Ctr for Biological Diversity v. Epa , 847 F.3d 1075 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 14-16977
DIVERSITY; PESTICIDE ACTION
NETWORK NORTH AMERICA, D.C. No.
non-profit organizations, 3:11-cv-00293-JCS
Plaintiffs-Appellants,
v. OPINION
U.S. ENVIRONMENTAL
PROTECTION AGENCY,
Defendant-Appellee,
CROPLIFE AMERICA;
RESPONSIBLE INDUSTRY FOR A
SOUND ENVIRONMENT (“RISE”);
SOUTHERN CROP PRODUCTION
ASSOCIATION; WESTERN PLANT
HEALTH ASSOCIATION;
MIDAMERICA CROPLIFE
ASSOCIATION; AMERICAN FARM
BUREAU FEDERATION;
AMERICAN CHEMISTRY
COUNCIL; NATIONAL
AGRICULTURAL AVIATION
ASSOCIATION; NATIONAL
ALLIANCE OF FOREST OWNERS;
NATIONAL CORN GROWERS
ASSOCIATION; NATIONAL
COTTON COUNCIL; NATIONAL
2 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
COUNCIL OF FARMER
COOPERATIVES; NATIONAL
POTATO COUNCIL; OREGONIANS
FOR FOOD AND SHELTER; USA
RICE FEDERATION; WASHINGTON
FRIENDS OF FARMS AND
FORESTS,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted May 9, 2016
San Francisco, California
Before: Kim McLane Wardlaw, Richard A. Paez,
and Carlos T. Bea, Circuit Judges.
Filed February 2, 2017
Opinion by Judge Richard A. Paez;
Dissent by Judge Bea
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 3
SUMMARY*
Environmental Law
The panel affirmed in part, and reversed in part, the
district court’s dismissal of plaintiffs’ claims arising from
their citizen suit alleging that the U.S. Environmental
Protection Agency violated the Endangered Species Act
(“ESA”) when it registered certain pesticide active
ingredients and pesticide products without undertaking
consultation with the National Marine Fisheries Service and
the United States Fish and Wildlife Service (collectively “the
Service”).
The ESA requires federal agencies to consult with the
Service to ensure that their discretionary actions do not
jeopardize endangered and threatened species, or adversely
modify a listed species’ critical habitat. The Federal
Insecticide, Fungicide and Rodenticide Act charges the EPA
with the obligation to register and reregister pesticide active
ingredients and pesticide products.
Plaintiffs framed thirty-one failure-to-consult claims for
relief with each claim centering on one pesticide active
ingredient. With each pesticide active ingredient, plaintiffs
identified four categories of agency actions which allegedly
triggered the EPA’s duty to consult under Section 7(a)(2) of
the ESA, and these comprised the sub-claims.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
Concerning plaintiffs’ category one sub-claims, which
identified the EPA’s issuance of the Reregistration Eligibility
Decisions as an agency action, the panel held that all category
one sub-claims were properly dismissed by the district court
as either time-barred or jurisdictionally barred. Specifically,
the panel held that where, as here, the plaintiffs alleged that
an agency failed to comply with the ESA’s procedural
requirements, the general six-year statute of limitations
period, set forth in 28 U.S.C. § 2401(a), applied. The panel
also held that an ESA Section 7 claim raised after the EPA
undertook public notice and comment must comply with the
jurisdictional provisions of the Federal Insecticide, Fungicide
and Rodenticide Act, and a plaintiff must file a petition for
review in the court of appeals within 60 days of the entry of
the contested final order.
Concerning plaintiffs’ category two sub-claims, which
alleged that the EPA’s continued discretionary control of the
pesticide’s registration constituted agency action, the panel
affirmed the district court’s dismissal of all category two sub-
claims because they failed to identify an affirmative agency
action that would trigger a Section 7 consultation.
Concerning plaintiffs’ category three sub-claims, which
alleged that the EPA’s completion of pesticide reregistration
for a specific pesticide active ingredient was an agency
action, the panel held that the completion of the reregistration
was simply a fact, and therefore it could not trigger Section
7 consultation. The panel affirmed the dismissal of category
three sub-claims.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 5
Concerning plaintiffs’ category four sub-claims, which
alleged that the EPA’s approval of individual pesticide
products was an agency action, the panel reversed the district
court’s dismissal of all category four sub-claims. The panel
agreed with the district court that pesticide product
reregistration was an affirmative agency action, but disagreed
that those claims were barred by the collateral attack doctrine.
The panel remanded for further proceedings.
Judge Bea dissented in part. Judge Bea agreed with most
of the majority opinion, but dissented from the conclusion
that the category four sub-claims were not a collateral attack
on the EPA’s prior approval of the pesticides in those
products. Judge Bea would affirm the district court’s
dismissal of the category four sub-claims.
COUNSEL
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.
6 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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.
OPINION
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
1
The parties and the district court transpose several FIFRA terms.
For example, the Second Amended Complaint uses the terms “active
ingredient” and “pesticides” interchangeably to refer to chemicals used as
“insecticides, herbicides, fungicides, rodenticides, fumigants, and other
pesticides,” but it uses the phrase “products containing pesticides” to refer
to the end-user product. 7 U.S.C. § 136(u) (noting a pesticide may be
“any substance or mixture of substances” intended to prevent, destroy,
repel, or mitigate any pest). Similarly, the district court interchangeably
used the terms “pesticide,” “product,” and “pesticide product,” reasoning
that FIFRA also interchanges those terms. Ctr. for Biological Diversity
v. EPA, 65 F. Supp. 3d 742, 747 (N.D. Cal. 2014). We use “pesticide
active ingredient” to refer to the chemical compound that gives a pesticide
its effect, and we use “pesticide product” to refer to the end-user product.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 7
National Marine Fisheries Service and the Fish and Wildlife
Service (collectively, “the Service”) as required by 16 U.S.C.
§ 1536(a)(2) (“ESA Section 7” or “Section 7”). The object of
CBD’s lawsuit is to require the EPA to undertake
consultation with the Service regarding the impact of the
reregistration process of pesticide active ingredients and
pesticide products on endangered or threatened species.
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
2
The district court also dismissed in part, without leave to amend,
Claims for Relief thirty-two through seventy-four. Ctr. for Biological
Diversity, 65 F. Supp. 3d at 772. Those claims are not at issue in this
appeal.
8 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
under Federal Rule of Civil Procedure 54(b) for the thirty-one
failure-to-consult Claims for Relief. CBD timely appealed.
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.
I.
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 ESA
§ 7, 16 U.S.C. §§ 1536(a) (consultation requirement), 1540(g)
(citizen suit provision). Relying on the ESA’s jurisdictional
provisions regarding citizen suits, CBD asserted that the
district court had jurisdiction over the alleged claims. Ctr. for
Biological Diversity, 2013 WL 1729573, at *14; 16 U.S.C.
§§ 1540(g)(1) (“The district courts shall have jurisdiction . . .
to enforce any [ESA] provision or regulation, or to order the
Secretary to perform such act or duty . . . .”), 1540(g)(3)(A).
Although CBD framed the Complaint as an enforcement
action under the ESA, its Section 7 claims effectively
challenged the EPA’s final pesticide product reregistration
decisions under FIFRA. In the course of reregistering
pesticide products, the EPA issues a RED for each pesticide
active ingredient included in the pesticide product.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 9
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 Service, 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
3
A number of pesticide active ingredient and pesticide product
registrants successfully moved to intervene. Intervenors included
CropLife America, Responsible Industry for a Sound Environment,
Southern Crop Production Association, Western Plant Health Association,
Mid America CropLife Association, American Farm Bureau Federation,
American Chemistry Council, National Agricultural Aviation Association,
National Alliance of Forest Owners, National Corn Growers Association,
National Cotton Council, National Council of Farmer Cooperatives,
National Potato Council, Oregonians for Food and Shelter, USA Rice
Federation, Washington Friends of Farms and Forests, and Reckitt
Benckiser LLC. Reckitt Bensicker later withdrew.
10 CTR. FOR BIOLOGICAL DIVERSITY V. 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 Rule 12(e), asserting that they could
not properly respond to the Amended Complaint because
CBD’s allegations were too vague and ambiguous. Ruling on
the motion, the district court agreed with Defendants that
CBD’s Amended Complaint was “vague and ambiguous”
because it failed to specify which affirmative acts by the EPA
triggered ESA Section 7 consultation. The court ordered
CBD to clarify its allegations and explained that “[t]he
affirmative agency actions must be clearly identified so
[Defendants] may fairly evaluate whether to assert a facial
challenge to standing, statute of limitations or jurisdiction . . .
[and] [t]he affirmative acts must also appear on the face of
the Complaint.”
In response to the court’s order, CBD filed another
weighty 464-page Second Amended Complaint, in which it
alleged the precise actions by the EPA that required Section
7 consultation. Defendants again moved to dismiss for lack
of subject matter jurisdiction and for failure to state a claim
upon which relief could be granted. Defendants identified
four bases for dismissal. First, Defendants argued that the
statute of limitations barred any challenge to a RED issued
prior to January 20, 2005. Second, they argued that FIFRA’s
jurisdictional provisions, 7 U.S.C. § 136n(a)–(b), controlled,
depriving the district court of jurisdiction for any
reregistration decision made after notice and comment.
4
The original Complaint was a mere thirty-four pages.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 11
Third, Defendants argued that ongoing discretionary control
and involvement over pesticides do not constitute affirmative
action that triggers Section 7 consultation. Fourth,
Defendants argued that CBD’s allegations challenging
individual product reregistrations were nothing more than an
improper collateral attack on the underlying REDs, and
therefore barred. As explained below, the district court
granted in part and denied in part Defendants’ motion to
dismiss. Ctr. for Biological Diversity, 65 F. Supp. 3d at 772.
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
5
Those active ingredients include: 1,3-dichloropropene, 2,4-D, salts
and esters, acephate, alachlor, atrazine, bensulide, bromadiolone, captan,
carbaryl, chlorothalonil, chlorpyrifos, diazinon, dicamba and salts, diuron,
ethoprop, MCPA, salts and esters, methomyl, metolachlor and isomers,
metribuzin, naled, oxydemeton-methyl, oxyfluorfen, paraquat dichloride,
pendimethalin, phorate, phosmet, propanil, propargite, S,S,S-tributyl
phosphorotrithioate, thiobencarb, and trifluralin.
12 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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). In
ruling on Defendants’ motion to dismiss, the district court
analyzed the four categories of sub-claims separately. The
court began with category one sub-claims—the issuance of
the RED or amended RED—and dismissed all thirty-one as
either time-barred or jurisdictionally barred. Ctr. for
Biological Diversity, 65 F. Supp. 3d at 756–57. The district
court concluded that because the ESA does not provide a
limitations period for Section 7 challenges, it would apply the
general six-year statute of limitations for civil actions
contained in 28 U.S.C. § 2401(a). Id. at 756. Applying that
statute of limitations, the court determined that fifteen of the
thirty-one alleged REDs were time-barred.6 Id.
6
These were the fourth, eighth, tenth, fourteenth, sixteenth,
seventeenth, eighteenth, nineteenth, twenty-second, twenty-third, twenty-
fourth, twenty-seventh, twenty-eighth, thirtieth, and thirty-first Claims for
Relief.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 13
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, 7 U.S.C. § 136n(a)–(b), the court reasoned that the
review of any “registration actions that follow a notice and
public comment period” falls within the exclusive jurisdiction
of the court of appeals, and therefore ruled that it lacked
subject matter jurisdiction over the remaining sixteen Claims
for Relief. Ctr. for Biological Diversity, 65 F. Supp. 3d at
756–57; see United Farm Workers v. EPA, 592 F.3d 1080,
1082–83 (9th Cir. 2010) (“UFW”); see also In re Pesticide
Action Network N. Am., 798 F.3d 809, 811 (9th Cir. 2015)
(applying UFW’s reasoning where petitioners sought to
challenge the EPA’s pesticide safety determinations).
Because all of the remaining category one sub-claims
involved REDs that the EPA issued after a period of notice
and comment, the district court dismissed them for lack of
subject matter jurisdiction. Ctr. for Biological Diversity,
65 F. Supp. 3d at 756–57.
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
14 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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, 7 U.S.C. § 136a-1(g)(2)(C), the district
court agreed with CBD that pesticide product reregistration
is an affirmative agency action that triggers ESA Section 7
consultation. Id. at 760. However, the court also held that
any category four sub-claim that fell within the statute of
limitations and attacked a RED’s analyses or conclusions was
an impermissible collateral attack on the RED and therefore
barred. Id. at 764. The court granted CBD leave to amend to
clarify what new actions by the EPA, aside from analyses and
conclusions contained in the RED, demonstrated that
pesticide product reregistrations constituted an agency action
for purposes of Section 7 consultation. Id. at 764. CBD
declined to amend.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 15
Following entry of a final judgment on Claims for Relief
one through thirty-one pursuant to Rule 54(b), CBD timely
appealed.7
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 actions8 do not jeopardize endangered and
threatened species, or adversely modify a listed species’
critical habitat. 16 U.S.C. § 1536(a); see also Babbitt v.
Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687,
7
We review de novo dismissals for lack of subject matter jurisdiction
and for failure to state a claim upon which relief may be granted, as well
as whether a claim is barred by a statute of limitations. Johnson v. Lucent
Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 2011); Kahle v. Gonzales,
487 F.3d 697, 699 (9th Cir. 2007); Rattlesnake Coal. v. U.S. Envtl. Prot.
Agency, 509 F.3d 1095, 1100 (9th Cir. 2007).
8
The ESA’s regulations define “agency action” to include “all
activities or programs of any kind authorized, funded, or carried out . . .
by Federal agencies in the United States.” 50 C.F.R. § 402.02.
16 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
692 (1995); Karuk Tribe, 681 F.3d at 1020. The ESA’s
implementing regulations broadly construe “agency action”
to include licensing and permitting programs, 50 C.F.R.
§ 402.02(c), as well as “actions directly or indirectly causing
modifications to the land, water, or air.” Id. § 402.02(d).
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.
50 C.F.R. § 402.14(a). When formal consultation is required,
the Service must prepare a biological opinion advising
whether the proposed agency action “affects the species or its
critical habitat.” Home Builders, 551 U.S. at 652 (citing
16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)). If the
Service concludes that “the agency action would place the
listed species in jeopardy or adversely modify its critical
habitat,” the Service must provide “reasonable and prudent
alternatives” to the proposed action. Id. (citing 16 U.S.C.
§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3)).
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 17
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 7 U.S.C. §§ 136(a), (u)
(defining “active ingredient” and “pesticide”). FIFRA
establishes comprehensive procedures for the EPA’s
registration, reregistration, and cancellation of registration of
pesticide active ingredients and pesticide products. Wash.
Toxics Coal., 413 F.3d at 1030; see also 7 U.S.C. § 136a-d;
Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 601 (1991).
No one may sell or distribute a pesticide product without the
EPA’s approval, 7 U.S.C. § 136a(a), and manufacturers must
submit their registration applications to the EPA and obtain
authorization before introducing a pesticide product to the
market. 7 U.S.C. § 136a; Wash. Toxics Coal., 413 F.3d at
1030.
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 7 U.S.C. § 136a(c)(5).
That statute provides the following:
The [EPA] shall register a pesticide if [it]
determines that, when considered with any
restrictions imposed under subsection (d) of
this section–
18 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
(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.
7 U.S.C. § 136a(c)(5). If the EPA determines that a pesticide
product does not “increase the risk of unreasonable adverse
effects on the environment” and satisfies the Paragraph 5
requirements,9 the EPA “shall register” that pesticide product.
7 U.S.C. §§ 136a(c)(3)(B)(i)(I), (c)(5).
In 1988, Congress passed legislation directing the EPA to
“reregister . . . each registered pesticide [product] containing
9
The EPA’s final pesticide product registration or reregistration
decision requires the exercise of agency discretion within the meaning of
Section 7. For example, FIFRA requires the EPA to gather data to
determine if the benefits of a particular pesticide product outweigh its
“economic, social, and environmental costs.” 7 U.S.C. § 136a(c)(3)(A),
(c)(5)(C); 7 U.S.C. § 136(bb). In some circumstances, ESA consultation
may demonstrate that the “costs” of a particular pesticide product
outweigh its benefits. The EPA must then use that consultative data to
inform its final decision whether to decline to register a pesticide product
or to limit a pesticide product’s use.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 19
any active ingredient contained in any pesticide [product]
first registered before November 1, 1984,” and it detailed a
multi-phase reregistration process.10 Pub. L. No. 100-532,
102 Stat. 2654 (Oct. 25, 1988) (codified as amended at
7 U.S.C. § 136a-1(a)). That legislation also required
pesticide registrants to notify the EPA of their intent to
reregister their products, to identify “missing and inadequate
data for such pesticide[]” products and to provide a proposed
plan for filling any gaps in the data provided for reregistration
review.11 7 U.S.C. §§ 136a-1(b)(2), (d)(3). “After the
10
The first phase of the reregistration process requires the EPA to list
the active ingredients of the pesticide products that will be reregistered.
7 U.S.C. § 136a-1(b)(1); see also id. § 136a-1(c). The second phase
requires the registrant to submit to the EPA notice of its intent to seek
reregistration, to identify any missing or inadequate data for that pesticide
product, and to disclose how the registrant will replace that missing or
inadequate data. Id. §§ 136a-1(b)(2), (d)(3). The third phase requires the
registrant to describe the research presented during initial registration,
identify previously excluded studies, disclose new research regarding a
pesticide product’s adverse effects and benefits, and certify that the
registrant possesses or can access the raw data used to generate that
research. Id. §§ 136a-1(b)(3), (e). The registrant also must summarize
data from those studies and report the “chronic dosing, oncogenicity,
reproductive effects, mutagenicity, neurotoxicity, teratogenicity, or residue
chemistry” of any active ingredient submitted to the EPA prior to January
1, 1982. Id. § 136a-1(e)(1)(C). The fourth phase requires the EPA to
conduct an independent, initial review consistent with 7 U.S.C. § 136a-
1(f), and if necessary, to request additional data from the registrant. Id.
§ 136a-1(b)(4). The fifth phase includes both a “thorough examination of
all data” and the actual product reregistration, which considers whether the
pesticide product satisfactorily meets the requirements of Paragraph 5. Id.
§ 136a-1(g).
11
In 1996, Congress further amended FIFRA to include periodic
registration review every 15 years, so the EPA could evaluate whether
new research regarding pesticide products’ harms warranted restricting a
pesticide product’s use or canceling its registration. Food Quality
20 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
registrant signals its intent to reregister a pesticide [product],
[the EPA] conducts science reviews, develops a risk
assessment and publishes it for public comment, and issues a
Reregistration Eligibility Decision (RED) [evaluating the
active ingredient in the pesticide product].” U.S. EPA,
Evaluation of the U.S. Pesticide Product Reregistration
Process: Opportunities for Efficiency and Innovation, at 1-1
(2007) (“Evaluation”).12 The RED “summarizes the risk
assessment conclusions and outlines any risk reduction
measures for the pesticide [active ingredient] to continue to
be registered in the U.S.” Ctr. for Biological Diversity, 65 F.
Supp. 3d at 749 (internal quotation marks omitted); see also
7 U.S.C. § 136a-1(g)(2)(a)). “After [the EPA] publishes a
RED, it then must reregister each of the individual pesticide
products that contain the active ingredient. This final step in
the process [is the] pesticide product reregistration.”
Evaluation at 1-1.
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
Protection Act of 1996, Pub. L. No. 104-170, 110 Stat. 1489 (Aug. 3,
1996) (codified at 7 U.S.C. § 136a(g)); H.R. Rep. 104-669 (July 23,
1996), reprinted at 1996 U.S.C.C.A.N. 1268, 1270 (noting that original
pesticide product registrations, and in some cases their reregistrations,
were conducted “when tests for the safety of [pesticide product] residues
were less sophisticated.”).
12
Report available at https://www.epa.gov/sites/production/
files/2015-09/documents/eval-epa-pesticide-product-reregistration-
process.pdf (last visited Jan. 23, 2017).
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 21
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 28 U.S.C. § 2415(a). Similarly, Wind
River Mining Corp v. United States, 946 F.2d 710, 712–13
(9th Cir. 1991), held that the six-year statute of limitations set
forth in 28 U.S.C. § 2401(a) provided the limitations period
for actions brought pursuant to the Administrative Procedure
Act (“APA”), see 5 U.S.C. §§ 701–706. See also N. Cty.
22 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
Cmty. All., Inc. v. Salazar, 573 F.3d 738, 742–43 (9th Cir.
2009) (applying Wind River to APA claims regarding
licensing and construction); Nw. Envtl. Advocates v. U.S.
Envtl. Prot. Agency, 537 F.3d 1006, 1018–19 (9th Cir. 2008).
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
28 U.S.C. § 2401(a).13 Wind River, 946 F.2d at 713 (“As a
general statute of limitation, [Section 2401] should apply to
actions . . . [that] challenge a [final agency decision] on the
basis of procedural irregularity.”). This holding comports
with our previous case law, which provides that when a
plaintiff brings a substantive ESA claim under the APA, we
apply the statute of limitations set forth in the substantive
statute. See, e.g., Ctr. for Biological Diversity v. Salazar,
695 F.3d 893, 904 (9th Cir. 2012) (holding that the six-year
statute of limitations applied to claims challenging the
application of a regulation to a specific circumstance); Turtle
Island Restoration Network v. U.S. Dep’t of Commerce,
438 F.3d 937, 942–43, 946–49 (9th Cir. 2006) (applying the
Magnuson-Stevens Act’s shorter statute of limitations period
to a claim challenging the “terms and conditions” of a fishery
permit); Jones v. Gordon, 792 F.2d 821, 824–25 (9th Cir.
1986) (holding that the six-year limitations period applied to
a claim that an agency “failed to comply with the procedural
requirements” of an environmental statute).
Thus, we affirm the district court’s dismissal of the
category one sub-claims alleged in the fourth, eighth, tenth,
13
Section 2401(a) provides in relevant part, “[E]very civil action
commenced against the United States shall be barred unless the complaint
is filed within six years after the right of action first accrues.”
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 23
fourteenth, sixteenth, seventeenth, eighteenth, nineteenth,
twenty-second, twenty-third, twenty-fourth, thirtieth, and
thirty-first Claims for Relief. The district court properly
dismissed those 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
14
The district court dismissed sub-claim one of the first Claim for
Relief as jurisdictionally barred, but this ruling appears incorrect in light
of the district court record. This sub-claim should have been dismissed as
time-barred because the RED issued in September of 1998. Although the
RED was updated in August of 2008, as the government explained in its
motion to dismiss the Second Amended Complaint, the update was
nothing more than a “fact sheet” that did not actually update the RED but
merely described measures required by the RED. Compare
https://www3.epa.gov/pesticides/chem_search/reg_actions/reregistration/
red_PC-029001_1-Sep-98.pdf (last visited Jan. 23, 2017) (RED), with
https://archive.epa.gov/pesticides/reregistration/web/html/1,3-
dichloropropene_fs.html (last visited Jan. 23, 2017) (updated RED Fact
Sheet). Notably, CBD does not contest the government’s explanation.
24 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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 . . . .
16 U.S.C. § 1540(g)(1). The ESA citizen suit provision also
states, “The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the
parties, to enforce any such provision or regulation, or to
order the Secretary to perform such act or duty . . . .”
16 U.S.C. § 1540(g)(1).
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
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 25
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. 7 U.S.C. § 136n(a). If the claim challenges “the
validity of any order issued by the Administrator following a
public hearing,”15 then a petition for review must be filed “in
the United States court of appeals for the circuit wherein [the
petitioner] resides or has a place of business, within 60 days
after the entry of such order . . . .” Id. § 136n(b); see also
UFW, 592 F.3d at 1082–84 (holding that publication of notice
and comment in the Federal Register constitutes a “public
hearing” for the purposes of determining FIFRA jurisdiction).
Review of agency actions taken after a “public hearing” is
committed to the “exclusive jurisdiction” of the courts of
appeals. 7 U.S.C. § 136n(b).
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.” Am. Bird, 545 F.3d at
1194 (citing Cal. Save Our Streams Council, Inc. v. Yeutter,
887 F.2d 908, 911 (9th Cir. 1989) (internal quotation marks
omitted)). In American Bird, plaintiffs filed suit in the
15
Although FIFRA’s statutory language does not contemplate notice
and comment, beginning in 2004, the EPA adopted a public participation
policy that it intended to apply during its pesticide active ingredient and
pesticide product registration and reregistration review processes. 69 Fed.
Reg. 26,819 (May 14, 2004) (final notice). The EPA reasoned that public
participation during reregistration and review would “increase
transparency and stakeholder involvement in the development of pesticide
risk assessments and risk management decisions.” 69 Fed. Reg. at 26,819.
26 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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. 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 47 U.S.C. § 402(a)) (internal
quotation marks omitted).
American Bird explained that although the plaintiffs
sought procedural relief, the heart of their claims challenged
the FCC’s actions under the Communications Act. Id. at
1193. The court opined that plaintiffs’ claims, although
nominally based in the ESA, challenged the FCC’s grant of
cell tower licenses. 545 F.3d at 1192–95 (“American Bird
attempts to bypass Congress’ . . . system of review . . . by
characterizing its suit as a challenge to the agency’s
compliance with federal environmental laws rather than to the
agency’s ultimate order.”). American Bird reasoned that
when a Section 7 claim challenges an agency order issued
pursuant to a substantive statute with a “more specific”
judicial review scheme than the ESA, courts must evaluate
the plaintiff’s claims under the jurisdictional provisions of
that substantive statute. Id. at 1194 (citing Cal. Save Our
Streams Council, 887 F.2d at 911). Although American Bird
resolved jurisdictional conflicts between the ESA and the
Communications Act, its reasoning applies to the disparate
jurisdictional provisions at issue here.
When a plaintiff’s claims are inextricably intertwined
between two statutes—such as the ESA and FIFRA—and
those statutes contain conflicting jurisdictional provisions,
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 27
American Bird requires plaintiffs to comply with the more
specific statute. Id. 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,
16
CBD expresses concern that the ESA’s 60-day pre-filing
requirement appears to conflict with FIFRA’s 60-day statute of
limitations. Compare 16 U.S.C. § 1540(g)(2)(A)(i), with 7 U.S.C.
§ 136n(b). Although we do not decide the issue, Alliance for the Wild
Rockies v. U.S. Department of Agriculture, 772 F.3d 592, 603–04 (9th Cir.
2014), which addressed a similar situation, may be useful in understanding
how these two jurisdictional statutes can co-exist. See also Washington
v. Daley, 173 F.3d 1168, 1170 n.16 (9th Cir. 1999); Am. Bird, 545 F.3d at
1194 n.2, 1194–95.
17
As discussed supra at footnote 14, sub-claim one of the first Claim
for Relief should have been dismissed as time-barred.
28 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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.
18
The district court dismissed sub-claim one of the twenty-seventh
Claim for Relief as time-barred based on the the EPA’s issuance of the
RED in September 2003. Although the court correctly dismissed the sub-
claim, it did so for the wrong reason. There was an amendment to the
RED in March of 2006, but as the government explains, that amendment
was issued after public notice and comment, thus the sub-claim was not
time-barred but rather jurisdictionally barred.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 29
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 [16 U.S.C.] Section
[1536](a)(2) purposes.”) (citing W. Watersheds Project v.
Matejko, 468 F.3d 1099, 1107–08 (9th Cir. 2006)). In Karuk
Tribe, we held that our “‘agency action’ inquiry is two-fold.
First, we ask whether a federal agency affirmatively
authorized, funded, or carried out the underlying activity.
Second, we determine whether the agency had some
discretion to influence or change the activity for the benefit
of a protected species.” Id. at 1021.
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. 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
30 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
Wildlife Service designated critical habitat on 10,000 square
miles of National Forest land. 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
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 31
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 multi-phase reregistration process, which includes
a phase-five reregistration of pesticide products. 7 U.S.C.
§§ 136a-1(b), (g). At an earlier stage in the reregistration
process, the EPA publishes a RED. 7 U.S.C. § 136a-
1(g)(2)(A); see also Evaluation at 1-4. After the EPA issues
the RED, it “collects both product-specific data and
confirmatory data on the active ingredient as identified in the
32 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
RED.” Id. at 1-5; see also 7 U.S.C. § 136a-1(g)(2)(B)(i)
(“Before reregistering a pesticide, the [EPA] shall obtain any
needed product-specific data regarding the pesticide . . . .”).
In order to ultimately reregister a pesticide product, the EPA
must weigh all of the data and determine whether each
pesticide product comports with the Paragraph 5 requirements
contained in Section 136a(c)(5). 7 U.S.C. § 136a-1(g)(2)(C).
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
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 33
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
34 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
contained in the RED[s].”19 Id. at 764. CBD contends that
the final reregistration of a pesticide product triggers the
ESA’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, 7 U.S.C. § 136a-1(g), a product
reregistration incorporates data not available during the
process for issuing a RED, and necessarily involves a
determination distinct from those made during the RED
process because a pesticide active ingredient and a pesticide
product are not the same.
Neither the district court nor the dissent disputes this
distinction. Id.; Diss. at 41. 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 41–42.
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
19
The district court’s reliance on Pacific Gas & Electric v. FERC,
464 F.3d 861 (9th Cir. 2006), is unavailing. See Ctr. for Biological
Diversity, 65 F. Supp. 3d at 762–64. The EPA’s reregistration of a
product is neither a clarification nor a modification of the underlying
RED; it is a separate and distinct action. See Pac. Gas & Elec., 464 F.3d
at 868–69.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 35
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, andthe 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.
Consequently, in the context of this case, the collateral
attack doctrine is inapposite. Accordingly, we reverse the
20
The district court held that “to the extent that Plaintiffs seek to
challenge any of the analyses or conclusions contained in the RED, this
court has no jurisdiction to entertain such a claim.” Ctr. for Biological
Diversity, 65 F. Supp. 3d at 764. We agree, but as pled, CBD is not
challenging the analyses or conclusions contained in the RED, but rather
the affirmative action of reregistering a pesticide product.
36 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
district court’s dismissal of all category four sub-claims
alleged in Claims for Relief one through thirty-one.
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
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 37
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 of California v. U.S. Forest Service,
681 F.3d 1006, 1020 (9th Cir. 2012) (citing 16 U.S.C.
§ 1536(a)(2) and 50 C.F.R. § 402.14(a)). In the SAC, the
Center for Biological Diversity and the Pesticide Action
Network North America (collectively, “CBD”), challenge the
EPA’s reregistration eligibility determinations (“REDs”) for
many different pesticides, alleging that the EPA failed to
consult with the Service before issuing the REDs. According
to CBD, approving the pesticides through the REDs “may
affect” various listed endangered species or their habitats.
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
38 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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, 16 U.S.C. 1536(a)(2): . . . EPA’s approvals of
products containing this pesticide, which are listed with dates
in the table at Paragraph 120.” Notably, Paragraph 120
references all products in the EPA’s online Pesticide Product
Label System that contain 1,3-dichloropropene. Thus, the
category four sub-claims challenge the EPA’s approval of all
products that contain a particular pesticide.
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-
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 39
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, LLC v. F.A.A., 441 F.3d 726, 736 (9th
Cir. 2006). 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
40 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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 identity 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 timely challenge to the EPA’s issuance of a
RED.” Id. at 763. To cure this problem, the district court
gave CBD leave to amend the SAC, id. at 764, which CBD
declined to do.
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.
1
The SAC does state that “[t]he ecological risk assessment [for the
REDs] generally does not consider the cumulative or synergistic effects
posed by multiple pesticides on wildlife or the environment . . . .” But this
allegation is a general critique of the EPA’s process for issuing REDs, not
a challenge to the unique risks posed by particular products.
CTR. FOR BIOLOGICAL DIVERSITY V. EPA 41
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. 34. 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 1009, 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. 27. However, as
the district court stated, “If an aggrieved party could
challenge the conclusions of the RED [in a lawsuit filed in
42 CTR. FOR BIOLOGICAL DIVERSITY V. EPA
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.
The category four sub-claims fail to allege anything
particular about the products approved that required the EPA
to consult with the Service. Instead, the category four sub-
claims attempt to relitigate the EPA’s prior approval of
pesticides because the EPA later approved products that
contain those pesticides. I would deny CBD’s attempt to get
a second chance to challenge the pesticide approvals by
affirming the district court’s dismissal of the category four
sub-claims.