Lead
Lead
Plaintiffs-Appellants,
OPINION
v.
Defendant-Appellee,
and
Intervenor-Defendants-
Appellees.
2 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
SUMMARY *
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 3
COUNSEL
OPINION
C. Procedural Background
This appeal is the latest chapter in the long-running
litigation over the use of lead ammunition in the Kaibab
National Forest. CBD filed this suit for declaratory and
injunctive relief in 2012, alleging that USFS violated RCRA
by creating “an imminent and substantial endangerment to
health or the environment” through its failure to regulate the
use of lead ammunition in hunting in the Kaibab.
Specifically, CBD contends that USFS “has contributed and
is contributing to the past or present disposal of solid or
hazardous waste . . . by failing to use its broad authority to
stop the disposal of lead in the form of spent ammunition”
and “issuing Special Use permits for guiding and outfitting
activities that do not prohibit the use of lead
ammunition. . . .”
In 2013, the district court granted USFS’s motion to
dismiss for lack of standing under Federal Rule of Civil
Procedure 12(b)(1). Ctr. for Biological Diversity v. U.S.
Forest Serv., 2013 WL 3335234, at *1 (D. Ariz. July 2,
2013) (“CBD I”). We reversed, finding that CBD satisfied
Article III standing requirements and remanded to the
district court to decide USFS’s motion to dismiss for failure
to state a claim. Ctr. for Biological Diversity v. U.S. Forest
Serv., 640 F. App’x 617, 618–20 (9th Cir. 2016) (“CBD II”).
Following CBD II, the National Sports Shooting Foundation,
the National Rifle Association, and the Safari Club
intervened as defendants and also filed motions to dismiss
and for judgment on the pleadings.
Rather than address the Rule 12(b)(6) question on
remand, the district court dismissed the case as an
impermissible request for an advisory opinion. Ctr. for
Biological Diversity v. U.S. Forest Serv., 2017 WL 5957911
10 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
(D. Ariz. Mar. 15, 2017) (“CBD III”). The court concluded
that the case did not present a “real and substantial
controversy” because a generalized court order directing
USFS to “abate the endangerment” would “amount to
nothing more than a recommendation,” would not constitute
“a conclusive, binding order,” and “would be an improper
intrusion into the domain of the USFS.” Id. at *4–*5
(internal quotation marks and citation omitted). Again, we
reversed and remanded for the district court to address
whether CBD had stated a viable claim against USFS under
RCRA. Ctr. for Biological Diversity v. U.S. Forest Serv.,
925 F.3d 1041, 1050 (9th Cir. 2019) (“CBD IV”).
On remand for the second time, the district court granted
USFS’s motion to dismiss under Rule 12(b)(6). Ctr. for
Biological Diversity v. U.S. Forest Serv., 532 F. Supp. 3d
846 (D. Ariz. 2021) (“CBD V”). Relying on Hinds
Investments, L.P. v. Angioli, 654 F.3d 846, 851 (9th Cir.
2011), the district court concluded that CBD failed to
establish that USFS is a “contributor” under RCRA. CBD
V, 532 F. Supp. 3d at 854. Hinds “requires a defendant ‘to
have some active function in creating, handling, or disposing
of the waste to be a contributor.’” Id. (citing Greenup v. Est.
of Richard, No. 2:19-cv-07936-SVW-AGR, 2019 WL
8643875, at *2 (C.D. Cal. Dec. 13, 2019)). Because the State
of Arizona regulates hunting throughout the state, including
on the Kaibab, the district court found that USFS “has not
exercised control over hunting on the Kaibab.” Id. at 853.
The district court also reasoned that ownership alone is
insufficient to establish RCRA contributor liability and that
failing to regulate lead ammunition is passive conduct, not
active involvement. Id. at 853–54. With regard to USFS’s
issuance of Special Use permits for commercial outfitters
and guides, the district court found that any non-commercial
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 11
Fish and Wildlife Service, has long banned the use of lead
ammunition in the hunting of waterfowl, coots, and certain
other species. 50 C.F.R. § 20.108.
On the other hand, in the same provision that gives USFS
control over federal forests, Congress specified that USFS’s
authority “shall [not] be construed . . . to require Federal
permits to hunt and fish . . . on lands in the National Forest
System.” 43 U.S.C. § 1732(b). And Congress has provided
in recent appropriations acts that “[n]one of the funds made
available by this or any other Act may be used to regulate
the lead content of ammunition, ammunition components, or
fishing tackle under the Toxic Substances Control Act (15
U.S.C. § 2601 et seq.) or any other law.” Consolidated
Appropriations Act of 2022, Pub. L. No. 107-103, sec. 2, div.
G, tit. IV, § 438, 136 Stat. 421 (2022). The implication of
this restriction is not immediately clear to us. USFS has not
argued to us that this provision outright bars the relief CBD
seeks. 1 We do not know the scope of the appropriations
restriction and whether it would prohibit USFS from, for
example, conducting a rulemaking to regulate lead use in the
nation’s forests, but such provisions would surely test the
current limits of USFS’s general authority. See United
States v. McIntosh, 833 F.3d 1163, 1172–73 (9th Cir. 2016)
(holding that federal courts may enforce an appropriations
rider restricting the Department of Justice from using funds
to prevent states from implementing their own laws with
respect to marijuana use). We do not refer to these
1
We note that at oral argument in CBD II, USFS represented that it could
remove the lead bullets left on Forest Service land, require hunters to do
so, or prohibit the use of lead bullets in hunting on the Kaibab. CBD IV,
925 F.3d at 1045, n.1 (citing Oral Argument at 18:18, CBD II, 640 Fed.
App’x 617 (9th Cir. 2016) (No. 13-16684),
http://www.ca9.uscourts.gov/media/video/?20151118/13-16684/).
18 CTR. FOR BIOLOGICAL DIVERSITY V. USFS