UNITED STATES COURT OF APPEALS FOR THE …

1 FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITCENTER FOR BIOLOGICALDIVERSITY; PESTICIDE ACTIONNETWORK NORTH AMERICA,non-profit organizations,Plaintiffs-Appellants, ENVIRONMENTALPROTECTION AGENCY,Defendant-Appellee,CROPLIFE AMERICA;RESPONSIBLE INDUSTRY FOR ASOUND ENVIRONMENT ( RISE );SOUTHERN CROP PRODUCTIONASSOCIATION; WESTERN PLANTHEALTH ASSOCIATION;MIDAMERICA CROPLIFEASSOCIATION; AMERICAN FARMBUREAU FEDERATION;AMERICAN CHEMISTRYCOUNCIL; NATIONALAGRICULTURAL AVIATIONASSOCIATION; NATIONALALLIANCE OF FOREST OWNERS;NATIONAL CORN GROWERSASSOCIATION; NATIONALCOTTON COUNCIL; NATIONALNo.

2 :11-cv-00293-JCSOPINIONCTR. FOR BIOLOGICAL DIVERSITY V. EPA2 COUNCIL OF FARMERCOOPERATIVES; NATIONALPOTATO COUNCIL; OREGONIANSFOR FOOD AND SHELTER; USARICE FEDERATION; WASHINGTONFRIENDS OF FARMS ANDFORESTS, from the UNITED STATES District Courtfor the Northern District of CaliforniaJoseph C. Spero, Magistrate Judge, PresidingArgued and Submitted May 9, 2016 San Francisco, CaliforniaBefore: Kim McLane Wardlaw, Richard A. Paez,and Carlos T. Bea, Circuit February 2, 2017 Opinion by Judge Richard A. Paez;Dissent by Judge BeaCTR. FOR BIOLOGICAL DIVERSITY V. EPA3 SUMMARY*Environmental LawThe panel affirmed in part, and reversed in part, thedistrict COURT s dismissal of plaintiffs claims arising fromtheir citizen suit alleging that the EnvironmentalProtection Agency violated the Endangered Species Act( ESA ) when it registered certain pesticide activeingredients and pesticide products without undertakingconsultation with the National Marine Fisheries Service andthe UNITED STATES Fish and Wildlife Service (collectively theService ).

3 The ESA requires federal agencies to consult with theService to ensure that their discretionary actions do notjeopardize endangered and threatened species, or adverselymodify a listed species critical habitat. The FederalInsecticide, Fungicide and Rodenticide Act charges the EPAwith the obligation to register and reregister pesticide activeingredients and pesticide framed thirty-one failure-to-consult claims forrelief with each claim centering on one pesticide activeingredient. With each pesticide active ingredient, plaintiffsidentified four categories of agency actions which allegedlytriggered the EPA s duty to consult under Section 7(a)(2) ofthe ESA, and these comprised the sub-claims.

4 * This summary constitutes no part of the opinion of the COURT . It hasbeen prepared by COURT staff for the convenience of the FOR BIOLOGICAL DIVERSITY V. EPA4 Concerning plaintiffs category one sub-claims, whichidentified the EPA s issuance of the Reregistration EligibilityDecisions as an agency action, the panel held that all categoryone sub-claims were properly dismissed by the district courtas either time-barred or jurisdictionally barred. Specifically,the panel held that where, as here, the plaintiffs alleged thatan agency failed to comply with the ESA s proceduralrequirements, the general six-year statute of limitationsperiod, set forth in 28 2401(a), applied.

5 The panelalso held that an ESA Section 7 claim raised after the EPAundertook public notice and comment must comply with thejurisdictional provisions of the Federal Insecticide, Fungicideand Rodenticide Act, and a plaintiff must file a petition forreview in the COURT of APPEALS within 60 days of the entry ofthe contested final plaintiffs category two sub-claims, whichalleged that the EPA s continued discretionary control of thepesticide s registration constituted agency action, the panelaffirmed the district COURT s dismissal of all category two sub-claims because they failed to identify an affirmative agencyaction that would trigger a Section 7 plaintiffs category three sub-claims, whichalleged that the EPA s completion of pesticide reregistrationfor a specific pesticide active ingredient was an agencyaction, the panel held that the completion of the reregistrationwas simply a fact, and therefore it could not trigger Section7 consultation.

6 The panel affirmed the dismissal of categorythree FOR BIOLOGICAL DIVERSITY V. EPA5 Concerning plaintiffs category four sub-claims, whichalleged that the EPA s approval of individual pesticideproducts was an agency action, the panel reversed the districtcourt s dismissal of all category four sub-claims. The panelagreed with the district COURT that pesticide productreregistration was an affirmative agency action, but disagreedthat those claims were barred by the collateral attack doctrine. The panel remanded for further Bea dissented in part. Judge Bea agreed with mostof the majority opinion, but dissented from the conclusionthat the category four sub-claims were not a collateral attackon the EPA s prior approval of the pesticides in thoseproducts.

7 Judge Bea would affirm the district COURT sdismissal of the category four Parent (argued), Center for Biological Diversity,Portland, Oregon; Justin Augustine, Center for BiologicalDiversity, San Francisco, California; Collette Adkins Giese,Center for Biological Diversity, Circle Pines, Minnesota; Katselas (argued), Kevin McArdle, Bridget KennedyMcNeil, and Ellen J. Durkee, Attorneys; John C. Cruden,Assistant Attorney General; Environment & NaturalResources Division, UNITED STATES Department of Justice,Washington, , for FOR BIOLOGICAL DIVERSITY V. EPA6 David B. Weinberg (argued), R.

8 Steven Richardson, andRoger H. Miksad, Wiley Rein LLP, Washington, ; SethGoldberg and Cynthia L. Taub, Steptoe & Johnson LLP,Washington, ; Kirsten L. Nathanson and Thomas , Crowell & Moring LLP, Washington, ; , Circuit Judge:The Federal Insecticide, Fungicide and Rodenticide Act( FIFRA ) charges the Environmental Protection Agency( EPA ) with the obligation to register and reregisterpesticide active ingredients and pesticide In thiscase, the Center for Biological Diversity and the PesticideAction Network North America (collectively, CBD ) allegethat the EPA violated the Endangered Species Act ( ESA )when it reregistered certain pesticide active ingredients andpesticide products without undertaking consultation with the1 The parties and the district COURT transpose several FIFRA terms.

9 For example, the Second Amended Complaint uses the terms activeingredient and pesticides interchangeably to refer to chemicals used as insecticides, herbicides, fungicides, rodenticides, fumigants, and otherpesticides, but it uses the phrase products containing pesticides to referto the end-user product. 7 136(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 interchangeablyused the terms pesticide, product, and pesticide product, reasoningthat FIFRA also interchanges those terms.

10 Ctr. for Biological Diversityv. EPA, 65 F. Supp. 3d 742, 747 ( Cal. 2014). We use pesticideactive ingredient to refer to the chemical compound that gives a pesticideits effect, and we use pesticide product to refer to the end-user FOR BIOLOGICAL DIVERSITY V. EPA7 National Marine Fisheries Service and the Fish and WildlifeService (collectively, the Service ) as required by 16 1536(a)(2) ( ESA Section 7 or Section 7 ). The object ofCBD s lawsuit is to require the EPA to undertakeconsultation with the Service regarding the impact of thereregistration process of pesticide active ingredients andpesticide products on endangered or threatened must decide three core issues.