San Francisco Herring Ass'n v. U.S. Dep't of the Interior

• Decision Date: 31 December 2019
• Docket Number: No. 18-15443,18-15443
• Citation: 946 F.3d 564
• Parties: SAN FRANCISCO HERRING ASSOCIATION, Plaintiff-Appellant, v. U.S. DEPARTMENT OF THE INTERIOR; Ryan K. Zinke, in his official capacity as Secretary of the Interior; United States National Park Service; Michael Reynolds, in his official capacity as Acting Director of the National Park Service; Laura Joss, in her official capacity as General Superintendent of the Golden Gate National Recreation Area, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

946 F.3d 564

SAN FRANCISCO HERRING ASSOCIATION, Plaintiff-Appellant,

v.U.S. DEPARTMENT OF THE INTERIOR; Ryan K. Zinke, in his official capacity as Secretary of the Interior; United States National Park Service; Michael Reynolds, in his official capacity as Acting Director of the National Park Service; Laura Joss, in her official capacity as General Superintendent of the Golden Gate National Recreation Area, Defendants-Appellees.

No. 18-15443

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 23, 2019 San Francisco, California

Filed December 31, 2019

Todd R. Gregorian (argued), Emmett C. Stanton, and Amy E. Hayden, Fenwick & West LLP, San Francisco, California; Stuart G. Gross, Gross & Klein LLP, San Francisco, California; for Plaintiff-Appellant.

Anna Katselas (argued), Andrew C. Mergen, Elizabeth Ann Peterson, and Bruce D. Bernard, Attorneys; Jeffrey Bossert Clark, Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Michael T. Pyle, Assistant United States Attorney, Office of the United States Attorney, San Jose, California; Gregory Lind, United States Department of the Interior, Office of the Solicitor, Washington, D.C.; for Defendants-Appellees.

Before: J. Clifford Wallace and Daniel A. Bress, Circuit Judges, and Morrison C. England, Jr.,^* District Judge.

BRESS, Circuit Judge:

The San Francisco Herring Association brought this lawsuit challenging the National Park Service’s authority to prohibit commercial herring fishing in the waters of the Golden Gate National Recreation Area in San Francisco Bay. This appeal involves not the merits of that lawsuit, but instead whether it can be brought, at least at this time. In a prior appeal, this Court held that the Association had failed to allege any final agency action under the Administrative Procedure Act (APA), 5 U.S.C. § 704, and directed the district court to dismiss the case. San Francisco Herring Ass’n v. U.S. Dep’t of Interior , 683 F. App'x 579 (9th Cir. 2017). On remand, the district court allowed the Association to replead, but held that its proposed amendments still failed to allege final agency action.

We hold that the Association’s proposed second amended complaint sufficiently alleges final agency action. In a series of formal written notices to herring fishermen, the Park Service announced that it had authority over commercial herring fishing in the waters at issue, that such fishing was prohibited under federal law, and that the Park Service would enforce the prohibition, a violation of which could lead to civil penalties and up to six months in jail. In oral communications and meetings with the Association around this time, the Park Service reiterated its position and refused to change it. Then, in January 2013—and in new allegations that were not before us in the prior appeal—uniformed Park Service rangers and California wildlife wardens allegedly operating at the Park Service’s direction confronted Association members fishing in the waters of the Recreation Area and ordered them to stop fishing there. The fishermen complied, knowing that continuing to fish risked criminal sanction.

We hold that the Park Service’s in-water enforcement orders—backed by earlier formal Department of Interior notices and other communications making clear that commercial herring fishing in the Recreation Area violates federal law—"mark[ed] the consummation of the agency’s decisionmaking process" and was action "by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear , 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotations omitted). The agency’s enforcement orders were thus "final agency action" that could be challenged in court. The Park Service’s contrary position—which would require the fishermen either to violate the law and risk serious punishment or engage in unnecessary further pleas before an agency that had already made up its mind—would leave regulated parties facing stiff penalties without the judicial recourse that the APA enables. The district court did not, however, abuse its discretion in denying leave to add a Declaratory Judgment Act count that the Association could have brought much earlier. We thus affirm in part, reverse in part, and remand.

I

The following factual allegations are taken from the Association’s proposed second amended complaint and the record in both this appeal and the prior one. Because this appeal arises from the denial of leave to amend, the allegations in the complaint "are taken as true and construed in the light most favorable" to the Association. Gordon v. City of Oakland , 627 F.3d 1092, 1095 (9th Cir. 2010).

A

In 1972, Congress passed the Golden Gate National Recreation Enabling Act, establishing the Golden Gate National Recreation Area (Recreation Area or GGNRA) as part of the National Park System. Pub. L. No. 92-589, 86 Stat. 1299 (1972) (codified at 16 U.S.C. § 460bb et seq. ). As relevant here, the boundaries of the Recreation Area extend one-quarter mile offshore from the coastal enclave of Sausalito, north to Bolinas Bay and beyond the historic lighthouse at Point Bonita; around Alcatraz Island; and, on the San Francisco side, from the former defense installation at Fort Mason, under the Golden Gate Bridge, past the Civil War-era fortification at Fort Point, and up to the flats of Ocean Beach. Id. § 460bb-1. Those familiar with Bay Area geography may appreciate the following map in the record, which identifies the waters in question:

A 1983 Park Service regulation prohibits commercial fishing in national parks, "except where specifically authorized by Federal statutory law." 36 C.F.R. § 2.3(d)(4). "Fishing" is defined as "taking or attempting to take fish." Id. § 1.4(a). Violations of the commercial fishing prohibition are punishable by fine and up to six months in prison. Id. § 1.3(a) (subjecting violators to criminal penalties under 18 U.S.C. § 1865 ). The ultimate issue in this case—on which we express no view—is whether, based on a series of interlocking provisions in the Golden Gate National Recreation Enabling Act, the federal government has the statutory power to regulate commercial fishing in the waters in question.

What is significant here is that the Park Service plainly believes it has that power. After what the Association alleges is years of non-enforcement due to California’s since-withdrawn objection to federal jurisdiction, the Park Service informed herring fishermen that commercial fishing in the GGNRA was not allowed under federal law. As relevant here, in November 2011,¹ the Park Service issued a formal notice on Department of Interior letterhead explaining that the Park Service "has the responsibility of enforcing Title 36 Code of Federal Regulations (CFR) within the Recreation Area, which includes the waters within the boundary." According to the Park Service, "[p]er 36 CFR § 2.3(d)(4), the following are prohibited: Commercial fishing, except where specifically authorized by Federal statutory law." The Park Service included an attachment to its November 2011 notice listing various offshore areas of the Bay and setting forth the legal basis for the United States’ claimed "ownership" of the waters for purposes of the federal commercial fishing ban. While retaining "its powers to enforce federal regulations," the Park Service explained that it was "holding its authorities in reserve at this time, should it decide the resource needs more protection beyond the State regulations." Thus, for the time being, the Park Service would "rely on California Department of Fish and Game to respect National Park Service closures." This November 2011 notice was included in a regulatory packet that the California Department of Fish and Wildlife (CDFW or DFW) provided to herring fishermen.²

In November 2012, the Park Service issued another notice on Department of Interior letterhead, which was addressed to "2012/2013 Commercial Herring Fishermen" and signed by the Recreation Area’s General Superintendent. In this updated notice, the Park Service reiterated that its regulations—including the commercial fishing ban—"are applicable to all units of the National Park System, including the waters within the boundary of GGNRA." The Park Service made clear that commercial herring fishing was thus unlawful within those boundaries: "Title 36 CFR § 2.3(d)(4) prohibits commercial fishing in all national parks, except where specifically authorized by Federal statutory law. There is no federal statute that specially authorizes commercial fishing within GGNRA; therefore, commercial fishing, including commercial herring fishing, is prohibited within GGNRA."

Unlike its November 2011 notice, the Park Service this time indicated that it would be enforcing the prohibition. While "in the past," the California Department of Fish and Game "ha[d] assisted the NPS in monitoring commercial fishing within the Park," "[d]uring the upcoming herring season the NPS will also be monitoring commercial fishing activities and enforce the prohibition of commercial fishing within the waters of GGNRA." (Emphasis added). "Because of reported confusion over the jurisdiction of the NPS in past years," the Park Service would "provide informational warnings to any commercial fishermen fishing within the boundaries of GGNRA." But the Park Service made clear that it "reserve[d] the right to enforce any violations of the prohibition of commercial fishing as set out in 36 C.F.R. § 2.3(d)(4)." These violations, as stated earlier, are punishable by fines and up to six months in prison. See 36 C.F.R. § 1.3(a) ; 18 U.S.C. § 1865(a).

Both before and after the November 2012 notice, the Association tried to get the Park Service to change its position. In October 2012, the Association’s president sent the Park Service a letter objecting to the assertion of federal...