Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency

• Decision Date: 02 February 2017
• Docket Number: No. 14-16977,14-16977
• Citation: 847 F.3d 1075
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Pesticide Action Network North America, non-profit organizations, Plaintiffs–Appellants, v. 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 Council of Farmer Cooperatives ; National Potato Council ; Oregonians for Food and Shelter; USA Rice Federation; Washington Friends of Farms and Forests, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

847 F.3d 1075

CENTER FOR BIOLOGICAL DIVERSITY; Pesticide Action Network North America, non-profit organizations, Plaintiffs–Appellants,

v. 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 Council of Farmer Cooperatives ; National Potato Council ; Oregonians for Food and Shelter; USA Rice Federation; Washington Friends of Farms and Forests, Intervenor-Defendants-Appellees.

No. 14-16977

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2016 San Francisco, California

Filed February 2, 2017

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

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 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 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.

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 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. 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 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] regi...