FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAN FRANCISCO HERRING 

ASSOCIATION,

Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF THE INTERIOR;

RYAN K. ZINKE, in his official 

capacity as Secretary of the Interior; 

UNITED STATES NATIONAL PARK 

SERVICE; MICHAEL REYNOLDS, in his 

official capacity as Acting Director of 

the National Park Service; LAURA 

JOSS, in her official capacity as 

General Superintendent of the Golden 

Gate National Recreation Area,

Defendants-Appellees.

No. 18-15443 

D.C. No.

3:13-cv-01750-

JST

OPINION

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

Argued and Submitted October 23, 2019 

San Francisco, California

Filed December 31, 2019
2 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

Before: J. Clifford Wallace and Daniel A. Bress, Circuit 

Judges, and Morrison C. England, Jr.,* District Judge.

Opinion by Judge Bress

SUMMARY**

Administrative Procedure Act

The panel affirmed in part and reversed in part the 

district court’s denial of leave to file a second amended 

complaint in an action brought by the San Francisco Herring 

Association challenging the National Park Service’s 

authority to prohibit commercial herring fishing in the 

waters of the Golden Gate National Recreation Area in San 

Francisco Bay.

In a prior appeal, this Court held that the Association had 

failed to allege any final agency action under the 

Administrative Procedure Act, 5 U.S.C. § 704, and directed 

the district court to dismiss the case. On remand, the district 

court allowed the Association to replead, but held that its 

proposed amendments still failed to allege final agency 

action.

The panel held that the Association’s proposed second 

amended complaint sufficiently alleged final agency action. 

* The Honorable Morrison C. England, Jr., United States District 

Judge for the Eastern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 3

The panel noted that in a series of formal written notices to 

herring fishermen, the Park Service announced that it had 

authority over commercial herring fishing in the waters at 

issue, that such fishing was prohibited under federal law, and 

that the Park Service would enforce the prohibition, a 

violation of which could lead to civil penalties and up to six 

months in jail. In oral communications and meetings with 

the Association around this time, the Park Service reiterated 

its position and refused to change it. Then, in January 

2013—and in new allegations that were not before the panel 

in the prior appeal—uniformed Park Service rangers and 

California wildlife wardens allegedly operating at the Park 

Service’s direction confronted Association members fishing 

in the waters of the Recreation Area and ordered them to stop 

fishing there. The panel held that the Park Service’s 

enforcement orders—backed by earlier formal Department 

of Interior notices and other communications making clear 

that commercial herring fishing in the Recreation Area 

violates federal law—were final agency action that could be

challenged in court. 

The panel held that the district court did not abuse its 

discretion in denying leave to add a Declaratory Judgment 

Act count that the Association could have brought much 

earlier.
4 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

COUNSEL

Todd R. Gregorian (argued), Emmett C. Stanton, and Amy 

E. Hayden, Fenwick & West LLP, San Francisco, California; 

Stuart G. Gross, Gross & Klein LLP, San Francisco, 

California; for Plaintiff-Appellant.

Anna Katselas (argued), Andrew C. Mergen, Elizabeth Ann 

Peterson, and Bruce D. Bernard, Attorneys; Jeffrey Bossert 

Clark, Assistant Attorney General; Eric Grant, Deputy 

Assistant Attorney General; United States Department of 

Justice, Environment & Natural Resources Division, 

Washington, D.C.; Michael T. Pyle, Assistant United States 

Attorney, Office of the United States Attorney, San Jose, 

California; Gregory Lind, United States Department of the 

Interior, Office of the Solicitor, Washington, D.C.; for 

Defendants-Appellees.

OPINION

BRESS, Circuit Judge:

The San Francisco Herring Association brought this 

lawsuit challenging the National Park Service’s authority to 

prohibit commercial herring fishing in the waters of the 

Golden Gate National Recreation Area in San Francisco 

Bay. This appeal involves not the merits of that lawsuit, but 

instead whether it can be brought, at least at this time. In a 

prior appeal, this Court held that the Association had failed 

to allege any final agency action under the Administrative 

Procedure Act (APA), 5 U.S.C. § 704, and directed the 

district court to dismiss the case. San Francisco Herring 

Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579 (9th Cir. 

2017). On remand, the district court allowed the Association 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 5

to replead, but held that its proposed amendments still failed 

to allege final agency action.

We hold that the Association’s proposed second 

amended complaint sufficiently alleges final agency action. 

In a series of formal written notices to herring fishermen, the 

Park Service announced that it had authority over 

commercial herring fishing in the waters at issue, that such 

fishing was prohibited under federal law, and that the Park 

Service would enforce the prohibition, a violation of which 

could lead to civil penalties and up to six months in jail. In 

oral communications and meetings with the Association 

around this time, the Park Service reiterated its position and 

refused to change it. Then, in January 2013—and in new 

allegations that were not before us in the prior appeal—

uniformed Park Service rangers and California wildlife 

wardens allegedly operating at the Park Service’s direction 

confronted Association members fishing in the waters of the 

Recreation Area and ordered them to stop fishing there. The 

fishermen complied, knowing that continuing to fish risked 

criminal sanction. 

We hold that the Park Service’s in-water enforcement 

orders—backed by earlier formal Department of Interior 

notices and other communications making clear that 

commercial herring fishing in the Recreation Area violates 

federal law—“mark[ed] the consummation of the agency’s 

decisionmaking process” and was action “by which rights or 

obligations have been determined, or from which legal 

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 

177–78 (1997) (quotations omitted). The agency’s 

enforcement orders were thus “final agency action” that 

could be challenged in court. The Park Service’s contrary 

position—which would require the fishermen either to 

violate the law and risk serious punishment or engage in 
6 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

unnecessary further pleas before an agency that had already

made up its mind—would leave regulated parties facing stiff 

penalties without the judicial recourse that the APA enables. 

The district court did not, however, abuse its discretion in 

denying leave to add a Declaratory Judgment Act count that 

the Association could have brought much earlier. We thus 

affirm in part, reverse in part, and remand.

I

The following factual allegations are taken from the 

Association’s proposed second amended complaint and the 

record in both this appeal and the prior one. Because this 

appeal arises from the denial of leave to amend, the 

allegations in the complaint “are taken as true and construed 

in the light most favorable” to the Association. Gordon v. 

City of Oakland, 627 F.3d 1092, 1095 (9th Cir. 2010).

A

In 1972, Congress passed the Golden Gate National 

Recreation Enabling Act, establishing the Golden Gate 

National Recreation Area (Recreation Area or GGNRA) as 

part of the National Park System. Pub. L. No. 92-589, 86 

Stat. 1299 (1972) (codified at 16 U.S.C. § 460bb et seq.). As 

relevant here, the boundaries of the Recreation Area extend 

one-quarter mile offshore from the coastal enclave of 

Sausalito, north to Bolinas Bay and beyond the historic 

lighthouse at Point Bonita; around Alcatraz Island; and, on 

the San Francisco side, from the former defense installation 

at Fort Mason, under the Golden Gate Bridge, past the Civil 

War-era fortification at Fort Point, and up to the flats of 

Ocean Beach. Id. § 460bb-1. Those familiar with Bay Area 

geography may appreciate the following map in the record, 

which identifies the waters in question:
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 7

A 1983 Park Service regulation prohibits commercial 

fishing in national parks, “except where specifically 

authorized by Federal statutory law.” 36 C.F.R. § 2.3(d)(4). 

“Fishing” is defined as “taking or attempting to take fish.” 

Id. § 1.4(a). Violations of the commercial fishing 

prohibition are punishable by fine and up to six months in 

prison. Id. § 1.3(a) (subjecting violators to criminal 

penalties under 18 U.S.C. § 1865). The ultimate issue in this 

case—on which we express no view—is whether, based on 

a series of interlocking provisions in the Golden Gate 

National Recreation Enabling Act, the federal government 

has the statutory power to regulate commercial fishing in the 

waters in question.

What is significant here is that the Park Service plainly 

believes it has that power. After what the Association 

alleges is years of non-enforcement due to California’s 

since-withdrawn objection to federal jurisdiction, the Park 

Service informed herring fishermen that commercial fishing 
8 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

in the GGNRA was not allowed under federal law. As 

relevant here, in November 2011,1 the Park Service issued a 

formal notice on Department of Interior letterhead 

explaining that the Park Service “has the responsibility of 

enforcing Title 36 Code of Federal Regulations (CFR) 

within the Recreation Area, which includes the waters within 

the boundary.” According to the Park Service, “[p]er 

36 CFR § 2.3(d)(4), the following are prohibited: 

Commercial fishing, except where specifically authorized by 

Federal statutory law.” The Park Service included an 

attachment to its November 2011 notice listing various 

offshore areas of the Bay and setting forth the legal basis for 

the United States’ claimed “ownership” of the waters for 

purposes of the federal commercial fishing ban. While 

retaining “its powers to enforce federal regulations,” the 

Park Service explained that it was “holding its authorities in 

reserve at this time, should it decide the resource needs more 

protection beyond the State regulations.” Thus, for the time 

being, the Park Service would “rely on California 

Department of Fish and Game to respect National Park 

Service closures.” This November 2011 notice was included 

in a regulatory packet that the California Department of Fish 

and Wildlife (CDFW or DFW) provided to herring 

fishermen.2

 

In November 2012, the Park Service issued another 

notice on Department of Interior letterhead, which was 

1 Although not referenced in the Association’s proposed second 

amended complaint, the Park Service has filed supplemental excerpts of 

record containing a substantially identical notice from the Department of 

Interior dated November 2010.

2 The California Department of Fish and Wildlife was previously 

known as the Department of Fish and Game and we will refer to both 

interchangeably.
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 9

addressed to “2012/2013 Commercial Herring Fishermen” 

and signed by the Recreation Area’s General 

Superintendent. In this updated notice, the Park Service 

reiterated that its regulations—including the commercial 

fishing ban—“are applicable to all units of the National Park 

System, including the waters within the boundary of 

GGNRA.” The Park Service made clear that commercial 

herring fishing was thus unlawful within those boundaries: 

“Title 36 CFR § 2.3(d)(4) prohibits commercial fishing in all 

national parks, except where specifically authorized by 

Federal statutory law. There is no federal statute that 

specially authorizes commercial fishing within GGNRA; 

therefore, commercial fishing, including commercial herring 

fishing, is prohibited within GGNRA.”

Unlike its November 2011 notice, the Park Service this 

time indicated that it would be enforcing the prohibition. 

While “in the past,” the California Department of Fish and 

Game “ha[d] assisted the NPS in monitoring commercial 

fishing within the Park,” “[d]uring the upcoming herring 

season the NPS will also be monitoring commercial fishing 

activities and enforce the prohibition of commercial fishing 

within the waters of GGNRA.” (Emphasis added). 

“Because of reported confusion over the jurisdiction of the 

NPS in past years,” the Park Service would “provide 

informational warnings to any commercial fishermen fishing 

within the boundaries of GGNRA.” But the Park Service 

made clear that it “reserve[d] the right to enforce any 

violations of the prohibition of commercial fishing as set out 

in 36 C.F.R. § 2.3(d)(4).” These violations, as stated earlier, 

are punishable by fines and up to six months in prison. See

36 C.F.R. § 1.3(a); 18 U.S.C. § 1865(a).

Both before and after the November 2012 notice, the 

Association tried to get the Park Service to change its 
10 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

position. In October 2012, the Association’s president sent 

the Park Service a letter objecting to the assertion of federal 

jurisdiction over herring fishing in the GGNRA. That letter 

led to a meeting and later telephone conversations between 

the two sides in the fall of 2012. The Association alleges 

that “[d]uring the meetings and in subsequent telephone 

conversations between Defendants’ representatives and the 

fishermen’s representatives, representatives for the NPS 

consistently expressly stated its intentions to continue to 

enforce the prohibition on commercial fishing contained in 

36 C.F.R. § 2.3(d)(4) in the Waters at Issue, and that 

fishermen, including [Association] members, would be 

subject to criminal penalties if they fished in these waters.” 

In another meeting between the parties around this time, the 

Park Service again “confirmed [its] intention to continue 

prohibiting commercial fishing in the Waters at Issue as long 

as current laws and regulations remained in effect.” In 

December 2012, the Association further alleges, “an 

attorney for Defendants explicitly refused to state that a 

commercial fisherman who fished for herring in the Waters 

at Issue would not be cited.”

Following these discussions, the Park Service in January 

2013 began enforcing the commercial fishing ban, 

“confronting” fishermen in the waters of the GGNRA and 

ordering them not to fish there. The details of these 

enforcement activities against individual fishermen—which 

are reflected in new allegations that were not before us in the 

prior appeal—are discussed below.

B

On April 18, 2013, the Association sued the Park 

Service, the Department of the Interior, and various agency 

officials, alleging that the federal government lacked the 

statutory authority to prohibit commercial herring fishing in 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 11

the GGNRA. The Association pleaded two counts under the 

APA and a count for estoppel, requesting declaratory and 

injunctive relief (though not through a separate count under 

the Declaratory Judgment Act). The Park Service moved to 

dismiss the estoppel claim and answered the APA claims. In 

response, the Association filed a substantively identical first 

amended complaint that omitted the claim for estoppel. The 

Park Service answered on July 18, 2013.

The Park Service acknowledges that “it did not move to 

dismiss for lack of final agency action in the district court.” 

Answering Br. (ECF No. 27-1) at 20. Instead, the parties 

filed cross-motions for summary judgment on the issue of 

the Park Service’s statutory authority over the waters in the 

GGNRA. The district court ruled for the Park Service on the 

merits and entered judgment in its favor. San Francisco 

Herring Ass’n v. U.S. Dep’t of Interior, 2014 WL 12489595 

(N.D. Cal. Apr. 29, 2014). The Park Service did not argue 

at summary judgment, or any time before, that the 

Association failed to allege final agency action, and the 

district court’s opinion did not address that issue.

The Association appealed. For the first time, the Park 

Service argued that the Association had failed to identify any 

final agency action, and on that basis asserted that the district 

court lacked subject matter jurisdiction over the 

Association’s claims. In this circuit, the final agency action 

requirement has been treated as jurisdictional. See, e.g., 

Havasupai Tribe v. Provencio, 906 F.3d 1155, 1161 (9th Cir. 

2018); San Luis Food Producers v. United States, 709 F.3d 

798, 801 (9th Cir. 2013). After the Association clarified that 

it was not basing its assertion of final agency action on the

Department of Interior notices, the Park Service argued that 

the remaining actions alleged—the presence of Park Service 
12 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

“patrols” in the GGNRA and the Service’srefusal to promise 

non-enforcement—also were not final agency actions.

In a memorandum disposition, this Court vacated the 

district court’s judgment on the merits and “remanded with 

instructions to dismiss for lack of subject matter 

jurisdiction.” San Francisco Herring Ass’n, 683 F. App’x at 

581 (emphasis omitted). Our decision turned on our 

understanding of the alleged final agency action at issue, 

which we regarded as the Park Service’s increased “patrols” 

in the waters of the GGNRA. As we explained:

[The Association] is somewhat vague in 

describing the final agency action that it 

challenges. In its opening brief, it appears to 

describe both the informational notices sent 

by the Service and the Service’s increased 

patrols as final agency action. However, in 

its reply brief, [it] states that it “does not 

challenge the [2011] notice; it challenges [the 

Service’s] actual ultra vires enforcement of 

the regulation against [Association] members 

that began later that season.” We construe 

this to mean that the [Association] is 

challenging the patrols, not the notices.

Id. at 580 n.1 (quotations omitted); see also id. at 580 

(explaining that the Association “challenges what it views as 

the National Park Service’s decision to enforce the 

regulation against [Association] members, embodied in the 

Service’s allegedly heightened patrol of the waters of the 

Golden Gate National Recreation Area (‘GGNRA’) in recent 

years”) (emphasis added).

We held that these “patrols” were not final agency 

action: “While actions by which an agency enforces a statute 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 13

or rule against a particular party may be ‘final agency action’ 

within the meaning of 5 U.S.C. § 704, Sackett v. E.P.A., 566 

U.S. 120, 125–28 (2012), the Service’s patrols are at best 

only the first step in the enforcement process, and thus do 

not meet the requirements for final agency action.” Id. 

C

On remand, and consistent with our instructions, the 

district court dismissed the case. But over the Park Service’s 

objection, the district court allowed the Association to seek 

leave to file a second amended complaint. The district court 

explained that “[t]he Ninth Circuit remanded this case with 

instructions to dismiss for lack of subject matter jurisdiction 

but was silent as to whether the dismissal should be with or 

without leave.” In the district court’s view, “Defendants 

point to nothing in the record demonstrating that the Ninth 

Circuit considered whether Plaintiff could allege facts 

constituting final agency action, as opposed to whether 

Plaintiff did allege such facts.” (Emphasis in original). The 

district court thus dismissed the case without prejudice to the 

Association filing a motion to amend its complaint.

On November 21, 2017, the Association sought leave to 

file a second amended complaint. This time, and unlike its 

prior operative complaint, the Association made allegations 

about specific enforcement activities against individual 

fishermen in San Francisco Bay. In particular, the 

Association alleged that in January 2013, uniformed Park 

Service rangers and CDFW wardens “acting as Defendants’ 

agents” approached herring fishermen in a popular herring 

spawning area on the Marin County side of the Bay, within 

the GGNRA. The fishermen were either in the process of 

surveying the spawn and preparing to drop nets, or in one 

case had already dropped nets and begun fishing for herring. 
14 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

The proposed second amended complaint alleges that 

Park Service rangers and California wardens operating at the 

Park Service’s direction ordered Association members to 

stop fishing in the waters of the GGNRA:

• On January 13, 2013, fisherman and Association 

member Ernie Koepf was “surveying the spawn” off 

the coast of Sausalito in the waters of the GGNRA, 

deciding where to drop his nets. As he was doing so, 

two uniformed Park Service rangers in a National 

Park Service vessel approached him from the 

direction of the shoreline of the GGNRA. The 

officers “indicated that they were law enforcement 

officers from the GGNRA and that they were 

asserting authority in the waters,” and instructed Mr. 

Koepf as to “the boundary of the area in which he 

was not allowed to fish.” Mr. Koepf had previously 

received the November 2012 notice from the Park 

Service and was aware that a “fisherman violating 

the prohibition could be subject to criminal 

prosecution.” Mr. Koepf “understood that if he 

disobeyed the rangers’ instructions concerning the 

boundary and set his lines on the side of the boundary 

that the rangers had told him was the demarcation of 

the Waters at Issue, he would be subject to federal 

criminal prosecution.” Mr. Koepf therefore “obeyed 

the instructions” and “left the Waters at Issue . . . 

rather than risk criminal prosecution.”

• In January 2013, Association members Dennis 

Deaver, Matt Ryan, and Nick Sorokoff separately 

entered the waters of the GGNRA and were 

“surveying the spawn in preparation for setting their 

nets.” Each fisherman was “approached by CDFW 

wardens acting as agents of” the Park Service and 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 15

was told “that they could not set their nets in the 

waters.” These three fishermen had each received 

the November 2012 Park Service notice and 

“understood . . . on the basis of that letter, that they 

would be subject to criminal prosecution if they 

ignored the instructions.” The fishermen therefore 

“left the Waters at Issue.”

• Between January 11–14, 2013, Association member 

Domenic Papetti was commercially fishing for 

herring in the GGNRA and “set his nets” in the 

waters near the border of Marin and Sausalito. 

“After setting his nets and while engaged in tending 

the nets, he was approached by CDFW wardens, who 

acting as agents of Defendants, instructed him that 

commercial fishing in the area was prohibited and 

instructed him to remove his nets.” Mr. Papetti had 

previously received the November 2012 notice from 

the Park Service indicating “he would be subject to 

criminal prosecution if he ignored the instructions.” 

Mr. Papetti therefore “complied with the 

instructions, removed his nets, and re-set them 

outside of the Waters at Issue, rather than risking 

criminal prosecution.”

The Association’s proposed second amended complaint also 

included a new count for declaratory relief under the 

Declaratory Judgment Act.

The district court denied leave to amend. While 

acknowledging that the proposed second amended 

complaint “include[d] more detailed allegations regarding 

specific enforcement activities,” the district court held that 

these “are not new allegations” because “[t]hese interactions 

between NPS rangers and [Association] members were 
16 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

included in the [first amended complaint], albeit with 

somewhat less detail.” The district court also noted that 

interactions between rangers and fishermen were 

“acknowledged in oral argument” before our Court and in 

our Court’s memorandum disposition. In the district court’s 

view, “[a]dding additional details about how the NPS 

specifically patrolled the waters to prevent [Association] 

members from harvesting herring does not overcome the 

jurisdictional defect identified by the Ninth Circuit.” The 

district court therefore denied leave to amend as futile. The 

district court also denied leave to add the new count under 

the Declaratory Judgment Act based on the “strong evidence 

of undue delay.” 

This appeal followed.

II

Before turning to the question of whether the 

Association’s latest complaint alleges final agency action, 

we must first address the Park Service’s threshold 

contentions that our prior opinion precluded leave to amend 

altogether, or at least dictated that the Association still does 

not allege final agency action. The district court rejected the 

former argument but accepted the latter. In our view, the 

Park Service is wrong on both points.

The district court correctly determined that this Court’s 

prior opinion did not prevent the Association from seeking 

leave to re-plead. “Absent a mandate which explicitly 

directs to the contrary, a district court upon remand can 

permit the plaintiff to file additional pleadings . . . .” Nguyen 

v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986) 

(quotations omitted); see also Sierra Club v. Penfold, 857 

F.2d 1307, 1312 (9th Cir. 1988). Here, the mandate in the 

prior appeal “did not expressly address the possibility of 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 17

amendment, nor was there indication of a clear intent to deny 

amendment seeking to raise new issues not decided by the 

prior appeal.” Nguyen, 792 F.2d at 1503. Instead, by 

describing the Park Service’s “patrols” as “at best only the 

first step in the enforcement process,” our prior opinion, if 

anything, suggested that there may well be further 

enforcement activities that could meet the final agency 

action requirement. San Francisco Herring Ass’n, 683 F. 

App’x at 580. The district court thus correctly determined 

that this Court’s prior opinion did not purport to shut the 

courthouse doors to the fishermen under any and every 

circumstance.

We part ways with the district court, however, in its 

determination that our prior opinion encompasses the 

Association’s new allegations of enforcement, and therefore 

rendered the Association’s motion for leave to amend futile. 

Under the “rule of mandate,” a lower court is unquestionably 

obligated to “execute the terms of a mandate.” United States 

v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000); see also 

United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007). 

Compliance with the rule of mandate “preserv[es] the 

hierarchical structure of the court system,” Thrasher, 483 

F.3d at 982, and thus constitutes a basic feature of the rule of 

law in an appellate scheme. But while “the mandate of an 

appellate court forecloses the lower court from reconsidering 

matters determined in the appellate court, it ‘leaves to the 

district court any issue not expressly or impliedly disposed 

of on appeal.’” Nguyen, 792 F.2d at 1502 (quoting Stevens 

v. F/V Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir. 1984)). 

In this case, while we appreciate the district court’s evident 

effort faithfully to comply with this Court’s prior ruling, we 

hold that the district court read that ruling too broadly.
18 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

Most centrally, the Association’s allegations of specific 

in-water enforcement orders to individual fishermen are, in 

fact, new. They were neither included in the complaint that 

was at issue in the prior appeal, nor addressed in our prior 

decision. Instead, we were careful to explain that while the 

Association was “somewhat vague in describing the final 

agency action that it challenges,” we understood the 

Association to be challenging “the Service’s allegedly 

heightened patrol of the waters.” San Francisco Herring 

Ass’n, 683 F. App’x at 580 & n.1; see also id. at 580 n.1 

(“We construe this to mean that the [Association] is 

challenging the patrols.”); id. at 580 (“The Service’s patrols 

of the GGNRA do not constitute final agency action.”).

We also expressly distinguished “patrols” from further 

enforcement of the commercial fishing ban against particular 

persons—which is what the Association now alleges. In our 

prior opinion, we specifically recognized that “actions by 

which an agency enforces a statute or rule against a 

particular party may be ‘final agency action’ within the 

meaning of 5 U.S.C. § 704,” but held that “the Service’s 

patrols are at best only the first step in the enforcement 

process.” Id. at 580–81. Our prior opinion therefore 

contemplated that actions such as in-water enforcement 

directives—involving government officials ordering 

individual fishermen not to fish in a certain area and 

fishermen complying due to the risk of punishment—are 

qualitatively different than rangers merely monitoring the 

waters of the GGNRA with greater frequency. The district 

court thus erred in treating our prior opinion as dispositive 

of whether the Association’s new allegations challenge final 

agency action.

This same point disposes of the Park Service’s related 

argument that the law of the case doctrine bars further 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 19

litigation of the final agency action issue. “For th[at] 

doctrine to apply, the issue in question must have been 

decided explicitly or by necessary implication in the 

previous disposition.” Thrasher, 483 F.3d at 981 (quotations 

omitted). For the reasons set forth above, our prior opinion 

did not decide whether the Park Service’s orders to 

individual fishermen not to fish in the waters of the GGNRA, 

premised on the Park Service’s prior formal notices and 

other communications, constituted final agency action. We 

thus turn to that question next, applying de novo review 

because the district court denied leave to amend on grounds 

of futility. See, e.g., Carvalho v. Equifax Info. Servs., LLC, 

629 F.3d 876, 893 (9th Cir. 2010); Eminence Capital, LLC 

v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

III

Under 5 U.S.C. § 704, “[a]gency action made reviewable 

by statute and final agency action for which there is no other 

adequate remedy in a court are subject to judicial review.” 

There is no suggestion that the agency action here is “made 

reviewable by statute.” The question is thus whether the 

Association has sufficiently alleged “final agency action.” 

We hold that it has done so and is therefore entitled to pursue 

judicial relief.

While it can sometimes be difficult to discern if the 

agency’s decisional process is truly final, this is not such a 

case. The agency here repeatedly declared its authority over 

the waters of the GGNRA in formal notices, refused to 

change its position when pressed, and then enforced its 

fishing ban against individual fishermen, potentially 

subjecting them to serious penalties. It raises questions of 

basic fairness for the Park Service to assert its jurisdiction 

over the fishermen and bring them to the precipice of 

punishment through in-water enforcement orders, only to 
20 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

later claim there is nothing conclusive here for the fishermen 

to even challenge. The APA’s judicial review provisions 

prevent precisely this “heads I win, tails you lose” approach.

It is of course true that not every enforcement interaction 

in the field will reflect a final action of the agency itself. In 

this case, however, and for reasons we now explain, the 

rangers’ “no fishing” orders, which implemented the 

agency’s unequivocal assertion of authority in its notices and 

other communications, constitute final agency action that 

may be challenged in court.

A

For there to be “final agency action,” 5 U.S.C. § 704, 

there must first be “agency action.” The Park Service’s 

threshold suggestion that there is not even federal 

government action in the first place—that enforcing its 

clearly-stated commercial fishing prohibition against 

individual fishermen was somehow a non-event under the 

APA—fails under the facts as alleged in the proposed second 

amended complaint.

The APA defines “agency action” broadly to “includ[e] 

the whole or a part of an agency rule, order, license, sanction, 

relief, or the equivalent or denial thereof, or failure to act.” 

Id. § 551(13); see also id. § 701(b)(2). This definition “is 

meant to cover comprehensively every manner in which an 

agency may exercise its power.” Whitman v. American 

Trucking Ass’ns, 531 U.S. 457, 478 (2001) (citing FTC v. 

Standard Oil Co. of Cal., 448 U.S. 232, 238 n.7 (1980)). The 

term “sanction” is defined expansively to “includ[e],” 

among other things, “the whole or a part of an agency . . . 

prohibition, requirement, limitation, or other condition 

affecting the freedom of a person, . . . or taking other 

compulsory or restrictive action.” 5 U.S.C. § 551(10)(A), 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 21

(G). An “order” “means the whole or part of a final 

disposition, whether affirmative, negative, injunctive, or 

declaratory in form, of an agency in a matter other than a rule 

making but including licensing.” Id. § 551(6). The Park 

Service presents no argument that the government conduct 

challenged here fails to meet either definition.

Instead, the Park Service argues that “only one of the five 

alleged patrols purportedly involved the Park Service, and 

[the Association] has not identified any deputization 

agreement authorizing the DFW to exercise federal law 

enforcement authority on the Park Service’s behalf or 

otherwise explained the basis of its assertion that DFW was 

acting as the Park Service’s agent during the other four 

alleged patrols.” Answering Br. 25–26. This argument fails.

It is hard to credit the Park Service’s suggestion—not 

raised below—that the Association, at the pleading stage, 

has not sufficiently alleged that California wildlife wardens 

were operating at the direction of the Park Service. The Park 

Service’s own November 2011 notice to fishermen, attached 

to the proposed complaint, states that the Park Service “will 

rely on California Department of Fish and Wildlife to respect 

National Park Service closures . . . .” The Park Service 

ensured delivery of this November 2011 notice to fishermen 

by having the CDFW include it in CDFW’s own “herring 

season regulatory packet” for fishermen. The Park Service’s 

subsequent November 2012 notice, also attached to the 

proposed complaint, likewise references California wardens

having “assisted the NPS in monitoring commercial fishing 

within the Park.” And the Park Service itself has proffered 

a letter asking the CDFW to include the November 2012 

Department of Interior notice “with the permit application 

sent to commercial herring fishermen,” while expressing 
22 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

appreciation “for continuing the partnership between 

California Department of Fish and Game and the NPS.”

The Park Service does not dispute that “agency action” 

under 5 U.S.C. § 704 can include actions taken at an 

agency’s direction, nor does it cite any authority for the 

proposition that something as formal as a “deputization 

agreement” is required. See Indep. Broker-Dealers’ Trade 

Ass’n v. SEC, 442 F.2d 132, 137 (D.C. Cir. 1971) (reviewing 

agency action under the APA where the agency was 

“significantly involved” “in a way and to an extent that 

cannot be ignored as devoid legal materiality,” so that the 

“involvement of a government agency is meaningful enough 

to call for application of vital principles of judicial review”). 

Indeed, the Park Service’s own regulations define 

“[a]uthorized person” to mean “employee or agent of the 

National Park Service with delegated authority to enforce the 

provisions of this chapter,” 36 C.F.R. § 1.4(a) (emphasis 

added), and those regulations further provide that 

“authorized persons” may enforce the commercial fishing 

regulations in national parks, see id. § 2.3(f).

In all events, by the allegations of the proposed second 

amended complaint, two officers from the Park Service

ordered one fisherman (Ernie Koepf) not to fish in the 

GGNRA after identifying themselves as federal law 

enforcement and asserting authority over the waters. And 

the prior actions that enabled the in-water enforcement 

orders, such as the formal notices on Department of Interior 

letterhead and verbal commitments to enforce federal law in 

the GGNRA—not to mention 36 C.F.R. § 2.3(d)(4)—were 

undertaken by the Park Service itself. Based on these prior 

actions, Koepf understood that if he disobeyed the rangers’ 

orders, he would be subject to federal prosecution.
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 23

These allegations pertaining to Mr. Koepf, an 

Association member, are alone enough to sustain this action. 

See, e.g., United Food & Comm. Workers Union Local 751 

v. Brown Grp., Inc., 517 U.S. 544, 552 (1996) (citing Warth 

v. Seldin, 422 U.S. 490, 511 (1975)); Ecological Rights 

Found. v. Pac. Gas & Elec. Co., 874 F.3d 1083, 1092 (9th 

Cir. 2017). Under these circumstances, and taking the 

Association’s well-pleaded allegations as true, see, e.g., 

Gordon, 627 F.3d at 1095, the Association’s proposed 

second amended complaint sufficiently alleges federal 

agency action.

The Park Service nevertheless argues that “[a]n agency’s 

restatement of what already exists in the relevant body of 

statutes, regulations, and rulings is not a ‘rule’ within the 

meaning of the APA because it does not implement, 

interpret, or prescribe law or policy.” Answering Br. 26 

(quotations omitted). This argument is beside the point. The 

definition of “agency action” is not limited to “rules.” See 5 

U.S.C. § 551(13). And the Association is not challenging 

the agency’s overarching rule on commercial fishing in 

national parks per se, see 36 C.F.R. § 2.3(d)(4), but rather 

the Park Service’s application and enforcement of that rule 

against individual commercial herring fishermen in the 

GGNRA, which occurred many years after the underlying 

rule was promulgated. 

This case is thus a far cry from the cases the Park Service 

cites involving agency “guides” containing answers to 

frequently asked questions, see Golden & Zimmerman, LLC 

v. Domenech, 599 F.3d 426, 430–31 (4th Cir. 2010), or an 

agency letter to a single entity that “was purely informational 

in nature” and “[c]ompell[ed] no one to do anything,” Ind. 

Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427–28 (D.C. 

Cir. 2004). Suffice to say, ordering fishermen not to fish on 
24 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

pain of fines and imprisonment—backed by formal agency 

notices clearing up the “reported confusion over the 

jurisdiction of the NPS” in the GGNRA—is not analogous 

to a mere “restatement” of the law.

B

But was this agency action nonetheless final? We hold 

that it was. The Supreme Court has set forth “two conditions 

that generally must be satisfied for agency action to be ‘final’ 

under the APA”: “‘First, the action must mark the 

consummation of the agency’s decision-making process—it 

must not be of a merely tentative or interlocutory nature. 

And second, the action must be one by which rights or 

obligations have been determined, or from which legal 

consequences will flow.’” U.S. Army Corps. of Engineers v. 

Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (quoting Bennett, 

520 U.S. at 177–78); see also, e.g., Sackett v. EPA, 566 U.S. 

at 126–27; Navajo Nation v. U.S. Dep’t of Interior, 819 F.3d 

1084, 1091 (9th Cir. 2016); Oregon Natural Desert Ass’n v. 

U.S. Dep’t of Forest Serv., 465 F.3d 977, 982 (9th Cir. 

2006); Alaska, Dep’t of Envtl. Conservation v. EPA, 244 

F.3d 748, 750 (9th Cir. 2001). These two conditions reflect 

what the Supreme Court has described as “the ‘pragmatic’ 

approach [it] ha[s] long taken to” final agency action. 

Hawkes, 136 S. Ct. at 1815 (quoting Abbott Labs. v. 

Gardner, 387 U.S. 136, 149 (1967)); see also Oregon 

Natural Desert Ass’n, 465 F.3d at 982 (collecting cases). By 

the standards the Supreme Court has set forth, the 

Association has sufficiently alleged final agency action.

First, the action “mark[ed] the consummation of the 

agency’s decisionmaking process” and was not “of a merely 

tentative or interlocutory nature.” Bennett, 520 U.S. at 177–

78. By the allegations of the proposed complaint, the inwater enforcement orders that the fishermen challenge here 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 25

were an unequivocal assertion of the Park Service’s 

authority over the waters of the GGNRA, based upon the 

Park Service’s lengthy history of statements on that issue. 

The Park Service had issued multiple formal notices on 

Department of Interior letterhead over a period of years, 

definitively asserting federal jurisdiction over the waters of 

the GGNRA and making clear that commercial herring 

fishing there violated federal law, thus exposing fishermen 

to civil penalties and jail time. By November 2012, the Park 

Service had announced its intention “[d]uring the upcoming 

herring season” to “enforce the prohibition on commercial 

fishing within the waters of GGNRA.” And in meetings and 

other communications between the parties around this time, 

the Association has alleged that “representatives for the NPS 

consistently expressly stated its intentions to continue to 

enforce the prohibition on commercial fishing contained in 

36 C.F.R. § 2.3(d)(4) in the Waters at Issue, and that 

fishermen, including [Association] members, would be 

subject to criminal penalties if they fished in these waters.” 

Subsequently, and critically, the Park Service then put its 

declared position into action when its uniformed officers and 

California wardens (allegedly acting at the federal 

government’s direction) took to the waters to order herring 

fishermen to stop fishing in the GGNRA.

To such a herring fisherman in San Francisco Bay, there 

was probably not much about this that felt “merely 

tentative.” Bennett, 520 U.S. at 178. The Park Service had 

“arrived at a definitive position,” Oregon Natural Desert 

Ass’n, 465 F.3d at 985: it had jurisdiction over the waters of 

the GGNRA and the fishermen identified in the complaint 

were violating federal law by fishing there. As we have held, 

“[a]s to the first Bennett requirement, an agency’s 

determination of its jurisdiction is the consummation of 

agency decisionmaking regarding that issue.” Navajo 
26 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

Nation, 819 F.3d at 1091; see also Hawkes, 136 S. Ct. at 

1814 (citing Sackett, 566 U.S. at 131 (Ginsburg, J., 

concurring)).

When an agency decision is merely tentative, the final 

agency action requirement ensures that courts do not intrude 

on the agency’s turf and thereby meddle in the agency’s 

ongoing deliberations. See, e.g., CSI Aviation Servs., Inc. v. 

U.S. Dep’t of Transp., 637 F.3d 408, 411, 414 (D.C. Cir. 

2011); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. 

Cir. 1986); see also Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 

261, 264 (9th Cir. 1990). The Park Service does not suggest 

it is still in the middle of trying to figure out its position on 

whether it has jurisdiction over the waters of the GGNRA, 

and that this action somehow prematurely inserts the courts 

into the mix.

Rather, when Park Service officers and agents went out 

on the waters of the GGNRA to implement the commercial 

fishing prohibition against individual Association members, 

the Park Service’s position was a fait accompli. See Sackett, 

566 U.S. at 127 (“The issuance of the compliance order also 

marks the consummation of the agency’s decisionmaking 

process.”) (quotations omitted). If there were any doubt 

before, the Park Service’s enforcement orders against 

individual fishermen “crystalliz[ed] [the] agency position 

into final agency action within APA § 704’s meaning.” 

Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 49 

(D.C. Cir. 2000). Simply put, an agency engaging in 

“merely tentative or interlocutory” thinking, Bennett, 520 

U.S. at 178, does not state a definitive position in formal 

notices, confirm that position orally, and then send officers 

out into the field to execute on the directive. Where an 

agency takes such steps, its decisionmaking processes are 

clearly consummated.
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 27

When the government was asked at oral argument what 

more the fishermen were supposed to do before filing this 

action, its answer was that the Association could have 

petitioned the Park Service to engage in a rulemaking. But 

when there was already final agency action, the fishermen 

were not required to engineer a further final agency action 

in a different form in order to bring suit. As in Sackett, the 

fishermen here had “no entitlement to further agency 

review,” and “[t]he mere possibility that [the] agency might 

reconsider . . . does not suffice to make an otherwise final 

agency action nonfinal.” 566 U.S. at 127; see also Hawkes, 

136 S. Ct. at 1814 (explaining that while the Army Corp of 

Engineers “may revise” a Clean Water Act “jurisdictional 

determination,” “[t]hat possibility . . . is a common 

characteristic of agency action, and does not make an 

otherwise definitive decision nonfinal”). Once again, a 

central rationale of the final agency action requirement is to 

prevent premature intrusion into the agency’s deliberations; 

it is not to require regulated parties to keep knocking at the 

agency’s door when the agency has already made its position 

clear.

This conclusion follows from the APA itself. Congress 

has authorized agencies to engage in “agency action” in 

different ways, see 5 U.S.C. § 551(13), and has provided for 

judicial review when that action is “final,” 5 U.S.C. § 704. 

Rulemaking through the notice and comment process is, of 

course, one way to engage in “agency action” that can, in 

turn, lead to “final agency action” challengeable in court. 

See, e.g., Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 

1445, 1450–51 (9th Cir. 1996), as amended (June 17, 1996).

But given the breadth of the definition of agency action, 

see 5 U.S.C. § 551(13), there will be many final agency 

actions that do not take the form of rules. See Oregon 
28 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

Natural Desert Ass’n, 465 F.3d at 987 (“Bennett’s second 

requirement can be met through different kinds of agency 

actions, not only one that alters an agency’s legal regime.”). 

We have never held that a party subjected to final agency 

action in one form must then pursue an often cumbersome 

rulemaking process to satisfy the final agency action 

prerequisite a second time. Indeed, if a rulemaking were 

required here, the same could also have been said of the 

many other cases finding final agency action through 

decision-making mechanisms other than rules. See, e.g., 

Hawkes, 136 S. Ct. at 1813–15 (Army Corp of Engineers 

“jurisdictional determination”); Sackett, 132 S. Ct. at 1371–

72 (EPA compliance order); Navajo Nation, 819 F.3d at 

1086 (Park Service decision to inventory property); Alaska, 

Dep’t of Envtl. Conservation, 244 F.3d at 750 (EPA 

enforcement orders). We have no license to limit the scope 

of final agency actions to “rules.” And the Park Service—

having undertaken enforcement activities confirming its 

decision-making process was not only consummated, but 

operationalized—has no license to force the fishermen into 

an unnecessary rulemaking process either.

Second, the orders that individual fishermen stop fishing

in the GGNRA met Bennett’s second requirement because

this was agency action “by which rights or obligations have 

been determined, or from which legal consequences will 

flow.” Bennett, 520 U.S. at 177–78. Again, there is no 

dispute that based on the Park Service’s position, persons 

who engaged in commercial fishing in the GGNRA could be 

punished through fines and imprisonment. See 36 C.F.R. 

§ 1.3(a); 18 U.S.C. § 1865. Indeed, in meetings and 

telephone conversations with the Association, Park Service 

representatives “expressly stated” that herring fishermen 

“would be subject to criminal penalties if they fished in these 

waters.” By confronting fishermen in the waters of the 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 29

GGNRA and ordering them to stop fishing there, the 

fishermen were necessarily placed “in legal jeopardy if 

[they] fail[ed] to comply with the [o]rders.” Alaska, Dep’t 

of Envtl. Conservation, 244 F.3d at 750. Such exposure to 

“the risk of significant criminal and civil penalties” satisfies 

Bennett’s second requirement. Hawkes, 136 S. Ct. at 1815; 

see also Frozen Food Express v. United States, 351 U.S. 40, 

44 (1956) (holding that order was final agency action 

because it “warns every carrier, who does not have authority 

from the Commission to transport those commodities, that it 

does so at the risk of incurring criminal penalties”).

In this case, there is no suggestion that compliance with 

the Park Service’s orders to fishermen was somehow 

optional, and neither the Park Service nor the fishermen 

treated them that way. The in-water orders were instead a 

display of “legal force” where “immediate compliance” was 

expected. Oregon Natural Desert Ass’n, 465 F.3d at 987 

(quotations omitted). Indeed, failure to comply with the 

rangers’ orders itself exposed the fishermen to even further 

adverse legal consequences beyond the violation of the 

commercial fishing prohibition. See 36 C.F.R. § 2.32 (Park 

Service regulations concerning failure to follow “the lawful 

order of a government employee or agent” and “resisting” “a 

government employee or agent engaged in an official duty”); 

see also Sackett, 566 U.S. at 126 (holding that legal 

consequences flowed under Bennett’s second requirement 

because “the order exposes the Sacketts to double penalties

in a future enforcement proceeding”); Alaska, Dep’t of Envtl. 

Conservation, 244 F.3d at 750 (holding that legal 

consequences flowed because “[u]nder EPA’s construction 

of its Orders, if it decides to institute [enforcement] 

proceedings, Cominco and its employees would be subject 

to criminal and civil penalties for the violation of its Orders, 

as well as for violation of the [Clean Air Act]”).
30 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

These various legal consequences resulting from the 

Park Service’s in-water enforcement orders to individual 

fishermen fundamentally distinguish the Association’s 

proposed second amended complaint from the alleged final 

agency action in the prior appeal, which was limited to 

“increased patrols” of San Francisco Bay. See San 

Francisco Herring Ass’n, 683 F. App’x at 580–81 & n.1. 

Those patrols did not themselves compel any fisherman to 

do anything or create legal jeopardy for anyone. The patrols 

were instead akin to the types of “day-to-day operations” of 

an agency that do not meet the final agency action 

requirement. Wild Fish Conservancy v. Jewell, 730 F.3d 

791, 801 (9th Cir. 2013).

What the Association has alleged now is very different. 

By taking the additional step of enforcing its formal notices 

against the fishermen, the in-water “no fishing” orders 

reflected not only the “consummation of the agency’s 

decisionmaking process,” but the Park Service’s 

determination to create actual “legal consequences” for 

violators. Bennett, 520 U.S. at 177–78 (quotations omitted); 

see also Siskiyou Reg. Educ. Project v. U.S. Forest Serv., 

565 F.3d 545, 554 (9th Cir. 2009) (final agency action where 

party “challenge[s] specific instances of the Forest Service’s 

actions taken pursuant to its interpretation of” an agency 

mining guideline). In the prior appeal, the Park Service 

argued that “unlike the Sacketts, members of [the 

Association] have not been ordered to do anything, nor did 

the November 2011 notice expose [the Association’s] 

members to any penalties.” Answering Brief of Appellees 

at 30, San Francisco Herring Assoc. v. U.S. Dep’t of 

Interior, No, 15-16214, ECF No. 28. Assuming that to be 

true of the Park Service’s notices, the same cannot be said of 

the Association’s new allegations of actual enforcement 

activities against individual fishermen.
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 31

This case is thus markedly different from cases the Park 

Service cites where agencies merely issued administrative 

complaints. See, e.g., FTC v. Standard Oil Co. of Cal., 449 

U.S. 232, 242 (1980); Ukiah Valley, 911 F.2d at 264–65. By 

their very nature, those cases involved attempts to shortcircuit agency adjudicatory processes that were, at best, still 

in process or even at their inception. See Standard Oil, 449 

U.S. at 242. For that reason, the administrative complaints 

did not “impose an obligation, deny a right, or fix some legal 

relationship as a consummation of the administrative 

process.” Ukiah Valley, 911 F.2d at 264 (quotations 

omitted). “[I]mmediate compliance” there was not 

expected, and the parties who received the complaints were 

“not yet subject to any order requiring them to act.” Id. at 

264–65. By virtue of the Park Service’s decision to proceed 

in the way that it did here, the agency action in this case 

cannot be described in similar terms.

For much the same reasons, this case also bears no 

resemblance to the line of cases the Park Service relies upon, 

where agencies merely issued preliminary guidance or 

opinions restating the law. See Answering Br. 26–28

(collecting cases). In City of San Diego v. Whitman, 242 

F.3d 1097 (9th Cir. 2001), to take one case as an example, 

we held that a letter from the EPA to a municipality was not 

final agency action where “[t]he EPA’s decision-making 

process on the City’s application . . . will not even begin until 

the City files its application,” and where the letter “simply 

responds to the City’s request for assistance” by offering 

guidance on whether EPA would apply certain statutory 

provisions to the city’s “as-yet-unfiled application.” Id. at 

1101–02. Here, by contrast, the Park Service issued 

enforcement orders based on its repeated prior notices that 

commercial fishing was prohibited in the waters of the 

GGNRA. The position was definitive and the legal 
32 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

consequences for fishermen were real—“the hallmarks of 

APA finality.” See Sackett, 566 U.S. at 126.

The Park Service therefore cannot fairly say that the 

orders to individual fishermen “merely restate[d] existing 

law.” Answering Br. 26. In some sense, an enforcement 

directive, sanction, or compliance order can always be 

described as “restating existing law.” The EPA compliance 

order in Sackett, for example, could be regarded as a 

restatement of the Clean Water Act’s requirements. What 

the Park Service’s characterization ignores is that by their 

very form and nature, enforcement orders like the ones at 

issue here—based on clearly-stated agency pronouncements 

and repeated refusals to change course—are not free-floating 

legal guidance but actual commands to actual regulated 

parties to engage or refrain from engaging in a particular 

action, subject to penalty. See Sackett, 566 U.S. at 126–27. 

The APA’s final agency action requirement prevents this 

“strong-arming of regulated parties into ‘voluntary 

compliance’ without the opportunity for judicial review—

even judicial review of the question whether the regulated 

party is within the [Park Service’s] jurisdiction.” Id. at 131.

Once again, the question is asked: what more were the 

fishermen supposed to do before bringing suit? At oral 

argument and in its brief, the Park Service suggested that the 

fishermen could have violated the law and then sued. See, 

e.g., Answering Br. 26 (stating that the Association “does 

not allege that any of its members received a citation”). It is 

hard to fault the fishermen for obeying a law enforcement 

order instead of flouting it. And perhaps unsurprisingly, 

precedent on the “final agency action” question did not 

require Association members to call the Park Service’s bluff 

and engage in what the government regards as unlawful 

behavior. As the Supreme Court “ha[s] long held, parties 
SAN FRANCISCO HERRING ASSOCIATION V. USDOI 33

need not await enforcement proceedings before challenging 

final agency action where such proceedings carry the risk of 

‘serious criminal and civil penalties.’” Hawkes, 136 S. Ct. 

at 1815 (quoting Abbott Labs., 387 U.S. at 153). The herring 

fishermen “need not assume such risks while waiting for [the 

Park Service] to ‘drop the hammer’ in order to have their day 

in court.” Id. (quoting Sackett, 566 U.S. at 127).

We therefore hold that on the particular facts alleged, the 

Association’s proposed second amended complaint 

sufficiently pleaded final agency action.

IV

The district court also denied, on grounds of undue 

delay, the Association’s proposed addition of a new count 

under the Declaratory Judgment Act. We review this aspect 

of the district court’s ruling for abuse of discretion, see 

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995), and 

conclude none occurred.

We have explained that “[l]ate amendments to assert new 

theories are not reviewed favorably when the facts and the 

theory have been known to the party seeking amendment 

since the inception of the cause of action.” Royal Ins. Co. of 

Am. v. Sw. Marine, 194 F.3d 1009, 1016–17 (9th Cir. 1999) 

(quotations omitted). In addition, the “discretion to deny 

leave to amend is particularly broad where the plaintiff has 

previously amended the complaint.” Allen v. City of Beverly 

Hills, 911 F.2d 367, 373 (9th Cir. 1990) (quotations 

omitted).

The district court did not abuse its discretion on this 

issue. Unlike the new factual allegations that the 

Association added to address the final agency action issue 

first identified in the prior appeal, the Association’s 
34 SAN FRANCISCO HERRING ASSOCIATION V. USDOI

proposed count under the Declaratory Judgment Act adds 

only a new legal theory, despite the fact its prior complaints 

already requested declaratory relief. The Association does 

not explain how its new count could add anything to the final 

agency action issue (and it does not). Given the substantial 

delay involved, the duplicative nature of the relief requested 

in the new count, and the Association’s previous amendment 

of its complaint, see Allen, 911 F.2d at 373, the district 

court’s refusal to allow the Declaratory Judgment Act count 

was not an abuse of discretion.

* * *

For the foregoing reasons, we reverse the district court’s 

denial of leave to amend, except as to its disallowance of the 

Association’s proposed count under the Declaratory 

Judgment Act.

AFFIRMED in part, REVERSED in part, and 

REMANDED.