Safe Air for Everyone v. Meyer

• Decision Date: 01 July 2004
• Docket Number: No. 02-35751.,02-35751.
• Parties: SAFE AIR FOR EVERYONE, Plaintiff-Appellant, v. Wayne MEYER; William Dole; Michael Dole; Warren Dole; Jacquot Farms Enterprises, Inc.; G. Wade McClean; Terry Nichols; Satchwell Farms, Inc., Wallace Meyer; David Asher; Terrell K. Baune; Baune Farms, Inc.; Jeff Bloomsberg; Bergen Bothman; Arnold Brincken; Doug Bruce; Earl M. Clausen; Clausen Farms, Inc.; Keith Daman; Paul Daman; Denny Bros, LLC; Chad Denny; Matthew Drechsel; Drechsel Brothers, Inc.; Dennis Duncan; David Duncan; Chris Duncan; Joyce Duncan; Randy Duncan; David Fish; Thoms Freeburg; Gary French; Charles A. Hahner; Hahner Farms, Inc.; Larry Hansen; Martin Hanson; Hatter Creek Farms, Inc.; Don Hay; Larry Heaton; Clarence Heeg; Randy Holt; Duane Jenneskens; Dale R. Johnson; Ted Lacy; Phillip Lampert; Lampert Farms and Ranch, Inc.; David Lampert; Eric Larson; Brian Lashaw; Mike Lashaw; Nick Lawson; Casey Lawson; Allen Lewis; Maple Leaf Farms, Inc.; Herbert W. Millhorn; Millhorn Farms, Inc.; Bruce Mills; Catherine Morris; Richard Morrison; Elmer Ness; Erling Place; Chris R. Ramsey; Michael Roecks; Rogada Farms, Inc.; John Schultz; Karl Schultz; Joe Sievers; Ron Tee; Donald Thies; Alan Thomas; Gene Towne; Winday Hill Farms, Inc.; Todd E. Wright; Gary Wright; Wrights, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

373 F.3d 1035

SAFE AIR FOR EVERYONE, Plaintiff-Appellant, v. Wayne MEYER; William Dole; Michael Dole; Warren Dole; Jacquot Farms Enterprises, Inc.; G. Wade McClean; Terry Nichols; Satchwell Farms, Inc., Wallace Meyer; David Asher; Terrell K. Baune; Baune Farms, Inc.; Jeff Bloomsberg; Bergen Bothman; Arnold Brincken; Doug Bruce; Earl M. Clausen; Clausen Farms, Inc.; Keith Daman; Paul Daman; Denny Bros, LLC; Chad Denny; Matthew Drechsel; Drechsel Brothers, Inc.; Dennis Duncan; David Duncan; Chris Duncan; Joyce Duncan; Randy Duncan; David Fish; Thoms Freeburg; Gary French; Charles A. Hahner; Hahner Farms, Inc.; Larry Hansen; Martin Hanson; Hatter Creek Farms, Inc.; Don Hay; Larry Heaton; Clarence Heeg; Randy Holt; Duane Jenneskens; Dale R. Johnson; Ted Lacy; Phillip Lampert; Lampert Farms and Ranch, Inc.; David Lampert; Eric Larson; Brian Lashaw; Mike Lashaw; Nick Lawson; Casey Lawson; Allen Lewis; Maple Leaf Farms, Inc.; Herbert W. Millhorn; Millhorn Farms, Inc.; Bruce Mills; Catherine Morris; Richard Morrison; Elmer Ness; Erling Place; Chris R. Ramsey; Michael Roecks; Rogada Farms, Inc.; John Schultz; Karl Schultz; Joe Sievers; Ron Tee; Donald Thies; Alan Thomas; Gene Towne; Winday Hill Farms, Inc.; Todd E. Wright; Gary Wright; Wrights, Inc., Defendants-Appellees.

No. 02-35751.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2003.

Filed July 1, 2004.

COPYRIGHT MATERIAL OMITTED

Joel M. Gross, Arnold & Porter, Washington, D.C., for the plaintiff-appellant.

Gary H. Baise, Baise & Miller, Washington, D.C., for the defendants-appellees.

Jon M. Bauman, Elam & Burke P.A., Boise, ID, for amicus curiae American Lung Association of Idaho/Nevada.

Karl T. Klein, Givens Pursley LLP, Boise, ID, for amicus curiae Idaho Medical Association, Inc.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-02-00241-EJL.

Before: WARDLAW, GOULD, and PAEZ, Circuit Judges.

GOULD, Circuit Judge:

We consider whether grass residue remaining after a Kentucky bluegrass harvest is "solid waste" within the meaning of the Resource Conservation and Recovery Act ("RCRA"). Safe Air for Everyone ("Safe Air") appeals the district court's dismissal of its complaint for injunctive relief under RCRA. We conclude that the district court erred in dismissing the case on jurisdictional grounds. However, because we determine that Safe Air has failed to demonstrate that a genuine issue of material fact exists as to whether grass residue is "solid waste" under RCRA, we affirm the judgment of the district court.

I

In Idaho, Kentucky bluegrass is typically planted in the spring but does not flower and produce seed until the summer of the following year. By the time the flowers have produced seed, the bluegrass plants are fifteen to thirty-six inches tall. To harvest bluegrass seed, farmers first cut the crop close to the ground to prepare the crop for combining (i.e., separating the seed from the crop). A "curing" process dries out and ripens the head of the crop. After the curing process is complete, a combine separates the seed from the straw, leaving the straw on the field. The seed is prepared for commercial distribution. However, straw and stubble (the part of the crop not cut from the ground) remain in the field. Bluegrass farmers burn these remnants, a practice called "open field burning" or "open burning." Bluegrass farmers can repeat this process for several years, depending on the length of the productive life of each bluegrass field.

Safe Air is a non-profit corporation formed by individuals from northern Idaho, Washington, and Montana. One of Safe Air's objectives is to stop the practice of open burning. Safe Air asserts that smoke resulting from open burning endangers the public because it contains high concentrations of pollutants that create severe respiratory problems for residents in areas immediately surrounding bluegrass farms. Defendants-Appellees ("the Growers") are a group of 75 individuals and corporations that plant and harvest Kentucky bluegrass seed commercially in Idaho. All of the Growers engage in open burning in the process of growing Kentucky bluegrass.

Safe Air filed a complaint in the United States District Court for the District of Idaho on May 31, 2002, alleging that the Growers, by engaging in open burning, violated the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B).¹ Safe Air also sought a preliminary injunction enjoining the Growers from engaging in open burning. The Growers filed a response in opposition to Safe Air's motion for preliminary injunction, and also filed a motion to dismiss the complaint on the basis of lack of subject matter jurisdiction.

On July 10-12, 2002, the district court held an evidentiary hearing on Safe Air's request for preliminary injunction at which the testimony of twenty-three witnesses was given subject to cross examination. On July 19, 2002, the district court dismissed Safe Air's complaint, concluding that it was without jurisdiction to resolve Safe Air's RCRA claim because, inter alia, grass residue did not constitute "solid waste" under RCRA.²

Safe Air appeals. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

II

We first address the unusual procedural posture of the case. The Growers filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12. The district court construed the Growers' motion to dismiss as proceeding under Rules 12(b)(1) and 12(b)(6), and granted the Growers' motion under Rule 12(b)(1).

Safe Air argues that the district court erred in dismissing its complaint because: (1) the district court reviewed evidence outside the complaint (i.e., evidence from the preliminary injunction hearing) without converting the motion to dismiss into a summary judgment motion under Rule 56; and (2) the district court erroneously construed as a jurisdictional issue the question of whether grass residue (i.e., the straw and stubble that remain on the Growers' fields after the bluegrass harvest) is "solid waste" under RCRA. We disagree with Safe Air on the first issue because the district court, in this context, was not obligated formally to convert the Growers' motion into a motion for summary judgment solely because it reviewed evidence outside the complaint. However, as to the second issue, we agree that, in the circumstances of this case, the district court erred by treating the issue of whether grass residue is solid waste under RCRA as a jurisdictional issue.

The district court dismissed Safe Air's claim for lack of subject matter jurisdiction under Rule 12(b)(1). A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citation omitted). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. The Growers' jurisdictional attack was factual because the Growers challenged Safe Air's contention that grass residue constitutes solid waste under RCRA. Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir.2003) (jurisdictional challenge was a factual attack where it "relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings").

In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003) (citing White, 227 F.3d at 1242). The court need not presume the truthfulness of the plaintiff's allegations. White, 227 F.3d at 1242. "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage, 343 F.3d at 1039 n. 2.

However, "[j]urisdictional dismissals in cases premised on federal-question jurisdiction are exceptional, and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)." Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir.1983). In Bell, the Supreme Court determined that jurisdictional dismissals are warranted "where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous." 327 U.S. at 682-83, 66 S.Ct. 773.

We have held that a "[j]urisdictional finding of genuinely disputed facts is inappropriate when `the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits' of an action." Sun Valley, 711 F.2d at 139 (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983)).³ The question of jurisdiction and the merits of an action are intertwined where "a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Id. See also Thornhill Publ'g Co. v. Gen. Tel. Co., 594 F.2d 730, 734 (9th Cir.1979) ("[W]hen a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs' substantive claim for relief, a motion to dismiss for lack of subject matter jurisdiction rather than for failure to state a claim is proper only when the allegations of the complaint are frivolous.") (quotation omitted).

The district court erred in characterizing its dismissal of Safe Air's...