FILED
NOT FOR PUBLICATION
JAN 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 13-16684
DIVERSITY; SIERRA CLUB; GRAND
CANYON WILDLANDS COUNCIL, D.C. No. 3:12-cv-08176-SMM
Plaintiffs - Appellants,
MEMORANDUM*
v.
UNITED STATES FOREST SERVICE,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted November 18, 2015
San Francisco, California
Before: McKEOWN, RAWLINSON, and PARKER,** Circuit Judges.
The Center for Biological Diversity, Sierra Club, and Grand Canyon
Wildlands Council (collectively the “Center”) appeal the district court’s dismissal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
of their complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction on Article III standing grounds. The complaint was brought under the
citizen-suit provision of the Resource Conservation and Recovery Act (“RCRA”).
42 U.S.C. § 6972(a)(1)(B). The Center alleged that the Forest Service failed to
regulate the disposal of spent lead ammunition in the Kaibab National Forest, thus
making the Forest Service liable as a “contributor” to an “imminent and substantial
endangerment to health or the environment” by permitting the poisoning of
California condors and other wildlife. We conclude the Center has Article III
standing. Because the district court did not have occasion to decide the Forest
Service’s Rule 12(b)(6) motion to dismiss for failure to state a claim, we reverse
and remand.
At the motion to dismiss stage, the Center bears the burden of pleading
sufficient facts to show there is an injury in fact, that the injury is fairly traceable to
defendant’s conduct, and that a favorable decision would likely redress the alleged
injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Questions of
constitutional standing are reviewed de novo on appeal. Hayes v. County of San
Diego, 736 F.3d 1223, 1228 (9th Cir. 2013).
The Center established injury in fact through declarations of intent to
continue visiting the Kaibab National Forest and the allegations that the Forest
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Service’s tacit permission for hunters to use lead ammunition endangers wildlife.
The complaint also sufficiently established causation by drawing a connection
between the Forest Service’s refusal to exercise its authority to regulate the use of
lead, the continuing use of lead ammunition by hunters, and the poisoning of
condors and other wildlife that scavenge remains contaminated by the lead. See
Covington v. Jefferson County, 358 F.3d 626, 639 (9th Cir. 2004) (“If [the
government entity] declined to take any . . . regulatory actions, such inaction,
which is correctable by court order or sanction, meets the causation and
redressability elements of standing.”). The fact that hunters, not the Forest Service
itself, actually dispose of the lead, does not make the causal connection too
attenuated because the Forest Service has the authority to control certain conduct
of the third-party hunters. Finally, the order sought by the Center is likely to
redress at least partially the alleged injuries. The complaint alleged that spent lead
ammunition is the leading cause of condors’ lead exposure, and thus condors (and
other, less-migratory, wildlife) would likely benefit from agency action to curb the
use of lead ammunition. We conclude that the complaint was adequate to establish
Article III standing.
The district court held that redressability could not be established, in large
part because of the Supreme Court’s decision in Norton v. S. Utah Wilderness
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Alliance. Norton held that a suit brought under section 706(1) of the
Administrative Procedure Act to “compel agency action unlawfully withheld”
could not proceed where there was an absence of a “discrete agency action that it is
required to take.” 542 U.S. 55, 64 (2004) (citing 5 U.S.C. § 706(1)). However,
Norton addressed suits brought under 5 U.S.C. § 706(1) and is inapplicable to the
citizen-suit provision here, which provides a cause of action that by its own terms
is not limited to compelling non-discretionary action unlawfully withheld. Rather,
the citizen-suit provision grants courts the power to “restrain any person who has
contributed to” disposal of a solid or hazardous waste that presents an imminent
and substantial danger, and to “order such person to take such other action as may
be necessary.” 42 U.S.C. § 6972(a) (emphasis added). At oral argument, the
government conceded that an open-ended order to the Forest Service to abate a
contribution under 42 U.S.C. § 6972(a)(1)(B) would not implicate Norton.
In connection with its Rule 12(b)(6) motion to dismiss, the government
argued that the Forest Service could not be a “contributor” under
42 U.S.C. § 6972(a)(1)(B) on the facts alleged. The district court did not address
the Forest Service’s motion and we do not do so here. Notably, the government
did not raise the “contributor” argument in its briefing on appeal with respect to the
standing question, and thus it is waived as to that issue. This waiver does not
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affect the government’s ability to address the merits of this argument on remand.
At this stage, we simply resolve that the claim is not “wholly insubstantial and
frivolous,” such that it defeats standing. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89 (1998) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)
(internal quotation marks omitted)).
Whether there is a valid cause of action sufficient to survive the Forest
Service’s motion to dismiss under Rule 12(b)(6) is a question left to the district
court on remand. At this stage, however, the plausibility of the legal basis for the
claim does not factor into the Rule 12(b)(1) motion to dismiss for lack of
constitutional standing, because the question of whether there is a valid claim
under RCRA is fairly debatable.
REVERSED AND REMANDED.
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