CENTER FOR BIOLOGICAL DIVERSITY, ET AL V. USFS, ET AL, No. 21-15907 (9th Cir. 2023)
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The Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council (collectively, “CBD”) contend that the United States Forest Service (“USFS”) is liable under the Resource Conservation and Recovery Act (“RCRA”), for “contributing to the past or present . . . disposal” of lead ammunition in the Kaibab National Forest. The district court concluded that USFS is not liable as a contributor under RCRA and dismissed the complaint for failure to state a claim.
The Ninth Circuit affirmed the district court’s dismissal. The panel held that (a) the Forest Service’s choice not to regulate despite having the authority to do so does not manifest the type of actual, active control contemplated by RCRA; (b) although the Forest Service has the authority to further regulate Special Use permits, it has not done so, and RCRA does not impose a duty on the Forest Service to do so; and (c) mere ownership is insufficient to establish contributor liability under RCRA. The panel held that the district court did not abuse its discretion in denying CBD’s motion to amend its complaint to add RCRA claims against Arizona officials because CBD’s proposed amendment did not add any new claims or allegations against the Forest Service, and its claims against Arizona officials were barred by the Eleventh Amendment. Finally, the panel denied as moot CBD’s request that this case be reassigned to a different district judge.
Court Description: Resource Conservation and Recovery Act. The panel affirmed the district court’s dismissal for failure to state a claim of an action brought by the Center for Biological Diversity and others (collectively, “CBD”) alleging that the United States Forest Service was liable as a contributor under the Resource Conservation and Recovery Act (“RCRA”) by failing to regulate the use of lead ammunition by hunters in the Kaibab National Forest in Arizona.
The Kaibab is owned by the United States and managed by the Forest Service. Although the Forest Service has broad authority to regulate hunting and fishing activities, it rarely exercises its authority to preempt state laws related to hunting and fishing; hunting activities are primarily regulated by the State of Arizona.
CBD argued that, even though Forest Service activity was not the direct source of any lead ammunition in the Khabib, the Forest Service was liable as a contributor under RCRA by virtue of (a) its general regulatory authority over the Kaibab, (b) the control it has exercised by issuing Special Use permits for outfitters and guides, and (c) its status as an owner of the Kaibab. The panel held that (a) the Forest Service’s choice not to regulate despite having the authority to do so does not manifest the type of actual, active control contemplated by RCRA; (b) although the Forest Service has the authority to further regulate Special Use permits, it has not done so, and RCRA does not impose a duty on the Forest Service to do so; and (c) mere ownership is insufficient to establish contributor liability under RCRA.
The panel held that the district court did not abuse its discretion in denying CBD’s motion to amend its complaint to add RCRA claims against Arizona officials because CBD’s proposed amendment did not add any new claims or allegations against the Forest Service, and its claims against Arizona officials were barred by the Eleventh Amendment.
Finally, the panel denied as moot CBD’s request that this case be reassigned to a different district judge.
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