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Center for Biological Diversity v. United States Forest Service

United States District Court, Ninth Circuit

July 1, 2013

Center for Biological Diversity, et al., Plaintiffs,
v.
United States Forest Service, Defendant.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Before the Court is the Motion to Dismiss filed by Defendant United States Forest Service ("Defendant"). (Doc. 46.) Plaintiffs have responded, Defendant has replied, and the matter is fully briefed. (Doc. 67; Doc. 80.) After considering the parties' briefing and having determined that oral argument is unnecessary, [1] the Court will grant Defendant's motion.

BACKGROUND

The Center for Biological Diversity, the Sierra Club and the Grand Canyon Wildlands Council (collectively, "Plaintiffs") are non-profit organizations dedicated to conservation of native species and ecosystems.[2] (Doc. 1. at ¶ 9.) Defendant is a federal agency within the United States Department of Agriculture. (Id. at ¶ 8.) Defendant is charged with the management of the Kaibab National Forest ("KNF"), located in Northen Arizona. (Id.) Plaintiffs' members recreate in the KNF and Grand Canyon National Park. (Id. at ¶ 11.) KNF is also a popular hunting area for large game. (Id. at ¶ 33.)

Lead, including the lead used in ammunition, is a toxic substance with potentially deadly consequences when ingested. (Id. at ¶ 25.) Plaintiffs contend that Defendant's failure to use its authority to regulate the use and disposal of lead ammunition in the KNF endangers the environment. (Id. at ¶ 13.) Plaintiffs also contend that the ingestion of this discarded lead ammunition by California condors in the KNF has contributed to the decline of this species as well as others that are especially susceptible to lead poisoning. (Id. at ¶ 37.) The California condor is a near-extinct avian species, with only 73 free-flying birds in Northern Arizona and Southern Utah. (Id. at ¶ 36.) Lead poisoning is the leading cause of mortality in these birds. (Id. at ¶ 37.)

On September 5, 2012, Plaintiffs brought this citizen suit against Defendant under the Resource Conservation and Recovery Act ("RCRA"). (Doc. 1.) The RCRA provides that any person may commence a civil action:

against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or past or present operator or generator of a treatment, storage, or disposal facility, who has contributed to or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

42 U.S.C. § 6972(a)(1)(B). The RCRA further provides that any citizen suit shall be brought in the district court for the district in which the violation or harm occurred. 42 U.S.C. § 6972(a). Plaintiffs specifically allege that Defendant, by failing to exercise its authority as manager of the KNF, has contributed to or is contributing to the past or present disposal of solid or hazardous waste, which may endanger the environment. (Doc. 1. at ¶ 45.)

Defendant moves to dismiss this suit for lack of Article III standing pursuant to Fed.R.Civ.P. 12(b)(1), or alternatively for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 46.)

LEGAL STANDARD

I. RCRA

By declaration of Congress, it is national policy of the United States that the generation of waste is to be reduced or eliminated, and that waste that is generated should be treated, stored, or disposed of so as to minimize future and present threats to human health and the environment. 42 U.S.C.A. § 6902(b). To forward this policy, Congress passed the RCRA, 42 U.S.C. §§ 6901 et seq. The RCRA is a comprehensive environmental statute that establishes a "cradle-to-grave" regulatory scheme whereby solid waste is governed from initial treatment through storage and disposal. Meghrig v. KFC W., Inc. , 516 U.S. 479, 483 (1996); Connecticut Coastal Fisherman's Ass'n v. Remington Arms Co. , 989 F.2d 1305, 1313 (2d Cir. 1993).

II. Article III Jurisdiction

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). A party may file a motion asserting that a district court lacks jurisdiction over the subject matter under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(1). A claim can be challenged under Rule 12(b)(1) both facially and factually. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). A facial challenge occurs when the defendant contests the adequacy of the allegations in the pleading. See id. A factual challenge occurs when a defendant objects to the factual merits of the asserted federal jurisdiction. See id. When reviewing a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, the plaintiff's complaint is construed liberally, with allegations and reasonable inferences to be drawn in plaintiff's favor. See Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife ...


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