies the earlier rule, such a holding would wall off the agency from any challenge on the merits. The statute of limitations would cease to be a shield against stale claims, and would instead become a sword to vanquish a challenge like the case here, without ever considering the merits. The claim in Wind River was not untimely, because the agency applied its 1979 rule to the plaintiff mining company in 1987, within six years of the company‘s suit. Neither is Plaintiffs’ claim in this case, as FWS did not apply the termination criteria from the 1987 Final Rule until 2012, when it terminated the translocation program.
Another justification for our Wind River holding was that “no one was likely to have discovered that the BLM‘s 1979 designation of [WSA 243] was beyond the agency‘s authority until someone actually took an interest in that particular piece of property, which only happened when [the company] staked its mining claims.” Wind River, 946 F.2d at 715. FWS contends that this justification for the Wind River rule is absent in this case, because Plaintiffs do not contend that no one was likely to have discovered the 1987 Final Rule; to the contrary, the fishing industry was an active participant in the rulemaking process.
Our decision is also supported by pragmatic concerns. If parties had to challenge the Final Rule‘s termination criteria within six years of 1987, then any such challenge predating the program‘s termination would necessarily have been theoretical. In view of the actual termination, it is possible to focus on issues such as injury in a concrete way.
III
Plaintiffs contend that
REVERSED AND REMANDED.