Ctr. for Biological Diversity v. U.S. Forest Serv.

• Decision Date: 31 March 2021
• Docket Number: No. CV-12-08176-PCT-SMM,CV-12-08176-PCT-SMM
• Citation: 532 F.Supp.3d 846
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of Arizona

532 F.Supp.3d 846

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.UNITED STATES FOREST SERVICE, Defendant.

No. CV-12-08176-PCT-SMM

United States District Court, D. Arizona.

Signed March 31, 2021

Filed April 1, 2021

Adam F. Keats, Center for Biological Diversity, San Francisco, CA, Kevin M. Cassidy, Earthrise Law Center, Norwell, MA, Leo John LeSueur, Office of the Attorney General, Phoenix, AZ, Lia Comerford, Pro Hac Vice, Allison Michelle LaPlante, Earthrise Law Center, Lewis & Clark Law School, Portland, OR, for Plaintiffs Center for Biological Diversity, Sierra Club, Grand Canyon Wildlands Council.

Michael Charles Augustini, US Dept. of Justice, Washington, DC, for Defendant.

ORDER

Stephen M. McNamee, Senior United States District Judge Before the Court are the following four interrelated motions: Defendant United States Forest Service's ("Forest Service") Motion to Dismiss (Doc. 157); Defendant-Intervenor National Shootings Sports Foundation's Motion for Judgment on the Pleadings (Doc. 160); Defendants-Intervenors National Rifle Association of America and Safari Club International's Motion to Dismiss (Doc. 161); and Plaintiffs Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council's (collectively, "Plaintiffs") Motion to Amend Complaint (Doc. 175). Having reviewed the parties’ briefings, the Court issues the following ruling.¹

I. BACKGROUND²

Plaintiffs are nonprofit organizations dedicated to the conservation of native species and ecosystems. (Doc. 1 at 4.) Plaintiffs, their members, and their members’ families frequent areas of northern Arizona such as the Kaibab National Forest and Grand Canyon National Park. (Id. at 5.)

Forest Service is a federal agency within the United States Department of Agriculture, which oversees and manages the Kaibab National Forest. (Id. at 3.) The Kaibab National Forest is public land of approximately 1.6 million acres, which borders the north and south rims of the Grand Canyon. (Id. 3-4.)

On September 5, 2012, Plaintiffs filed suit against Forest Service under the citizen's provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, "to limit the disposal of a known toxin on public lands in northern Arizona and to protect wildlife species threatened by exposure to spent lead ammunition in their foraging range within [Forest Service] land in Arizona." (Id. at 2.) Plaintiff state that "though the Forest Service has broad authority and responsibility to protect public land and the wildlife found there, the agency has failed to take action to stop the disposal of lead in the form of spent ammunition on Forest Service land." (Id. at 2.) As a result, Plaintiffs seek judicial review, as well as declaratory and injunctive relief, to "stop the continued endangerment to wildlife species occurring within the Kaibab National Forest, and to prevent the harm to the Plaintiffs and their members that has resulted and is resulting from the ongoing endangerment." (Id. )

On December 14, 2012, Forest Service moved to dismiss Plaintiffs’ complaint for lack of Article III standing pursuant to Federal Rule of Civil Procedure 12(b)(1), or alternatively, for failure to state a claim pursuant to Rule 12(b)(6). (Doc. 46.) The Court granted Forest Service's motion, stating that Plaintiffs failed to establish sufficient likelihood of redressability, and thus, the Court lacked Article III jurisdiction. (Doc. 81 at 7.) Plaintiffs subsequently appealed, and the United States Court of Appeals for the Ninth Circuit reversed the Court's decision, concluding that Plaintiffs’ complaint was sufficient to establish Article III standing. (Docs. 83; 86-1 at 2.) The Court of Appeals remanded to the Court to consider the question of whether "there is a valid cause of action sufficient to survive the Forest Service's motion to dismiss under Rule 12(b)(6). (Id. at 5.)

After appeal, National Shootings Sports Foundation Incorporated ("National Shooting Sports"), National Rifle Association of America ("National Rifle Association"), and Safari Club International (collectively, "Defendants-Intervenors") filed motions to intervene. (Docs. 90, 95.) The Court granted Defendants-Intervenors’ motions, and Defendants-Intervenors each filed answers to Plaintiffs’ complaint. (Docs. 117, 119; 118; 120.) Thereafter, Forest Service filed its motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), National Shooting Sports filed its motion for judgment on the pleadings, and National Rifle Association and Safari Club International filed a motion to dismiss. (Docs. 123; 124; 125.)

The Court did not reach the merits of either the motions to dismiss or the motion for judgment on the pleadings because "the Court [could not] regard Plaintiffs’ suit as other than a request for an advisory opinion, which this Court is without power to render." (Doc. 137 at 2-3.) It was on these grounds that the Court granted each motion and dismissed Plaintiffs’ claims without prejudice. (Doc. 137 at 10.)

Plaintiffs again appealed. (Doc. 139.) The Ninth Circuit reversed the Court's decision and remanded to the Court to consider the questions of first impression pertaining to contributor liability under the RCRA. (Doc. 145-1 at 23.) In its opinion, Ninth Circuit stated that further proceedings could allow the parties to "present the issues as they have evolved more fully" and could allow Plaintiffs "the opportunity to seek to amend its Complaint so as to more fully spell out the bases for [Forest Service's] contributor liability, if it so chooses." (Id. )

Now, before the Court are the Forest Service's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) and Defendants-Intervenors’ motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) and motion for judgment on the pleadings. (Doc. 157, 160, 161.) Subsequently, Plaintiffs filed its motion to amend complaint. (Doc. 175.)

II. LEGAL STANDARD

A. Failure to State a Claim

"A judgment on the pleadings is properly granted when, taking all the allegations in the pleading as true, [a] party is entitled to judgment as a matter of law." Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (internal quotations omitted). The standard that applies to motions for judgment on the pleadings made under Federal Rule of Civil Procedure 12(c) is the same standard that governs motions to dismiss under Rule 12(b)(6). Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

A Rule 12(b)(6) dismissal for failure to state a claim can be based on either (1) lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint must allege facts sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868, (2009). The plausibility standard does not amount to a probability requirement; however, it demands "more than a sheer possibility that a defendant has acted unlawfully." Id. In evaluating a motion to dismiss, "all well-pled allegations of material fact are taken as true and construed in a light most favorable to the nonmoving party." Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998). However, "the court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Likewise, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

B. Amended Complaint

When, as here, a party moves to amend its complaint, whether to allow amendment of the complaint is governed by Rule 15(a). See Fed. R. Civ. P. 15(a)(2). Rule 15(a) provides that "[t]he court should freely give leave [to amend] when justice so requires." Id. When determining whether to grant leave to amend under Rule 15, the court should consider whether: (1) there has been undue delay, bad faith, or dilatory motive on the part of the moving party; (2) there have been repeated failures to cure deficiencies by previous amendments; (3) there has been undue prejudice to the opposing party by virtue of the allowance of the amendment; and (4) amendment would be futile. See Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ).

III. DISCUSSION

Forest Service moves to dismiss Plaintiffs’ claim pursuant to Rule 12(b)(6) and Defendants-Intervenors move for judgment on the pleadings pursuant to Rule 12(c) and to dismiss Plaintiffs’ claim pursuant to Rule 12(b)(6), Rule 12(b)(7), and Rule 9(b). (Docs. 157; 160; 161.) Forest Service argues that Plaintiffs’ allegations fail as "more active involvement is necessary to establish that the [Forest Service] ‘contributed’ or is ‘contributing’ to the alleged disposal of spent ammunition by others within the Kaibab." (Doc. 157 at 7.) Defendants-Intervenors argue, inter alia , that (1) lead ammunition does not constitute "solid waste," (2) Plaintiffs failed to sufficiently plead the existence of threat of an imminent and substantial endangerment to human health, and (3) Plaintiffs failed to join the State of Arizona, a required party in this matter. (Docs. 160 at 13, 19; 161 at 7.) The Court will first address Forest Service's motion to dismiss pursuant to Rule 12(b)(6).

A. Forest Service's Motion to Dismiss

The issue remanded by the Court of Appeals is whether Forest Service is a contributor within the...