Ctr. for Biological Diversity v. U.S. Forest Serv., 17-15790

• Decision Date: 30 May 2019
• Docket Number: No. 17-15790,17-15790
• Citation: 925 F.3d 1041
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Sierra Club; Grand Canyon Wildlands Council, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, a United States Government Agency, Defendant-Appellee, National Rifle Association of America, Inc.; Safari Club International; National Shooting Sports Foundation, Inc., Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

925 F.3d 1041

CENTER FOR BIOLOGICAL DIVERSITY; Sierra Club; Grand Canyon Wildlands Council, Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE, a United States Government Agency, Defendant-Appellee,

National Rifle Association of America, Inc.; Safari Club International; National Shooting Sports Foundation, Inc., Intervenor-Defendants-Appellees.

No. 17-15790

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 7, 2018 San Francisco, California
Filed May 30, 2019

925 F.3d 1043

Allison LaPlante (argued), Lia Comerford, and Kevin Cassidy, Earthrise Law Center, Lewis & Clark Law School, Portland, Oregon, for Plaintiffs-Appellants.

Allen M. Brabender (argued), Dustin J. Maghamfar, and John Smeltzer, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Gary Fremerman, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; for Defendant-Appellee.

Norman D. James (argued), and Ronald W. Opsahl, Fennemore Craig P.C., Phoenix, Arizona, for Intervenor-Defendant-Appellee National Shooting Sports Foundation.

Scott M. Franklin and C.D. Michel, Michel & Associates PC, Long Beach, California; Michael T. Jean, Fairfax, Virginia; for Intervenor-Defendant-Appellee National Rifle Association of America.

Anna M. Seidman, Washington, D.C., for Intervenor-Defendant-Appellee Safari Club International.

Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Kathleen Cardone,^* District Judge.

BERZON, Circuit Judge:

925 F.3d 1044

The California condor and other scavenger wildlife species living in Arizona's Kaibab National Forest ("the Kaibab") ingest lead ammunition left in animal carcasses by hunters. The scavengers then suffer lead poisoning. Plaintiffs-Appellants Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council (collectively, "the Center") seek an injunction under the citizen suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, to require the Kaibab's administrator, the United States Forest Service ("USFS"), to address hunters' use of lead ammunition in the Kaibab. The Center alleges that USFS is liable for "contributing to the past or present ... disposal" of a solid waste, 42 U.S.C. § 6972(a)(1)(B), and it requests declaratory and injunctive relief to require USFS to "abate the endangerment" from lead ammunition in the Kaibab.

The last time this case was before this court, we reversed the district court's earlier dismissal for lack of standing. Ctr. for Biological Diversity v. U.S. Forest Serv. , 640 F. App'x 617, 620 (9th Cir. 2016). When the case returned to the district court, USFS filed a motion to dismiss for failure to state a claim. USFS maintains that it is not subject to suit in this case because RCRA only governs parties that actively contribute to the disposal of solid waste. Two groups of intervenors ("Intervenors") filed separate motions presenting additional arguments as to why USFS cannot be sued under the statute with respect to the use of lead ammunition in the Kaibab. Rather than addressing these arguments, the district court held that the Center was requesting an improper advisory opinion and dismissed the lawsuit on justiciability grounds. The Center appealed.

925 F.3d 1045

I.

A.

The Kaibab is both home to a variety of wildlife species, including several species of avian predators, and a favorite site for big-game hunting. Some hunters in the Kaibab use lead ammunition, and some of them leave behind the remains of their kill, either because they prefer not to "pack out" the remains or because the hunted animal runs away after it is shot and then dies elsewhere. Other animals feed on those remains and ingest fragments of spent lead ammunition. Lead ingestion, even in small amounts, can cause significant adverse effects on animals' health, including death. Because of such health consequences, the federal government has banned the use of lead bullets for waterfowl hunting nationwide since 1991. 50 C.F.R. § 20.108 ; see also Migratory Bird Hunting: Nationwide Requirement to Use Nontoxic Shot for the Taking of Waterfowl, Coots, and Certain Other Species Beginning in the 1991–92 Hunting Season, 56 Fed. Reg. 22,100, 22,100 –01 (May 13, 1991).

The Center alleges that, in particular, lead ammunition has a significant impact on the endangered California condor, only 73 of which lived in the Southwest at the time of filing. Because condors rely on animal carcasses as a primary food source, the Complaint alleges, "[l]ead poisoning has been and continues to be the leading cause of condor mortality in Arizona," and "[s]pent lead ammunition has been and continues to be the primary source of the condors' lead exposure in Arizona."

Despite its authority to do so,¹ USFS does not regulate hunting in the Kaibab outside certain narrow restrictions, and does not regulate the use of lead ammunition in the Kaibab at all. Nor does the agency require a permit for hunting in the Kaibab. See 36 C.F.R. § 251.50(c) ("A special use authorization is not required for noncommercial recreational activities, such as ... hunting ...."). USFS does require that any commercial entities operating in the Kaibab, including hunting outfitters, obtain "special use" permits, but those permits do not regulate the hunting itself. Instead, USFS defers to Arizona's hunting regulations, which govern National Forest System lands in Arizona. See Ariz. Rev. Stat. § 17-234.

Arizona allows hunters to use lead ammunition except when hunting waterfowl. See generally Ariz. Admin. Code § R12-4-304. Arizona has taken steps to reduce the impact of spent lead ammunition on the condor and other species. Among other efforts, the state runs a "voluntary lead reduction program" that encourages hunters

925 F.3d 1046

to use non-lead ammunition and provides hunters with non-lead ammunition free of cost during the big-game hunting season. The Center alleges that lead poisoning is nevertheless still a significant problem in the Kaibab.

B.

RCRA "is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Meghrig v. KFC W., Inc. , 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). The statute aims "to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ " Id. (quoting 42 U.S.C. § 6902(b) ).

The Environmental Protection Agency ("EPA") has "[c]hief responsibility" for implementing RCRA. Ecological Rights Found. v. Pac. Gas & Elec. Co. , 713 F.3d 502, 506 (9th Cir. 2013). To promote robust enforcement, RCRA includes a citizen suit provision, section 7002, that allows "any person" to "commence a civil action on his own behalf." Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, § 7002, 90 Stat. 2795, 2825 (1976) (codified at 42 U.S.C. § 6972(a) ). One prong of section 7002, as amended in 1984, creates a private right of action against:

any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

Hazardous and Solid Waste Amendments of 1984, Pub. L. 98-616, § 401, 98 Stat. 3221, 3269 (codified at 42 U.S.C. § 6972(a)(1)(B) ). When a case is brought under this provision, the district court "shall have jurisdiction ... to restrain any person" who has violated the statute, "to order such person to take such other action as may be necessary, or both." 42 U.S.C. § 6972(a).

C.

In 2012, the Center filed suit under RCRA, alleging that USFS's failure to regulate in any way the use of lead ammunition created "an imminent and substantial endangerment to health or the environment." The Center contends that USFS is responsible for curbing or remedying hunters' disposal of spent lead ammunition on two grounds: (1) "failing to use its broad authority [pursuant to both its landowner status and regulatory authority] to stop the disposal of ... spent ammunition," and (2) "issuing Special Use permits for guiding and outfitting activities that do not prohibit the use of lead ammunition." The Center sought a declaratory judgment that USFS had violated RCRA, as well as a permanent injunction preventing USFS from "creating or contributing to the creation of an imminent and substantial endangerment to human health or the environment" in the Kaibab.

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