Ninth Circuit strikes a blow for judicial review of administrative agencies

This morning, the Ninth Circuit held that federal agencies cannot escape judicial scrutiny for illegal actions simply because they have violated the law before.

In PLF’s sea otter case, we represent fishermen in a challenge to the U.S. Fish and Wildlife Service’s recent decision to terminate congressionally mandated protections for them and their fishery. In the 80s, Congress passed a law authorizing the Service to establish a population of sea otter on San Nicolas Island, on the conditions that it (1) use feasible, nonlethal means to keep otters from spreading to surrounding waters and (2) exempt incidental take in surrounding waters from the Endangered Species Act (without which, fishermen could go to jail for accidentally catching or getting near an otter during their work). The Service accepted this compromise in the late 80s, by moving otters to San Nicolas Island and adopting a regulation to implement the protections for the surrounding fishery.

Unfortunately, the Service also included in its regulation an assertion that it has the authority to terminate these protections (despite the fact that Congress said it “must” adopt them and “shall implement” them). Nearly twenty years later, the Service followed through on its threat to renege on the deal and repealed all of the protections (leaving the otter population in place, of course).

When the fishermen challenged the repeal of their protections, the Service argued that they were too late. It claimed that the fishermen’s only option had been to challenge the initial assertion of power to terminate these protections, a claim which was now barred by the statute of limitations (since so much time had passed). That earlier illegal action, in the Service’s view, prevented the fishermen from challenging any future illegal action that the Service may take.

Although the district court accepted this strange theory, a panel on the Ninth Circuit squarely—and unanimously—rejected it.

The justification for the Wind River rule is that an agency should not be able to sidestep a legal challenge to one of its actions by backdating the action to when the agency first published an applicable or controlling rule. If the operative dispute does not arise until decades later, when the agency applies the earlier rule, such a holding would wall off the agency from any challenge on the merits. The statute of limitations would cease to be a shield against stale claims, and would instead become a sword to vanquish a challenge like the case here, without ever considering the merits. The claim in Wind River was not untimely, because the agency applied its 1979 rule to the plaintiff mining company in 1987, within six years of the company’s suit. Neither is Plaintiffs’ claim in this case, as FWS did not apply the termination criteria from the 1987 Final Rule until 2012, when it
terminated the translocation program.

Under the decision, any final agency action can be challenged as violating the law, a welcome result for all individuals, property owners, and businesses suffering under burdensome regulations.