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Ninth Circuit Holds Forest Service’s Failure To Regulate Use Of Lead Ammunition Creates Justiciable Controversy Under RCRA

In a back and forth battle with the United States District Court for the Northern District of Arizona regarding the scope of judicial power under RCRA, the Ninth Circuit last week reopened three interest groups’ citizen suit claims against the U.S. Forest Service. In Ctr. for Biological Diversity v. U.S. Forest Serv., No. 17-15790, 2019 WL 2293425 (9th Cir. May 30, 2019), the plaintiffs allege that the use of lead ammunition creates an imminent and substantial endangerment to human health and the environment in the Kaibab National Forest, which borders Grand Canyon National Park in northern Arizona. Reversing the district court, the Ninth Circuit held that the controversy is justiciable because it would allow the district court to issue meaningful injunctive relief and not merely an advisory opinion.

In September 2012, the Center for Biological Diversity, the Sierra Club, and the Grand Canyon Wildlands Council filed suit against the U.S. Forest Service under the citizen suit provision of RCRA. 42 U.S.C. § 6972. The interest groups alleged that the Forest Service is “contributing to” the unlawful disposal of solid waste in the national forest by acquiescing to hunters’ use of lead ammunition, which can lead to poisoning the hunters’ prey and ultimately poisoning scavengers – like the California condor – that feed on carcasses left by hunters. Id. at *5. The plaintiffs alleged that only 73 California condors remain in the American southwest and that the primary cause of their death is lead poisoning. Id. at *7. The interest groups sought declaratory and injunctive relief to compel the Forest Service to prevent or otherwise regulate the use of lead ammunition in the Kaibab National Forest to alleviate the issue. Id. at *5.

On the merits, the Forest Service principally maintains that under RCRA’s citizen suit provision it cannot be found liable for “contributing to” the unlawful disposal of solid waste without “actively” handling or taking part in its disposal. Despite nearly seven years of litigation, however, the courts have not reached the merits, as the parties (and, in a way, the courts) continue to litigate procedural issues. In a previous appeal from the same case, the Ninth Circuit reversed an order of the district court, which held that the interest groups could not meet the redressability prong of the requirements for Article III standing. Ctr. for Biological Diversity v. U.S. Forest Serv., 640 F. App’x 617, 620 (9th Cir. 2016). The Ninth Circuit distinguished the plaintiffs’ claims under RCRA from claims under the Administrative Procedures Act that sought to compel an agency into rulemaking. Id. at 619-620 (distinguishing Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)). 

On remand, the Forest Service filed a second motion to dismiss. The district court granted the motion for lack of subject matter jurisdiction on the grounds that the plaintiffs’ claims did not present an “actual, justiciable controversy” because the court could not award the relief the plaintiffs were seeking and thus any opinion would be advisory. Ctr. for Biological Diversity (2019), at *6. The Ninth Circuit held that plaintiffs’ claims satisfy both requirements and expressed frustration that the district court’s opinion was inconsistent with the Ninth Circuit’s previous opinion in the same case. Id. at *13.

To satisfy the requirements of a justiciable controversy, a claim must (a) “present an honest and actual antagonistic assertion of rights” and (b) “the court must be empowered to issue a decision that serves as more than an advisement or recommendation.” Id. at *12. The district court held that plaintiffs’ claims failed to meet these requirements because (1) an order under RCRA would “amount to nothing more than a recommendation … that the USFS would be free to disregard”; (2) such an order would “necessarily be subject to later review, input, or alteration by other entities”; and (3) it would amount to “an improper intrusion into the domain of USFS.” Id. at *13-16.

The Ninth Circuit let its frustration with these arguments show when it noted in rejecting the district court’s third argument that “[t]ypically, we call that ‘intrusion’ judicial review.” Id. at *16. On the first two points, the Ninth Circuit vehemently disagreed with the district court, explaining that RCRA provides courts with the authority to “restrain any person [which is defined to include the United States] who has contributed or who is contributing to [a substantial endangerment to health and the environment], to order such person to take such other action as may be necessary, or both.” Id. at *13-14 (citing 42 U.S.C. § 6972(a)(1)(A)). 

The Ninth Circuit explained that, perhaps tellingly, the Forest Service declined to defend on appeal the reasoning behind the district court’s decision. Id. at *16. Instead, it argued that the district court’s dismissal was appropriate because it could properly exercise its discretion to decline jurisdiction in deference to the executive branch. The Ninth Circuit quickly rejected this argument, reasoning that there was little indication, if any, that abstention was a basis for the district court’s decision and that the district court lacked discretion under these circumstances to decline jurisdiction over RCRA citizen suit claims for which the statute expressly provides. Id. at *18-20. 

Finally, the Ninth Circuit previewed the “potentially complex and unsettled issues” presented by the merits of the plaintiffs’ case, particularly the question of whether a party that owns or manages property on which unlawful disposal occurs may be responsible for “contributing to” the unlawful disposal under RCRA. Id. at *21. More explicitly than in its 2016 opinion, the Ninth Circuit directed the district court to address this issue on remand. Id. at *23.