Center for Biological Diversity et al v. United States Forest Service, No. 3:2012cv08176 - Document 81 (D. Ariz. 2013)

Court Description: MEMORANDUM OF DECISION AND ORDER - IT IS HEREBY ORDERED granting Defendant's Motion to Dismiss. (Doc. 46 .) IT IS FURTHER ORDERED dismissing without prejudice all of Plaintiffs' claims in this suit. IT IS FURTHER ORDERED denying as moot S tate of Arizona's Motion to Intervene for the Limited Purpose of Filing a Motion to Dismiss. (Doc. 21 .) IT IS FURTHER ORDERED denying as moot National Rifle Association of America's Motion to Intervene. (Doc. 28 .) IT IS FURTHER ORDERED denying as moot National Shooting Sports Foundation Inc.'s Motion to Intervene. (Doc. 54 .) IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this action. (See document for further details). Signed by Senior Judge Stephen M McNamee on 7/1/13.(LAD)

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1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Center for Biological Diversity, et al., Plaintiffs, 9 10 v. 11 United States Forest Service, Defendant. 12 13 ) ) ) ) ) ) ) ) ) ) ) No. CV-12-8176-PCT-SMM MEMORANDUM OF DECISION AND ORDER 14 Before the Court is the Motion to Dismiss filed by Defendant United States Forest 15 Service ( Defendant ). (Doc. 46.) Plaintiffs have responded, Defendant has replied, and the 16 matter is fully briefed. (Doc. 67; Doc. 80.) After considering the parties briefing and 17 having determined that oral argument is unnecessary,1 the Court will grant Defendant s 18 motion. BACKGROUND 19 20 The Center for Biological Diversity, the Sierra Club and the Grand Canyon Wildlands 21 Council (collectively, Plaintiffs ) are non-profit organizations dedicated to conservation of 22 native species and ecosystems.2 (Doc. 1. at ¶ 9.) Defendant is a federal agency within the 23 United States Department of Agriculture. (Id. at ¶ 8.) Defendant is charged with the 24 management of the Kaibab National Forest ( KNF ), located in Northen Arizona. (Id.) 25 26 1 27 28 The parties request for oral argument is denied because the parties have had an adequate opportunity to present their written arguments, and oral argument will not aid the Court s decision. See Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 2 The Court takes all well-pleaded factual allegations in Plaintiffs Complaint (Doc. 1.) as true for the purposes of this Motion to Dismiss. Wyler Summit Partnership v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998). 1 Plaintiffs members recreate in the KNF and Grand Canyon National Park. (Id. at ¶ 11.) 2 KNF is also a popular hunting area for large game. (Id. at ¶ 33.) 3 Lead, including the lead used in ammunition, is a toxic substance with potentially 4 deadly consequences when ingested. (Id. at ¶ 25.) Plaintiffs contend that Defendant s failure 5 to use its authority to regulate the use and disposal of lead ammunition in the KNF endangers 6 the environment. (Id. at ¶ 13.) Plaintiffs also contend that the ingestion of this discarded lead 7 ammunition by California condors in the KNF has contributed to the decline of this species 8 as well as others that are especially susceptible to lead poisoning. (Id. at ¶ 37.) The 9 California condor is a near-extinct avian species, with only 73 free-flying birds in Northern 10 Arizona and Southern Utah. (Id. at ¶ 36.) Lead poisoning is the leading cause of mortality 11 in these birds. (Id. at ¶ 37.) 12 On September 5, 2012, Plaintiffs brought this citizen suit against Defendant under the 13 Resource Conservation and Recovery Act ( RCRA ). (Doc. 1.) The RCRA provides that any 14 person may commence a civil action: 15 16 17 18 19 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. 20 42 U.S.C. § 6972(a)(1)(B). The RCRA further provides that any citizen suit shall be brought 21 in the district court for the district in which the violation or harm occurred. 42 U.S.C. § 22 6972(a). Plaintiffs specifically allege that Defendant, by failing to exercise its authority as 23 manager of the KNF, has contributed to or is contributing to the past or present disposal of 24 solid or hazardous waste, which may endanger the environment. (Doc. 1. at ¶ 45.) 25 Defendant moves to dismiss this suit for lack of Article III standing pursuant to Fed. 26 R. Civ. P. 12(b)(1), or alternatively for failure to state a claim pursuant to Fed. R. Civ. P. 27 12(b)(6). (Doc. 46.) 28 -2- LEGAL STANDARD 1 2 I. RCRA 3 By declaration of Congress, it is national policy of the United States that the generation 4 of waste is to be reduced or eliminated, and that waste that is generated should be treated, 5 stored, or disposed of so as to minimize future and present threats to human health and the 6 environment. 42 U.S.C.A. § 6902(b). To forward this policy, Congress passed the RCRA, 7 42 U.S.C. §§ 6901 et seq. The RCRA is a comprehensive environmental statute that 8 establishes a cradle-to-grave regulatory scheme whereby solid waste is governed from 9 initial treatment through storage and disposal. Meghrig v. KFC W., Inc., 516 U.S. 479, 483 10 (1996); Connecticut Coastal Fisherman s Ass n v. Remington Arms Co., 989 F.2d 1305, 1313 11 (2d Cir. 1993). 12 II. Article III Jurisdiction 13 Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. 14 of Am., 511 U.S. 375, 377 (1994). A party may file a motion asserting that a district court 15 lacks jurisdiction over the subject matter under Rule 12(b)(1) of the Federal Rules of Civil 16 Procedure. Fed. R. Civ. P. 12(b)(1). A claim can be challenged under Rule 12(b)(1) both 17 facially and factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 18 A facial challenge occurs when the defendant contests the adequacy of the allegations in the 19 pleading. See id. A factual challenge occurs when a defendant objects to the factual merits 20 of the asserted federal jurisdiction. See id. When reviewing a Rule 12(b)(1) motion to 21 dismiss for lack of jurisdiction, the plaintiff s complaint is construed liberally, with allegations 22 and reasonable inferences to be drawn in plaintiff s favor. See Wolfe v. Strankman, 392 F.3d 23 358, 362 (9th Cir. 2004). The plaintiff bears the burden of establishing jurisdiction by a 24 preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 25 (1992). A court may also raise the question of subject matter jurisdiction, sua sponte, at any 26 time during the pendency of the action, even on appeal. United States v. Moreno-Morillo, 27 334 F.3d 819, 830 (9th Cir. 2003); see also Fed. R. Civ. P. 12(h)(3). 28 Federal Court jurisdiction is limited to cases and controversies. U.S. CONST., art. -3- 1 III, § 2. To satisfy Article III jurisdiction, at a minimum, the party asserting standing must 2 prove 1) an injury that is concrete and particularized, 2) that the injury is traceable to the act 3 or omission complained of, and 3) that it is likely that the injury will be redressed by a 4 favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An 5 organization has standing if it can demonstrate that one member would have standing 6 individually to sue in their own right, the interests it seeks to protect are germane to the 7 purpose of the organization, and neither the claim asserted nor the relief sought requires 8 participation of the individual members. Hunt v. Wash. State Apple Adver. Comm n, 432 9 U.S. 333, 342-43 (1977). DISCUSSION 10 11 I. Injury 12 The diminished ability to view and experience animals in their natural habitat is a 13 judicially cognizable injury. Defenders of Wildlife, 504 U.S. at 562. A plaintiff can 14 sufficiently establish injury when a defendant s actions cause reasonable concern of injury. 15 Covington v. Jefferson Cnty., 358 F.3d 626, 639 (9th Cir. 2004). It is within the trial court s 16 power to allow or require the plaintiff to supply, by amendment to the complaint or by 17 affidavits, further particularized allegations of fact deemed supportive of plaintiff s standing. 18 Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (quoting Warth v. Seldin, 422 19 U.S.490, 501 (1975)). Moreover, at the pleading stage, general allegations of an injury are 20 sufficient. Defenders of Wildlife, 504 U.S. at 561. 21 Plaintiffs have provided at least one sworn declaration from a member of each Plaintiff 22 organization detailing continued recreational use of the KNF area for the purposes of 23 observing and experiencing wildlife. (Doc. 67-1 at ¶¶ 7-9; Doc. 67-2 at ¶¶ 3-4; Doc. 67-3 at 24 ¶ 7; Doc. 67-5 at ¶¶ 10-12.) These members also aver concrete plans to return to the KNF in 25 the future as well as concern regarding the loss of the condor. (Doc. 67-1 at ¶ 9; Doc. 67-2 26 at ¶ 5; Doc. 67-3 at ¶ 7; Doc. 67-5 at ¶ 12.) The Court finds that these affidavits are sufficient 27 to establish the injury-in-fact of each individual and thus each organization for the purposes 28 of Article III standing. -4- 1 II. Causation 2 The plaintiff s injury-in-fact must be fairly traceable to the alleged activity of the 3 defendant. Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 102 (1998). An injury is 4 fairly traceable to the conduct complained of when a causal chain exists but is not 5 hypothetical or tenuous. Nat l Audubon Soc y v. Davis, 307 F.3d 835, 849 (9th Cir. 2002). 6 However, when that line of causation consists of numerous third parties whose independent 7 decisions have a cumulative impact on the injuries, the line of causation may be deemed to 8 be too weak. Maya,658 F.3d 1060, 1070. Causation may be found when an actor is charged 9 with oversight but is not solely responsible for correcting the action that contributes to a 10 plaintiff s injury. See Covington, 358 F.3d 626, 639, impliedly overruled on other grounds 11 by Summers v. Earth Island Inst., 555 U.S. 488, 129 (2008). The Chief of the Forest Service 12 may issue regulations prohibiting acts for the purpose of protecting threatened, endangered, 13 rare, unique, or vanishing species of plants, animals, birds or fish, or special biological 14 communities. 36 C.F.R. § 261.70(a)(4). 15 Defendant argues that the regulation of hunting is administered by the state and 16 therefore it is the independent actions of third parties the State of Arizona and the hunters 17 that use lead ammunition that are the cause of Plaintiffs injuries. The Court disagrees. 18 Defendant has authority to regulate activities in the National Forests. This broad authority 19 includes the right to issue regulations that restrict actions that threaten endangered species of 20 animals, such as the California condor. Defendant opts not to exercise this authority and 21 instead allows the use and disposal of lead on the land which it administers. Although 22 Defendant may choose not to ban certain types of ammunition in deference to Arizona s 23 regulation of hunting, it is not thereby automatically relieved of its affirmative duty to stop 24 the disposal of environmental contaminants in the KNF. 25 Lead is widely known to be toxic to humans and animals. (Doc. 1 at ¶ 45.) The 26 substance is ingested by the California condor and other species when they feed on the 27 remains of either animals shot with lead ammunition and then not retrieved, or the remains 28 of animals that have been field dressed. (Id. at ¶¶ 28-29.) But for Defendant s decision to -5- 1 allow toxic lead ammunition to be disposed of in the KNF, there would be no lead waste that 2 could be consumed, and local animal species would not suffer from lead poisoning and 3 contribute to Plaintiffs aesthetic injury. Although there are multiple links in this causal chain, 4 none are tenuous. Thus, the Court finds that Plaintiffs have adequately proven the element 5 of causation. 6 III. Redressability 7 It must be likely rather than speculative that the relief sought, if granted, will redress 8 the injury. Defenders of Wildlife, 504 U.S. at 559. The Administrative Procedure Act 9 ( APA ) empowers a court only to compel an agency to perform a non-discretionary act. 10 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (citing Attorney General s 11 Manual on the Administrative Procedure Act 108 (1947)). In the event that the court could 12 compel an agency to exercise discretionary authority, it could not dictate the manner of action. 13 See Norton, 542 U.S. at 65. National Forests must cooperate with state game officials in the 14 planning and orderly removal of game in accordance with state laws. 36 C.F.R. § 241.2. In 15 issuing regulations concerning protection of endangered species, inter alia, the Forest Service 16 must follow the APA. 36 C.F.R. § 261.70(c). When engaged in rule-making pursuant to the 17 APA, an agency must accept and consider written data, views, and arguments presented by 18 interested persons. 5 U.S.C.A. § 553(c). 19 Defendant argues that to redress Plaintiffs alleged injury, it would have to preempt 20 longstanding deference to the state in matters of hunting and wildlife regulation. It contends 21 that what little authority it does have regarding hunting is limited to public safety and 22 adherence to applicable law. Defendant further argues that because it must engage in rule 23 making within the parameters of the APA, a process that would necessarily involve 24 consultation with the Arizona Game and Fish Department in addition to compliance with the 25 National Environmental Policy Act, redressability is speculative at best. The Court agrees. 26 First, Plaintiffs wish the Court to order Defendant to perform a discretionary duty, an agency 27 action which the Court is not empowered to compel. See Norton, 542 U.S. at 64. Second, even 28 if Defendant could be ordered to initiate the rule making process necessary to prevent the -6- 1 disposal of lead within the KNF, the outcome would be uncertain because Defendant would 2 be required to consult with Arizona, accept public comments, balance competing interests, 3 and consider a no action alternative. It is therefore speculative at best whether a favorable 4 ruling would be likely to redress Plaintiffs injury. 5 The Court also notes that the behavior and feeding habits of the California condor and 6 other avian species make it unlikely that even if Defendant were to ban lead from being 7 discarded within the KNF, the condor would no longer suffer from the lead poisoning that 8 causes Plaintiffs alleged aesthetic injury. The California condor is know for long distance 9 travel. (Doc. 22-2 at 14.) Their longer trips consist of arching loops that reach from eastern 10 Nevada, through southwestern Arizona, to the New Mexico border. (Id.) They are also 11 known to fly into Utah in pursuit of carrion. (Id.) The condors could easily fly and 12 subsequently feed outside the borders of the KNF and therefore outside of the area managed 13 by Defendant. Plaintiffs give no indication that any of these other states ban the use of lead 14 ammunition. Because of the extensive range of the California condor, it is likely that those 15 birds that inhabit KNF will travel to those areas in search of carrion and ingest lead 16 ammunition in the same manner as lead ingested within KNF borders. Thus, redressability 17 is speculative. 18 Plaintiffs have failed to establish sufficient likelihood of redressability. Consequently, 19 the Court lacks Article III jurisdiction in this case and will grant Defendant s Motion to 20 Dismiss. (Doc. 46.) Because the Court finds dismissal is appropriate based on jurisdictional 21 grounds, the Court does not reach Defendant s additional argument for dismissal for failure 22 to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). CONCLUSION 23 24 Accordingly, for the foregoing reasons, 25 IT IS HEREBY ORDERED granting Defendant s Motion to Dismiss. (Doc. 46.) 26 IT IS FURTHER ORDERED dismissing without prejudice all of Plaintiffs claims 27 in this suit. 28 IT IS FURTHER ORDERED denying as moot State of Arizona s Motion to -7- 1 Intervene for the Limited Purpose of Filing a Motion to Dismiss. (Doc. 21.) 2 IT IS FURTHER ORDERED denying as moot National Rifle Association of 3 America s Motion to Intervene. (Doc. 28.) 4 IT IS FURTHER ORDERED denying as moot National Shooting Sports Foundation 5 Inc. s Motion to Intervene. (Doc. 54.) 6 IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this 7 action. 8 DATED this 1st day of July, 2013. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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