                  FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


SAN FRANCISCO HERRING                      No. 18-15443
ASSOCIATION,
                Plaintiff-Appellant,         D.C. No.
                                          3:13-cv-01750-
                  v.                           JST

U.S. DEPARTMENT OF THE INTERIOR;            OPINION
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.

       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’s refusal 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 in-
water 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 short-
circuit 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.
