Home » Case Summaries » 2016 » California Sea Urchin Commission v. Bean, 828 F.3d 1046 (9th Cir. 2016)


California Sea Urchin Commission v. Bean, 828 F.3d 1046 (9th Cir. 2016)



Four commercial fishing groups[1] (collectively, Plaintiffs) sued the United States Fish and Wildlife Service (FWS) under the Administrative Procedure Act[2] (APA) alleging that FWS acted outside its statutory authority when it terminated a translocation program for the southern sea otter, a “threatened” species under the Endangered Species Act.[3] In 1986, FWS received congressional authority to develop a management plan for the otter.[4] In 1987, FWS implemented a translocation program to relocate, manage, and increase the sea otter population. The program not only established an “experimental colony” of otters in southern California but also mandated that FWS maintain an otter-free “management zone” to protect fishing interests. In 2012, after determining that the translocation program was not achieving its goals, FWS promulgated a rule terminating the program, thus ending its obligation to enforce the otter-free management zone.[5] In 2013, Plaintiffs in this case brought suit alleging that FWS had no statutory authority to terminate the program. The United States District Court for the Central District of California dismissed Plaintiffs’ claim as untimely under the APA’s six-year statute of limitations, finding that Plaintiffs had brought a facial challenge to a rule dating back to 1987.[6] The Ninth Circuit, reviewing the dismissal de novo, reversed.

The only issue on appeal was the timeliness of Plaintiffs’ claim. Under the APA, any claim for judicial review of an agency action must be filed within six years.[7] Plaintiffs argued that the termination of the translocation program in 2012 constituted such an action, and that their claim in 2013 therefore fell within the APA’s statute of limitations. FWS responded by characterizing the termination decision not as a separate action but as the outgrowth of the 1987 rulemaking that implemented the translocation program, in which FWS expressly asserted its power to terminate the otter translocation program if certain criteria were met. FWS presented its original rule as the agency action at issue, not the 2012 termination, and argued that Plaintiffs had therefore brought their challenge 20 years too late.

The Ninth Circuit held that Plaintiffs’ challenge was timely because it responded to a 2012 agency action. The court acknowledged that the program termination flowed from the criteria laid out in the 1987 rule, and agreed that Plaintiffs could not challenge the formation of those criteria now. The application of those criteria, however, constituted a separate agency action. To rule otherwise, the court reasoned, would imbue the APA’s statute of limitations with unprecedented power over claims arising in present day, as agencies could evade legal challenge simply by tracing its action to an older controlling rule.

In sum, the Ninth Circuit reversed the district court’s dismissal on timeliness grounds because the termination of the sea otter translocation program in 2012 amounted to a new agency action within the APA’s statute of limitations. The court remanded the case to the district court to decide the merits.



Footnotes    (↵ returns to text)

  1. Plaintiffs included the California Sea Urchin Commission, California Abalone Association, California Lobster and Trap Fishermen’s Association, and Commercial Fishermen of Santa Barbara.
  2. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
  3. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  4. Act of Nov. 7, 1986, Pub. L. No. 99-625, 100 Stat. 3500 (1986).
  5. Endangered and Threatened Wildlife and Plants; Termination of the Southern Sea Otter Translocation Program; Final Rule, 77 Fed. Reg. 75,266, 75,266 (Dec. 19, 2012) (to be codified at 50 C.F.R. pt. 17).
  6. Cal. Sea Urchin Comm’n v. Jacobson, No. CV 13-05517, 2014 WL 948501, at *1 (C.D. Cal. Mar. 3, 2014).
  7. Federal Tort Claims Act, 28 U.S.C. § 2401(a) (2012).
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