Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Center for Biological Diversity v. United States Forest Service

United States Court of Appeals, Ninth Circuit

May 30, 2019

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.

          Argued and Submitted September 7, 2018 San Francisco, California

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

          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.

         SUMMARY [**]

         Resource Conservation and Recovery Act

         The panel reversed the district court's dismissal for lack of jurisdiction and remanded in an action brought under the citizen suit provision of the Resource Conservation and Recovery Act seeking to require the United States Forest Service to address the use of lead ammunition by hunters in Arizona's Kaibab National Forest.

         Plaintiffs alleged that the California condor and other scavenger wildlife species living in the Kaibab National Forest ingest lead ammunition left in animal carcasses by hunters. The scavengers then suffer lead poisoning. Plaintiffs sought a declaratory judgment that the Forest Service had violated the Resource Conservation and Recovery Act, as well as a permanent injunction preventing the Forest Service from "creating or contributing to the creation of an imminent and substantial endangerment to human health or the environment" in the Kaibab. The district court dismissed the lawsuit for lack of jurisdiction on the basis that plaintiffs were requesting an advisory opinion. The court also ruled that any order requiring the Forest Service to prohibit lead ammunition would be an improper intrusion into the Service's domain.

         The panel held that plaintiffs' suit satisfied the two requirements that distinguish justiciable controversies from requests for advisory opinions. First, the panel determined there was no doubt that the case concerned a genuine adversary issue between the parties. Second, the panel held that a ruling in plaintiffs' favor would require the Service to mitigate in some manner-not necessarily by banning use of lead ammunition in the Kaibab-the harm caused by spent lead ammunition, thereby leading to a change in the Forest Service's operation of the Kaibab.

         The panel rejected the Forest Service's contention that the district court had discretion to decline jurisdiction over the case because plaintiffs were seeking equitable relief. The panel held that the district court's order dismissing the case was based squarely on its determination that it lacked jurisdiction, not on any exercise of discretion to decline jurisdiction. The panel next noted that the Forest Service had failed to establish that this case falls within any of the categories outlined in Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996), where abstention is warranted. The panel further rejected the contention that the district court had discretion to decline jurisdiction under the Declaratory Judgment Act's permissive language. The panel noted that the suit was brought as a citizen suit under the Resource Conservation and Recovery Act, and nothing in the Act's private civil action provision conferred judicial discretion to decline to entertain such a suit.

         The panel held that because the district court dismissed for lack of jurisdiction, it never had the chance to consider the questions of first impression pertaining to contributor liability under the Resource Conservation and Recovery Act in the factual context presented by this case. Given the circumstances, the panel thought it wise to permit further proceedings at the district court rather than reach the merits, both so the parties could present the issues as they had evolved more fully and so that plaintiffs had the opportunity to seek to amend the Complaint so as to more fully spell out the bases for the Forest Service's contributor liability.

          OPINION

          BERZON, CIRCUIT JUDGE:

         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 Fed.Appx. 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.

         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 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 (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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.