source: Caselaw Access Project

author: PONSOR, Senior District Judge:

license: Public Domain

text:
    Jose Daniel LEMUS, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-73654
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 21, 2015 Pasadena, California
    Filed November 16, 2016

      Florence Weinberg (argued) and Andrew K. Nietor, San Diego, California, for Petitioner.
    Carmel A. Morgan (argued) and Gray J. Newkirk, Trial Attorneys; Luis E. Perez, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, Washington, D.C.; for Respondent.
    Before: JOHNNIE B. RAWLINSON and JACQUELINE H. NGUYEN, Circuit Judges, and MICHAEL A. PONSOR, Senior District Judge.

       The Honorable Michael A. Ponsor, Senior District Judge for the U.S. District Court for Massachusetts, sitting by designation.

   OPINION

PONSOR, Senior District Judge:

In Holder v. Martinez Gutierrez, 566 U.S. 583, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012), the Supreme Court unanimously held that the Board of Immigration Appeals (“BIA”) permissibly construed section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a), when it concluded that an alien seeking cancellation of removal had to satisfy the years-of-residence requirement on his own, without relying on a parent’s residential history. Id. at 2014-15. Petitioner Lemus contends that Martinez Gutierrez announced a new rule of law and that, under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), its holding should not be applied retroactively to him.

We disagree. Lemus’s citation of Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), in support of his argument for prospective application of Martinez Gutierrez is not persuasive. In Nunez-Reyes, we applied Chevron Oil’s retroactivity analysis, because we ourselves were explicitly adopting a new rule, setting aside our own longstanding circuit precedent. Id. at 692. Where, as here, we are adopting no new rule on our own, but merely (at the direction of the Supreme Court) deferring to the BIA, Chevron Oil’s retroactivity criteria are inapplicable.

Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), offers a more compelling precedent on the issue of retro-activity. In that case, we did not announce a new rule on our own authority, as in Nunez-Reyes, but rather deferred to a rule previously announced by the BIA, as Martinez Gutierrez has instructed us to do here. Garfias-Rodriguez held that in this situation the proper approach to the issue of retroactivity is set forth in Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982). 702 F.3d at 520. Applying Montgomery Ward, we hold that Martinez Gutierrez should be applied retroactively. Based on this, we will deny the petition.

I. FACTS AND PROCEDURAL HISTORY

Petitioner Jose Daniel Lemus is a Guatemalan citizen who entered the United States as a four-year-old in 1993 with his mother. In 2006, after Lemus turned eighteen, he became a legal permanent resident through his stepfather. On April 3, 2011, Lemus was crossing by car from Mexico to Calexico, California when a routine sweep uncovered nearly fifty pounds of marijuana in his vehicle’s rear panels. Lemus was initially charged with importation of marijuana and held in custody. On June 7, 2011, he pleaded guilty to one count of making a materially false statement to a federal officer in violation of 18 U.S.C. § 1001. On July 1, 2011, he was sentenced to time served. Four days later, he was transferred into the custody of the Department of Homeland Security and was thereafter placed into removal proceedings, charged with being inadmissible as an alien who was or had been a trafficker in illicit controlled substances.

In proceedings before the IJ, Lemus admitted that he was involved in drug trafficking and was to be paid $3,000 for his thwarted attempt to bring marijuana into the United States. Nevertheless, he sought relief through an application for cancellation of removal, a course available to certain permanent residents. Section 240(A)(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a), authorizes the Attorney General to cancel the removal of a person who: “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony.”

The government argued that Lemus was not eligible for this relief because he had not fulfilled the seven-year continuous residency requirement. Lemus acknowledged that he could not independently satisfy this requirement, since he had only been a legal resident for approximately five years when he pleaded guilty to the false statement charge. He argued, however, that by imputing his stepfather’s years of residency to himself, he could satisfy the requisite number of years needed to qualify.

At the time of the proceeding before the IJ, this imputation was permitted—in the teeth of the BIA’s vigorous disagreement—under the authority then prevailing in the Ninth Circuit. See Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009); Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005). A dispute nevertheless arose at the hearing before the IJ, not about the principle of imputing a parent’s residential history, but about whether Le-mus’s stepfather had actually acquired enough countable years to allow Lemus to satisfy the residency requirement. The IJ’s inquiry therefore necessarily focused on when the stepfather had actually been admitted for purposes of this calculation.

Lemus argued before the IJ that his stepfather was admitted as part of the family unity program, which would have meant that, under Ninth Circuit, authority, Lemus could count his stepfather’s years in presenting his case for cancellation. The government disagreed, contending that the stepfather’s admission was based on a deferred action decision, which would have precluded Lemus from imputing his stepfather’s residential history. In order to clarify the historical picture, Lemus’s lawyer asked the IJ to order the government to produce the stepfather’s Alien Registration File (“A-File”). The IJ continued the case in the hope that the government would locate and .turn over the A-File, but. the government ultimately failed to do this.

At the final hearing before the IJ, on April 17, 2012, the principal issue was the date upon which Lemus’s stepfather was admitted. The IJ sided with the government and found Lemus ineligible for cancellation .of removal. The IJ also held that he had no authority to require the Department of Homeland Security to produce the stepfather’s A-File, and he ordered Lemus removed.

Lemus appealed the IJ’s ruling to the BIA where, again, the central issue initially was whether Lemus could take advantage of his stepfather’s residential history to satisfy the eligibility requirements for his application for cancellation of removal. Lemus conceded, as he did before the IJ, that he could not independently meet the seven-year residency requirement.

While the BIA appeal was pending, the Supreme Court issued its decision in Holder v. Martinez Gutierrez. In its unanimous decision, the Supreme Court reversed the line of Ninth Circuit decisions that allowed imputation of a parent’s years of residency under 8 U.S.C. § 1229b(a), instead holding that the BIA’s contrary construction of the statute, as set forth in Matter of Escobar, 24 I. & N. Dec. at 235, was reasonable and therefore entitled to deference. Martinez Gutierrez, 132 S.Ct. at 2021. In Escobar, the BIA had interpreted the statute as requiring that an alien satisfy the years of residency requirement independently, without imputing a parent’s residence period. 24 I. & N. Dec. at 234-35.

Lemus argued to the BIA,'as he does here, that Martinez Gutierrez should not apply retroactively to him in light of the contrary Ninth Circuit precedent controlling on June 7, 2011, when he pleaded guilty to making a materially false statement. Lemus contended that he would have proceeded differently in his criminal case if he had known that his plea would render him ineligible for cancellation of removal. Lemus further argued before the BIA that, since (in his view) Martinez Gutierrez should not apply retroactively, his stepfather’s residency ought to be imputed to him and that, .if there was any uncertainty regarding his stepfather’s residency, the government should be required to produce his stepfather’s A-File to clear up the confusion.

The BIA concluded that Martinez Gutierrez foreclosed any argument for imputation, rejecting Lemus’s contention that it should not be applied retroactively. The BIA reasoned that because retroactivity is the default rule, and none of the limited circumstances justifying departure from that rule was present' in Lemus’s case, Lemus could not avoid retroactive application of Martinez Gutierrez. The BIA therefore affirmed the IJ’s denial of relief. The BIA also ruled that, without the right to impute his stepfather’s residency, Le-mus could not claim prejudice based on any denial of access to his stepfather’s A-File.

Lemus has appealed the decision of the BIA to this court. He argues that Martinez Gutierrez should not apply to him and that this court should remand this matter to the IJ for a hearing on the question whether Lemus is eligible for cancellation of removal. He also seeks a determination by this court that the IJ’s refusal to require the government to produce his stepfather’s A-File prejudiced him and that, on remand, the government must produce the file.

II. JURISDICTION AND STANDARD OF REVIEW

Our jurisdiction derives from 8 U.S.C. § 1252(a)(1), which authorizes judicial review of final orders of removal, and § 1252(a)(2)(D), which authorizes review of questions of law. The question now before us, regarding the retroactivity of Martinez Gutierrez, raises a pure issue of law, which we review de novo. Garfias-Rodriguez, 702 F.3d at 512 n.6.

III. DISCUSSION

The issue here is straightforward. The parties agree that, without relying on his stepfather’s residential history, Lemus is ineligible for cancellation of removal. Martinez Gutierrez held that the BIA’s construction of the underlying statute barring such reliance was reasonable and that we are obliged to defer to it. If Martinez Gutierrez is retroactive, then Lemus is ineligible for cancellation of removal, and this petition must be denied.

In Martinez Gutierrez, Justice Kagan recounted the dialogue between the BIA and the Ninth Circuit Court on the issue of imputation. 132 S.Ct. at 2015-18, As of 2011, when Lemus was apprehended with the nearly fifty pounds of marijuana and pleaded guilty to making a false statement, this controversy had been going on for at least six years. In 2005, in Cuevas-Gaspar, the Ninth Circuit declined to follow the BIA’s restrictive construction of the statute on the issue of imputation. 430 F.3d at 1026. In 2007, in In re Escobar, the BIA expressly disagreed with Cuevas-Gaspar with respect to allowing imputation to satisfy the seven-year residency requirement under § 1229b(a)(2), declining to follow it outside the Ninth Circuit, and also holding that imputation was impermissible to satisfy the five-year lawful permanent residency requirement under § 1229b(a)(l) in all jurisdictions. 24 I. & N. Dec. at 235. In 2008, the BIA went a step further in Matter of Ramirez-Vargas, 24 L & N. Dec. 599 (BIA .2008), again rejecting Cuevas-Gaspar, but—relying on the Supreme Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)—adding that even in the Ninth Circuit, the BIA would follow its decision in In re .Escobar, disallow imputation to satisfy, § 1229b (a) (2), and not apply contrary Ninth Circuit authority. Id. at 600-01. In 2009( the Ninth Circuit, in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009), “doubled down” (as Justice Kagan put it) on its Cuevas-Gaspar holding. Martinez Gutierrez, 132 S.Ct. at 2016. Mercado-Zazueta expressly held that the BIA’s construction of the statute barring imputation was not reasonable and therefore not entitled, to deference. 580 F.3d at 1112-13.

In sum, by 2011 when Lemus was taken into custody, the imputation controversy between the BIA and the Ninth Circuit was prominent in the landscape of immigration law. Along -with the BIA, two other circuits had already parted company with the Ninth Circuit and deemed the BIA’s approach to imputation a reasonable construction of § 1229b(a). See Deus v. Holder, 591 F.3d 807 (5th Cir. 2009); Augustin v. Attorney Gen., 520 F.3d 264 (3d Cir. 2008).

Martinez Gutierrez addressed two consolidated cases from the Ninth Circuit involving aliens seeking cancellation of removal under circumstances essentially identical to those before us now. As here, neither alien could meet the eligibility requirements for cancellation without relying on a parent’s residential history. 132 -S.Ct. at 2016-17. The Court held that the BIA’s interpretation of § 1229b(a) was- in accord with the statute’s text which “does not mention imputation, much less require it.” Id. at 2017. Justice Kagan noted that the hypothetical possibility of some other reasonable construction of the statute was irrelevant because the BIA’s construction “prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best.” Id. Because the BIA’s interpretation was “based on a permissible construction of the statute,” the Court reversed the Ninth Circuit judgments, Id. at 2021 .(quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Significantly, on remand, this court in separate dispositions applied Martinez Gutierrez to both aliens, ruling that neither was eligible for cancellation of removal. See Sawyers v. Holder, 684 F.3d 911, 912 (9th Cir. 2012) (per curiam) (rejecting imputation because Cuevas-Gaspar and Mercado-Zazueta were “no longer valid precedent”); Martinez Gutierrez v. Holder, 474 Fed.Appx. 587, 588 (9th Cir. July 11, 2012) (unpublished decision) (citing Sawyers). Neither the Supreme Court, nor the Ninth Circuit in its two decisions on remand, made any explicit mention of the issue of retroactivity.

Lemus argues that he relied on the then-controlling authority of this court in 2011 when he made the decision to plead guilty and exposed himself to a risk of removal. He now says that,-had he known that he would be ineligible for, cancellation of removal, he might not have pleaded guilty and might instead have opted to hold the government to its burden to prove the charge against him beyond a reasonable doubt.

Lemus’s argument runs immediately afoul of the default rule that “a court’s decisions apply retroactively to all cases still pending before the courts.” Nunez-Reyes, 646 F.3d at 690. While Chevron Oil suggested, forty-five years ago, that in limited instances, departure from the default retroactivity rule might be countenanced, 404 U.S. at 106-07, 92 S.Ct. 349, we have noted that more recent Supreme Court authority “could support a conclusion that the Chevron Oil test no longer applies in any circumstances: all new rules of law must be applied retroactively.” Nunez-Reyes, 646 F.3d at 691 (citing, among other cases, Harper v. Va. Dep’t of Taxation, 609 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)).

Two recent, carefully articulated en banc decisions of this court make it clear that the analysis of retroactivity set forth in Chevron Oil, is not applicable to this case.

In Nunez-Reyes, we set aside a well-established circuit precedent, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which had held that a state conviction for a simple-possession drug crime, later expunged by the state court, did not constitute a “conviction” for federal immigration purposes. Nunez-Reyes, 646 F.3d at 688. We concluded that Lujanr-Armen-dariz was wrongly decided, but determined, based on Chevron Oil, to apply our decision only prospectively, based on three considerations: (1) the court was announcing a new rule of law, overruling clear past circuit precedent; (2) retroactive application of the rule posed a risk of substantial injustice;- and (3) retroactive application would not further the rule’s underlying purpose. Id. at 692-94. In reaching this conclusion, we took into consideration undisputed evidence that “because of the clarity and consistent application” of the prior precedent, aliens for more than a decade had pleaded guilty to minor drug crimes, finished drug programs, and gotten their convictions expunged “in reliance on Lujan-Armendariz’s promise that doing so would spare them from adverse immigration consequences.” Id. at 692.

The case before us now is different from Nunez-Reyes in at least two important respects. First, in this case we are not overruling our own firmly rooted precedent. Second, though we recognize the consequences for Lemus may be serious, the record offers no evidence that applying Martinez Gutierrez retroactively will risk the sort of broad injustice that concerned us in Nunez-Reyes. In that case, the record offered evidence that, based on advice of counsel, substantial numbers of individuals had waived their constitutional rights in reliance on the prior precedent and would be at risk of deportation by a retroactive application of the new rule. Id. at 693-94. In addition, Nunez-Reyes made clear that the Chevron Oil test may not be applied on a case-by-case basis—courts “must decide between pure prospectivity and full retroactivity.” 646 F.3d at 690. Chevron Oil thus is a poor fit here and offers no help to Lemus because, as discussed above, we have already applied the rule disallowing imputation retroactively.

Garfias-Rodriguez offers a much closer analogy to this case. The background of that case was our decision in Acosta v. Gonzales, 439 F.3d 550, 551-52 (9th Cir. 2006), in which we held that aliens inadmissible under § 212(a)(9)(C)(i)(I) of the INA, 8 U.S.C. § 1182(A)(9)(c)(i)(I), might be eligible for adjustment of status based on a marriage to an American citizen. A year later, the BIA reached a contrary conclusion in In re Briones, 24 I. & N. Dec. 355 (BIA 2007). In Garfias-Rodriguez, we held that in light of the BIA’s reasoned opinion, Briones was entitled to deference. 702 F.3d at 514.

Having resolved the substantive issue against the petitioner, Garfias-Rodriguez confronted the question of retroactivity. The pivotal question on this issue was whether, in those circumstances, “we, as a judicial decisionmaker, have changed the law, or whether it is the agency that has changed the law.” Id. Garfias-Rodriguez concluded that where we defer to an agency rule, we will treat the new rule “as we would if the agency had changed its own rules.” Id. at 516. In reaching this conclusion, we drew a bright line between the situation where we defer to an agency and the situation where, as in Nunez-Reyes, the circuit itself adopts a'new and different rule. Id. at 517-18. In addressing the issue of retroactivity in a deferral situation, Gar-fias-Rodriguez held that Chevron Oil was “not the appropriate framework.” Id. at 518. In these circumstances, the test to be applied was to be found in Montgomery Ward. Id. at 520.

When applied to determine whether agency rulings can be applied retroactively, the Montgomery Ward test' considers:

(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, arid (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

691 F.2d at 1333.

Applying these five factors, we find that the balance tips against Lemus.

The first factor, whether, this is a case of first impression, is “not ... well suited to the context of immigration law” and favors neither party. Garfias-Rodriguez, 702 F.3d at 521.

The second and third factors are intertwined. These “will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new ‘requirement would not be a complete surprise.’ ” Id. at 521, (quoting Montgomery Ward, 691 F.2d at 1333-34). Garfias-Rodriguez emphasized that the “ambiguity in the law—which resulted in a six-year dialogue between the BIA and us—should have given Garfias no assurances of his eligibility for adjustment of status.” Id. at 522. Given the virtually identical facts here, Montgomery Ward’s second' and third factors must weigh heavily against Lemus. The fact that we “doubled down” in Mercado-Zazueta after Garfias-Rodri-guez does not dictate a different result in this case. Simply put, although Mercado-Zazueta attempted to clarify this court’s stance on imputation, it cannot be said that it settled the debate with such finality that the subsequent contrary decision in Martinez Gutierrez was a “complete surprise.” Lemus was on notice that our approach was vulnerable based upon repeated contrary decisions, not only from the BIA but from other circuits as well.

The fourth factor, as in Garfias-Rodriguez, favors Lemus, given the increased risk of deportation he faces if Martinez Gutierrez is applied retroactively. See 702 F.3d at 523.

Finally, the fifth factor favors the government, as it has a strong interest in the uniform application of the statutory immigration scheme. See id. Indeed, as noted, Martinez Gutierrez applied retroactively to both aliens who were the subject of that case. In fact, we have subsequently applied it retroactively to nine other individuals as well. See Santos-Martinez v. Lynch, 620 Fed.Appx. 586 (9th Cir. 2015); Sanchez-Cortes v. Holder, 579 Fed.Appx. 550 (9th Cir. 2014); Sanchez v. Holder, 567 Fed.Appx. 553 (9th Cir. 2014); Martinez-Escalera v. Holder, 555 Fed.Appx. 695 (9th Cir. 2014); Paez-Carrasco v. Holder, 544 Fed.Appx. 789 (9th Cir. 2013); De Zavala v. Holder, 492 Fed.Appx. 821 (9th Cir. 2012); Mojica v. Holder, 689 F.3d 1133 (9th Cir. 2012) (per curiam); Pimentel-Ornelas v. Holder, 475 Fed.Appx. 223 (9th Cir. 2012); Parra Camacho v. Holder, 478 Fed.Appx. 431 (9th Cir. 2012).

Having applied the Montgomery Ward factors and concluded that they favor retroactive application of Martinez Gutierrez, we should note that, even under Chevron Oil, the argument favoring a prospective-only application would be a very hard sell. Significantly, Judge Graber, who wrote the majority opinion in Nunez-Reyes favoring prospective application in that case, submitted a short, separate opinion in Garfi-as-Rodriguez,, taking the position in that case that retroactive application would be appropriate under either Chevron Oil or Montgomery Ward. Garfias-Rodriguez, 702 F.3d at 534. Moreover, as the majority in Garfias-Rodriguez recognized, “In practice, we see very little substantive difference between [the Chevron Oil] factors and those of Montgomery Ward.” Id. at 517 n.10.

Lastly, given that Martinez Gutierrez bars Lemus from imputing his stepfather’s years of residence to obtain eligibility for cancellation of removal, his due process argument regarding access to his stepfather’s A-File must also fail. Even if he obtained the file, and it confirmed his stepfather’s years of residency, they would be of no help to him.

IV. CONCLUSION

The BIA correctly determined that Jose Daniel Lemus is not eligible for cancellation of removal under 8 U.S.C. § 1229b(a). This Petition is therefore DENIED.

      . The stop-time rale provides that an alien’s period of continuous residence is deemed to end when he is served with a notice to appear or is convicted of certain criminal offenses, including a controlled substance violation. 8 U.S.C. § 1229b(d)(l).

      . The A-File “contains the official record material about each individual for whom DHS has created a record." U.S. v. Lopez, 762 F.3d 852, 856 n.1 (9th Cir. 2014) (quoting 76 Fed. Reg. 34233, 34236 (June 13, 2011)).


author: BYBEE, Circuit Judge:

text:
    Steven Pelesasa FUE, Petitioner-Appellant, v. Martin BITER, Warden, Respondent-Appellee.
    No. 12-55307
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc September 8, 2016, San Francisco, California
    Filed November 17, 2016

      Michael Tanaka (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California, for Petitioner-Appellant.
    David F. Glassman (argued) and Yun K. Lee, Deputy Attorneys General; Scott A. Taryle, Supervising Deputy Attorney General; Lance E. Winters,-Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala- D.
    Harris, Attorney General; Office of the Attorney General, Los Angeles, California, for Respondent-Appellee.
    Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI, BARRY G. SILVERMAN, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, N. RANDY SMITH and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

BYBEE, Circuit Judge:

After the California Supreme Court denied Steven Fue’s direct appeal from his conviction for carjacking, Fue had one year in which to file a federal habeas corpus petition. Instead, Fue filed a state habeas petition, which tolled the time for filing his federal petition. When Fue finally filed his federal habeas petition, the district court dismissed it as untimely. Fue argues that he is entitled to equitable tolling because the California Supreme Court never notified him that it had denied his state petition. We hold that Fue’s lack of knowledge of the denial, if proven, would entitle him to equitable tolling. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

I

Fue was sentenced to twenty-six years in state prison after a jury found him guilty of carjacking, second degree robbery, possession of a firearm by a felon, and unlawful driving of a vehicle. The California Court of Appeal affirmed the convictions, and the California Supreme Court denied Fue’s petition for review on February 18, 2009. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year limitations period for filing a federal habeas corpus petition, starting from the date that a petitioner’s conviction becomes final. 28 U.S.C. § 2244(d)(1). Fue’s convictions became final on May 19, 2009, ninety days after the California Supreme Court denied his petition for review on direct appeal.

On November 15, 2009, Fue mailed a habeas petition to the California Supreme Court, thus tolling the limitations period. See 28 U.S.C. § 2244(d)(2). After fourteen months, Fue wrote to the court clerk on January 31, 2011 to inquire about th'e status of his petition. The clerk’s response letter, dated February 3, 2011, stated in full: “This will acknowledge receipt of your letter received February 3, 2011,1 checked our dockets and found no record of a pending petition for writ of habeas corpus having been filed on or about November 2009.” In fact, the California Supreme Court had received the petition and denied it on May 20, 2010, six months after it was filed. Fue alleges that the court never notified him that' it denied' his petition.

After consulting his lawyer about what to make of the clerk’s response letter, Fue mailed a federal habeas petition to the United States District Court for the Central District of California on March 7, 2011. Fue’s petition noted that he had filed a state habeas petition in the California Supreme Court, but that he did not have a docket number and was “waiting for a response still.” The State filed a motion to dismiss the petition as barred under AED-PA’s one-year statute of limitations, arguing that the limitations period started running again after the denial of Fue’s state habeas petition on May 20, 2010 and expired on November 20, 2010. Fue claims that the State’s motion to dismiss was the first notice he ever received that the California Supreme Court had denied his state habeas petition. The district court dismissed Fue’s petition as untimely, rejecting his contention that he was entitled to equitable tolling. Fue appealed, and a panel affirmed the district court in a divided decision. See Fue v. Biter, 810 F.3d 1114 (9th Cir. 2016). We granted rehearing en banc, 835 F.3d 892 (9th Cir. 2016), and now reverse.

II

“We review de novo the dismissal of a petition for writ of habeas.corpus on statute of limitations grounds.” Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). In reviewing a motion to dismiss a habeas petition as untimely, we “accept[ ] the facts as alleged” by the petitioner. See Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001). Taking these facts as true, “we review de novo whether the statute of limitations should be equitably tolled.” Corjasso, 278 F.3d at 877 (quoting Miles v. Pruniy, 187 F.3d 1104, 1105 (9th Cir. 1999)).

HI

A habeas petitioner is “ ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pm-suing his rights diligently, and (2) that some extraordinary circumstance stood' in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). We have previously held that a petitioner’s lack of knowledge that his state habeas petition has been denied can constitute an extraordinary circumstance that prevents timely filing. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). For purposes of this appeal from a motion to dismiss, the State does not contest that the California Supreme Court failed to notify Fue that it denied his state habeas petition. Rather, the State contends that Fue failed to pursue his rights diligently by waiting fourteen months to contact the court about the status of his case. For the reasons outlined below, we disagree.

A

“The diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’ ” Holland, 560 U.S. at 653, 130 S.Ct. 2549 (citations omitted). Reasonable diligence requires only “the effort that a reasonable person might be expected to deliver under his or her particular circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). “To determine if a petitioner has been diligent in pursuing his petition, courts consider the petitioner’s overall level of care and caution in light of his or her particular circumstances.” Id. at 1013.

As with other equitable considerations, determining whether a petitioner acted with reasonable diligence is a fact-specific inquiry. Holland, 560 U.S. at 649-50, 130 S.Ct. 2549; Busby, 661 F.3d at 1011. This is “not the arena of bright-lines and dates certain.” Busby, 661 F.3d at 1015. We are guided by “decisions made in other similar cases .... with awareness of the fact that specific circumstances, often hard to . predict in advance, could warrant special treatment in an appropriate case.” Holland, 560 U.S. at 650, 130 S.Ct. 2549.

One such similar case is Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001). In that case, a petitioner requested equitable tolling of AEDPA’s limitations period when he mailed a habeas petition to the California Superior Court, but the petition was never received. Huizar, 273 F.3d at 1222. He wrote the court two months after mailing the petition to inquire about the status of his case but received no response. Id. He then waited another - twenty-one months before contacting the court again. Id. In assessing whether the petitioner acted with reasonable diligence, we stated that twenty-one months is “not an unusually long time to wait for a court’s decision.” Id. at 1224.

The conclusion that twenty-one months, and by inclusion fourteen months, is “not an unusually long time to wait for a court’s decision” applies with extra force in the context of the present case. The petitioner in Huizar filed his habeas petition in the California Superior Court, whereas Fue filed his petition in the California Supreme Court. The California Rules of Court require the Superior Court to render a decision on a habeas petition within sixty days and provide a process for a petitioner to request a ruling if his petition is not resolved within that time. Cal. R. Ct. 4.551(a)(3). The California Supreme Court has no such time limit for ruling on habeas petitions, .and its rules require it to “promptly” notify parties when it renders a decision. Cal. R. Ct. 8.532(a). In other words, the Superior Court rule invites petitioners to follow up on their habeas petitions, but the Supreme Court has adopted a “don’t call us; we’ll call you” policy. This difference may explain why the petitioner in Huizar made contact with the court just two months after mailing his petition. It may also explain why Fue did not think he needed to contact the court earlier than he did. Fue could reasonably have expected to be notified once the California Supreme Court ruled on his petition. His decision to contact the court after fourteen months, “not an unusually long time to wait for a court’s decision,” actually shows his diligence, not a lack thereof.

Similar cases from other circuits illustrate application of the same principles and the case-specific nature of the determination. The Sixth Circuit, noting that “it is a difficult, if not impossible endeavor, [for litigants] to estimate how long a reviewing court will take to decide a particular motion,” held that a pro se petitioner who waited nine months before contacting the court about his case acted with reasonable diligence. Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002). The Fifth. Circuit held that an eleven-month delay in contacting the court was reasonable “given [the petitioner’s] prisoner and pro se status and the fact that the [court] -had the legal duty to notify him” when it rendered a decision, which it failed to do. Hardy v. Quarterman, 577 F.3d 596, 599 (5th Cir. 2009) (per curiam). And the - Eleventh Circuit sanctioned a wait of over sixteen months in contacting the court when a pro se petitioner had been told that he would be notified of ány decision in his case, but he never received such notice. Knight v. Schofield, 292 F.3d 709, 710-11 (11th Cir. 2002) (per curiam). Fue, also a pro se petitioner entitled to receive notice of the state court’s decision, acted diligently by contacting the court after . a reasonable amount of time - (here, fourteen months) had passed. Compare Diaz v. Kelly, 515 F.3d 149, 154-56 (2d Cir. 2008) (finding that a pro se petitioner’s nine-month delay in contacting the court, was reasonable where the lav/ required the court to notify parties of its decisions, but the petitioner did not receive notice), with LaCava v. Kyler, 398 F.3d 271, 276-78 (3d Cir. 2005) (declining to grant equitable tolling after a twenty-one month delay in contacting the court where the petitioner was represented by counsel and not entitled to personal notice of the court’s decision), and Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (same, twenty-four months).

B

The State, would have us distinguish Huizar because the petitioner in that case engaged in a “steady stream of correspondence” with the court, 273 F.3d at 1224, while Fue wrote the California .Supreme Court only once. We first note that, contrary to the State’s assertion, Huizar did not. establish a requirement that habeas petitioners maintain a “steady stream of correspondence” with the court. We merely observed in Huizar that the petitioner had made multiple attempts to contact the court, which tended to show his diligence. Id. The petitioner in Huizar contacted the court three times after mailing his petition—once after two months, again twenty-one months later, and again five months after that. Id. Such repeated correspondence made sense in Huizar because habe-as petitioners in the California Superior Court have an avenue for requesting a ruling if the court does not provide one within sixty days. See Cal. R. Ct. 4.551(a)(3)(B). There is, however, no reason to require petitioners filing in the California Supreme Court, which promises to promptly notify parties when it renders a decision, see Cal. R. Ct. 8.532(a), to make early and frequent inquiries with the court about the status of their petitions. We do not require petitioners to engage in such “overzealous or extreme” conduct to show their diligence. Busby, 661 F.3d at 1015.

We also doubt that the California Supreme Court would welcome the flood of status-update requests that would likely follow were we to require all habeas petitioners to engage in a “steady stream of correspondence” with the court to show their diligence. In most cases, a state court will notify petitioners when it has reached a decision. A rule requiring petitioners to seek early and frequent updates would be a "waste of time for petitioners and a heavy administrative burden for state courts. See Diaz, 515 F.3d at 155 (“We see no point in obliging a pro se litigant to pester a state court with frequent inquiries as to whether a pending motion has been decided, at least until a substantial period of time has elapsed.”); Drew v. Dep’t of Corr., 297 F.3d 1278, 1299 n.10 (11th Cir. 2002) (Barkett, J., dissenting) (“If litigants were required to inquire about the status of their case before giving the court a reasonable period to reach a decision and notify them of the result, court personnel would be faced with a substantial administrative burden.”).

C

Ordinarily, a petitioner must act with reasonable diligence both before and after receiving delayed notice that the state denied his habeas petition. See Milr ler, 305 F.3d at 496 (considering whether a petitioner acted diligently “both before and after receiving notice”). In this case, the parties disagree over when Fue received notice that his state habeas petition had been denied. Fue alleged that he first learned that the California Supreme Court had actually denied his petition when he received the State’s motion to dismiss his federal habeas petition. The State counters that Fue received notice of the denial in the clerk’s letter of February 3, 2011.

On the record before us, we disagree with the State. The clerk’s letter informed Fue that the clerk “found no record of a pending petition for writ of habeas corpus having been filed on or about November 2009.” (Emphasis added.) Far from putting Fue on notice that his petition had been denied, the clerk’s letter could be read to suggest that the court never received Fue’s petition. Fue, for his part, “did not know what to think of’ the letter and ultimately decided to file a federal habeas petition immediately. In the questionnaire attached to his federal petition, he indicated that he was still “waiting for a response” from the California Supreme Court on his state habeas petition and wrote “N/A” for the date of decision in that matter. He also checked ‘Tes” on the questionnaire when asked if he had “any petitions now pending (i.e., filed but not yet decided) in any state or federal court,” and provided the details of his state habe-as petition when asked to explain. We agree with Fue that, whatever the letter meant, it did .not give notice that Fue’s petition had been denied.

Even if the clerk’s letter had been sufficient to notify Fue that the California Supreme Court had denied his petition, Fue acted with the requisite post-notice diligence. Fue thought he would have three months after a denial of his state petition to file a federal petition. (He actually had six months, but his appellate lawyer miscalculated.) Fue filed his federal petition within thirty-two days of receiving the clerk’s letter—well within the time he thought he had remaining. During those thirty-two days, Fue was in contact with his lawyer and deciding how to proceed in light of the clerk’s letter. Fue’s actions show that he made “the effort that a reasonable person might be expected to deliver under his ... particular circumstances.” Busby, 661 F.3d at 1015.

D

The State cites cases in which we have stated that “[t]he petitioner must additionally show ... that the ‘extraordinary circumstances ma[de] it impossible to file a petition on time.’” Ramirez, 571 F.3d at 997 (second alteration in original) (citation omitted); see also, e.g., Randle v. Crawford, 604 F.3d 1047, 1057 (9th Cir. 2010) (stating that equitable tolling applies only if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time” (emphasis and citation omitted)); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (same); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (same). At the conclusion of Fue’s direct appeal in state court, Fue had exhausted his state remedies for all three grounds for relief raised in his federal habeas petition. Fue postponed filing his federal habeas petition, however, so that he could exhaust one additional claim. That additional claim was the subject matter of the state habeas petition before the California Supreme Court. Because Fue did not raise the additional claim in his federal habeas petition, the State argues that the delayed notice was not the cause of Fue’s untimeliness, as Fue could have filed the instant petition raising only previously exhausted claims on the first day of AEDPA’s limitations period.

Technically, the State is correct that it would not have been impossible for Fue to file his federal petition raising only previously exhausted claims within the limitations period. But “as we have previously said, the ‘impossibility requirement should not be strictly imposed because ‘imposing extraordinarily high evidentiary standards on pro se prisoner litigants—who have already faced an unusual obstacle beyond their control during the AEDPA limitation period—runs against the grain’ of our precedent.” Sossa v. Diaz, 729 F.3d 1225, 1236 (9th Cir. 2013) (quoting Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002)). The word “impossible” crept into our jurisprudence before the Supreme Court’s decision in Holland, which stressed “flexibility” and a disdain for “mechanical rules.” 560 U.S. at 650, 130 S.Ct. 2549 (citation omitted). Our post -Holland cases “have applied this ‘impossibility’ standard leniently, rejecting a literal interpretation.” Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). To the extent that we have required that petitioners must demonstrate that it was “impossible” to file a timely petition, such a requirement is inconsistent with Holland’s requirement that a habeas petitioner demonstrate only “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649, 130 S.Ct. 2549 (citation omitted).

IV

All of the above discussion assumes, as we must in reviewing a grant of a motion to dismiss, that Fue’s allegations are true. See Huizar, 273 F.3d at 1224. Fue’s indication in his federal habeas petition that the California Supreme Court had not yet decided his case supplies strong evidence that Fue did not receive notice of the denial, as does the very fact that he found it necessary to ask the California Supreme Court for a status update. But the district court made no factual findings with respect to this issue, and the State has not yet had the chance to contest Fue’s claims. Accordingly, we reverse the district court’s order granting the State’s motion to dismiss and remand the case for further factual development. If the district court finds the facts to be as Fue claims, “it shall deem his petition timely and consider it on the merits.” Id.

REVERSED and REMANDED.

      . The Eleventh Circuit later distinguished Knight, holding that a sixteen-month delay in contacting the court was unreasonable when no one had explicitly told the petitioner that he could expect a notification from the court when'it rendered a decision. Drew v. Dep’t of Corr., 297 F.3d 1278, 1288 n,3 (11th Cir. 2002). The court in Drew was reviewing for clear error, id. at 1283, 1289-90, while our review at this stage of the litigation is de novo. Nevertheless, it strikes us that "Drew had every reason to expect-that the court would notify him once it ruled on his petition; every litigant knows that the court is supposed to inform the parties when a result has been reached.” Id. at 1300 (Barkett, J., dissenting).


author: OPINION CALLAHAN, Circuit Judge:

text:
    SYNGENTA SEEDS, INC., a Delaware corporation; Syngenta Hawaii, LLC; Pioneer Hi-Bred International, Inc., an Iowa Corporation; Agrigenetics, Inc., a Delaware corporation; BASF Plant Science LP, a Delaware limited partnership, Plaintiffs-Appellees, v. COUNTY OF KAUAI, Defendant-Appellant, and Ka Makani Ho’opono; Center for Food Safety; Pesticide Action Network North America; Surfrider Foundation, Intervenor-Defendants. Syngenta Seeds, Inc., a Delaware corporation; Syngenta Hawaii, LLC; Pioneer Hi-Bred International, Inc., an Iowa corporation; Agrigenetics, Inc., a Delaware corporation; BASF Plant Science LP, a Delaware limited partnership, Plaintiffs-Appellees, v. County of Kauai, Defendant, and Ka Makani Ho’opono; Center for Food Safety; Pesticide Action Network North America; Surfrider Foundation, Intervenor-Defendants-Appellants.
    No. 14-16833, No. 14-16848
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 15, 2016, Honolulu, Hawaii
    Filed November 18, 2016

      David J. Minkin (argued), Jesse J. T. Smith, and Troy H.H. Andrade, McCorri-ston Miller Mukai McKinnon LLP, Honolulu, Hawaii, for Defendant-Appellant.
    Paul H. Achitoff (argued), Earthjustice, Honolulu, Hawaii; Sylvia Shih-Yau Wu and George A. Kimbrell, Center for Food Safety, San Francisco, California; for In-tervenor-Defendants-Appellants.
    Margery S. Bronster (argued), Donna C. Marrón, and Rex Y. Fujichaku, Bronster Fujichaku Robbins, Honolulu, Hawaii; Christopher Landau (argued), Kirkland & Ellis LLP, Washington, D.C.; Clair Wong Black and Paul Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii; for Plaintiffs-Appellees.
    Before: SIDNEY R. THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
   OPINION

CALLAHAN, Circuit Judge:

Kauai County passed Ordinance 960 to regulate pesticides and genetically engineered (GE) plants. The Ordinance requires commercial farmers to maintain “buffer zones” .between crops to which pesticides are applied and certain smrounding properties, provide notifications before and after applying pesticides, and file annual reports disclosing the cultivation of GE crops. We must decide whether Ordinance 960’s pesticide provisions are impliedly preempted by Hawaii state law, as the district court held below. Applying the Hawaii Supreme Court’s “ ‘comprehensive statutory scheme’ test,” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1208 (Haw. 1994), we affirm.

I.

A. Plaintiffs’ farming operations on Kauai

Plaintiffs-Appellees Syngenta Seeds, Inc., Syngenta Hawaii, LLC, Pioneer Hi-Bred International, Inc., Agrigenetics, Inc., and BASF Plant Science LPs are companies that supply seed for GE plants. Plaintiffs grow a variety of GE seed crops on Kauai, including corn, soybeans, canola, and rice. As further explained in our concurrently filed opinion in Atay v. County of Maui, No. 15-16466, such GE crops have numerous important uses and play a major role in our nation’s food supply. However, GE crops also present several well-documented economic and environmental risks.

This case arises primarily from concern about Plaintiffs’ use of insecticides, herbicides, and fungicides (collectively pesticides) in their farming operations on Kauai. They use both general use pesticides (GUPs), which under federal and state law may be applied by anyone in accordance with label instructions, and restricted use pesticides (RUPs), which may only be applied by applicators certified by the State or persons under their direct supervision. See 7 U.S.C. § 136L Pesticides are useful for controlling pests and thus increasing crop yields, but their application can have detrimental effects on humans and the environment. For example, with respect to human health impacts, some studies have found that long-term exposure to some pesticides may increase the risks of diseases, including cancer, autism, Parkinson’s disease, and childhood leukemia. With respect to environmental impacts, studies have found that some pesticides can harm insects and native plants, alter soil ecology, and increase the number and prevalence of herbicide-resistant pests.

Kauai residents have reported experiencing medical symptoms due to contact with pesticides applied on Plaintiffs’ farms. Additionally, a University of Hawaii study detected pesticides in indoor and outdoor air samples collected at a Kauai middle school, albeit at concentrations “well below health concern exposure limits or applicable screening levels.”

B. Kauai County Ordinance 960

In 2013, the Kauai Coufity Council passed Ordinance 960 in order to “inform the public, and protect the public from any ... negative impacts on the health and natural environment of the people and place of the County” associated with commercial farming operations, including the use of pesticides. Kauai County Code (KCC) § 22-23.2. Relevant here, the Ordinance imposes several requirements on “commercial agricultural entities” (CAEs) in connection with the application of RUPs in Kauai.

The Ordinance’s notification provisions require CAEs to make notifications before and after applying RUPs. Id. § 22-23.4(a). Specifically, the “worker protection” provision requires CAEs to post warning signs that comply with U.S. Environmental Protection Agency guidelines ' twenty-four hours prior to the- application of á pesticide, during application, and after application for the “restricted-entry period” established by the EPA. Id. § 22-23.4(a)(l). The “Good Neighbor” provision requires CAEs to send weekly “Good Neighbor Courtesy Notices” to interested beekeepers arid people who own or occupy property within 1;500 feet of the property where the pesticide will be applied. The notices must address the pesticide to be used, its active ingredient, and the date, time, and field number of its use. Id. § 22-23.4(a)(2). Following the application of RUPs, the Ordinance also requires CAEs to submit to Kauai’s Office of Economic Development and post online weekly “public disclosure reports” “compiling the actual application of all pesticides during the prior week.” Id. § 22-23.4(a)(3). These reports must detail the date and time of application, the field numbér and total acreage to which the pesticide was applied, the pesticide’s trade name, EPA registration number, and active ingredient, the gallons- or pounds of the pesticide used, and the temperature, wind direction, and wind speed at the time of application. Id.

In addition to these notification requirements, Ordinance 960 requires CAEs to establish “buffer zones” between crops to which RUPs are applied and certain surrounding properties, such as schools and waterways. Id. § 22-23.5(a). The buffer zone’s size varies depending on the type of neighboring property.

Finally, Ordinance 960 requires the County to complete an Environmental and Public Health Impact Study (EPHIS) to address “environmental and public health questions related to large-scale commercial agricultural entities utilizing pesticides and genetically modified, organisms.” Id. § 22-23.6. The EPHIS may recommend “possible actions the County may take in order to address any significant effects, public health impacts, or both.” Id. § 22-23.6.

“[A]ny person, firm, or corporation” violating Ordinance 960 is subject to a civil fine of $10,000 to $25,000 per day, per violation. Id. § 22-23.7(a). Additionally, violators are guilty of a misdemeanor punishable by a fine of up to $2,000 or a year imprisonment for each offense. Id. § 22-23.7(b).

After the County Council passed Ordinance 960, the Mayor of Kauai vetoed it. The Mayor explained that he “agree[d] fully with the general intent of [the] bill,” including the pesticide notification and EPHIS provisions. However, he did not support the buffer-zone provision and, citing a legal opinion by the County Attorney,' concluded “that Kauai does not currently have the legal authority to enact most of what is contained” in the bill. On November 16, 2013, the County Council overrode the veto and enacted Ordinance 960 into law.

C. Procedural History

On January 10, 2014, Plaintiffs sued the County of Kauai in district court challenging Ordinance 960. As subsequently amended, Plaintiffs’ complaint asserted thirteen claims for relief and sought a declaratory judgment that the Ordinance is invalid under federal, state, and county law, and an injunction against its enforcement. Relevant here, the first claim asserted that state law impliedly preempts the Ordinance’s pesticide provisions. A coalition of Ka Makani Ho’opono, the Center for Food Safety, the Pesticide Action Network North America, and the Surfrider Foundation intervened on behalf of the County.

On August 25, 2014, the district court granted in part and denied in part the cross-motions for summary judgment. Syngenta Seeds, Inc. v. Cty. of Kauai, No. CIV. 14-00014 BMK, 2014 WL 4216022 (D. Haw. Aug. 25, 2014). While emphasizing that its decision “in no way diminishes the health and environmental concerns of the people of Kauai,” the court concluded that Ordinance 960’s pesticide provisions are impliedly preempted by state law. Id. at *1. The court acknowledged that the County has authority under state law to regulate agricultural activities, id. at *3-4, but found the pesticide provisions preempted because they address the same subject matter regulated by a comprehensive statutory scheme that the Hawaii legislature intended to be uniform and exclusive. Id. at *7-9. The district court declined to certify the implied preemption question to the Hawaii Supreme Court. Id. at *15. The County and Defendant-Intervenors (collectively Defendants) timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, the County and Defendant-Intervenors contend that the district court erred in finding Ordinance 960’s pesticides provisions impliedly preempted .by state law. They also argue that the district court erred in denying their motion to certify the implied preemption issue to the Hawaii Supreme Court and, alternatively, ask us to certify the issue. We review the district- court’s grant of summary judgment on preemption grounds de novo, Wolfe v. BNSF Ry. Co., 749 F.3d 859, 863 (9th Cir. 2014), and a decision not to certify a state-law question for abuse of discretion, Riordan v. State Farm, Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th Cir. 2009).

A. Implied state preemption analysis under Hawaii law

The state preemption question before us stems from HRS § 46-1.5(13), which delegates to counties “the power to enact ordinances deemed necessary to protect health, life, and property ... on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute ... disclosing] an express or implied intent that the statute shall be exclusive or uniform throughout the State.” The Hawaii Supreme Court has ruled that a county ordinance issued pursuant to section 46-1.5(13) is invalid if it conflicts with state law or legislates in a field that the legislature reserved for uniform and exclusive state regulation. Richardson, 868 P.2d at 1209. Only the second type of preemption, called field preemption, is at issue here: Plaintiffs argue that Ordinance 960 impermissibly regulates pesticides, which is a subject that the Hawaii legislature reserved for exclusive treatment by the State.

Hawaii courts apply a “‘comprehensive statutory scheme’ test” to decide field-preemption claims under HRS § 46-1.5(13). Pac. Int’l Servs. Corp. v. Hurip, 873 P.2d 88, 94 (Haw. 1994). Under this test, a local law is preempted if “it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state.” Richardson, 868 P.2d at 1208-09; see also Citizens Utils. Co. v. Cty. of Kauai, 72 Haw. 285, 814 P.2d 398, 400 (1991). Courts frequently -treat this test as involving several overlapping elements, including showings that (1) the state and local laws address the same subject matter; (2) the state law comprehensively regulates that subject matter; and (3)the legislature intended the state law to be uniform and exclusive. See, e.g., Stallard v. Consolidated Maui, Inc., 83 P.3d 731, 736 (Haw. 2004); Richardson, 83 P.3d at 1209.

The Hawaii Supreme' Court has emphasized that the “critical determination to be made” is “whether the statutory scheme at issue indicate^] a legislative intention to be the exclusive legislation applicable to the relevant subject matter.” Hurip, 873 P.2d at 94. Thus, even where a local law addresses a subject covered by a comprehensive and uniform state statutory scheme, the local law is not preempted where the state scheme does not evince the legislature’s intent to be exclusive. Id. (finding that the legislature intended a state law only “to establish a minimum level of insurance protection”).

The Parties dispute how clear of a showing of legislative intent to preempt is required for a local law to be deemed invalid. Plaintiffs contend that, unlike federal law, there is no presumption against preemption under state law because Hawaii counties only have authority delegated to them by the State. Defendants contend that there is a presumption against state preemption of local laws, and thus the legislature’s intent to preempt must be “clear” in order for a local law to fail. They argue that this presumption is particularly strong where, as here, a local government regulates land use or another area over which it traditionally has exercised control.

The Hawaii Supreme Court has not squarely addressed whether there is a presumption against state preemption. It is true that there is no presumption of dual sovereignty between the State and the counties, because counties, unlike states, lack inherent or residual authority. In re Application of Anamizu, 52 Haw. 550, 481 P.2d 116, 118 (1971). However, the Hawaii Supreme Court has presumed that a county’s exercise of police power is within its delegated authority so long as the legislature did not “clearly intend[ ] to preempt the field of regulation.” Haw. Gov’t Employees’ Ass’n v. Maui, 59 Haw. 65, 576 P.2d 1029, 1038 (1978). Thus, where a county’s exercise of police power is at issue, the showing of legislative intent necessary for state law to preempt local law under Hawaii’s preemption analysis is similar to, if perhaps not quite as demanding as, the showing required for purposes of federal preemption, a “ ‘clear and manifest purpose’ to pre-empt local authority,” See Wisc. Public Intewenor v. Mortier, 501 U.S. 597, 607, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991).

The Parties also dispute whether the Hawaii Constitution’s conservation clause alters the preemption analysis where local laws aimed at conserving and protecting the environment are at issue. The County contends that Article XI, § l’s directive that “the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources” compels it to regulate pesticide use, and cannot be overcome by state statute, Defendants support their argument with Robinson Township v. Pennsylvania, where the Pennsylvania Supreme Court found that a state law expressly preempting local oil and gas regulations impermissibly abrogated “constitutional commands regarding municipalities’ obligations and duties to their citizens” under the Pennsylvania Constitution. 628 Pa. 564, 83 A.3d 901, 977 (2013).

We are not persuaded. Hawaii law is clear that counties lack inherent authority under the Hawaii Constitution. Haw. Gov’t Employees’ Ass’n, 576 P.2d at 1038; In re Application of Anamizu, 481 P.2d at 118. It follows that counties have no power to conserve the public trust unless the State has delegated to them the authority to do so. As noted, under HRS § 46-1.5(13), counties are not permitted to use their police power to enact ordinances that conflict with state law or intrude upon areas expressly or impliedly reserved for state regulation. In other words, the conservation clause may obligate counties to use their authority to conserve public-trust resources, but it does not permit counties to exercise power that the State has not granted them. The provision therefore is irrelevant to the question presented in this case: whether Ordinance 960 is beyond the County’s police power under HRS § 46-1.5(13) because it is impliedly preempted by state law. We turn to that question now.

B. The Hawaii Pesticides Law preempts Ordinance 960’s pesticide provisions.

Under Hawaii’s comprehensive statutory scheme test, the question presented is whether Ordinance 960’s pesticides provisions cover the same, subject matter as state law that creates a comprehensive regulatory scheme and discloses clear legislative intent to be uniform and exclusive of supplemental local regulation.

1. Ordinance 960’s pesticide provisions and the Hawaii Pesticides Law address the same subject matter,

Ordinance 960 imposes pesticide notification requirements and mandates “pesticide buffer zones.” KCC § 22-23.5(a). As detailed below, the Hawaii Pesticides Law and its implementing rules also regulate pesticides, including by imposing notification requirements and conditions of use, such as locations of permissible use. See HRS Ch. 149A.,

Part III of the Hawaii Pesticides Law regulates the use of pesticides, including where pesticides may be applied. HRS §§ 149A-31-149A-37. For example, HRS § 149A-31 lists “prohibited acts.” The provision prohibits use “of any pesticide in - a manner inconsistent with its label,” with several enumerated exceptions. The provision makes clear that pesticide labels may specify “a crop, animal, or site” to which pesticides may be applied. Id. § 149A-31(1)(B) (emphasis added). The provision also prohibits application of RUPs except by certified pesticide applicators or someone under their direct supervision, id, § 149A-31(3), and bars application of any pesticides through particular devices, id. § 149A~31(6)..

This list of prohibited acts in Part III is not exhaustive. Rather, section 149A-32.5 vests the chairperson of the State’s Board of Agriculture with the authority to “suspend, cancel, or restrict the use of certain pesticides or specific uses of certain pesticides when the usage is determined to have unreasonable adverse effects on the environment.” See also id. § 149A-19 (directing the Board of Agriculture' to “establish a system of control over the distribution and use of certain pesticides and devices purchased by the consuming public”). Section 149A-33 also authorizes the Hawaii. Department of Agriculture to enact, rules to carry out the Hawaii Pesticides Law. This authority includes but is not limited to the power to “establish limitations and conditions for the application of pesticides” by equipment and to “establish, as necessary, specific standards and guidelines which specify those conditions which constitute unreasonable adverse effects on the environment.” Id. § 149A-33.

Pursuant to this authority, the Department of Agriculture has enacted additional rules addressing pesticide use, including locations of use. A Department of Agriculture rule requires “directions for use” on labels to address, among other things, “[required intervals between application and harvest of food or feed crops,” “rotational crop restrictions,” and “[w]arnings as required against use on certain crops, animals, objects, or in or adjacent to certain areas.” HAR § 4-66-23(9)(A), (C).

As these provisions show, Hawaii law addresses the same subject matter as Ordinance 960’s buffer-zone provision: permissible areas of pesticide application.

The Hawaii Pesticides Law also addresses the specific subject of notification and record-keeping requirements. For' example, the law establishes notification and record-keeping requirements in connection with the sale of pesticides. HRS § 149A-15.5 requires retailers to “post a warning sign with respect to the sale of pesticides” to address “proper handling, storage, and disposal of all pesticides'sold” and “[ejmer-gency telephone numbers to call in case of poisoning from the pesticides.” Persons permitted -to sell RUPs are required to “keep records of the individual sales of these pesticides.” Id. § 149A-17, Under the Department of Agriculture’s rules, licensed dealers are further required to “keep a record of each sale, distribution, delivery, theft, spill, or any other1 activity affecting the amount of [RUPs] and pesticides requiring an annual permit.” HAR § 4-66-53.

State law also establishes notification and warning requirements in conn'ection with the application of pesticides. In addition to requiring “warnings and precautionary statements” on labels, see HAR §§ 4-66-17, 4-66-19, a Department of Agriculture rule requires that “[c]ommer-cial applicators applying any pesticide in agricultural operations must ... furnish a written record ... to the agricultural employer before the pesticide is applied,” id. § 4-66-62(c). The Department.of Agriculture has also enacted reporting and approval requirements before RUPs may be applied by aircraft. Id, § 4-66-64.

State law addresses post-application record keeping as well. The legislature delegated to the Department of Agriculture the authority to “establish, as necessary, record keeping requirements, for pesticide use by applicators.” HRS § 149A-33. Pursuant to this authority, the agency enacted rules requiring pesticide applicators to “keep records of all applications of [RUPs] applied.” HAR § 4-66-62(a). These reports must contain fourteen categories of information. Id. § 4-66-62(b). Section 149A-31.2 further directs the Department of Agriculture to publish online RUP “records, reports, or forms submitted” to it, with limited exceptions.

As these provisions show, Hawaii law addresses the same subject matter as Ordinance 960⅛ pesticide notification provisions: warnings regarding the application ofRUPs.

2. The State’s scheme for the regulation of pesticides is comprehensive.

Defendants argue that even if Hawaii law and Ordinance 960 address the same subject matter, the state law’s .treatment of pesticides is not comprehensive. They contend that the state requirements are “procedural and remedial,” while Ordinance 960 is “substantive and prophylactic.”

Even if regulatory fields may be parsed so finely in determining whether their occupation by the State is comprehensive, Defendants’ argument fails. State law imposes “substantive and prophylactic” measures. For example, state law regulates a pesticide’s effects on human health and the environment through labeling and licensing requirements. See, e.g., HRS §§ 149A-11, 149A-31. As mentioned, “directions for use” on pesticide labels must include “[l]imitations or restrictions on use required to prevent unreasonable adverse effects on humans or the environment,” including “[w]arnings as required against use ... in or adjacent to certain areas.” HAR § 4-66-23(9). Such restrictions are not simply procedural or informational; they impose restrictions on pesticide use the violation of which may result in civil and criminal penalties, as well as the suspension or revocation of licenses for pesticide application and sale. See, e.g., HRS § 149A-41. State law. also requires pre-application warnings, which, like use and licensing regulations, are clearly “prophylactic” in nature. See HAR §§ 4-66-62(c), 4-66-64.

More generally, the state statutory scheme’s breadth of treatment of pesticides demonstrates its comprehensiveness. The Hawaii Pesticides Law and its implementing rules address the entire life cycle of pesticides, including research/experimentation, transportation, storage, sale, use, and disposal. See, e.g., HRS § 149A-37 (addressing research and experimental work); id. §§ 149A-11-149A-23 (addressing transportation, storage, and sale); id. §§ 149A-31-37 (addressing use); HAR § 4-66-54 (addressing disposal). State law also creates a system for investigation and enforcement of violations. See HRS §§ 149A-21, 14A-36, 149A-41; HAR §§ 4-66-32.1, 4-66-66.1.

We find that the state’s statutory scheme for pesticides is comprehensive.

3. The legislature clearly intended for the State’s regulation of pesticides to be uniform and exclusive.

Finally, it is clear that the Hawaii legislature intended for the State’s regulation of pesticides to be uniform and exclusive of additional, local rules.

The pervasiveness of the statutory scheme, which regulates in detail the full life cycle of pesticides, creates a reasonable inference that the legislature left no room for counties to impose further regulations. See In re Application of Anamzu, 481 P.2d at 119 (finding legislative intent to preempt “apparent from the pervasiveness of the ;.. statutory scheme”). The Hawaii Pesticides Law’s pervasiveness differentiates the law from the federal pesticides law, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which the Supreme Court found did not preempt local laws in Mortier. In Mortier, the Supreme Court observed that FIFRA “leaves substantial portions of the field. vacant, [including] an affirmative permit scheme for the actual use of pesticides.” 501 U.S. at 613, 111 S.Ct. 2476. By contrast, the Hawaii Pesticides Law establishes a permit scheme for actual use and does not leave vacant any other substantial part of the field of pesticides regulation.

Moreover, the Hawaii legislature stated its intention for the Hawaii Pesticides Law to be uniform in- HRS § 149A-19, which is entitled “Determination; rules; uniformity.” To achieve the stated goal of uniformity, the legislature directed the Board of Agriculture to “adopt rules applicable to and in conformity with the primary standards established by this chapter or as prescribed by FIFRA with respect to pesticides.” HRS § 149A-19(c). The legislature also expressed the goal of uniformity in directing the Department of Agriculture to cooperate with other state agencies and “the federal government for the purpose of carrying out this chapter and securing uniformity of rules” governing pesticides. HRS § 149A-28 (emphasis added).

The Hawaii legislature’s goal of establishing a uniform system of pesticide control and its delegation, in furtherance of this goal, of rulemaking and licensing authority to the Department of Agriculture clearly evince an intent to preempt local regulation. As the Hawaii Supreme Court has explained, such a state statutory scheme cannot reasonably be interpreted to allow for supplemental local regulation because differing local laws would defeat the goal of uniformity. For example, in In re Application of Anamizu, the Hawaii Supreme Court concluded that a city ordinance regulating contractors was preempted by a state statutory scheme that “vested [a state board] with broad powers relative to the licensing and regulating of contractors.” 481 P.2d at 118. The court reasoned that “[t]o hold otherwise would be to allow the intercity flow of contracting services to be impaired, thereby severely diluting the value of a uniform state licensing system” that the legislature sought to realize. Id. at 119.

Like the law at issue in Application of Anamizu, the Hawaii Pesticides Law creates a comprehensive statutory scheme, commits rulemaking and licensing authority to carry out the scheme to a state agency, and discloses a goal of uniformity. Moreover, the statute and the Department of Agriculture’s implementing rules address the specific subjects addressed by Ordinance 960—pesticide notification requirements and conditions of permissible use, including locations of use. In these circumstances, interpreting the Hawaii Pesticides Law to allow supplemental local regulations would impermissibly undermine the legislature’s express goal of uniformity.

We note that the Hawaii Pesticides Law does allow for local variations in the regulation of pesticides. However, further evidencing an intent that the State’s control be exclusive, the legislature directs the Department of Agriculture to address the need for any local variations. For example, HRS § 149A-22, gives the Board of Agriculture “authority to adopt rules ... to develop and implement state programs for registration of pesticides for special local needs.” This provision further distinguishes the Hawaii Pesticides Law’s preemptive effect from FIFRA’s. FIFRA and its implementing regulations expressly allow states to impose additional restrictions or authorize additional uses of pesticides “to meet special local needs.” 7 U.S.C. § 136v. Unlike FIFRA, the Hawaii Pesticides Law commits this role to the Department of Agriculture, while providing counties with avenues for . input into the agency’s regulatory process. See HRS § 26-16 (establishing the Board of Agriculture and specifying that it will include residents of Hawaii, Maui, and Kauai); HRS § 149A-22 (authorizing the Board of Agriculture “to adopt rules ... to develop ánd implement state programs for registration of pesticides for special local needs and issuance of experimental use permits”).

Our conclusion that the legislature intended for the Hawaii Pesticides Law to be uniform and exclusive of state control is not undermined by the DOA’s power “to cooperate with and enter into agreements with any agency of the State, thé federal government, or any other agency” in carrying out the law. Id. § 149A-35. This provision does not authorize counties to issue supplemental regulations of pesticides. Rather, read in context of the larger statutory scheme, which. clearly demonstrates legislative intent to create a uniform system of pesticide regulation administered by the Department of Agriculture, we interpret the provision to authorize the counties to assist in enforcing regulations of pesticides established by the State. '

Nor do Intervenors’ arguments based on Hawaii’s litigating position in Mortier and legislative inaction undermine our interpretation of the Hawaii Pesticides Law’s preemptive- effect. Intervenors argue that an amicus brief filed by Hawaii in Mortier evidences that the State never intended to prevent counties from regulating pesticides. See Mortier, No. 89-1905, 1991 WL 11007857 (Appellate Br.) (Feb. 28, 1991). The litigating position of the Hawaii attorney general in Mortier, however, is of little or no relevance to the preemptive effect of the Hawaii Pesticides Law. The brief was joined by ten other states and did not interpret the 'preemptive effect of Hawaii law. Rather, the brief argued that FIFRA leaves room for state and local regulation of pesticides, a point that is not disputed.

Intervenors also argue that Hawaii’s legislative inaction following Mortier demonstrates the absence of legislative intent to preempt local regulation of pesticides. Following the Supreme Court’s decision in Mortier, bills to preempt local pesticide regulation were introduced in the Hawaii House and Senate. Intervenors contend that the fact that the Hawaii legislature did not pass the bills, unlike the legislatures of many other states, undermines any inference of preemptive intent from existing law.

In Hurip, the Hawaii Supreme Court relied on post-enactment legislative history in assessing legislative-intent. 873 P.2d at 96-97. However, Hurip relied on the legislative history of an amendment to a state law, not on post-enactment legislative inaction. The U.S. Supreme Court and the Hawaii Supreme Court have found the second- type of evidence generally “lacks persuasive significance” because “several equally tenable inferences may be drawn from such inaction.” Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994); Richardson, 868 P.2d at 1211 n.25 (finding a “long history of considering, and rejecting, proposed bills ... merely begs the question”); Tax Appeal of Dir. of Taxation v. Med. Underwriters of Cal., 166 P.3d 353, 365 n.11 (Haw. 2007) (“[Ljegislative inaction is not a cogent expression of legislative intent.”). No circumstances endow the Hawaii legislature’s inaction with significance here.

In sum, we find that the Hawaii Pesticides Law comprehensively regulates pesticides and creates a clear inference of legislative intent , to preempt local-regulations of pesticides. Accordingly, applying Hawaii’s comprehensive statutory scheme test, we hold that Ordinance 960’s pesticide provisions are impliedly preempted by Hawaii law and beyond the County’s power under HRS § 46-1.5(13).,

C. The district court did not abuse its discretion in denying Defendants’ motion to certify the preemption issues to the Hawaii Supreme Court.

Defendants argue that the district court erred in declining to certify the state implied preemption questions presented to the Hawaii Supreme Court. Alternatively, Defendants ask .us to certify the implied preemption questions.

We find that the district court did not abusé its discretion in denying Defendants’ motion to certify. We similarly find that while the Hawaii Supreme Court has not applied its preemption test to the specific laws at issue, certification is unnecessary because the State’s test for implied state preemption is “rather well-defined.” Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d. 1251, 1263 n.14 (9th Cir. 1983); see also Pai ’Ohana v. United States, 875 F.Supp. 680, 700 (D. Haw. 1995), aff'd sub nom. ’Ohana v. United States, 76 F.3d 280 (9th Cir. 1996) (“[W]here there is sufficient state law to enable this court to make an informed decision on [the] issues certification is inappropriate.”) (internal quotation marks omitted).

III.

We affirm the district court’s conclusion that the Hawaii Pesticides Law impliedly preempts Ordinance 960’s'pesticide provisions. We affirm the district court’s conclusion that Hawaii law impliedly preempts Ordinance 960’s GE crop reporting provision in a concurrently filed memorandum disposition.. We also , affirm the district court’s denial of Defendants’ motion to certify.

AFFIRMED.

      . We address state preemption of Ordinance 960's GE crop notification requirement in a memorandum disposition filed concurrently with this opinion.

      . The bill was originally introduced in June 2013 as Bill 2491, enacted as Ordinance 960, and codified as KCC § 22-23.1-23.8 (2014).

      . A CAE is defined as "a firm, corporation, association, partnership, or any organized group of persons ... engaged in growing, developing, cultivating, or producing agricultural products.” KCC § 22-23.3. The pesticide provisions only apply to CAEs that purchased or used in excess of five pounds or fifteen gallons of any single RUP during the prior calendar year.

      . While subsections (1) and (2) suggest that "no crops” may be grown in the buffer zones, prefatory section (a) and the provision's title make clear that the provision does not bar all crops from being grown in buffer zones, but only those to which pesticides are applied. KCC § 22-23.5(a).

      . The Hawaii Supreme Court has held that the law contains a drafting error and must be read as modified above. Richardson, 868 P.2d at 1207.

      . This notice must address "(l)-The specific location and description of the treated area; (2) Time and date of application; (3) Product name, EPA registration number, and active ingredient(s); (4) Restricted entry interval; (5) Whether posting and oral notification are required; and (6) Any other product-specific requirements on the product labeling concerning protection of workers or other persons during or after application.” Id.

      . This provision is contained in Part II of the Hawaii Pesticides Law, which focuses on pesticide sales. However, the provision also addresses the Board of Agriculture's authority to, among other things, “establish a system of control over the ... use of certain pesticides and devices.” Id. § 149A—19(a)(1) (emphasis added). Therefore, the fact that the legislature did not expressly repeat its goal of uniformity in Part III, which focuses on pesticide use, is without significance.

      . Similarly, Intervenors stretch too far in arguing that the use of the term “any law” rather than “this chapter” or "state or federal law” in a provision addressing the suspension and revocation of permits “must be assumed to include county law.” See HRS § 149A-18 (“Any permit ... may be suspended or revoked by the department ... for violation of ... any law or rule pertaining to the sale of pesticides.”). Read in context, “any law” cannot reasonably be read to show legislative intent to allow for local pesticide regulátion.


author: MURGUIA, Circuit Judge:

text:
    ROBERT ITO FARM, INC.; Hawaii Farm Bureau Federation, Maui County, “Maui Farm Bureau”; Molokai Chamber of Commerce; Agrigenetics, Inc., DBA Mycogen Seeds; Monsanto Company; Concerned Citizens of Molokai and Maui; Friendly Isle Auto Parts & Supplies, Inc.; New Horizon Enterprises, Inc., DBA Makoa Trucking and Services; Hikiola Cooperative, Plaintiffs-Appellees, v. COUNTY OF MAUI, Defendant, Alika Atay; Lorrin Pang; Mark Sheehan; Bonnie Marsh; Lei’ohu Ryder; Shaka Movement, Intervenor-Defendants, v. The Moms on a Mission (MOM) Hui; Molokai Mahiai; Gerry Ross; Center for Food Safety, Proposed Intervenor-Defendants, Movants-Appellants.
    No. 15-15246
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 15, 2016, Honolulu, Hawaii
    Filed November 18, 2016

      Summer Kupau-Odo (argued), and Paul H. Achitoff, Earthjustice, Honolulu, Hawaii; Sylvia Shih-Yau Wu and George A. Kimbrell, Center for Food Safety, San Francisco, California; for Movants-Appel-lants.
    Richard P. Bress (argued), Angela Walker, Andrew D. Prins, and Philip J. Perry, Latham & Watkins LLP, Washington, D.C.; Nickolas A. Kacprowski and Paul D. Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii; Christopher Landau, Kirkland & Ellis LLP, Washington, D.C.; Margery S. Bronster and Rex Y. Fujicha-ku, Bronster Fujichaku Robbins, Honolulu, Hawaii; for Plaintiffs-Appellees.
    Before; SIDNEY R. THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
   OPINION

MURGUIA, Circuit Judge:

A magistrate judge may exercise jurisdiction over a civil action “[ujpon the consent of the parties.” 28 U.S.C; § 636(c)(1). This case requires us to decide whether the consent of a prospective intervenor— that is, one who wants to intervene but has not yet been allowed to do so—is necessary, for a magistrate judge to rale on a motion to intervene. We hold that prospective intervenors are not “parties” for purposes of § 636(c)(1), and a magistrate judge who has the consent of the named parties to the suit may rale on a prospective intervenor’s motion to intervene without the prospective intervenor’s consent.

I.

In November 2014, the voters of the County of Maui (“the County”) approved a county' ordinance (“the Ordinance”) via ballot initiative prohibiting the growth, testing, and cultivation of genetically engineered crops until the County conducted an environmental and health impact study. A group of industrial agriculture plaintiffs (Appellees in this appeal) sued the County in federal court to enjoin and invalidate the Ordinance. The parties consented to have the case proceed before a magistrate judge.

Two public-interest citizens’ groups, Shaka and MOM Hui, filed motion's to intervene on the same day. In a single order, the magistrate judge granted Shaka’s motion to intervene but denied MOM Hui’s. The magistrate judge found that the motions to intervene were timely, that both movants had significantly pro-tectable interests, that the invalidation of the Ordinance would impair those interests, and that the County would not adequately represent their interests because the County had opposed the ordinance and its interests were broader than those of Shaka or. MOM Hui. The magistrate judge then allowed the .Shaka movants to intervene based on the group’s role in the initiative that enacted the Ordinance. In the same order, the magistrate judge denied MOM Hui’s motion to intervene, finding that Shaka would adequately represent MOM Hui’s interests. In a separate order, the magistrate judge directed the clerk to reassign the .case to a district judge in light of the fact that Shaka, which was now a party to the action, had not consented to proceeding before the magistrate judge.

MOM Hui “appealed” the magistrate judge’s denial of its motion to intervene to the district court. After ordering supplemental briefing on the issue of consent, the district court held that the magistrate judge had jurisdiction 'to rule on MOM Hui’s motion to intervene because the magistrate judge was acting with the consent of the parties to the suit. The district court further held that any appeal from the magistrate judge’s order needed to be taken to the Ninth Circuit because the magistrate judge, having obtained the consent of the parties, had authority to enter a final decision under 28 U.S.C. § 636(c)(1). The district court therefore concluded that it lacked jurisdiction to hear MOM Hui’s appeal.

MOM Hui timely appealed the district court’s jurisdictional decision to this court. But MOM Hui does not appeal from the order of the magistrate judge denying its motion to intervene.

II.

The magistrate judge had the consent of the named parties to the suit. The issue in this appeal is whether MOM Hui’s consent as a prospective intervenor was necessary for the magistrate judge to exercise jurisdiction over its motion to intervene under 28 U.S.C. § 636(c)(1). We review this purely legal question de novo. See United States v. Lang, 149 F.3d 1044, 1046 (9th Cir.), as amended, 157 F.3d 1161 (9th Cir. 1998).

If the magistrate judge had jurisdiction under § 636(c)(1), the magistrate judge’s ruling would have the same effect as if it had been made by a district judge. See Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 540 (9th Cir. 1984) (en banc). As such, the magistrate judge’s intervention order would have been immediately appealable as a final decision. See Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). An appeal of that order would need to be taken to this court, not the district court. See 28 U.S.C. § 1291.

III.

The Federal Magistrate Act of 1979 “authorizes magistrates, when specially designated by the district court, to exercise jurisdiction over civil matters and enter a final judgment in the district court in civil cases, provided the parties consent to the reference.” Pacemaker, 725 F.2d at 540. As relevant here, the Act states that:

Upon the consent of the parties, a full-time United States magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves.

28 U.S.C. § 636(c)(1).

Under § 636(c)(1), a magistrate judge acting with the consent of the parties in a civil suit effectively presides as a district judge over the action. But “[w]here the magistrate judge has not received the full consent of the parties, he has no authority to enter judgment in the case, and any purported judgment is a nullity.” Kofoed v. Int’l Bhd. of Elec. Workers, Local 48, 237 F.3d 1001, 1004 (9th Cir. 2001). Consent of the parties is a predicate for magistrate judge jurisdiction because, subject to some exceptions, a federal litigant has a personal right to have his case heard by an Article III judge. Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 1993). As a result, “a magistrate judge may establish jurisdiction over an action only if the parties have consented to it.” United States v. Real Property, 135 F.3d 1312, 1315 (9th Cir. 1998). The clerk must tell the parties in writing of their opportunity to consent, and the consent must also be explicit and in writing. Id.) see also Fed. R. Civ. P. 73(b); D. Haw. LR 73.2(a).

It is clear that the named parties to a federal suit must eonseiit for a magistrate judge to have jurisdiction over the action. This case presents the novel question of whether a prospective intervenor must also consent for the magistrate judge to rule on the motion to intervene. The two circuit courts of appeal to have considered this question are split on the answer.

Thé Second Circuit has held that a magistrate judge lacks jurisdiction to decide a motion to intervene without the consent of the prospective intervenor. In New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., the Second Circuit held that, without the consent of prospective interve-nors, a magistrate judge’s. denial of their motion to intervene had “the effect only of a report and recommendation to the district judge, who upon the filing of objections must review de novo the recommendation.” 996 F.2d 21, 25 (2d Cir. 1993) (citing Fed. R. Civ. P. 72(b)); see also 28 U.S.C. § 636(b)(1)(B). The Second Circuit relied on authority providing that “voluntary consent of all parties—even those entering [the] case at [a] later stage—may be required to invoke [the] jurisdictional provisions of § 636(c).” 996 F.2d at 24 (citing 12 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3077.2-3 (Supp. 1987)). Because “the consent of each party is essential to the validity of the statutory system that allows a magistrate judge to make binding adjudications,” the court concluded that, without the prospective intervenors’ express consent, the “magistrate judge was not authorized to enter a final order denying intervention.” Id. at 24-25.

The Seventh Circuit reached the opposite result. In People Who Care v. Rockford Board of Education, School District No. 205, the court held that “the power to rule on motions to intervene is a necessary and proper incident of the magistrate judge’s power to decide the underlying case.” 171 F.3d 1083, 1089 (7th Cir. 1999). The court found this result to be consistent with § 636(c) because the statute “requires only the consent of ‘parties’ to the magistrate judge’s entering dispositive orders.” Id. And, as the court determined, “an' applicant for intervention is not a party—he wants to become a party. He is a litigant, and if there were a good reason to classify him as a party the language of the statute would certainly bend far enough to allow this.” Id. (citations omitted).

We agree with the Seventh Circuit that a prospective intervenor is not a “party” as that term is used in § 636(c)(1). The Supreme Court has held that a prospective intervenor is not a “party” as that term is used in federal law, and he does not become a party until he actually intervenes in the suit. United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 933, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009). “[W]hen the term to intervene is used in reference to legal proceedings, it covers the right of one to interpose in, or become a party to, a proceeding already instituted.” Id. (quoting Rocca v. Thompson, 223 U.S. 317, 330, 32 S.Ct. 207, 56 L.Ed. 453 (1912)). Further, a prospective intervenor does not become a party to the suit unless and until he is allowed to intervene. If the actual parties to the suit have given consent, the consent of prospective intervenors is not necessary for the magistrate judge to exercise jurisdiction over the action. See Real Property, 135 F.3d at 1317 (holding that a putative claimant’s failure to become a party to an in rem action “made it unnecessary to obtain his consent to the magistrate judge’s jurisdiction”). While later-added parties must give consent for a magistrate judge to exercise jurisdiction, Jaliwala v. United States, 945 F.2d 221, 223-24 (7th Cir. 1991), prospective parties do not have the same right.

MOM Hui argues that “[n]oth-ing in 28 U.S.C. § 636(c) suggests that the term ‘parties’ is limited to existing parties to a lawsuit” and that “[l]egally, the term ‘party encompasses a wide range of meanings, including, primarily, ‘[o]ne who takes part in a transaction,’ such as a party to a contract.” (quoting Black’s Law Dictionary 1144 (7th ed. 1999)). But that argument is foreclosed by Eisenstein’s holding that a “party,” as that term is used in federal law, is “[o]ne by or against whom a lawsuit is brought.” 556 U.S. at 933,129 S.Ct. 2230 (quoting Black’s Law Dictionary 1154 (8th ed. 2004)). That a would-be intervenor may stand to be bound by a judgment or otherwise adversely affected by it does not make him a party to the suit. See id. at 934, 129 S.Ct. 2230 (“[T]he Ünited States’ status as a ‘real party in interest’ in a qui tarn action does not automatically convert it into a ‘party.’ ”).

MOM Hui also argues that “parties,” as used in § 636(c), must mean more than actual parties to the suit, or else it would have no way of obtaining review of the magistrate judge’s denial of their motion to intervene. It points to § 636(c)(3), which provides that, “[u]pon entry of judgment in any case referred under paragraph (1) of this subsection [allowing magistrate judges to conduct proceedings upon consent of the parties], an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court.” (emphasis added). MOM Hui contends that if it is not a “party,” then it cannot appeal from the judgment of the magistrate judge under § 636(c)(3).

MOM Hui does have a right to appeal the magistrate judge’s order denying its- motion to intervene to this .court, but this right is not based on its status as a party to the litigation. Rather, the denial of a motion to intervene is appealable under the collateral order doctrine. Eisenstein, 556 U.S. at 931 n.2, 129 S.Ct. 2280. “In such a case, the [would-be intervenor] is a party for purposes of appealing the specific order at issue even though it is not a party for purposes of the final judgment and Federal Rule of Appellate Procedure 4(a)(1)(B).” Id.; see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987) (noting that the collateral order doctrine “recognizes that a limited class of prejudgment orders is sufficiently important and sufficiently separate from the underlying dispute that immediate appeal should be available)” but holding that the doctrine did not apply to a party that had been granted permissive intervention but denied interventiorl as of right); Nat’l Ass’n of Chain Drug Stores v. New England Carptenters Health Benefits Fund, 582 F.3d 30, 40 (1st Cir. 2009) (noting that would-be intervenors are “entitled to appeal the denials of intervention at once under the collateral order doctrine”).

Section 636(c)(3) gives parties to a suit proceeding before a magistrate judge the right to appeal the magistrate judge’s final judgment to the court of appeals. As a non-party, would-be intervenor, MOM Hui could not appeal the final judgment of the magistrate judge, i.e., the ruling as to whether the Ordinance is preempted. See 28 U.S.C. § 636(c)(3). But MOM Hui could nonetheless appeal the denial of its motion to intervene under the collateral order doctrine. Eisenstein, 556 U.S. at 931 n.2, 129 S.Ct. 2230. “Party” therefore means the same thing in § 636(c)(3) as “parties” does in § 636(c)(1): “[o]ne by or against whom a lawsuit is brought.” Id. at 933, 129 S.Ct. 2230 (quoting Black’s Law Dictionary, supra at 1154).

Because the magistrate judge had the consent of the parties and did not need the consent of MOM Hui, the magistrate judge had jurisdiction to rule on MOM Hui’s motion to intervene. Effectively presiding as a district judge over the suit, the magistrate judge’s intervention order became immediately appealable to this court. See Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011) (citing 28 U.S.C. § 1291); Perles v. Kagy, 394 F.Supp.2d 68, 71-73 (D.D.C. 2005). Because MOM Hui did not appeal that order, we express no view on whether MOM Hui should have been allowed to intervene. But we agree with the district court that MOM Hui’s appeal should have been made to this court and not the district court.

AFFIRMED.

      . A party seeking to intervene as of right must meet four requirements:
      (1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the parly's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties.

        Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Fed. R. Civ. P, 24(a)(2))’.

      . The fact that an order becomes immediately appealable does not, absent the filing of a notice of appeal, necessarily divest the district court of jurisdiction to entertain a motion for reconsideration. Cf. Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001) (“When a notice of appeal is filed, jurisdiction over matters being appealed normally transfers from the district court to the appeals court”). Here, because the case was transferred from the magistrate judge to the district court once Shaka became a party, MOM Hui could have moved for the district court to reconsider the magistrate judge’s intervention order, just as it could if the ruling had been made by a different district judge. See Dreith v. Nu Image, Inc., 648 F.3d 779, 787-88 (9th Cir. 20] 1). But MOM Hui did not do so, and the district court did not abuse its discretion in declining to sua sponte construe MOM Hui’s challenge of the magistrate judge’s order as a motion for reconsideration. See In re Jones, 670 F.3d 265, 267 (D.C. Cir. 2012).