Keeping Tabs on the Ninth Circuit
May 13, 2022 - This Week at the Ninth

This Week at The Ninth: Herring and Delay

This Week at The Ninth: Herring and Delay

This week, the Ninth Circuit examines the government’s prohibition on commercial fishing in the Golden Gate National Recreation Area, and considers when a party may file suit to compel delayed agency action.


The Court holds that the National Park Service has statutory authority to prohibit commercial herring fishing in the Golden Gate National Recreation Area.

Panel: Judges Wallace, Bress, and England (E.D. Cal.), with Judge Bress writing the opinion.

Key Highlight: “The language and context of the GGNRA Act instead reflect the commonsense conclusion that Congress did not include navigable waters within the boundaries of the GGNRA and direct their protection, only to severely hamstring the Park Service in accomplishing that objective.”

Background: In 1972, Congress passed the Golden Gate National Recreation Area (GGNRA) Act to preserve land and waters around the San Francisco Bay as part of the National Park System. The Act delineated specific physical boundaries for the GGNRA, established a policy for future land acquisitions within those boundaries, and expressly authorized the Secretary of the Interior to administer the “lands, waters, and interests therein acquired for the recreation area[.]” 16 U.S.C. § 460bb-3(a) (emphasis added). In 1983, the Secretary promulgated a regulation prohibiting commercial fishing in national parks.

The San Francisco Herring Association (the “Association”) is a group of small business owners who fish in the Bay Area. In 2013, the Association filed suit, alleging that the National Park Service lacked authority to prohibit commercial herring fishing in the GGNRA. The Association focused on § 460bb-3(a), arguing that the Park Service must first acquire a formal property interest in waters before being able to administer them. The district court rejected this argument, granting summary judgment to the government.

Result: The Ninth Circuit affirmed. First, the Court parsed the language and structure of the GGNRA Act and determined that Congress clearly authorized the Park Service to administer the Recreation Area’s navigable waters within one-quarter mile offshore. The panel acknowledged that running waters cannot be owned, but wrote that the Park Service had control over them for purposes of administering them. Second, the Court addressed the Supreme Court’s decision in Sturgeon v. Frost, 139 S. Ct. 1066 (2019), which held that the Park Service could not apply a hovercraft ban to disputed waters in Alaska. The panel distinguished Sturgeon because of unique language in the Alaska National Interest Lands Conversion Act (ANICLA) at issue there. The Court noted that the GGNRA Act did not use similar language to ANICLA about what constitutes public lands or waters; to the contrary, the GGNRA Act makes clear that certain navigable waters of the San Francisco Bay are part of the GGNRA, without any condition precedent.


The Court holds that the Executive Office of Immigration Review (EIOR)’s 4-year delay in investigating an attorney-discipline complaint was not so unreasonable so as to justify federal-court intervention under the APA.

Panel:  Judges Kleinfeld, Fisher (CA3), and Bennett, with Judge Bennett writing the opinion.

Key Highlight:  “The EOIR has limited resources and has hundreds of pending complaints, many of which were received before Vaz filed his complaint and presumably some of which the EOIR has determined merit priority. Requiring the EOIR to investigate Vaz’s complaint would interfere with the EOIR’s discretion in prioritizing its activities and allocating its resources.”

Background: In May 2018, Plaintiff Prymaz Nazreth Vaz filed a complaint about his former immigration attorney with the Department of Justice’s Executive Office of Immigration Review (EOIR), which regulates the conduct of attorneys who appear in immigration proceedings.  The EOIR sent Vaz a letter informing him that his complaint warranted review and that it would investigate.  Two years passed without any further update.  Vaz then invoked the Mandamus Act and the APA and sued the EOIR, seeking to compel it to act on his complaint.  The district court dismissed for lack of jurisdiction.  It also noted that even if it had jurisdiction, the EOIR’s delay was not unreasonable given its limited resources.

Result:  The Ninth Circuit affirmed.  First, the Court explained that it would address only the APA, and not the Mandamus Act, consistent with Ninth Circuit precedent adopting that approach where the APA provides an available remedy.  Next, the Court of Appeals concluded that the district court had erred in concluding it lacked jurisdiction over Vaz’s claim based on its determination that Vaz could not meet the requirements for prevailing on that claim. As the Court explained, the district court had jurisdiction under the federal question statute; the APA’s requirements went “to the merits.”

But the Court agreed that Vaz’s APA claim failed.  An APA plaintiff may compel agency action that is (1) required by a mandatory duty, and (2) unreasonably delayed.   The Court agreed with Vaz that the governing regulations imposed a mandatory duty on the EOIR to investigate complaints.  But the EOIR had “no mandatory duty to notify complainants of its investigation results”—so Vaz could be entitled to relief only “if the EOIR unreasonably delayed in carrying out its duty to investigate.”  The Court concluded that Vaz had both waived that argument by failing to fully develop it on appeal and could not make the requisite showing regardless.  As the Court explained, the agency’s delay—at this point, as much as four years—might support a finding of unreasonableness.  But the other factors courts considering in assessing such an APA claim—including any prejudice to Vaz, harm to health and welfare, or any underlying impropriety by the agency—all weighed against him.