CENTER FOR BIOLOGICAL DIVERSITY; Pesticide Action Network North America, non-profit organizations v. U.S. ENVIRONMENTAL PROTECTION AGENCY
No. 14-16977
United States Court of Appeals, Ninth Circuit
Filed February 2, 2017
Argued and Submitted May 9, 2016 San Francisco, California
Reviewing the record with a deferential eye, as we are required to do, there is clearly substantial evidence to support the Commission‘s finding that no part of the $1,785 in costs was a sanction.
III.
Judges are not advocates. Thus, when an aggrieved party seeks review from our court, we require the party to “specifically and distinctly” explain what issues require our review. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986). The majority‘s opinion ignores this fundamental policy and, instead, attempts to save Sharemaster‘s case by basing its decision on an issue Sharemaster did not raise. The record before this court cannot justify granting Sharemaster‘s petition, and this case should be closed.
Stephanie Parent (argued), Center for Biological Diversity, Portland, Oregon; Justin Augustine, Center for Biological Diversity, San Francisco, California; Collette Adkins Giese, Center for Biological Diversity, Circle Pines, Minnesota; for Plaintiffs-Appellants.
Anna Katselas (argued), Kevin McArdle, Bridget Kennedy McNeil, and Ellen J. Durkee, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendant-Appellee.
David B. Weinberg (argued), R. Steven Richardson, and Roger H. Miksad, Wiley Rein LLP, Washington, D.C.; Seth Goldberg and Cynthia L. Taub, Steptoe & Johnson LLP, Washington, D.C.; Kirsten L. Nathanson and Thomas R. Lunquist, Crowell & Moring LLP, Washington, D.C.; for Intervenor-Defendants-Appellants.
Before: KIM McLANE WARDLAW, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.
Dissent by Judge BEA
PAEZ, Circuit Judge:
The Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA“) charges the Environmental Protection Agency (“EPA“) with the obligation to register and reregister pesticide active ingredients and pesticide products.1 In this case, the Center for Biological Diversity and the Pesticide Action Network North America (collectively, “CBD“) allege that the EPA violated the Endangered Species Act (“ESA“) when it reregistered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the Fish and Wildlife Service (collectively, “the Service“) as required by
We must decide three core issues. First, we must reconcile the disparate limitations periods and jurisdictional provisions of the ESA and FIFRA for citizen suits that challenge the EPA‘s failure to consult with the Service as required by ESA Section 7 when reregistering pesticide active ingredients and pesticide products. Second, we must determine whether plaintiffs alleged any affirmative agency actions by the EPA that triggered the EPA‘s obligation to undertake Section 7 consultation with the Service. And third, we must decide whether any of CBD‘s claims are barred by the collateral attack doctrine.
On each of these core issues, the district court ruled in favor of the EPA.2 The court, however, granted CBD leave to amend to add facts that would demonstrate that the reregistration of pesticide products, although affirmative agency actions, were not simply impermissible collateral attacks on prior Reregistration Eligibility Decisions’ (“RED“) analyses or conclusions. CBD declined to amend. At CBD‘s request, however, the district court entered a final judgment under
Although we agree with many of the district court‘s rulings in this complex environmental case, we conclude that the court erred in its application of the collateral attack doctrine and in requiring CBD to amend the operative Complaint. We therefore affirm in substantial part, reverse in part, and remand for further proceedings.
A.
CBD filed a citizen suit in district court alleging that the EPA had failed to comply with the ESA‘s consultation requirement in its ongoing involvement with 382 pesticides. Ctr. for Biological Diversity v. EPA, No. 11-cv-00293-JCS, 2013 WL 1729573, at *4 (N.D. Cal. Apr. 22, 2013); see
The EPA and Intervenors3 (collectively, “Defendants“) filed a motion to dismiss for (1) failure to state a claim under the ESA, (2) lack of subject matter jurisdiction under FIFRA, and (3) lack of Article III standing. Ctr. for Biological Diversity, 2013 WL 1729573, at *1. In its Complaint, CBD alleged that the “EPA retains ongoing discretionary control and involvement over all of these pesticides, which constitute[] ‘agency action’ subject to consultation under Section 7(a)(2) of the ESA.” Ctr. for Biological Diversity, 65 F. Supp. 3d 742, 752 (N.D. Cal. 2014) (emphasis omitted). Dismissing the Complaint with leave to amend, the district court faulted CBD for failing to allege any affirmative agency action by the EPA, as required by Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (en banc), that would necessitate consultation with the Service. Ctr. for Biological Diversity, 2013 WL 1729573, at *8-10. The district court held that “[m]ere discretionary control and involvement” is not enough to trigger ESA Section 7 consultation. Id. at *10. The court also addressed subject matter jurisdiction, standing, and the statute of limitations, but reserved resolution of these issues until CBD filed an amended complaint. See id. at *12-22. The district court directed CBD to allege a specific affirmative act by the EPA that would trigger Section 7 consultation for each of the alleged pesticide active ingredients or pesticide products. Id. at *10.
Subsequently, CBD filed a hefty 437-page Amended Complaint.4 In response, Defendants moved for a more definite statement under
B.
To guide our discussion of the district court‘s ruling as well as facilitate our own analysis, we briefly explain how CBD framed the thirty-one failure-to-consult Claims for Relief in the Second Amended Complaint.
Each claim centers on one pesticide active ingredient.5 For each pesticide active ingredient, CBD “identif[ies] four categories of ‘agency actions’ which allegedly trigger the EPA‘s duty to consult under [S]ection 7(a)(2).” Ctr. for Biological Diversity, 65 F. Supp. 3d at 755. In our discussion below, we refer to each of these categories as a “category one, two, three, or four” sub-claim for relief. The four categories are identical for all thirty-one Claims for Relief. Category one sub-claims identify “the EPA‘s issuance of the RED or amended RED” as an agency action, and provide a date on which the EPA issued the RED or amended it. Id. Category two sub-claims allege that the EPA‘s “continued discretionary control and involvement in this [pesticide active ingredient‘s and pesticide product‘s] registration” constitute agency action. Id. (internal quotation marks omitted). Category three sub-claims allege that the “EPA‘s completion of [pesticide] product reregistration for [a] [specific] pesticide [active ingredient]” is an agency action. Id. (internal quotation marks omitted). Each such sub-claim provides the date for when product reregistration was completed. And, finally, category four sub-claims allege that the “EPA‘s approvals of [pesticide] products containing [a] pesticide [active ingredient]” constitute an agency action and provide dates for when the EPA approved each pesticide product‘s reregistration. Id. (internal quotation marks omitted).
Next, the court turned to whether there was subject matter jurisdiction for the sixteen category one sub-claims that remained. Id. The court concluded that because CBD‘s claims were “inextricably intertwined” with the EPA‘s pesticide actions governed under FIFRA, [they were] subject to FIFRA‘s more specific jurisdictional provisions....” Id. (citation omitted); see Am. Bird Conservancy v. Fed. Commc‘ns Comm‘n, 545 F.3d 1190, 1193 (9th Cir. 2008) (”American Bird“). In applying FIFRA‘s jurisdictional provision,
The district court then addressed and rejected all of CBD‘s category two—“continued discretionary control“—sub-claims. Id. at 757-58. The court ruled that “[t]he retention of discretionary control is necessary but insufficient to trigger” the EPA‘s consultation with the Service. Id. at 758. The court reasoned, largely in line with our en banc opinion in Karuk Tribe, that although affirmative actions can be ongoing, CBD must allege an affirmative agency action and maintaining discretionary control and involvement in a pesticide‘s registration is not sufficient. Id. at 757-58.
Next, the district court discussed and rejected all category three—the completion of pesticide product reregistration for a particular pesticide active ingredient—sub-claims. Id. at 758-59. The court concluded that completion of pesticide product reregistration “is not an affirmative act of any sort; it is a fact.” Id. at 758. The court therefore dismissed all thirty-one category three sub-claims. Id. at 759.
Finally, the district court addressed CBD‘s category four—reregistration of pesticide products—sub-claims. Id. at 759-60. Analyzing the statute governing reregistrations of pesticide products,
Following entry of a final judgment on Claims for Relief one through thirty-one pursuant to
II.
A.
1.
We begin with a brief description of the relevant aspects of both the ESA and FIFRA. The ESA seeks to protect and conserve endangered and threatened species and their habitats, and it reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978); see also Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007) (”Home Builders“). It achieves that purpose, in part, by requiring federal agencies to consult with the Service to ensure their discretionary actions do not jeopardize endangered and threatened species, or adversely modify a listed species’ critical habitat.
Consultation allows agencies to draw on the expertise of “wildlife agencies to determine whether [an] action is likely to jeopardize a listed species” or its habitat, and “to identify reasonable and prudent alternatives” to avoid those harmful impacts. Karuk Tribe, 681 F.3d at 1020 (citing Turtle Island Restoration Network v. Nat‘l Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir. 2003)). An agency‘s duty to consult, or to reinitiate consultation, applies whether an agency action is “ongoing” or “complete.” Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1086, 1086 n.12 (9th Cir. 2015), cert. denied, 137 S. Ct. 293 (2016). Agencies must review their actions “at the earliest possible time to determine whether any action may affect listed species or critical habitat,” and those agencies must initiate formal consultation when such a determination is made.
2.
FIFRA provides a comprehensive regulatory scheme for the use, sale, and labeling of pesticide active ingredients and pesticide products. Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1030 (9th Cir. 2005); see
As part of the approval process, the EPA conducts an analysis that considers the “economic, social and environmental costs and benefits of the use of any pesticide.” Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir. 2001) (quoting Save Our Ecosystems v. Clark, 747 F.2d 1240, 1248 (9th Cir. 1984)). In conducting that analysis, the EPA must consider what are known as Paragraph 5 requirements provided in
The [EPA] shall register a pesticide if [it] determines that, when considered with any restrictions imposed under subsection (d) of this section—
(A) its composition is such as to warrant the proposed claims for it;
(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;
(C) it will perform its intended function without unreasonable adverse effects on the environment; and
(D) when used in accordance with widespread and commonly recognized practice it will not generally cause adverse effects on the environment.
In 1988, Congress passed legislation directing the EPA to “reregister ... each registered pesticide [product] containing any active ingredient contained in any pesticide [product] first registered before November 1, 1984,” and it detailed a multiphase reregistration process.10
B.
Against that legal landscape, we turn to the thirty-one failure-to-consult Claims for Relief at issue in this appeal. We begin with the category one sub-claims—the issuance of REDs. We assume, but do not hold, that the EPA‘s issuance of a RED is an agency action that triggers ESA Section 7 consultation. We need not decide whether the issuance of a RED is a triggering action because we hold that all category one sub-claims were properly dismissed by the district court as either time-barred or jurisdictionally barred.
1.
We begin with a discussion of the EPA‘s statute of limitations defense. Neither FIFRA nor the ESA provides a limitations period when a Section 7 citizen suit filed in a district court challenges the EPA‘s decision to register or reregister a pesticide active ingredient or pesticide product. The issue of which limitations period to apply in those circumstances is a question of first impression in the Ninth Circuit. CBD argues that no limitations period applies to its claims because the EPA has a continuing duty to comply with Section 7, and its failure to initiate consultation constitutes a “continuing violation” that excuses any limitations period. We disagree.
We have held that when a statute does not specify a limitations period, federal courts must apply the general statute of limitations that most closely addresses the basis for the plaintiff‘s claim. For example, United States v. Dae Rim Fishery Co., 794 F.2d 1392, 1394 (9th Cir. 1986), held that the limitations period for claims sounding in contract and quasi-contract was governed by the six-year statute of limitations set forth in
Where, as here, a plaintiff alleges that an agency failed to comply with the ESA‘s procedural requirements, we apply the general six-year statute of limitations set forth in
Thus, we affirm the district court‘s dismissal of the category one sub-claims alleged in the fourth, eighth, tenth, fourteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-second, twenty-third, twenty-fourth, thirtieth, and thirty-first Claims for Relief. The district court properly dismissed these category one sub-claims because the REDs alleged in those claims had all been issued prior to January 20, 2005, over six years prior to the filing of CBD‘s original Complaint. In addition, we dismiss sub-claim one of the first Claim for Relief as barred by the statute of limitations.14
With respect to sub-claim one of the twenty-eighth Claim for Relief, however, we remand to the district court to resolve a factual dispute. The district court dismissed this sub-claim as time-barred based on the RED‘s issuance date of September 2001. Ctr. for Biological Diversity, 65 F. Supp. 3d at 756. However, the Second Amended Complaint alleged an amendment to that RED in June of 2008. It is unclear from the record before the district court whether the amendment was sufficiently substantive to be an independent triggering action. The government acknowledged that the amendment added two minor labeling requirements, and we therefore remand sub-claim one of the twenty-eighth Claim for Relief for the district court to determine whether those additions to the RED in 2008 constitute an affirmative agency action triggering Section 7 consultation.
2.
Next, we must decide whether there was subject matter jurisdiction for the district court to properly hear the sixteen remaining category one sub-claims.
Both the ESA and FIFRA contain citizen suit provisions, but those provisions offer conflicting requirements for whether a case should be filed in the district court or in the court of appeals. The ESA allows any person, including entities, to:
commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof....
Similarly, FIFRA allows private individuals and entities to seek judicial review of the EPA‘s registration and reregistration decisions, but it bifurcates which claims may be brought before the district court and which claims must be presented to the court of appeals. When a plaintiff seeks review of “the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law,” the suit must be filed in the district court.
We have held that “when two jurisdictional statutes draw different routes of appeal, the well-established rule is to apply only the more specific legislation.” American Bird, 545 F.3d at 1194 (citing Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911 (9th Cir. 1989)). In American Bird, plaintiffs filed suit in the district court, arguing that the Federal Communications Commission (“FCC“) had failed to engage in Section 7 consultation when it issued licenses for seven communications towers. American Bird, 545 F.3d at 1191-92. The Federal Communications Act and the ESA provided separate judicial review provisions, and the Communications Act‘s provisions vested federal courts of appeals with “exclusive jurisdiction” over actions to “enjoin, set aside, annul, or suspend any order of” the FCC. Id. at 1193 (citing
When a plaintiff‘s claims are inextricably intertwined between two statutes—such as the ESA and FIFRA—and those statutes contain conflicting jurisdictional provisions, American Bird requires plaintiffs to comply with the more specific statute. American Bird, 545 F.3d at 1194-95. As the district court noted, when Section 7 consultation follows public notice and comment, that consultation informs the validity of the EPA‘s determination whether to reregister a pesticide. Here, CBD‘s Section 7 category one sub-claims inherently challenge the validity of the EPA‘s final registration and reregistration orders.
Thus, we hold that for the purposes of FIFRA, a Section 7 claim raised after the EPA undertakes public notice and comment must comply with FIFRA‘s jurisdictional provisions. A plaintiff bringing a Section 7 claim challenging “the validity of [the Administrator‘s FIFRA] order” after a period of notice and comment in the Federal Register must file a petition for review in the court of appeals within 60 days of the entry of the contested final order.16
On the basis of the district court record, we conclude that fifteen of the sixteen remaining category one sub-claims were properly dismissed by the district court for lack of subject matter jurisdiction.17 In the second, third, fifth, sixth, seventh, ninth, eleventh, twelfth, thirteenth, fifteenth, twentieth, twenty-first, twenty-fifth, twenty-sixth, and twenty-ninth Claims for Relief the issuance of the subject REDs were all preceded by a public comment and notice period published in the Federal Register. Further, sub-claim one in the twenty-seventh Claim for Relief is dismissed for lack of jurisdiction.18 Therefore, CBD should have filed a petition in the court of appeals to obtain judicial review of those sub-claims.
In sum, we affirm the district court‘s dismissal of all category one sub-claims contained in Claims for Relief one through thirty-one.
C.
We turn to the category two sub-claims, which allege that the “continued discretionary control and involvement in [a] pesticide [active ingredient‘s and pesticide product]‘s registration” constitute “ongoing agency action.” Ctr. for Biological Diversity, 65 F. Supp. 3d at 755 (internal quotation marks omitted). We disagree and therefore affirm the district court‘s dismissal of all category two sub-claims.
CBD argues that because the EPA has an ongoing duty to comply with the ESA, its failure to undertake Section 7 consultation serves as an “ongoing violation” of the ESA. CBD reasons that the EPA‘s “ongoing violation” provides an adequate basis for a Section 7 claim, and consequently, a plaintiff should not be required to identify a separate and affirmative discretionary action for a Section 7 claim to accrue. As the district court noted, CBD‘s construction is at odds with controlling precedent, which provides that an ESA claim accrues only when an agency takes discretionary, affirmative action. Karuk Tribe, 681 F.3d at 1021 (“‘inaction’ is not ‘action’ for [
CBD conflates an ongoing duty with an ongoing violation. An agency that retains regulatory authority over a program has a continuing obligation to comply with the ESA. Cottonwood Envtl. Law Ctr., 789 F.3d at 1087 (citing Wash. Toxics Coal., 413 F.3d at 1030-33). In Washington Toxics Coalition, we held that the EPA was not excused from complying with the ESA when it registered fifty-four pesticides without Section 7 consultation. Wash. Toxics Coal., 413 F.3d at 1033 (“Because [the] EPA has continuing authority over pesticide regulation, it has a continuing obligation to follow the requirements of the ESA.“); see also Forest Guardians v. Johanns, 450 F.3d 455, 464-65 (9th Cir. 2006) (explaining agencies’ ongoing duty to reinitiate ESA consultation). Similarly, in Cottonwood Environmental Law Center, we held that the U.S. Forest Service violated the ESA when it failed to reinitiate consultation after the U.S. Fish and Wildlife Service designated critical habitat on 10,000 square miles of National Forest land. Cottonwood Envtl. Law Ctr., 789 F.3d at 1078, 1086-88, 1092.
Although the EPA has an ongoing duty to comply with the ESA, under Karuk Tribe, Section 7 consultation still must be triggered by an affirmative agency action. Id. In other words, “[t]he retention of discretionary control is necessary but insufficient to trigger an agency‘s duty to ... initiate consultation.” Ctr. for Biological Diversity, 65 F. Supp. 3d at 758. Moreover, as the district court noted, although affirmative agency actions can be ongoing, “the retention of discretionary control over previously issued pesticide licenses” is not such an ongoing action. Ctr. for Biological Diversity, 65 F. Supp. 3d at 758 (citing Karuk Tribe, 681 F.3d at 1021); see also Tenn. Valley Auth. v. Hill, 437 U.S. 153, 173-74 (1978). Karuk Tribe squarely controls this case; because category two sub-claims fail to identify an affirmative agency action that would trigger a Section 7 consultation, we affirm the district court‘s dismissal of all category two sub-claims alleged in Claims for Relief one through thirty-one. See Karuk Tribe, 681 F.3d at 1021.
D.
Next, we turn to the category three sub-claims that allege that the EPA‘s completion of all pesticide product reregistrations for a particular pesticide active ingredient is an affirmative agency action that triggers Section 7 consultation. Ctr. for Biological Diversity, 65 F. Supp. 3d at 755. We agree with the district court that the completion of pesticide product reregistration is simply a fact, and therefore it cannot trigger Section 7 consultation. Id. at 758. The date on which all reregistrations of pesticide products that contain a particular pesticide active ingredient have been completed, is simply that, a date. As the district court explained, CBD “may not base their failure-to-consult claims on the EPA‘s ‘completion’ of product reregistration—as opposed to the actual registration actions.” Id. at 759. As a result, we affirm the dismissal of all category three sub-claims alleged in Claims for Relief one through thirty-one.
E.
This brings us to the final category four sub-claims, in which CBD contends that the EPA‘s approval of individual pesticide products is an affirmative agency action triggering ESA Section 7 consultation. Id. at 755. These category four sub-claims are complicated by the fact that Defendants contend that CBD‘s timely reregistration claims of pesticide products are nothing more than collateral attacks on the underlying REDs that were already dismissed, and are therefore impermissible. As detailed below, we agree with the district court that pesticide product reregistration is an affirmative agency action, but we disagree that those claims are barred by the collateral attack doctrine and require further amendments to the Second Amended Complaint.
1.
As discussed supra at part II.A.2 and footnote 10, the EPA uses a multiphase reregistration process, which includes a phase-five reregistration of pesticide products.
The process of gathering data after a RED has issued can be lengthy; sometimes more than ten years will have elapsed between the issuance of a RED and the completion of reregistration of all pesticide products containing the RED‘s pesticide active ingredient. According to the Evaluation, “[w]ith regard to a RED, on average, it took about 47 months to reregister all products covered by a RED [and] [t]he average maximum time needed for reregistering all products covered by a RED was about 76 months.” Id. at 3-5. Importantly, as the statute and the EPA‘s own process demonstrate, it is clear that publication of a RED for a pesticide active ingredient is not the agency‘s final decision on reregistration of a pesticide product. Id. at vi. A RED does not contain all the research upon which the EPA relies when reaching its final pesticide product reregistration decision. Id. at 1-4, 1-5. As such, the reregistration of an individual pesticide product is its own triggering action.
We note, consistent with our holding in section II.B.1-2, that any claim based on a product reregistration that occurred before January 20, 2005 would be time-barred, and any claim involving a product reregistration after public notice and comment in the Federal Register would be jurisdictionally barred. The parties do not suggest that any of the category four sub-claims for relief are barred by the statute of limitations or are jurisdictionally barred. Nonetheless, we leave it to the district court to address any such issues the parties might raise on remand.
2.
The collateral attack doctrine prevents litigants from “relitigat[ing] the merits of ... previous administrative proceedings” or “evading ... established administrative procedures” by raising a claim that is “inescapably intertwined with a review of the procedures and merits surrounding” an underlying agency order. Americopters, LLC v. FAA, 441 F.3d 726, 736 (9th Cir. 2006) (internal quotation marks and citations omitted, alteration in original); see also United States v. Backlund, 689 F.3d 986, 1000 (9th Cir. 2012) (applying the collateral attack doctrine to APA claims). At its core, the doctrine prohibits a plaintiff from using a later order that implements a prior agency action as a vehicle to undo the underlying action or order. Americopters, 441 F.3d at 736.
As noted, Defendants argue, and the district court agreed, that the category four sub-claims alleging the reregistration of pesticide products as independent triggering actions are simply collateral attacks on the issuance of the REDs, which are time-barred or jurisdictionally barred. Ctr. for Biological Diversity, 65 F. Supp. 3d at 760-64. We disagree.
The collateral attack doctrine is not at issue here; CBD does not seek to unravel a prior agency order, nor does it attempt to challenge “any of the analyses or conclusions contained in the RED[s].” 19 Id. at 764. CBD contends that the final reregistration of a pesticide product triggers the EPA‘s Section 7 consultation obligation because the EPA does not “rubber stamp” the pesticide product reregistration in light of the RED. The district court agreed, detailing the differences between the EPA‘s process for issuing a RED and the separate process for approving a pesticide product. Id. at 762-63. As a result, the district court declined to hold that “as a matter of law, an attack on a post-RED product reregistration is a collateral attack on the RED.” Id. at 763. We agree; as discussed supra, see section II.A.2, under the governing statute,
Neither the district court nor the dissent disputes this distinction. Id.; Diss. at 1096. Nonetheless, the district court and the dissent would require CBD to allege facts specific to each pesticide product demonstrating how each product reregistration raises new ESA compliance issues. Ctr. for Biological Diversity, 65 F. Supp. 3d at 764; Diss. at 1096-97. Such specificity is unwarranted at this stage of the proceedings. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Here, CBD has pled a facially valid claim under the ESA because it has demonstrated that, as a matter of fact, “the issuance of a RED is an interim step in the process of reregistering the pesticide products” and therefore the reregistering of a pesticide product involves multiple other steps, thus triggering its own consultation requirement. Ctr. for Biological Diversity, 65 F. Supp. 3d at 764.
CBD is not required to allege facts beyond what it already has alleged in its Second Amended Complaint. CBD notified the EPA of its intent to file suit, and the Second Amended Complaint alleges facts sufficient to support the proposition that pesticide product reregistrations are affirmative agency actions, distinct from the issuance of REDs, that trigger a Section 7 consultation obligation.20 Neither the ESA nor FIFRA requires more. They certainly do not require CBD to remind the EPA to engage in ESA consultation at every phase of the pesticide active ingredient and pesticide product reregistration process, nor do those statutes require CBD to contest a RED to preserve failure-to-consult claims challenging final pesticide product reregistration decisions.
III.
We affirm the district court‘s order in substantial part; all category one, two, and three sub-claims alleged in Claims for Relief one through thirty-one were properly dismissed. We reverse the dismissal of all category four sub-claims alleged in Claims for Relief one through thirty-one in which the reregistration took place after January 20, 2005, and in which there was no public notice and comment in the Federal Register. We remand for further proceedings consistent with this opinion. Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
BEA, Circuit Judge, dissenting in part:
Although I agree with most of the majority opinion, I respectfully dissent from the conclusion reached in Part II.E that the category four sub-claims in the Second Amended Complaint (“SAC“), which challenge the approval of pesticide products by the Environmental Protection Agency (“EPA“), were not a collateral attack on the EPA‘s prior approval of the pesticides in those products. The majority focuses on the distinct processes the EPA uses to approve pesticides and to approve pesticide products. However, the category four sub-claims, as pleaded, are an impermissible collateral attack because those sub-claims challenge the EPA‘s approval of products simply because those products contain the pesticides the SAC alleges were improperly approved previously.
Whenever the EPA considers taking an “agency action,” the Endangered Species Act (“ESA“) Section 7 requires the EPA to consult with the National Marine Fisheries Service and the Fish and Wildlife Service (collectively, “the Service“) if that action “may affect” a listed endangered species or its habitat. See Karuk Tribe, 681 F.3d at 1020 (citing
CBD structured the SAC around each challenged pesticide. Each Claim for Relief has four sub-claims. The category one sub-claim is the challenge to the RED. The category two and category three sub-claims challenge the EPA‘s “continued discretionary control and involvement” in the pesticide‘s registration and the EPA‘s “completion of product reregistration” for the pesticide in question. I agree with the majority that the district court properly dismissed most of the category one sub-claims as time barred or jurisdictionally barred and that the category two and three sub-claims were properly dismissed because they did not challenge affirmative agency actions.
The final part of each Claim for Relief, the category four sub-claim, challenges the EPA‘s approval of products containing the particular pesticide in question. As one of the category four sub-claims states: “[T]he following specific EPA actions on 1,3-dichloropropene are subject to this complaint and require EPA to consult under Section 7(a)(2) of the ESA,
The SAC refers to these pesticide product approvals as one of four “actions involving” a particular pesticide. The SAC states that because all of the four actions “may affect the listed species in Exhibit A and their designated critical habitat, EPA is required to initiate consultation with the Service.” Unsurprisingly, Exhibit A lists endangered species “that may be affected” by a particular pesticide, not endangered species that “may be affected” by particular pesticide products. Thus, the SAC does not differentiate between the four challenged “actions.” According to the SAC, all of those actions “may affect” endangered species or their habitats because all of those actions involve a particular pesticide that may affect endangered species or their habitats. Therefore, the SAC does not specifically allege that the EPA‘s approval of particular pesticide products “may affect” endangered species or their habitats for any reason other than the fact that those products contain pesticides approved in the REDs.
I agree with the majority opinion that the EPA‘s approval of pesticide products is an affirmative agency action because that decision involves gathering and considering product-specific data. However, the majority incorrectly reverses the district court‘s dismissal of these sub-claims by concluding that “[t]he collateral attack doctrine is simply not at issue here” because the EPA‘s processes for approving pesticides and then later approving pesticide products are distinct. However, these category four sub-claims were a collateral attack on the REDs based on how these sub-claims were actually pleaded in the SAC. Therefore, I would affirm the district court‘s dismissal.
The collateral attack doctrine prevents district courts from hearing claims that are “inescapably intertwined with a review of the procedures and merits” of an underlying agency order. Americopters, 441 F.3d at 736. This doctrine prevents litigants from relitigating the merits of previous administrative procedures or evading those procedures. Id.
The category four sub-claims challenge the EPA‘s approval of all products that contain specific pesticides approved in the REDs based on the theory that those very pesticides “may affect” endangered species or their habitats. Had the CBD alleged anything specific why the products qua products “may affect” endangered species, then the category four sub-claims would not be a collateral attack on the REDs. But since CBD‘s challenge to the product approvals is based entirely on CBD‘s allegation that the pesticides approved in the REDs “may affect” endangered species or their habitats, the category four sub-claims are an impermissible collateral attack on the REDs.
The district court carefully analyzed whether these sub-claims as pleaded were an improper collateral attack on the REDs. Ctr. for Biological Diversity v. EPA, 65 F. Supp. 3d 742, 760-64 (N.D. Cal. 2014). The district court noted, “What is clear is what cannot be challenged: analyses and conclusions made in the RED. What is being challenged here is less clear.” Id. at 764. The district court noted that the SAC “does not identify any facts that demonstrate the product reregistrations raised any new issues regarding the EPA‘s compliance with section 7 of the ESA that could not have been raised in a
Although CBD states in its Opening Brief that “[p]roduct formulations often contain more than one active ingredient that together cause synergistic harm,” the SAC does not allege that particular pesticide products contain specific combinations of ingredients that cause harm to listed endangered species or their habitats. There are no allegations that the approved pesticides cause harm when they interact with other specific ingredients in particular products.1 Thus, the category four sub-claims as pleaded challenge the EPA‘s approval of pesticide products simply because the pesticides in those products “may affect” endangered species. CBD is not entitled to a second opportunity to challenge the EPA‘s approval of the pesticides just because the EPA later approves products that contain those pesticides.
The majority misses the mark by focusing on the fact that the reregistration of a pesticide product and the issuance of a RED are distinct processes. As the majority states, “[t]he EPA does not ‘rubber stamp’ the pesticide product reregistration in light of the RED.” Maj. Op. 1093. Although this observation is true because a pesticide product reregistration decision involves the consideration of data not involved in the RED and is a distinct determination, “[t]he relevant inquiry is not what the statute directs, but what the plaintiff challenges.” Grand Canyon Trust v. Bureau of Reclamation, 691 F.3d 1008, 1021 (9th Cir. 2012). As the EPA states in its brief, “The EPA does not dispute that a challenge to a product registration could raise new issues that would not be foreclosed by the collateral attack doctrine. Here, however, the Center‘s failure to initiate claims do not raise any such issues.” For example, CBD does not allege that the pesticide product reregistrations raised new ESA compliance issues that could not have been raised in a challenge to the REDs. CBD‘s category four sub-claims are inescapably intertwined with CBD‘s challenge to the REDs because those sub-claims challenge the EPA‘s approval of pesticide products on the ground that those products contain the pesticide at issue in each Claim for Relief.
The district court realized that allowing CBD to challenge every product approval simply because those products contain a particular pesticide would undermine the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA“). As the majority correctly concludes, when the EPA issues a RED after notice-and-comment procedures, FIFRA requires a plaintiff seeking to challenge that RED to file a petition for review in the courts of appeals. Maj. Op. 1089. However, as the district court stated, “If an aggrieved party could challenge the conclusions of the RED [in a lawsuit filed in district court] just because they were implemented in a subsequent order, as a practical matter there would be no exclusive jurisdiction in the court of appeals to consider challenges to the RED.” Ctr. for Biological Diversity, 65 F. Supp. 3d at 764. Since CBD‘s claims challenging the product approvals were based entirely on the conclusions of the REDs, those claims were an improper attempt to evade FIFRA‘s requirement that CBD challenge those REDs through a petition filed in the court of appeals.
John C. PRATHER, on behalf of himself and the United States of America, and the several states of California, Delaware, Florida, Illinois, Indiana, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Virginia, as well as the District of Columbia, Plaintiff-Appellant v. AT&T, INC.; Cellco Partnership, dba Verizon Communications; Qwest Communications International, Inc.; Sprint Nextel Corp., Defendants-Appellees.
No. 13-17489
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 14, 2016, San Francisco, California
Filed February 6, 2017