Turtle Island Restoration Network v. United States Dep't of State

Decision Date17 February 2012
Docket NumberNo. 10–17059.,10–17059.
Citation74 ERC 1129,673 F.3d 914,2012 Daily Journal D.A.R. 2214,12 Cal. Daily Op. Serv. 2015,34 ITRD 1143
PartiesTURTLE ISLAND RESTORATION NETWORK, a non-profit corporation, Plaintiffs–Appellants, v. UNITED STATES DEPARTMENT OF STATE, Defendant–Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Holley Horrell, Law Student (argued pursuant to Rule 46–4), Deborah A. Sivas (supervising attorney), Alicia E. Thesing, Robb W. Kapla, Justin Goodwin, Environmental Law Clinic, Mills Legal Clinic of Stanford Law School, Stanford, CA, for the appellant.

David C. Shilton (argued), Ignacia S. Moreno, Assistant Attorney General, Mark R. Haag, David B. Glazer, Kevin W. McArdle, Environmental & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the Northern District of California, Claudia A. Wilken, District Judge, Presiding. D.C. No. 4:09–cv–05239–CW.

Before: ALEX KOZINSKI, Chief Judge, JEROME FARRIS, Circuit Judge, and ROBERT W. GETTLEMAN, District Judge.*

OPINION

KOZINSKI, Chief Judge:

Turtle Island Restoration Network (TIRN), a non-profit environmental organization, appeals from the district court's dismissal of its claim on res judicata grounds. TIRN alleges that the United States Department of State failed to satisfy its consultation and environmental assessment obligations under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., in conducting annual certifications of countries exempted from the general ban on shrimp imports. Section 609(b) of Public Law 101–162 prohibits the importation of shrimp harvested with technology that may adversely affect sea turtles, except from countries certified to employ a turtle protection program comparable to that of the United States. Pub.L. 101–162, § 609(b), 103 Stat. 988, 1038 (1989). We must decide whether TIRN's current lawsuit for NEPA and ESA violations is precluded by its earlier lawsuits challenging the State Department's regulations implementing the section 609(b)(2) certification process.

I. BackgroundA. Section 609

One of the primary threats to sea turtles is the use of trawl nets by commercial shrimp harvesting vessels. The nets frequently entrap sea turtles, causing them to drown. To address this problem domestically, the National Marine Fisheries Service (“NMFS”) requires domestic shrimp trawlers to use a Turtle Excluder Device (“TED”), a grate that keeps sea turtles and other large animals out of the nets while letting the shrimp pass through. See 50 C.F.R. §§ 223.206–207. Recognizing that this domestic effort alone is inadequate to help the plight of the migrating sea turtles, Congress enacted section 609 to encourage the international conservation of sea turtles. Pursuant to section 609(b), importation of commercially harvested shrimp or shrimp products is prohibited unless the president certifies annually that:

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental taking of such sea turtles in the course of such harvesting.

§ 609(b)(2), 103 Stat. at 1038. The President has delegated his certification authority to the State Department. 56 Fed.Reg. 357 (Jan. 4, 1991).

In 1991, the State Department promulgated guidelines implementing section 609(b)(2). See 56 Fed.Reg. 1051 (Jan. 10, 1991) (1991 Guidelines”). The guidelines were revised in 1993, 1996, 1998 and 1999. See 58 Fed.Reg. 9015 (Feb. 18, 1993) (1993 Guidelines”); 61 Fed.Reg. 17,342 (Apr. 19, 1996) (1996 Guidelines”); 63 Fed.Reg. 46,094 (Aug. 28, 1998) (1998 Guidelines”); 64 Fed.Reg. 36,946 (July 8, 1999) (1999 Guidelines”). The Guidelines operationalize section 609(b)(2) by establishing a general framework and explaining the types of evidence the State Department will consider in making its decisions.

B. Prior Earth Island Litigation

In the early 1990s, Earth Island Institute, of which TIRN was formerly a part, sued the State Department, alleging that the implementing guidelines conflicted with section 609(b)(2) because they impermissibly restricted the geographical scope of the ban and failed to evaluate actual sea turtle take levels in certified countries. See Earth Island Inst. v. Christopher, 913 F.Supp. 559, 562 (Ct. Int'l Trade 1995) (“ Earth Island II ”). The Court of International Trade (“CIT”) found that the State Department inappropriately restricted the areas to which the ban applied, but concluded that the 1993 Guidelines didn't contravene section 609(b)(2). Id. at 579–80.

When the State Department amended the guidelines to permit importation of shrimp from uncertified countries on a shipment-by-shipment basis, Earth Island and TIRN sued again, claiming that this new provision violated section 609(b)(2). See Earth Island Inst. v. Daley, 48 F.Supp.2d 1064 (Ct. Int'l Trade 1999); Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005 (Ct. Int'l Trade 2000). The CIT sided with TIRN but the Federal Circuit reversed, concluding that the 1999 Guidelines were a permissible interpretation of the statute. Turtle Island Restoration Network v. Evans, 284 F.3d 1282, 1286–87 (Fed.Cir.2002) (“ Earth Island III ”).

In our case, TIRN alleges that the State Department violates its obligations under NEPA and ESA when conducting section 609(b)(2) certifications. TIRN claims that the State Department violated NEPA by failing to prepare an environmental assessment or environmental impact statement evaluating the impact of the country certifications, and failed to provide for public notice and comment. TIRN claims that the State Department violated ESA by failing to consult with other agencies to confirm that the certifications would not jeopardize threatened and endangered species or their habitats.

The government moved for judgment on the pleadings, asserting that TIRN is barred by res judicata in light of its earlier litigation. The district court granted the motion and dismissed TIRN's claims. The court held that TIRN's challenges to the State Department's NEPA and ESA compliance in conjunction with the country certification process “arise from the same transactional nucleus of facts as the previous Earth Island litigation” and are therefore barred by res judicata. TIRN timely appeals.

II. Analysis

Res judicata, also known as claim preclusion, applies only where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir.2003) (citation and internal quotation marks omitted). The only disputed issue in this case is whether there is an “identity of claims.” We consider four factors in determining an “identity of claims”:

(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.

Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir.1982) (citation omitted). “The last of these criteria is the most important.” Id. at 1202 (citation omitted).

It's clear that TIRN's current suit presents a different legal claim. In its prior litigation, TIRN claimed that the 1993 and 1999 Guidelines conflicted with the underlying statute, section 609(b)(2). TIRN now challenges the State Department's failure to comply with its external obligations under NEPA and ESA when conducting section 609(b)(2) certifications. Because these claims involve technically different legal challenges, we focus on the last factor of our test—whether the separate legal claims arise from the “same transactional nucleus of facts.”

A.

“Whether two suits arise out of the same transactional nucleus depends upon whether they are related to the same set of facts and whether they could conveniently be tried together.” ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir.2010) (emphasis, citation and internal quotation marks omitted). In most cases, “the inquiry into the ‘same transactional nucleus of facts' is essentially the same as whether the claim could have been brought in the first action.” United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1151 (9th Cir.2011). A plaintiff need not bring every possible claim. But where claims arise from the same factual circumstances, a plaintiff must bring all related claims together or forfeit the opportunity to bring any omitted claim in a subsequent proceeding.

TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its complaint in Earth Island III in 1998. The State Department began publishing its annual certifications as early as 1993. See, e.g., 58 Fed.Reg. 28,428 (May 13, 1993). And, as TIRN points out, the State Department has never complied with the consultation or environmental assessment requirements of NEPA and ESA in conducting section 609(b)(2) certifications. TIRN would therefore have known that the State Department failed to comply with NEPA and ESA in each of the five years preceding Earth Island III. In fact, TIRN concedes that it could have brought its NEPA and ESA claims during its earlier lawsuit, but...

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