Ctr. for Biological Diversity v. United States Forest Serv.

• Docket Number: 21-15907
• Decision Date: 01 September 2023
• 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, and 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

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CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; GRAND CANYON WILDLANDS COUNCIL, Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE, a United States Government Agency, Defendant-Appellee,

and NATIONAL RIFLE ASSOCIATION OF AMERICA, INC.; SAFARI CLUB INTERNATIONAL; NATIONAL SHOOTING SPORTS FOUNDATION, INC., Intervenor-Defendants- Appellees.

No. 21-15907

United States Court of Appeals, Ninth Circuit

September 1, 2023

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Argued and Submitted February 9, 2023 San Francisco, California

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding D.C. No. 3:12-cv-08176-SMM

Alexander Houston (argued), Allison M. LaPlante, Lia Comerford, and James N. Saul, Earthrise Law Center, Lewis & Clark Law School, Portland, Oregon; Kevin M. Cassidy, Earthrise Law Center, Norwell, Massachusetts; for Plaintiff-Appellant.

Allen M. Brabender (argued), United States Attorney, Environment & Natural Resources Division; Michael C. Augustini, United States Attorney, Environmental Enforcement Section; Todd Kim, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Gary Fremerman, United States Department of Agriculture, Washington, D.C.; for Defendant-Appellee.

Norman D. James (argued) and Bradley J. Pew, Fennemore Craig PC, Phoenix, Arizona; Lawrence G. Keane, National Shooting Sports Foundation, Newtown, Connecticut; for Intervenor-Defendant-Appellee National Shooting Sports Foundation Inc..

Michael T. Jean, National Rifle Association Office of the General Counsel, Fairfax, Virginia, for Intervenor-Defendant-Appellee National Rifle Association of America.

Jeremy E. Clare, Safari Club International, Mount Pleasant, South Carolina, for Intervenor-Defendant-Appellee Safari Club International.

Before: M. Margaret McKeown, Jay S. Bybee, and Patrick J. Bumatay, Circuit Judges.

SUMMARY ^[*]

Resource Conservation and Recovery Act

The panel affirmed the district court's dismissal for failure to state a claim of an action brought by the Center for Biological Diversity and others (collectively, "CBD") alleging that the United States Forest Service was liable as a contributor under the Resource Conservation and Recovery Act ("RCRA") by failing to regulate the use of lead ammunition by hunters in the Kaibab National Forest in Arizona.

The Kaibab is owned by the United States and managed by the Forest Service. Although the Forest Service has

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broad authority to regulate hunting and fishing activities, it rarely exercises its authority to preempt state laws related to hunting and fishing; hunting activities are primarily regulated by the State of Arizona.

CBD argued that, even though Forest Service activity was not the direct source of any lead ammunition in the Khabib, the Forest Service was liable as a contributor under RCRA by virtue of (a) its general regulatory authority over the Kaibab, (b) the control it has exercised by issuing Special Use permits for outfitters and guides, and (c) its status as an owner of the Kaibab. The panel held that (a) the Forest Service's choice not to regulate despite having the authority to do so does not manifest the type of actual, active control contemplated by RCRA; (b) although the Forest Service has the authority to further regulate Special Use permits, it has not done so, and RCRA does not impose a duty on the Forest Service to do so; and (c) mere ownership is insufficient to establish contributor liability under RCRA.

The panel held that the district court did not abuse its discretion in denying CBD's motion to amend its complaint to add RCRA claims against Arizona officials because CBD's proposed amendment did not add any new claims or allegations against the Forest Service, and its claims against Arizona officials were barred by the Eleventh Amendment.

Finally, the panel denied as moot CBD's request that this case be reassigned to a different district judge.

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OPINION

BYBEE, Circuit Judge

The Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council (collectively, "CBD") contend that the United States Forest Service ("USFS") is liable under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, for "contributing to the past or present . . . disposal" of lead ammunition in the Kaibab National Forest. The district court concluded that USFS is not liable as a contributor under RCRA and dismissed the complaint for failure to state a claim. Ctr. for Biological Diversity v. U.S. Forest Serv., 532 F.Supp.3d 846 (D. Ariz. 2021). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Kaibab National Forest Management

In its complaint, CBD alleged the following facts, which we take as true for the purposes of this appeal. The Kaibab National Forest consists of about 1.6 million acres of public land bordering the Grand Canyon. It is home to a variety of wildlife and is a popular hunting destination, particularly renowned for big-game hunting. Hunters who frequent the Kaibab commonly use lead ammunition. Sometimes the ammunition is left behind by hunters when an animal is shot but not retrieved (i.e., the animal is wounded, evades the hunter, and dies elsewhere) or when hunters field-dress a kill (i.e., the internal organs are removed at the site of the kill to preserve the meat) and leave the remains behind. When other animals feed on the remains of a shot-but-not-retrieved or field-dressed kill, they ingest fragments of the lead ammunition. Lead is a potent toxin, and ingestion can lead

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to numerous adverse health consequences for scavenger animals, including death. Even very small fragments of lead ammunition can severely poison and kill birds. Indeed, lead ingestion and poisoning attributable to spent ammunition has been documented in a number of avian species in Arizona's Forest Service land, including endangered California condors, bald and golden eagles, northern goshawks, ferruginous hawks, turkey vultures, and common ravens. The negative consequences of spent lead ammunition for birds led the federal government to ban the use of lead ammunition for waterfowl hunting nationwide over thirty years ago. See, e.g., 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. 22100-01 (May 13, 1991).

As a national forest, the Kaibab is owned by the United States and managed by USFS. 16 U.S.C. § 1609(a). The Property Clause of the Constitution gives Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2; see also United States v. Cnty. of San Francisco, 310 U.S. 16, 29 (1940) ("The power over the public land thus entrusted to Congress is without limitations."). In the exercise of this power, Congress has vested USFS with broad authority to regulate activities on, and occupancy of, national forests. See e.g., 16 U.S.C. § 473 et seq. (Organic Administration Act of 1897); 16 U.S.C. §§ 528-531 (Multiple-Use Sustained Yield Act of 1960); 16 U.S.C. §§ 1600-1614 (National Forest Management Act of 1976); 43 U.S.C. § 1701 et seq. (Federal Land Policy and Management Act of 1976). Although USFS requires Special

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Use authorization for commercial and guided hunting activities, see 36 C.F.R. §§ 251.50-251.65, the agency does not require a permit for recreational hunting on National Forest System lands. Nor has USFS enacted any regulations related to permissible ammunition for hunting.

Rather, hunting activities are primarily regulated by the State of Arizona. See generally Ariz. Rev. Stat. Ann. § 17231. Traditionally, "[s]tates have broad trustee and police powers over wild animals within their jurisdictions" to the extent that state management is "not incompatible with, or restrained by, the rights conveyed to the federal government by the constitution." Kleppe v. New Mexico, 426 U.S. 529, 545 (1976) (internal quotation marks and citation omitted). The federal government works cooperatively with states in the management of wildlife on federal lands, with states bearing most of the responsibility for the management of hunting and fishing. See, e.g., 16 U.S.C. § 7901(a)(1); 43 U.S.C. § 1732(b). Consequently, even though USFS has broad regulatory authority that allows it to regulate hunting and fishing activities, USFS rarely exercises its authority to preempt state laws related to hunting and fishing. See 43 U.S.C. § 1732(b); 36 C.F.R. §§ 241.2, 261.10(d). Arizona allows hunters to use lead ammunition except when hunting waterfowl. See Ariz. Admin. Code § R12-4-304(C)(3)(e)(i). Arizona also has a voluntary program to reduce the use of lead ammunition, which provides hunters with non-lead ammunition at no cost during the big-game hunting season.

B. Resource Conservation and Recovery Act

"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 (1996). Its "primary purpose . . . is to reduce the

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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....