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cited 3× by 3 distinct cases, last quoted 2011 ·
…it is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.
at p. 1034
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discussed
Cited "but see"
Ctr. for Biological Diversity v. Ross
Wildlife Ass'n v. Rogers , 141 F.3d 803 , 808 (8th Cir. 1998) (rejecting argument that plaintiff "should be entitled to go outside the administrative record because it has invoked the citizen-suit provisions of the Endangered Species Act"); but see Washington Toxics Coal. v. EPA , 413 F.3d 1024 , 1034 (9th Cir. 2005) (finding that because ESA citizen-suit provision "authorizes a private right of action," APA does not govern judicial review of plaintiffs' § 7 claims).
discussed
Cited "but see"
Center for Biological Diversity v. Ross
Wildlife Ass'n v. Rogers, 141 F.3d 803, 808 (8th Cir. 1998) (rejecting argument that plaintiff “should be entitled to go outside the administrative record because it has invoked the citizen-suit provisions of the Endangered Species Act”); but see Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005) (finding that because ESA citizen-suit provision “authorizes a private right of action,” APA does not govern judicial review of plaintiffs’ § 7 claims).
discussed
Cited as authority (verbatim quote)
Western Watersheds Project v. Haaland
he appropriate 10 remedy for violations of the esa consultation requirements is an injunction pending 11 compliance with the esa.
discussed
Cited as authority (verbatim quote)
Northwest Environmental Advocates v. United State National Marine Fisheries Service (NMFS)
because independently authorizes a private right of action, the apa does not govern the plaintiff's claims.
discussed
Cited as authority (verbatim quote)
White v. United States Army Corps of Engineers
(2×)
also: Cited as authority (rule)
t is the very 9 maintenance of the 'status' quo that is alleged to be harming endangered species.
discussed
Cited as authority (verbatim quote)
Center for Biological Diversity v. Ross
n agency cannot escape its obligation to comply with the esa merely because it is bound to comply with another statute that has consistent, complementary objectives.
discussed
Cited as authority (verbatim quote)
Northwest Environmental Advocates v. United States Environmental Protection Agency
because this substantive statute independently authorizes a private right of action, the apa does not govern the plaintiffs' claims.
examined
Cited as authority (verbatim quote)
Center for Biological Diversity v. U.S. Environmental Protection Agency
(6×)
also: Cited as authority (rule)
because epa has continuing authority over pesticide regulation, it has a continuing obligation to follow the requirements of the esa.
examined
Cited as authority (verbatim quote)
Western Watersheds Project v. Kraayenbrink
(3×)
also: Cited as authority (rule), Cited "see"
it is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.
examined
Cited as authority (verbatim quote)
Western Watersheds Project v. Kraayenbrink
(3×)
also: Cited as authority (rule), Cited "see"
it is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.
examined
Cited as authority (verbatim quote)
Western Watersheds Project v. Kraayenbrink
(3×)
also: Cited as authority (rule), Cited "see"
it is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.
discussed
Cited as authority (verbatim quote)
Citizens for Better Forestry v. U.S. Dept. of Agriculture
t is not the responsibility of the plaintiffs to prove nor the function of the courts to judge, the effect of a proposed action on endangered species when proper procedures have not been followed
discussed
Cited as authority (quoted)
Wild Fish Conservancy v. U.S. Envtl. Prot. Agency
t was epa's discretion to take actions that 'inure to the benefit' of protected species that placed the registrations within the ambit of section 7.
discussed
Cited as authority (rule)
Center for Biological Diversity v. U.S. Forest Service; Brooke Rollins, in her official capacity; Rebecca Brooke, in her official capacity; Douglas County, Oregon; Coos County, Oregon; Save the Riders Dunes, Inc.
However, as to the scope of review in ESA citizen suits, a court “may consider evidence outside the administrative record for the limited purposes of reviewing [a plaintiff’s] ESA claim.” Id. (citing Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1030, 1034 (9th Cir. 2005)).
cited
Cited as authority (rule)
Institute for Fisheries Resources v. Bridgestone Americas, Inc.
Agency, 413 F.3d 1024, 1034 (9th Cir. 2005); see also Conservation L.
discussed
Cited as authority (rule)
Center for Biological Diversity v. Little
Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008).40 In ESA claims, “the balance of hardships always tips sharply in favor of the endangered or threatened species.” Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th Cir. 2005) (citing Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.1996)).
discussed
Cited as authority (rule)
Ahmed v. Jaddou
Cal. Feb. 3, 2020) (dismissing plaintiff’s APA claim 9 regarding his passport revocation because 8 U.S.C. § 1503 (a) provides an adequate remedy in court) 10 (citing Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005), abrogated on other 11 grounds); Harris v. Dep't of Homeland Sec., 18 F. Supp. 3d 1349, 1359 (S.D.
cited
Cited as authority (rule)
Center for Biological Diversity v. United States Environmental Protection Agency
Agency, 413 F.3d 1024, 1034 (9th Cir. 10 2005) abrogated on other grounds as recognized by Cottonwood Envtl.
discussed
Cited as authority (rule)
White v. United States Army Corps of Engineers
(2×)
Agency, 413 F.3d 1024, 1034 (9th Cir. 2005), abrogated on other 4 grounds as recognized in Cottonwood Env't L.
discussed
Cited as authority (rule)
Don't Cage Our Oceans v. United States Army Corps of Engineers
With respect to the latter, the Court explained that extra-record evidence may be 16 considered in certain limited circumstances: 17 As we explained in [Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)] the APA applies only where there is 18 “no other adequate remedy in a court,” 5 U.S.C. § 704 , and – because the ESA provides a citizen suit remedy – the APA does not apply in such actions.
cited
Cited as authority (rule)
WildEarth Guardians v. U.S. Forest Service
Agency, 413 F.3d 1024, 1028 (9th Cir. 2005) (approval of use of pesticides); Turtle Island Restoration Network, 340 F.3d at 977 (issuance of fishing permits); Natural Res.
discussed
Cited as authority (rule)
Center for Biological Diversity v. EPA
Cir. June 7, 2021) (ordering summary vacatur of pesticide registration “in light of the seriousness of the admitted error and the error’s direct impact on the merits of the EPA’s registration decision,” the limited use of the pesticide, and lack of time for the agency to reconsider the registration on remand before it was due to expire); Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1029 (9th Cir. 2005) (rejecting EPA’s assertion that ESA compliance was not a prerequisite of registration of fifty-four pesticides under FIFRA), abrogated on other grounds as recognized in Cottonwood Env’t…
discussed
Cited as authority (rule)
CENTER FOR FOOD SAFETY V. MICHAEL REGAN
Before it can register a pesticide, EPA must conduct a “cost-benefit analysis to ensure that there is no unreasonable risk created for people or the environment from a pesticide.” Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005), abrogated on other grounds as recognized in Cottonwood Env’t L.
discussed
Cited as authority (rule)
Northwest Environmental Advocates v. United States Environmental Protection Agency
Agency, 413 F.3d 1024, 1030, 1034 (9th Cir. 2005) (holding that the APA did not govern review of a claim under the ESA’s citizen suit provision)).
cited
Cited as authority (rule)
Northwest Environmental Defense Center v. U.S. Army Corps of Engineers
Agency, 413 F.3d 1024, 1034 (9th Cir. 2005); Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985)).
cited
Cited as authority (rule)
National Family Farm Coalition v. Usepa
Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005) (citation omitted), abrogated on other grounds as recognized in Cottonwood, 789 F.3d at 089 . 24 NAT’L FAMILY FARM COALITION V.
discussed
Cited as authority (rule)
Conservation Congress v. U.S. Forest Service
See Western Watersheds Project v. 21 Kraayenbrink, 632 F.3d 462, 481-82 (9th Cir. 2011); Washington 22 Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005), 23 abrogated on other grounds by Cottonwood Environ.
discussed
Cited as authority (rule)
Nrdc v. Usepa
Any interested person may petition the EPA to cancel a registered pesticide, 40 C.F.R. § 154.10 ; Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1033 (9th Cir. 2005), and the EPA is required by the Administrative Procedure Act (APA) to resolve the petition “within a reasonable time.” 5 U.S.C. § 555 (b).
discussed
Cited as authority (rule)
Center for Biological Diversity v. Kelly
Prot. 13 Agency, 413 F.3d 1024, 1034 (9th Cir. 2005) (the APA does not govern plaintiffs’ claims 14 because ESA independently authorizes a private right of action).
discussed
Cited as authority (rule)
Northwest Environmental Advocates v. United States Fish and Wildlife Service
As expressly observed by the Ninth Circuit, the citizen-suit provision “creates an express, adequate remedy” because it “independently authorizes a private right of action.” Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005).
cited
Cited as authority (rule)
Alliance for the Wild Rockies v. Savage
Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)).
discussed
Cited as authority (rule)
Yurok Tribe v. United States Bureau of Reclamation
(2×)
also: Cited "see, e.g."
Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). “[B]eeause the APA by its terms independently authorizes review only when ‘there is no other adequate remedy in a court,’ 5 U.S.C. § 704 ,” plaintiffs assert that it is inapplicable to their claim.
discussed
Cited as authority (rule)
Hoopa Valley Tribe v. National Marine Fisheries Service
(2×)
also: Cited "see, e.g."
Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). “[B]eeause the APA by its terms independently authorizes review only when ‘there is no other adequate remedy in a court,’ 5 U.S.C. § 704 ,” plaintiffs assert that it is inapplicable to their claim.
cited
Cited as authority (rule)
Red Wolf Coalition v. United States Fish & Wildlife Service
Agency, 413 F.3d 1024, 1034 (9th Cir.2005).
discussed
Cited as authority (rule)
Pollinator Stewardship Council v. Usepa
FIFRA uses a “cost-benefit analysis to ensure that there is no unreasonable risk created for people or the environment from a pesticide.” Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005).
discussed
Cited as authority (rule)
Pollinator Stewardship Council v. U.S. Environmental Protection Agency
(2×)
FIFRA uses a “cost-benefit analysis to ensure that there is no unreasonable risk created for people or the envi ronment from a pesticide.” Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir.2005).
discussed
Cited as authority (rule)
California Trout, Inc. v. United States Bureau of Reclamation
Indeed, “[i]t is well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.” Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005), cert. denied, 546 U.S. 1090 , 126 S.Ct. 1024 , 163 L.Ed.2d 854 (2006).
discussed
Cited as authority (rule)
Cascadia Wildlands v. Thrailkill
If the plaintiff satisfactorily alleges specific harm, the court presumes the harm to be irreparable and the burden shifts to the agency, "which must show that the action will not jeopardize the species or destroy or adversely modify its critical habitat." Id. (citing Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th Cir.2005)).
discussed
Cited as authority (rule)
Center for Biological Diversity v. Environmental Protection Agency
Because “agency action” is to be construed broadly, and includes “the approval and registration of pesticides,” Karuk Tribe, 681 F.3d at 1021 (citing Washington Toxics Coalition v. EPA 413 F.3d 1024, 1031-33 (9th Cir.2005)), Plaintiffs have sufficiently alleged an affirmative agency action in the EPA’s reregistration of products.
discussed
Cited as authority (rule)
Alliance for Wild Rockies v. Kruger
If the plaintiff satisfactorily alleges specific harm, the court presumes the harm to be irreparable and the burden shifts to the agency, “which must show that the action will not jeopardize the species or destroy or adversely modify its critical habitat.” Id. (citing Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th Cir.2005)).
discussed
Cited as authority (rule)
Center for Biological Diversity v. Bureau of Land Management
The ESA authorizes citizen suits to challenge “a failure of [FWS] to perform any act or duty under section 4 [of the ESA] which is not discretionary.” 16 U.S.C. § 1540 (g)(1)(C); Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005) (“suits to compel agencies to comply with the substantive provisions of the ESA arise under the ESA citizen suit provision, and not the APA”).
discussed
Cited as authority (rule)
San Luis & Delta-Mendota Water v. Natural Resources Defense Coun
(2×)
Thus, “while the goals themselves may be mandatory, the agencies retain considerable discretion in choosing what specific actions to take in order to implement them.” Id. at 929 . “‘[A]n agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives.’” Id. (quoting Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005)).
discussed
Cited as authority (rule)
San Luis & Delta-Mendota Water v. Natural Resources Defense Coun
Thus, “while the goals themselves may be mandatory, the agencies retain considerable discretion in choosing what specific actions to take in order to implement them.” Id. at 929 . “‘[A]n agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives.’” Id. (quoting Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005)).
discussed
Cited as authority (rule)
Alliance for the Wild Rockies v. Weber
At this stage, “ ‘[fit is not the responsibility of the plaintiff to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.’ ” Wash. Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1035 (9th Cir.2005) (quoting Thomas, 753 F.2d at 765 ). .
examined
Cited as authority (rule)
Alliance for the Wild Rockies v. Krueger
(3×)
also: Cited "see"
In the first line of cases, the Ninth Circuit has held that the plaintiff does not bear an initial burden to show that irreparable harm is likely; irreparable harm is presumed: “ ‘It is not the responsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.’” Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1035 (9th Cir.2005) (quoting Thomas v. Peterson, 753 F.2d 754, 765 (9th Cir.1985)); see also Thomas, 753 F.2d at 764 (“Irreparable damage is presumed to flow fr…
cited
Cited as authority (rule)
Native Ecosystems Council v. Krueger
It is “well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.” Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005).
cited
Cited as authority (rule)
Salix v. United States Forest Service
Appropriate Relief It is “well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.” Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005).
discussed
Cited as authority (rule)
Northwest Coalition for Alternatives to Pesticides v. United States Environmental Protection Agency
(2×)
“It allows individuals to bring suit ‘to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under authority thereof.’ ” Washington Toxics v. EPA, 413 F.3d 1024, 1030 (9th Cir.2005).
discussed
Cited as authority (rule)
Wilson v. Commissioner
(2×)
Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011) (noting that the APA applies only where there is no other adequate remedy in court); Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005).
Retrieving the full opinion text from the archive…
Connie A. NAGRAMPA, Plaintiff-Appellant,
v.
MAILCOUPS INC.; The American Arbitration Association, Defendants-Appellees
v.
MAILCOUPS INC.; The American Arbitration Association, Defendants-Appellees
03-15955.
Court of Appeals for the Ninth Circuit.
Jun 28, 2005.
F. Paul Bland, Trial Lawyers for Public Justice, Washington, DC, Sanford M. Cip-inko, Esq., Law Offices of Sanford M. Cip-inko, San Francisco, CA, Victoria Ni, Kate Gordon, Esq., Leslie A. Bailey, Esq., Trial Lawyers for Public Justice, PC, Oakland, CA, for Plaintiff-Appellant., Glenn J. Plattner, Esq., Jenkens and Gilchrist, Morrison & Foerster, LLP, Los Angeles, CA, John S. Warnlof, Esq., Warnlof & Sumnick, Walnut Creek, CA, for Defendants-Appellees.
Schroeder.
Published
ORDER
Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.