FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TURTLE ISLAND RESTORATION 

NETWORK, a non-profit corporation, No. 10-17059 Plaintiffs-Appellants,

D.C. No.

v.  4:09-cv-05239-CW

UNITED STATES DEPARTMENT OF OPINION STATE,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Claudia A. Wilken, District Judge, Presiding

Argued and Submitted

November 17, 2011—Stanford, California

Filed February 17, 2012

Before: Alex Kozinski, Chief Judge, Jerome Farris,

Circuit Judge, and Robert W. Gettleman, District Judge.*

Opinion by Chief Judge Kozinski

*The Honorable Robert W. Gettleman, Senior United States District

Judge for the Northern District of Illinois, sitting by designation. 

1893
COUNSEL

Holley Horrell, Law Student (argued pursuant to Rule 46-4),

Deborah A. Sivas (supervising attorney), Alicia E. Thesing,

Robb W. Kapla, Justin Goodwin, Environmental Law Clinic,

Mills Legal Clinic of Stanford Law School, Stanford, California, for the appellant.

TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE 1895
David C. Shilton (argued), Igancia S. Moreno, Assistant

Attorney General, Mark R. Haag, David B. Glazer, Kevin W.

McArdle, Environmental & Natural Resources Division, U.S.

Department of Justice, Washington, D.C., for the appellee.

OPINION

KOZINSKI, Chief Judge:

Turtle Island Restoration Network (“TIRN”), a non-profit

environmental organization, appeals from the district court’s

dismissal of its claim on res judicata grounds. TIRN alleges

that the United States Department of State failed to satisfy its

consultation and environmental assessment obligations under

the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321 et seq., and the Endangered Species Act (“ESA”), 16

U.S.C. §§ 1531 et seq., in conducting annual certifications of

countries exempted from the general ban on shrimp imports.

Section 609(b) of Public Law 101-162 prohibits the importation of shrimp harvested with technology that may adversely

affect sea turtles, except from countries certified to employ a

turtle protection program comparable to that of the United

States. Pub. L. 101-162, § 609(b), 103 Stat. 988, 1038 (1989).

We must decide whether TIRN’s current lawsuit for NEPA

and ESA violations is precluded by its earlier lawsuits challenging the State Department’s regulations implementing the

section 609(b)(2) certification process.

I. Background

A. Section 609

One of the primary threats to sea turtles is the use of trawl

nets by commercial shrimp harvesting vessels. The nets frequently entrap sea turtles, causing them to drown. To address

this problem domestically, the National Marine Fisheries Ser1896 TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE
vice (“NMFS”) requires domestic shrimp trawlers to use a

Turtle Excluder Device (“TED”), a grate that keeps sea turtles

and other large animals out of the nets while letting the

shrimp pass through. See 50 C.F.R. § 223.206-207. Recognizing that this domestic effort alone is inadequate to help the

plight of the migrating sea turtles, Congress enacted section

609 to encourage the international conservation of sea turtles.

Pursuant to section 609(b), importation of commercially harvested shrimp or shrimp products is prohibited unless the

president certifies annually that: 

(A) the government of the harvesting nation has provided documentary evidence of the adoption of a

regulatory program governing the incidental taking

of such sea turtles in the course of such harvesting

that is comparable to that of the United States; and

(B) the average rate of that incidental taking by the

vessels of the harvesting nation is comparable to the

average rate of incidental taking of sea turtles by

United States vessels in the course of such harvesting; or

(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental

taking of such sea turtles in the course of such harvesting.

§ 609(b)(2), 103 Stat. at 1038. The President has delegated his

certification authority to the State Department. 56 Fed. Reg.

357 (Jan. 4, 1991). 

In 1991, the State Department promulgated guidelines

implementing section 609(b)(2). See 56 Fed. Reg. 1051 (Jan.

10, 1991) (“1991 Guidelines”). The guidelines were revised

in 1993, 1996, 1998 and 1999. See 58 Fed. Reg. 9015 (Feb.

18, 1993) (“1993 Guidelines”); 61 Fed. Reg. 17,342 (Apr. 19,

1996) (“1996 Guidelines”); 63 Fed. Reg. 46,094 (Aug. 28,

TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE 1897
1998) (“1998 Guidelines”); 64 Fed. Reg. 36,946 (July 8,

1999) (“1999 Guidelines”). The Guidelines operationalize

section 609(b)(2) by establishing a general framework and

explaining the types of evidence the State Department will

consider in making its decisions. 

B. Prior Earth Island Litigation

In the early 1990s, Earth Island Institute, of which TIRN

was formerly a part, sued the State Department, alleging that

the implementing guidelines conflicted with section 609(b)(2)

because they impermissibly restricted the geographical scope

of the ban and failed to evaluate actual sea turtle take levels

in certified countries. See Earth Island Inst. v. Christopher,

913 F. Supp. 559, 562 (Ct. Int’l Trade 1995) (“Earth Island

II”). The Court of International Trade (“CIT”) found that the

State Department inappropriately restricted the areas to which

the ban applied, but concluded that the 1993 Guidelines didn’t

contravene section 609(b)(2). Id. at 579-80. 

When the State Department amended the guidelines to permit importation of shrimp from uncertified countries on a

shipment-by-shipment basis, Earth Island and TIRN sued

again, claiming that this new provision violated section

609(b)(2). See Earth Island Inst. v. Daley, 48 F. Supp. 2d

1064 (Ct. Int’l Trade 1999); Turtle Island Restoration Network v. Mallett, 110 F. Supp. 2d 1005 (Ct. Int’l Trade 2000).

The CIT sided with TIRN but the Federal Circuit reversed,

concluding that the 1999 Guidelines were a permissible interpretation of the statute. Turtle Island Restoration Network v.

Evans, 284 F.3d 1282, 1286-87 (Fed. Cir. 2002) (“Earth

Island III”).

In our case, TIRN alleges that the State Department violates its obligations under NEPA and ESA when conducting

section 609(b)(2) certifications. TIRN claims that the State

Department violated NEPA by failing to prepare an environmental assessment or environmental impact statement evalu1898 TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE
ating the impact of the country certifications, and failed to

provide for public notice and comment. TIRN claims that the

State Department violated ESA by failing to consult with

other agencies to confirm that the certifications would not

jeopardize threatened and endangered species or their habitats.

The government moved for judgment on the pleadings,

asserting that TIRN is barred by res judicata in light of its earlier litigation. The district court granted the motion and dismissed TIRN’s claims. The court held that TIRN’s challenges

to the State Department’s NEPA and ESA compliance in conjunction with the country certification process “arise from the

same transactional nucleus of facts as the previous Earth

Island litigation” and are therefore barred by res judicata.

TIRN timely appeals. 

II. Analysis

[1] Res judicata, also known as claim preclusion, applies

only where there is “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Tahoe

Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

322 F.3d 1064, 1077 (9th Cir. 2003) (citation and internal

quotation marks omitted). The only disputed issue in this case

is whether there is an “identity of claims.” We consider four

factors in determining an “identity of claims”:

(1) whether rights or interests established in the prior

judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially

the same evidence is presented in the two actions;

(3) whether the two suits involve infringement of the

same right; and (4) whether the two suits arise out of

the same transactional nucleus of facts.

Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02

(9th Cir. 1982) (citation omitted). “The last of these criteria

is the most important.” Id. at 1202 (citation omitted). 

TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE 1899
It’s clear that TIRN’s current suit presents a different legal

claim. In its prior litigation, TIRN claimed that the 1993 and

1999 Guidelines conflicted with the underlying statute, section 609(b)(2). TIRN now challenges the State Department’s

failure to comply with its external obligations under NEPA

and ESA when conducting section 609(b)(2) certifications.

Because these claims involve technically different legal challenges, we focus on the last factor of our test—whether the

separate legal claims arise from the “same transactional

nucleus of facts.” 

A.

[2] “Whether two suits arise out of the same transactional

nucleus depends upon whether they are related to the same set

of facts and whether they could conveniently be tried together.” Proshipline Inc. v. Aspen Infrastructures Ltd, 609 F.3d

960, 968 (9th Cir. 2010) (emphasis, citation and internal quotation marks omitted). In most cases, “the inquiry into the

‘same transactional nucleus of facts’ is essentially the same as

whether the claim could have been brought in the first

action.” United States v. Liquidators of European Fed. Credit

Bank, 630 F.3d 1139, 1151 (9th Cir. 2011). A plaintiff need

not bring every possible claim. But where claims arise from

the same factual circumstances, a plaintiff must bring all

related claims together or forfeit the opportunity to bring any

omitted claim in a subsequent proceeding. 

[3] TIRN could have conveniently brought claims for

NEPA and ESA violations when it filed its complaint in Earth

Island III in 1998. The State Department began publishing its

annual certifications as early as 1993. See, e.g., 58 Fed. Reg.

28,428 (May 13, 1993). And, as TIRN points out, the State

Department has never complied with the consultation or environmental assessment requirements of NEPA and ESA in

conducting section 609(b)(2) certifications. TIRN would

therefore have known that the State Department failed to

comply with NEPA and ESA in each of the five years preced1900 TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE
ing Earth Island III. In fact, TIRN concedes that it could have

brought its NEPA and ESA claims during its earlier lawsuit,

but that it “elected” to work with the State Department on the

problem instead. Choosing to resolve a problem through alternative means isn’t a defense to claim preclusion. TIRN’s

excuse demonstrates that it was aware of the NEPA and ESA

issue back in 1998, but decided not to include it in its lawsuit.

[4] TIRN argues that res judicata can’t apply because part

of its challenge involves the 2009 certification decisions,

which TIRN couldn’t have known about or challenged in

Earth Island II or Earth Island III. But TIRN mentions the

2009 certifications only as an “example” of the State Department’s long-standing practice of non-compliance with NEPA

and ESA. Nothing in TIRN’s NEPA and ESA claims are particular to a specific country or year. Rather, TIRN alleges that

the State Department has never followed NEPA and ESA

when conducting country certifications. The 2009 certifications are new only in the sense that they are made annually

and involve different countries. See In re Dual-Deck Video

Cassette Recorder Antitrust Litig., 11 F.3d 1460, 1464 (9th

Cir. 1993) (claim preclusion isn’t defeated where “[d]istinct

conduct is alleged only in the limited sense that every day is

a new day, so doing the same thing today as yesterday is distinct from what was done yesterday”). Following TIRN’s

logic, there would be nothing stopping it from bringing a new

general challenge to the certification process based on next

year’s certification decisions, and every year from now on.

That’s exactly the kind of piecemeal litigation res judicata

aims to prevent. 

B.

[5] Not only could TIRN have brought its NEPA and ESA

claims during Earth Island III, but, because the claims arise

from the same transactional nucleus of facts, TIRN had to

bring its claims then. The claims in Earth Island III and here

relate to the same set of facts—the State Department’s proTURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE 1901
cess for certifying that countries use turtle-safe measures in

commercial shrimp harvesting. Technically, the earlier litigation was about the promulgation of the Guidelines, not the

certification process in practice. But the Guidelines don’t

operate in a vacuum; they establish how the certification process works. TIRN was concerned that the Guidelines didn’t

comply with section 609(b)(2) only because they affect how

certifications are conducted, which may adversely affect sea

turtles. The same is true in our case. TIRN cares about NEPA

and ESA compliance in the certification process only to help

ensure that sea turtles aren’t harmed. If TIRN were concerned

only about the procedural harm from the government’s failure

to consult and conduct environmental assessments, it would

lack standing. See Summers v. Earth Island Inst., 555 U.S.

488, 496 (2009) (“[D]eprivation of a procedural right without

some concrete interest that is affected by the deprivation—a

procedural right in vacuo—is insufficient to create Article III

standing.”). TIRN does have standing because of its interest

in the preservation of sea turtles and their habitat: The government’s failure to abide by NEPA and ESA obligations may

adversely impact sea turtles. It’s turtles all the way down. 

The existence of the same harm isn’t enough to establish

claim preclusion if the harm arises from different facts. We’ve

held that even where there’s the same harm, if the governmental conduct at issue is different, there’s no claim preclusion. See Cent. Delta Water Agency v. United States, 306 F.3d

938, 953 (9th Cir. 2002); Fund for Animals v. Lujan, 962

F.2d 1391, 1399 (9th Cir. 1992). But that doesn’t mean harm

is irrelevant. The existence of the same underlying problem

sheds light on whether the claims arise from the same facts

and whether they could be conveniently tried together. 

Citing Lujan, TIRN argues that its NEPA and ESA claims

can’t be precluded because they involve different governmental conduct than was at issue in the prior litigation. In Lujan,

we held that res judicata didn’t apply where the earlier litigation involved “different governmental conduct,” even though

1902 TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE
the harm was the same in both cases: bison leaving Yellowstone Park. But in Lujan, the claim raised in the second lawsuit could not have been raised in the first lawsuit because the

governmental action that was the subject of the second suit

had not yet occurred. The Lujan plaintiffs first sued in 1985,

alleging that the government’s failure to prevent bison from

leaving Yellowstone required an Environmental Impact Statement (“EIS”). Plaintiffs’ second suit challenged the government’s adoption of a bison management plan in 1990 also

without conducting an EIS. The 1990 bison management plan

was not only different conduct—action instead of inaction—

it was also new conduct. Lujan has nothing useful to say in

a case such as ours, where plaintiffs could easily have brought

all the claims during the course of the earlier lawsuit. 

[6] Here, we’ve established that TIRN could have brought

its claims in the earlier litigation. Furthermore, the State

Department actions at issue are not nearly as distinct as the

conduct in Lujan. Essentially, TIRN separates the actions as

promulgating the 1993 and 1999 Guidelines on one hand and

making the certification decisions on the other. While these

two actions may be procedurally different, both arise from the

government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Adopting rules for certifying that countries meet the U.S. standards and actually

making the certification decisions aren’t sufficiently different

to defeat res judicata.

III. Conclusion

[7] Because TIRN’s current challenge to the State Department’s section 609(b)(2) certification process arises from the

same transactional nucleus of facts as its earlier litigation, res

judicata bars its claims. Accordingly, we affirm the district

court. 

Although TIRN forfeited its opportunity to challenge the

State Department’s non-compliance with NEPA and ESA

TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE 1903
obligations in section 609(b)(2) certifications, our decision

doesn’t preclude judicial review of this issue. Because the

legal question of whether NEPA and ESA apply to section

609(b)(2) has yet to be litigated on the merits, another

plaintiff—not in privity with TIRN—is still free to bring this

challenge.

AFFIRMED.

1904 TURTLE ISLAND RESTORATION v. U.S. DEP’T OF STATE