                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CALIFORNIA SEA URCHIN                  No. 14-55580
COMMISSION; CALIFORNIA ABALONE
ASSOCIATION; CALIFORNIA LOBSTER           D.C. No.
AND TRAP FISHERMEN’S                   2:13-cv-05517-
ASSOCIATION; COMMERCIAL                  DMG-CW
FISHERMEN OF SANTA BARBARA,
              Plaintiffs-Appellants,
                                         OPINION
                 v.

MICHAEL BEAN, in his official
capacity as Acting Assistant
Secretary for Fish and Wildlife &
Parks, Department of Interior;
DANIEL M. ASHE, in his official
capacity as Director of the United
States Fish and Wildlife Service;
UNITED STATES FISH & WILDLIFE
SERVICE,
               Defendants-Appellees,

                and

FRIENDS OF THE SEA OTTER;
HUMANE SOCIETY OF THE UNITED
STATES; DEFENDERS OF WILDLIFE;
CENTER FOR BIOLOGICAL
DIVERSITY; THE OTTER PROJECT;
ENVIRONMENTAL DEFENSE CENTER;
2         CAL. SEA URCHIN COMM’N V. BEAN

LOS ANGELES WATERKEEPER,
   Intervenor-Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
        Dolly M. Gee, District Judge, Presiding

          Argued and Submitted May 6, 2016
                Pasadena, California

                  Filed July 12, 2016

      Before: Alex Kozinski, William A. Fletcher,
         and Ronald M. Gould, Circuit Judges.

               Opinion by Judge Gould
              CAL. SEA URCHIN COMM’N V. BEAN                          3

                           SUMMARY*


                        Environmental Law

    The panel reversed the district court’s dismissal on
timeliness grounds of plaintiff commercial fishing groups’
complaint alleging that the U.S. Fish and Wildlife Service
violated its statutory authority under Public Law 99-625 by
terminating a translocation program for the southern sea otter.

    The panel held that plaintiffs’ challenge, filed in 2013,
was timely because the operative agency action challenged
was the Fish and Wildlife Service’s 2012 promulgation of a
rule terminating the translocation program. Specifically, the
panel held that plaintiffs may challenge the termination of the
program within six years of the decision to terminate the
program, and were not required to bring suit within six years
of the 1987 rulemaking espousing the authority to terminate
the program. On remand, the panel directed the district court
to decide if there was merit to plaintiffs’ position that the Fish
and Wildlife Service was without Congressional authority to
terminate the translocation program.


                            COUNSEL

Jonathan Wood (argued) and Damien M. Schiff, Pacific Legal
Foundation, Sacramento, California, for Plaintiffs-Appellants.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4           CAL. SEA URCHIN COMM’N V. BEAN

Rachel Heron (argued), Daniel J. Pollak, John L. Smeltzer,
and Vivian H.W. Wang, Attorneys; Sam Hirsch, Acting
Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Lynn Cox, Office of the Solicitor, United
States Department of the Interior; for Defendants-Appellees.


                         OPINION

GOULD, Circuit Judge:

    Plaintiffs, California Sea Urchin Commission and other
commercial fishing groups, appeal the district court’s
dismissal of their complaint alleging that the U.S. Fish and
Wildlife Service (FWS) violated its statutory authority under
Public Law 99-625 by terminating a translocation program
for the southern sea otter. The district court dismissed the
complaint, concluding that it constituted a facial challenge to
a 1987 regulation and was thus untimely. Reviewing the
dismissal de novo, Fireman’s Fund Ins. Co. v. City of Lodi,
302 F.3d 928, 939 (9th Cir. 2002), we reverse and remand for
the reasons that follow.

                              I

    The southern sea otter, also known as the California sea
otter, historically ranged throughout the California coast, but
was hunted to near extinction for its fur in the 1700s and
1800s. The southern sea otter was listed as a threatened
species under the Endangered Species Act (ESA) in 1977.
Although the sea otter’s population and range had increased
since federal and state bans on hunting in the early 1900s, it
was still only about 10% of its historical level at the time of
            CAL. SEA URCHIN COMM’N V. BEAN                     5

listing. 52 Fed. Reg. 29,754 (Aug. 11, 1987) (“Final Rule”).
In 1982, FWS finalized a recovery plan for the sea otter,
which determined that the most effective means of recovery
was to establish a new colony far enough away from the
present range that a large-scale oil spill could not wipe out the
entire population. Id.

    In 1986, Congress authorized FWS to develop and
implement “a plan for the relocation and management of a
population of California sea otters from the existing range of
the parent population to another location.” Pub. L. No. 99-
625 § 1(b) (1986). FWS then promulgated the 1987 Final
Rule, which implemented the program and chose San Nicolas
Island as the home of the experimental population. 52 Fed.
Reg. at 29,754. The fishing industry, including the groups
that are Plaintiffs here, was opposed to an expansion of the
sea otter population. The fishing industry participated in the
rulemaking process and opposed the experimental population
because it perceived a new population of sea otters, and their
accompanying federal protections under the ESA and the
Marine Mammal Protection Act (MMPA), as onerous.
Another source of conflict is that sea otters prey on many
species that are harvested commercially, including sea urchin,
lobster, and abalone. Congress authorized the experimental
population on the condition that FWS include an otter
“management zone,” which would be free of otters, to protect
fishing, oil, and military interests. Pub. L. No. 99-625
§ 1(b)(4); 52 Fed. Reg. at 29,756. Congress required FWS to
use all feasible non-lethal means to capture and remove otters
from the management zone “to prevent, to the maximum
extent feasible, conflict with other fishery resources.” Pub.
L. No. 99-625 § 1(b)(4)(B). Fishermen who incidentally
harmed otters while conducting lawful activities in the
management zone were exempted from the take prohibitions
6              CAL. SEA URCHIN COMM’N V. BEAN

of the ESA and the MMPA. Pub. L. No. 99-625 § 1(c)(2).
The management zone covered the entire Southern California
coast from Point Conception to the Mexico border, except for
the experimental population on San Nicolas Island.

    The Final Rule acknowledged that there was some chance
the translocation program would not succeed. To determine
whether the project should be continued or terminated, FWS
included in the Final Rule five termination criteria.1 52 Fed.
Reg. at 29,784. FWS planned to terminate the experimental
population if it found that any one of the criteria was met. Id.

    From the start of the translocation program, the
experimental sea otter population was plagued by high
mortality and emigration. 53 Fed. Reg. 37,577, 37,579 (Sept.
27, 1988). In 1993, FWS stopped removing sea otters that
were found in the management zone, though the ESA and
MMPA exemptions remained in effect. FWS prepared
several environmental impact statements on the effects of
terminating the program and reinitiated ESA consultation,
culminating in a Biological Opinion concluding that
resumption of otter removal in the management zone would


    1
    The criteria are: (1) if after the first year, no translocated otters remain
in the translocation zone and the reasons for emigration or mortality
cannot be identified and/or remedied; (2) if within three years, fewer than
25 otters remain and the reason for emigration or mortality cannot be
identified or remedied; (3) if after two years, the experimental population
is declining at a significant rate and the translocated otters are not showing
signs of “successful reproduction”; (4) if otters are “dispersing from the
translocation zone and becoming established within the management zone
in sufficient numbers to demonstrate that containment cannot be
successfully accomplished”; and (5) if the “health and well-being of the
experimental population should become threatened to the point that the
colony’s continued survival is unlikely.” 52 Fed. Reg. at 29,784.
              CAL. SEA URCHIN COMM’N V. BEAN                           7

likely jeopardize the otter’s continued existence. 77 Fed.
Reg. 75,266, 75,270 (Dec. 19, 2012).

    Despite the recognized failures of the translocation
program, the management zone’s ESA and MMPA take
exemptions continued as before. In 2009, Intervenor-
Defendants Friends of the Sea Otter and other environmental
organizations sued FWS for unreasonable delay in
terminating the translocation program. The parties reached
a settlement that required FWS to issue a final decision on
program termination by the end of 2012. On December 19,
2012, FWS promulgated a rule terminating the program based
on application of the Final Rule’s termination criteria.
77 Fed. Reg. at 75,266. FWS’s analysis concluded that the
translocation program met the 1987 Final Rule’s second
failure criterion: “fewer than 25 otters remain and the reasons
for emigration or mortality cannot be identified and/or
remedied.” Id. at 75,267; 52 Fed. Reg. at 29,772.

    Plaintiffs filed suit in early 2013, alleging that the
program’s termination exceeded FWS’s statutory authority
under Public Law 99-625.2 Plaintiffs contend that Congress
gave FWS the authority only to implement the otter
translocation program, not to terminate it, and that Congress
did not authorize the termination criteria in the 1987 Final
Rule. Thus, Plaintiffs contend, the 2012 program termination
exceeded the agency’s statutory authority.



 2
   Plaintiffs separately petitioned FWS to rescind its 2012 decision. FWS
denied the petition. Three of four Plaintiffs filed a separate complaint
alleging that the denial of the petition was unlawful. That case is not
before us. See Cal. Sea Urchin Comm’n v. Bean, No. 2:14-cv-8499 (C.D.
Cal. filed Nov. 3, 2014).
8           CAL. SEA URCHIN COMM’N V. BEAN

                             II

    The Administrative Procedure Act (APA) authorizes
judicial review of final agency actions. 5 U.S.C. § 704. APA
claims must be brought within six years of the agency action
that is challenged. 28 U.S.C. § 2401(a); Spannaus v. U.S.
Dep’t of Justice, 824 F.2d 52, 56 (D.C. Cir. 1987). To be a
final agency action, an agency decision must meet two
criteria. First, the action must be the “consummation” of the
agency’s decisionmaking process, not merely a tentative or
interlocutory decision. Bennett v. Spear, 520 U.S. 154, 178
(1997). Second, the action must be one by which “rights or
obligations have been determined” or from which “legal
consequences will flow.” Id. (quoting Port of Bos. Marine
Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 71 (1970)); see also City of San Diego v. Whitman,
242 F.3d 1097, 1102 (9th Cir. 2001) (for an agency action to
be final, it must “impose an obligation, deny a right or fix
some legal relationship”).

     Plaintiffs’ complaint claims that FWS lacks the statutory
authority to terminate the translocation program—that Public
Law 99-625 “provides no authority to [FWS] to cease such
program once it has been initiated.” FWS contends that the
complaint is really a facial challenge to the 1987 Final Rule,
which laid out the termination criteria FWS relied on in 2012.
Such a challenge would be far outside the statute of
limitations. Plaintiffs, on the other hand, contend that the
2012 program termination was the operative final agency
action, and that the 1987 Final Rule is relevant only because
it provides FWS’s authorization for the 2012 termination.
This would place the 2013 complaint well within the statute
of limitations.
             CAL. SEA URCHIN COMM’N V. BEAN                     9

    We conclude that the operative agency action challenged
is the 2012 program termination, and thus that Plaintiffs’
challenge is timely. We express no opinion on the merits of
Plaintiffs’ underlying claims. We hold only that Plaintiffs
may challenge FWS’s termination of the program within six
years of the decision to terminate the program, and were not
required to bring suit within six years of the 1987 rulemaking
espousing the authority to terminate the program. To hold
otherwise would require Plaintiffs to have filed suit nearly a
decade before FWS took the action that caused their injury.

    The 1987 Final Rule was clearly a final agency action, but
so too was the 2012 program termination. Although the 1987
Final Rule laid out the criteria through which the
translocation program could be terminated at some future
date, FWS did not terminate the program until 2012, when it
“determined that the southern sea otter translocation program
has failed to fulfill its purpose . . . .” 77 Fed. Reg. at 75,266.
Although Plaintiffs cannot now challenge the 1987 Final
Rule, they can challenge its application in the 2012 program
termination as exceeding the agency’s statutory authority.
See Ctr. for Biological Diversity v. Salazar, 695 F.3d 893,
904 (9th Cir. 2012) (holding that while the plaintiffs were
time-barred from challenging a 1983 regulatory definition,
“they can challenge [FWS’s] alleged application of that
definition in the 2008 Chukchi Sea regulations as exceeding
the agency’s statutory authority”).

   FWS contends that because Plaintiffs’ challenge is
brought against FWS’s underlying authority as asserted in the
1987 Final Rule, the challenge existed at the time the Final
Rule was promulgated and Plaintiffs unjustifiably waited
more than 25 years to sue. We disagree. Plaintiffs did not
“wait” to sue, because the issue did not become salient until
10          CAL. SEA URCHIN COMM’N V. BEAN

FWS actually terminated the program, in 2012. A plaintiff
cannot be expected to anticipate all possible future challenges
to a rule and bring them within six years of the rule’s
promulgation, before a later agency action applying the
earlier rule leads to an injury. Though the translocation
program’s failure criteria were set forth in 1987, and the
program faced difficulties from its inception, the
“consummation” of the agency’s decisionmaking process was
its 2012 program termination. See Bennett, 520 U.S. at 178.
This was the action from which “legal consequences . . .
flow” from Plaintiffs’ perspective. Id. It is this termination,
not the 1987 establishment of the failure criteria, that
Plaintiffs challenge. Though FWS characterizes Plaintiffs’
complaint as a “facial” challenge to FWS’s authority to
cancel the translocation program, that argument goes to the
merits of Plaintiffs’ underlying action. It does not make
Plaintiffs’ 2013 challenge to FWS’s 2012 agency action
untimely.

     Our cases on this topic determine the timeliness of APA
challenges according to when the applicable agency action
was taken. We have held that a statute of limitations may run
against a plaintiff even if it is not injured until more than six
years after the relevant agency action became final. Shiny
Rock Mining Corp. v. United States, 906 F.2d 1362, 1363 (9th
Cir. 1990). In Shiny Rock, the Bureau of Land Management
(BLM) published a 1964 Public Lands Order withdrawing
certain federal lands from mineral extraction. Id. More than
fifteen years later, a mining company applied to the BLM for
a mineral patent, which the agency rejected in part because
the company’s claim was in the area that the Public Land
Order had withdrawn from mining. Id. The company
contended that the statute of limitations period should not
begin to run until a plaintiff is injured and acquires standing.
            CAL. SEA URCHIN COMM’N V. BEAN                   11

Id. at 1364–66. We disagreed, holding that the statute of
limitations period runs from when the agency action becomes
final and is published in the Federal Register. Id. at 1365.
We reasoned that considering standing to sue a prerequisite
to the running of the limitations period would render the
limitations period meaningless by extending it indefinitely.
Id.

    FWS contends that this case is analogous to Shiny Rock.
Just as the clock started running on the mining company’s
claim when the BLM’s land withdrawal order was published,
FWS reasons, here Plaintiffs’ claim that FWS lacks authority
to terminate the program accrued in 1987, when FWS
published the rule containing the failure criteria. We
disagree. In Shiny Rock, the government’s land withdrawal
order was a prospective decision that put all interested parties
on notice of an agency action. This case is different because
while the 1987 Final Rule put fishing groups on notice that
FWS may at some later date terminate the program, the
operative agency action did not happen until 2012, when
FWS actually terminated the program. Unlike the BLM’s
rejection of the company’s mineral patent application in
Shiny Rock, which was a straightforward application of the
land withdrawal order to a particular company, the 2012
program cancellation was a generally applicable rule,
published in the Federal Register, that reflected new agency
decisionmaking based on the program’s failure to realize its
objectives. See 77 Fed. Reg. at 75,266. Shiny Rock does not
foreclose Plaintiffs from reaching the merits of their 2013
APA challenge to FWS’s 2012 agency action.

    Wind River Mining Corp. v. United States, 946 F.2d 710
(9th Cir. 1991), is more analogous to this case because it
involved the present application of an earlier rule that
12          CAL. SEA URCHIN COMM’N V. BEAN

allegedly contradicted the agency’s statutory authority. In
Wind River, the BLM published a 1979 rule in the Federal
Register establishing 138 Wilderness Study Areas (WSAs) in
California. Id. at 711. Between 1982 and 1983, a mining
company staked claims within one of those areas, “WSA
243.” Id. The company unsuccessfully sought to have the
BLM declare its creation of WSA 243 invalid, on the grounds
that the area was not “roadless” as required by the Federal
Land Policy and Management Act of 1976. Id. It then filed
an extraction plan in 1987, which the BLM denied, based on
the land being a designated WSA. Id. at 712. In 1989, the
company sued in federal court, challenging the BLM’s refusal
to declare its creation of WSA 243 invalid. The district court
dismissed the challenge as untimely because the rule was
promulgated ten years earlier, in 1979. Id. We reversed.
Because the plaintiff alleged that the BLM’s 1979 rule
establishing WSA 243 violated its statutory authority, we
recognized that subsequent final agency actions applying the
1979 rule would also allegedly exceed the agency’s statutory
authority. Id. at 715. We concluded that “a substantive
challenge to an agency decision alleging lack of agency
authority may be brought within six years of the agency’s
application of that decision to the specific challenger.” Id. at
716.

     FWS contends that Wind River is inapposite to this case.
It is true that this case does not concern the validity of a
regulation as applied to a specific challenger; the 2012
program cancellation is instead a generally applicable agency
rule. But Wind River is otherwise analogous to this dispute.
As in Wind River, Plaintiffs seek to challenge a recent agency
action applying an earlier rule. As in Wind River, Plaintiffs
contend that the earlier rule went beyond the agency’s
statutory authority, and thus that the agency lacked the
            CAL. SEA URCHIN COMM’N V. BEAN                    13

statutory authority to take the recent action. Finally, it is the
recent action, not the earlier rule, that caused Plaintiffs’
injury. While an injury creating standing to sue is not a
prerequisite to the running of the limitations period, see Shiny
Rock, 906 F.2d at 1365, here Plaintiffs point to a recent and
independent agency action causing their injury. FWS may
well defend its 2012 cancellation as a straightforward
application of the 1987 Final Rule’s failure criteria, but that
application was nonetheless a final agency action, with its
own limitations period beginning in 2012.

    The justification for the Wind River rule is that an agency
should not be able to sidestep a legal challenge to one of its
actions by backdating the action to when the agency first
published an applicable or controlling rule. If the operative
dispute does not arise until decades later, when the agency
applies the earlier rule, such a holding would wall off the
agency from any challenge on the merits. The statute of
limitations would cease to be a shield against stale claims,
and would instead become a sword to vanquish a challenge
like the case here, without ever considering the merits. The
claim in Wind River was not untimely, because the agency
applied its 1979 rule to the plaintiff mining company in 1987,
within six years of the company’s suit. Neither is Plaintiffs’
claim in this case, as FWS did not apply the termination
criteria from the 1987 Final Rule until 2012, when it
terminated the translocation program.

    Another justification for our Wind River holding was that
“no one was likely to have discovered that the BLM’s 1979
designation of [WSA 243] was beyond the agency’s authority
until someone actually took an interest in that particular piece
of property, which only happened when [the company] staked
its mining claims.” Wind River, 946 F.2d at 715. FWS
14          CAL. SEA URCHIN COMM’N V. BEAN

contends that this justification for the Wind River rule is
absent in this case, because Plaintiffs do not contend that no
one was likely to have discovered the 1987 Final Rule; to the
contrary, the fishing industry was an active participant in the
rulemaking process. That fisheries groups, some of whom
are Plaintiffs here, knew about the 1987 Final Rule and were
involved in its creation is immaterial. Plaintiffs are not
contending that the Final Rule evaded their scrutiny. They
are contending, correctly, that their live dispute with FWS did
not arise until 2012.

    Our decision is also supported by pragmatic concerns. If
parties had to challenge the Final Rule’s termination criteria
within six years of 1987, then any such challenge predating
the program’s termination would necessarily have been
theoretical. In view of the actual termination, it is possible to
focus on issues such as injury in a concrete way.

                              III

     Plaintiffs contend that Public Law 99-625 gave FWS the
authority to establish a sea otter translocation program, but
not the authority to cease that program once it has been
initiated. They contend that when FWS published its 2012
rule terminating the translocation program, it acted without
authority from Congress, and thus contrary to law and in
excess of its statutory authority. See 5 U.S.C. § 706(2)(A),
(C). Our holding does not reach the merits of this claim,
because the district court dismissed it on timeliness grounds.
We hold only that Plaintiffs’ 2013 challenge to the 2012
agency action terminating the sea otter translocation program
was timely. The district court on remand should decide if
there is merit to Plaintiffs’ position that FWS was without
          CAL. SEA URCHIN COMM’N V. BEAN           15

Congressional authority to terminate the translocation
program.

   REVERSED AND REMANDED.
