San Francisco Herring Assoc. v. U.S. Department of the Interior, No. 18-15443 (9th Cir. 2019)
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The Association filed suit 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. In a prior appeal, the Ninth Circuit held that the Association had failed to allege any final agency action under the Administrative Procedure Act (APA), and directed the district court to dismiss the case. On remand, the district court allowed the Association to replead, but held that its proposed amendments still failed to allege final agency action.
The panel held that the Association's proposed second amended complaint sufficiently alleged final agency action; the Park Service's in-water enforcement orders were final agency action that could be challenged in court; and the Park Service's contrary position that would require fishermen either to violate the law and risk serious punishment or engage in unnecessary further pleas before the agency would leave regulated parties facing stiff penalties without the judicial recourse that the APA enables. The panel held, however, that the district court did not abuse its discretion in denying leave to add a Declaratory Judgment Act count that the Association could have brought much earlier. Accordingly, the court affirmed in part, reversed in part, and remanded.
Court Description: Administrative Procedure Act. The panel affirmed in part and reversed in part the district court’s denial of leave to file a second amended complaint in an action brought by the San Francisco Herring Association 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. In a prior appeal, this Court held that the Association had failed to allege any final agency action under the Administrative Procedure Act, 5 U.S.C. § 704, and directed the district court to dismiss the case. On remand, the district court allowed the Association to replead, but held that its proposed amendments still failed to allege final agency action. The panel held that the Association’s proposed second amended complaint sufficiently alleged final agency action. * The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. SAN FRANCISCO HERRING ASSOCIATION V. USDOI 3 The panel noted that 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 the panel 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 panel held that the Park Service’s 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—were final agency action that could be challenged in court. The panel held that the district court did not abuse its discretion in denying leave to add a Declaratory Judgment Act count that the Association could have brought much earlier. 4 SAN FRANCISCO HERRING ASSOCIATION V. USDOI
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