Two noteworthy cases have recently been issued by the Ninth Circuit Court of Appeals and the U.S. District Court for the Northern District of California.  The two cases address: (1) the interplay between the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA) and (2) the use of the deliberative process privilege to withhold potential administrative record documents in ESA litigation.

In Center for Biological Diversity v. U. S. Environmental Protection Agency, 2017 U.S. App. LEXIS 1826 (9th Cir. Feb. 2, 2017), the Ninth Circuit reversed in part a district court’s dismissal of plaintiffs’ claims arising from their citizen suit alleging that the U.S. Environmental Protection Agency (EPA) violated the ESA when it registered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (collectively, the Service).  Specifically, plaintiffs argued that reregistering pesticide products pursuant to FIFRA triggered EPA’s duty to consult with the Service under ESA section 7.

The Ninth Circuit affirmed the district court’s decision in large part, including with respect to the following:

• The claims identifying EPA’s issuance of Reregistration Eligibility Decisions (RED) as an agency action were either time-barred by the general six-year statute of limitations or jurisdictionally barred because an ESA section 7 claim raised after EPA took public notice and comment must comply with the jurisdictional provisions of FIFRA. FIFRA requires that a petition for review be made in the court of appeals within 60 days of the entry of the contested final order.
• EPA’s continued discretionary control of the pesticide’s registration did not constitute final agency action because plaintiffs failed to identify an affirmative agency action that would trigger the need for consultation.
• EPA’s completion of pesticide reregistration for a specific active ingredient was simply a fact, not an affirmative agency action, and therefore could not trigger ESA section 7 consultation.

The Ninth Circuit reversed the district court with respect to claims regarding EPA’s approval of individual pesticide products.  The Ninth Circuit agreed with the district court that the approval of individual pesticide products was an affirmative agency action, but reversed the district court’s holding that the claims were barred by the collateral attack doctrine.  The Ninth Circuit held that the issuance of REDs was distinct from the approval of individual products under FIFRA, and the approval of individual products was based on new information not considered in issuing REDs.

In Desert Survivors v. U.S. Department of the Interior, 2017 U.S. Dist. LEXIS 16536 (N.D. Cal. Feb. 6, 2017), the Northern District of California addressed whether the deliberative process privilege properly applies to documents withheld in actions subject to review under the Administrative Procedure Act (APA).  Plaintiffs argued that the Service’s withholding of 55 documents containing regional office comments on the Service’s “Final Policy on Interpretation of the Phrase ‘Significant Portion of its Range’ in the Endangered Species Act” was improper because, in reviewing an agency action under the APA, courts must “review the whole record,” which includes “everything that was before the agency pertaining to the merits of its decision.”  The district court disagreed, holding that, as a general matter, the deliberative process privilege applies to actions under the APA, including ESA actions.  Thus, the balancing test set forth in F.T.C. v. Warner Communications Inc., 742 F.2d 1156 (9th Cir. 1984) governs the question of whether the documents are protected under the deliberative process privilege.  That balancing test examines whether the party’s need for the withheld materials to allow for accurate fact-finding outweighs the government’s interest in non-disclosure.  The court did not reach the ultimate issue of whether the privilege applied to the documents the Service withheld.  Rather, the court directed the Service to provide an updated privilege log describing the documents in greater detail and to file all the documents under seal so that plaintiffs could select a sample of documents for in camera review.