Center for Biological Diversity; Sierra Club; Grand Canyon Wildlands Council, Plaintiffs-Appellants,
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.
and Submitted September 7, 2018 San Francisco, California
from the United States District Court for the District of
Arizona, No. 3:12-cv-08176-SMM Stephen M. McNamee, District
Allison LaPlante (argued), Lia Comerford, and Kevin Cassidy,
Earthrise Law Center, Lewis & Clark Law School, Portland,
Oregon, for Plaintiffs-Appellants.
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.
D. James (argued), and Ronald W. Opsahl, Fennemore Craig
P.C., Phoenix, Arizona, for Intervenor-Defendant-Appellee
National Shooting Sports Foundation.
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
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.
Conservation and Recovery Act
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.
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.
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.
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.
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
BERZON, CIRCUIT JUDGE:
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.
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.
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,
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."
its authority to do so,  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.
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.
"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