Center for Biological Diversity v. Usfs ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 21-15907
DIVERSITY; SIERRA CLUB;
GRAND CANYON WILDLANDS D.C. No. 3:12-cv-
COUNCIL, 08176-SMM
Plaintiffs-Appellants,
OPINION
v.
UNITED STATES FOREST
SERVICE, a United States
Government Agency,
Defendant-Appellee,
and
NATIONAL RIFLE ASSOCIATION
OF AMERICA, INC.; SAFARI CLUB
INTERNATIONAL; NATIONAL
SHOOTING SPORTS
FOUNDATION, INC.,
Intervenor-Defendants-
Appellees.
2 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted February 9, 2023
San Francisco, California
Filed September 1, 2023
Before: M. Margaret McKeown, Jay S. Bybee, and Patrick
J. Bumatay, Circuit Judges.
Opinion by Judge Bybee
SUMMARY *
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
*
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
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.
4 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
COUNSEL
Alexander Houston (argued), Allison M. LaPlante, Lia
Comerford, and James N. Saul, Earthrise Law Center, Lewis
& Clark Law School, Portland, Oregon; Kevin M. Cassidy,
Earthrise Law Center, Norwell, Massachusetts; for Plaintiff-
Appellant.
Allen M. Brabender (argued), United States Attorney,
Environment & Natural Resources Division; Michael C.
Augustini, United States Attorney, Environmental
Enforcement Section; Todd Kim, Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; Gary Fremerman, United States Department of
Agriculture, Washington, D.C.; for Defendant-Appellee.
Norman D. James (argued) and Bradley J. Pew, Fennemore
Craig PC, Phoenix, Arizona; Lawrence G. Keane, National
Shooting Sports Foundation, Newtown, Connecticut; for
Intervenor-Defendant-Appellee National Shooting Sports
Foundation Inc..
Michael T. Jean, National Rifle Association Office of the
General Counsel, Fairfax, Virginia, for Intervenor-
Defendant-Appellee National Rifle Association of America.
Jeremy E. Clare, Safari Club International, Mount Pleasant,
South Carolina, for Intervenor-Defendant-Appellee Safari
Club International.
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 5
OPINION
BYBEE, Circuit Judge:
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”), 42 U.S.C. § 6972, 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. Ctr. for Biological
Diversity v. U.S. Forest Serv., 532 F. Supp. 3d 846 (D. Ariz.
2021). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Kaibab National Forest Management
In its complaint, CBD alleged the following facts, which
we take as true for the purposes of this appeal. The Kaibab
National Forest consists of about 1.6 million acres of public
land bordering the Grand Canyon. It is home to a variety of
wildlife and is a popular hunting destination, particularly
renowned for big-game hunting. Hunters who frequent the
Kaibab commonly use lead ammunition. Sometimes the
ammunition is left behind by hunters when an animal is shot
but not retrieved (i.e., the animal is wounded, evades the
hunter, and dies elsewhere) or when hunters field-dress a kill
(i.e., the internal organs are removed at the site of the kill to
preserve the meat) and leave the remains behind. When
other animals feed on the remains of a shot-but-not-retrieved
or field-dressed kill, they ingest fragments of the lead
ammunition. Lead is a potent toxin, and ingestion can lead
6 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
to numerous adverse health consequences for scavenger
animals, including death. Even very small fragments of lead
ammunition can severely poison and kill birds. Indeed, lead
ingestion and poisoning attributable to spent ammunition has
been documented in a number of avian species in Arizona’s
Forest Service land, including endangered California
condors, bald and golden eagles, northern goshawks,
ferruginous hawks, turkey vultures, and common ravens.
The negative consequences of spent lead ammunition for
birds led the federal government to ban the use of lead
ammunition for waterfowl hunting nationwide over thirty
years ago. See, e.g., 50 C.F.R. § 20.108; see also Migratory
Bird Hunting: Nationwide Requirement to Use Nontoxic
Shot for the Taking of Waterfowl, Coots, and Certain Other
Species Beginning in the 1991–92 Hunting Season, 56 Fed.
Reg. 22100–01 (May 13, 1991).
As a national forest, the Kaibab is owned by the United
States and managed by USFS. 16 U.S.C. § 1609(a). The
Property Clause of the Constitution gives Congress the
“Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property
belonging to the United States.” U.S. Const. art. IV, § 3, cl.
2; see also United States v. Cnty. of San Francisco, 310 U.S.
16, 29 (1940) (“The power over the public land thus
entrusted to Congress is without limitations.”). In the
exercise of this power, Congress has vested USFS with
broad authority to regulate activities on, and occupancy of,
national forests. See e.g., 16 U.S.C. § 473 et seq. (Organic
Administration Act of 1897); 16 U.S.C. §§ 528–531
(Multiple-Use Sustained Yield Act of 1960); 16 U.S.C.
§§ 1600–1614 (National Forest Management Act of 1976);
43 U.S.C. § 1701 et seq. (Federal Land Policy and
Management Act of 1976). Although USFS requires Special
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 7
Use authorization for commercial and guided hunting
activities, see 36 C.F.R. §§ 251.50–251.65, the agency does
not require a permit for recreational hunting on National
Forest System lands. Nor has USFS enacted any regulations
related to permissible ammunition for hunting.
Rather, hunting activities are primarily regulated by the
State of Arizona. See generally Ariz. Rev. Stat. Ann. § 17-
231. Traditionally, “[s]tates have broad trustee and police
powers over wild animals within their jurisdictions” to the
extent that state management is “not incompatible with, or
restrained by, the rights conveyed to the federal government
by the constitution.” Kleppe v. New Mexico, 426 U.S. 529,
545 (1976) (internal quotation marks and citation omitted).
The federal government works cooperatively with states in
the management of wildlife on federal lands, with states
bearing most of the responsibility for the management of
hunting and fishing. See, e.g., 16 U.S.C. § 7901(a)(1); 43
U.S.C. § 1732(b). Consequently, even though USFS has
broad regulatory authority that allows it to regulate hunting
and fishing activities, USFS rarely exercises its authority to
preempt state laws related to hunting and fishing. See 43
U.S.C. § 1732(b); 36 C.F.R. §§ 241.2, 261.10(d). Arizona
allows hunters to use lead ammunition except when hunting
waterfowl. See Ariz. Admin. Code § R12-4-304(C)(3)(e)(i).
Arizona also has a voluntary program to reduce the use of
lead ammunition, which provides hunters with non-lead
ammunition at no cost during the big-game hunting season.
B. Resource Conservation and Recovery Act
“RCRA is a comprehensive environmental statute that
governs the treatment, storage, and disposal of solid and
hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479,
483 (1996). Its “primary purpose . . . is to reduce the
8 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
generation of hazardous waste and to ensure the proper
treatment, storage, and disposal of that waste which is
nonetheless generated, ‘so as to minimize the present and
future threat to human health and the environment.’” Id.(citing 42 U.S.C. § 6902(b)). Although the Environmental
Protection Agency (“EPA”) is largely responsible for the
implementation and enforcement of RCRA, it may delegate
that authority to the states. Ecological Rts. Found. v. Pac.
Gas & Elec. Co., 713 F.3d 502, 506 (9th Cir. 2013). The
statute also contains a citizen-suit provision. 42 U.S.C.
§ 6972. The provision provides a private cause of 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
owner or operator of a treatment, storage, or
disposal facility, who has contributed or who
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). If a violation is found, the
provision grants jurisdiction to the district court “to restrain
any person . . . , to order such person to take such other
action as may be necessary, or both. . . .” Id. § 6972(a).
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 9
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 595791110 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
hunters may hunt on the Kaibab without securing an outfitter
or guide, and thus they fell outside the control of the agency.
Id. at 854.
After we remanded the case in CBD IV, CBD sought to
amend its complaint to add Arizona officials, alleging that
they are contributing to the disposal of spent lead
ammunition on the Kaibab. In the same order granting
USFS’s motion to dismiss, the district court denied the
motion to amend. Id. at 855. The district court concluded
that the Eleventh Amendment barred suit against Arizona or
its officers. The only exception would be a suit to enjoin
Arizona officials under Ex Parte Young, 209 U.S. 123(1908). The court concluded that the proposal amendment
failed to demonstrate how Arizona officials came with the
exception. CBD V, 532 F. Supp. 3d at 856.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s dismissal for failure to state a
claim de novo. Cal. Sportfishing Prot. All. v. Chico Scrap
Metal, Inc., 728 F.3d 868, 872 n.3 (9th Cir. 2013). Denial
of a motion to amend a complaint is reviewed for abuse of
discretion, Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002), although leave generally should be
granted unless “unless amendment would cause prejudice to
the opposing party, is sought in bad faith, is futile, or creates
undue delay,” United States v. Gila Valley Irrigation Dist.,
859 F.3d 789, 804 (9th Cir. 2017) (quotation marks and
citations omitted).
III. DISCUSSION
CBD has raised three issues on appeal. First, CBD
appeals the district court’s ruling that USFS is not a
12 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
contributor under RCRA. CBD argues that USFS is a
contributor by virtue of its general regulatory authority over
the Kaibab, the control it has actually exercised with respect
to Special Use permits for outfitters and guides, and its status
as the landowner. We address these subissues in Part III.A
and find that the Forest Service’s failure to regulate through
direct action or permitting does not demonstrate some
measure of control at the time of disposal or active
involvement sufficient to support RCRA contributor
liability. Second, CBD argues that the district court erred
when it denied CBD’s motion to amend its complaint to add
RCRA claims against Arizona officials. We address this
issue in Part III.B. We hold that CBD’s proposed
amendment does not add any new claims or allegations
against the Forest Service, and its claims against Arizona
officials are barred by the Eleventh Amendment. Third,
CBD requests that, if we remand any of the case, we direct
the remand to a different district judge. Because we affirm
the judgment of the district court on the first two issues,
CBD’s request for remand is moot, as we explain in Part
III.C.
A. RCRA Liability and USFS
In this section we will start with a review of RCRA
liability and our decisions. We then turn to CBD’s
arguments for why USFS is a “contributor” under RCRA.
1. RCRA liability after Hinds
To state a claim under the citizen-suit provision of
RCRA, CBD must allege that USFS (1) “has contributed
or . . . is contributing to the past or present handling, storage,
treatment, transportation, or disposal” (2) “of any solid or
hazardous waste,” (3) “which may present an imminent and
substantial endangerment to health or the environment.” 42
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 13
U.S.C. § 6972(a)(1)(B); see also Ctr. for Cmty. Action &
Env’t Just. v. BNSF Ry. Co., 764 F.3d 1019, 1023 (9th Cir.
2014).
We have previously considered what it means to
“contribute” to the disposal of waste. In Hinds, we held that
to be a “contributor” a defendant must play an “active role
with . . . direct connection to the waste, such as by handling
it, storing it, treating it, transporting it, or disposing of it.”
654 F.3d at 851. There, the owners of two shopping centers
sought to hold dry cleaning equipment manufacturers liable
as contributors under RCRA. Id. at 849. The groundwater
below the centers became contaminated with
perchloroethylene, a hazardous substance used in dry
cleaning. Plaintiffs argued that the manufacturers were
liable as contributors because they “operat[ed], provid[ed],
install[ed], maintain[ed], and/or repair[ed] dry cleaning
machinery which was designed so that wastewater
contaminated with [perchloroethylene] would and did flow
into drains and into the sewer system.” Id. They also
contended that the manufacturers included instructions
explicitly stating that waste could be disposed in an open
drain. Id.Because RCRA does not “define what acts of
contribution are sufficient to trigger liability,” we interpreted
“contribute” according to its “plain and ordinary” meaning.
Id. at 850 (citing Greenwood v. CompuCredit Corp., 615
F.3d 1204, 1208 (9th Cir. 2010), rev’d on other grounds,
565 U.S. 95 (2012)). Looking to the text of § 6972(a)(1)(B),
dictionary definitions, and the interpretations of our sister
circuits, we concluded that the citizen-suit provision
“requires that a defendant be actively involved in or have
some degree of control over the waste disposal process to be
liable under RCRA.” Id. at 851. In common usage,
14 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
“contribute” means “to ‘lend assistance or aid to a common
purpose,’or to ‘have a share in any act or effect,” or . . . “to
be an important factor in; help to cause.” Id. at 850 (citing
Webster’s Third New International Dictionary 496 (1993);
The Random House Dictionary of the English Language 442
(2d ed.1987); Cox v. City of Dallas, 256 F.3d 281, 294 (5th
Cir. 2001); United States v. Aceto Agric. Chems. Corp., 872
F.2d 1373, 1384 (8th Cir. 1989)). By creating liability in a
person who “contribut[es] to” the “‘handling, storage,
treatment, transportation, or disposal’ of hazardous waste,”
the statute “speaks in active terms;” and, in choosing such
language, Congress indicated that it intended to connote
“active functions with a direct connection to the waste
itself.” Id. at 851; see also Sycamore Indus. Park Assocs. v.
Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008) (defining
“contribute” and concluding that “[b]y definition, the phrase
‘has contributed or is contributing’ requires affirmative
action”). Looking to decisions from other courts, we
determined that most had also interpreted contributor
liability to require some kind of active involvement. Hinds,
654 F.3d at 851–52. Consequently, we held “that to state a
claim predicated on RCRA liability for ‘contributing to’ the
disposal of hazardous waste, a plaintiff must allege that the
defendant had a measure of control over the waste at the time
of its disposal or was otherwise actively involved in the
waste disposal process.” Id. at 852. Under this
interpretation of contributor liability, we determined that the
manufacturers were not contributors because the “[m]ere
design of equipment that generated waste, which was then
improperly discarded by others, is not sufficient.” Id.Following Hinds, we have refined our interpretation of
contributor liability in two additional cases. In Ecological
Rights Foundation, 874 F.3d 1083, 1090 (9th Cir. 2017),
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 15
plaintiffs challenged the Pacific Gas and Electric Company’s
(“PG&E”) treatment, cleaning, and storage of wooden utility
poles “with [pentachloraphenol]-infused oils,” contending
that the chemical—a known carcinogen—would eventually
migrate from PG&E’s facilities into local bodies of water.
Plaintiffs claimed that PG&E trucks picked up contaminants
on their tires at PG&E facilities and carried them offsite,
where the oils found their way into the soil or water. Id. at
1101. Ruling on appeal from summary judgment, we held
that PG&E was not liable under this theory because plaintiffs
“identified tire-tracking only as a potential mechanism by
which PG&E might have contributed to the transportation
and dispersal of [pentachloraphenol]-infused wastes,” a
showing that did “not establish that PG&E actually
contributed to the handling, transportation, or disposal of
solid waste via vehicle tire-tracking.” Id. (second emphasis
added).
In California River Watch v. City of Vacaville, 39 F.4th
624 (9th Cir. 2022), plaintiffs brought a claim against the
City of Vacaville for transporting hexavalent chromium, a
carcinogen, that had contaminated groundwater sources
through its water-distribution system. Id. at 627. The City
had not deposited the waste into the water system; that had
occurred between 1972 and 1982 through the acts of a
private wood treatment facility. Id. Rather, the plaintiffs
contended that the City was liable because its existing water
system pumped the hexavalent chromium that had
contaminated the City’s water. Id. at 630. We concluded
that, as in Hinds, RCRA transporter liability requires “that
the ‘transportation’ at issue must also be directly connected
to the waste disposal process—such as shipping waste to
hazardous waste treatment, storage, or disposal facilities.”
Id. at 633 (footnote omitted). The City was not a contributor
16 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
because it had not willingly or deliberately transported the
waste; it had only “incidentally carrie[d] the waste through
its pipes when it pump[ed] water to its residents.” Id.
2. Applying Hinds to this case
In this case, CBD argues that USFS exercises “some
degree of control” within the meaning of Hinds, 654 F.3d at
851, over the disposal of lead ammunition in the Kaibab. It
raises three independent reasons for that conclusion: (a)
USFS is authorized to exercise plenary regulatory authority
over the Kaibab; (b) USFS has exercised control over
hunters by issuing Special Use permits to guides and
outfitters; and (c) USFS exercises control through its status
as nominal owner of the Kaibab. We will address each
claim.
a. Plenary regulatory authority as control
We should be clear from the outset: CBD does not claim
that any USFS activity is a direct source of lead shot in the
Kaibab. CBD has not alleged that any USFS employees are
themselves using lead ammunition in any of their duties.
The core of CBD’s complaint is that USFS “has the authority
to control the disposal of lead on the Kaibab,” but has thus
far failed to regulate the use of lead shot by others. Both
sides accept that Congress, under the Property Clause, has
the authority to direct USFS to regulate the use of lead in the
Kaibab. Beyond that, the statutory and administrative record
is mixed. CBD points out that Congress has given USFS
plenary control over federal forests, including the power to
“designate areas . . . of lands in the National Forest System
where . . . no hunting or fishing will be permitted for reasons
of public safety, administration, or compliance with
provisions of applicable law.” 43 U.S.C. § 1732(b). A
different agency, the Department of the Interior, through the
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 17
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
provisions to suggest that USFS can or cannot use its
existing authority to regulate the use of lead ammunition, but
to demonstrate that, whatever the scope of USFS’s authority,
Congress has not directed USFS to regulate hunters’ use of
lead shot on federal lands.
We think the important implication of our discussion of
USFS’s regulatory authority is this: If USFS has a duty to
regulate the disposal of lead ammunition in hunting activities
in on national forest lands, it must arise directly and
unequivocally from some other source of law. CBD says
that USFS’s duty arises under RCRA. RCRA creates a
private cause of action, which may be brought against “any
person, including the United States.” 42 U.S.C.
§ 6972(a)(1)(B) (emphasis added). By simply “including”
the United States in the category of “person[s]” subject to
RCRA, the law imposes no greater or lesser duty on an
agency of the United States than it imposes on “any [other]
person.” And that brings us to the heart of CBD’s claim.
Does USFS “contribute to the past or present handling,
storage, treatment, transportation, or disposal of any solid or
hazardous waste”? Id. Because CBD admits that USFS is
not the source of any lead ammunition found in the Kaibab,
the question is whether a person who has some power to
prevent someone else from contributing to the handling,
storage, treatment, transportation, or disposal of hazardous
waste is liable under § 6972(a)(1)(B).
Hinds and its progeny indicate that the answer is no.
RCRA requires more than just hypothetical control to
establish contributor liability. Rather, the statute requires
“control over the waste at the time of its disposal.” Hinds,
654 F.3d at 852; see also id. at 851 (rejecting liability for
manufacturers who designed the entire waste disposal
process because they had engaged in “merely passive
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 19
conduct”). We think this means “actual control.” See
Ecological Rts. Found., 874 F.3d at 1101 (rejecting liability
where there was no showing that the defendant “actually
contributed to the handling, transportation, or disposal of
solid waste via vehicle tire-tracking” (emphasis added)); see
also Cal. River Watch, 39 F.4th at 633 (rejecting liability for
incidental transportation of waste through the city’s water
system).
We know of no court to have adopted CBD’s failure-to-
regulate theory. The closest case may be Cox, 256 F.3d 281.
There, the Fifth Circuit adopted a broader reading of
“contribute” than we have, concluding that RCRA only
requires contributors to “have a part or share in producing an
effect.” Id. at 295. But the case provides no support for the
claim that lax regulation “contributes” to the disposal of
hazardous waste. In Cox, the City of Dallas had identified
an open garbage dump as the site of illegal disposal of
hazardous waste and a health threat to the surrounding
neighborhoods. The city filed suit to close the site. In the
meantime, however, the city demolished structures on city
property and knew that its contractors were dumping the
waste materials at the unlawful landfill. Id. at 285–86. The
district court found the city liable under RCRA for dumping
the materials at the site and for issuing permits at the site
after the city had obtained a judgment against the dump’s
owner. The Fifth Circuit affirmed the judgment against
Dallas for its own material dumped at the site, but declined
to address “whether the City’s permitting activities could
also be a basis for § 6972(a)(1)(B) liability.” Id. at 296–98
& n.31.
Despite having broad regulatory authority over national
forest lands, USFS has not issued regulations restricting the
use of lead ammunition or requiring hunters to remove spent
20 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
lead ammunition. A decision by an agency not to regulate—
whether the lack of regulation represents a conscious
decision or a lack of initiative—is passive conduct. In and
of itself, nonregulation contributes nothing to the disposal of
hazardous waste. If USFS required hunters to use lead
ammunition, our analysis might be different. But, within the
Kaibab, USFS has no actual control over lead ammunition at
the time it is discharged by hunters. An agency’s choice not
to regulate despite authority to do so does not manifest the
type of actual, active control contemplated by RCRA.
b. Issuance of Special Use permits as control
Recognizing that USFS is not actively contributing to the
lead shot in the Kaibab, CBD points to USFS’s regulation
and issuance of Special Use permits for commercial hunting
as demonstrating a “measure of control” over the disposal of
lead ammunition. Hinds, 654 F.3d at 852. CBD argues that,
at least for commercial hunters, USFS is actively involved
in the use of lead ammunition because the agency issues
permits to guides and outfitters that contain terms and
conditions to “[m]inimize damage to scenic and esthetic
values and fish and wildlife habitat and otherwise protects
the environment.” 36 C.F.R. § 251.56(a)(1)(i)(B). CBD
argues that because “[t]he Forest Service could include, as a
condition of the special use permits, a requirement that
persons hunt in a manner that does not result in the disposal
of spent lead ammunition,” USFS is “actively involved in
the disposal of lead ammunition on the Kaibab.”
Although USFS issues Special Use permits for
commercial hunting activities and maintains control over the
terms and conditions of such permits, USFS has declined to
control the disposal of spent lead ammunition. In the end,
CBD’s argument about USFS’s control over Special Use
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 21
permits is an iteration of its broader failure-to-regulate
argument. Although USFS has authority to further regulate
the terms and conditions of Special Use permits to prohibit
the use of lead ammunition or removal of spent ammunition,
it has not done so, and RCRA does not impose a duty on
USFS to do so. Consequently, at best, USFS’s issuance of
Special Use permits is “incidental” activity, see Cal. River
Watch, 39 F.4th at 633; it is better described as not “actually
contribut[ing]” to the lead disposal problem, Ecological Rts.
Found., 874 F.3d at 1101. In either case, it does not come
within RCRA’s cause of action.
c. Property ownership as control
Finally, CBD contends that USFS is liable as a
contributor under RCRA by virtue of its status as a
landowner. As a threshold matter, USFS does not actually
own the Kaibab; the United States does, but we accept that
USFS is the Nation’s steward over the national forests. 16
U.S.C. § 1609(a). But even if we considered USFS the
owner of the Kaibab, we conclude that something more than
mere ownership is required to establish contributor liability
under RCRA.
We have not previously considered the relevance of land
ownership to RCRA liability. However, in defining
contributor liability in Hinds, we relied on several cases that
rejected the idea that property ownership alone is sufficient
to establish RCRA liability. See Hinds, 654 F.3d at 851–52.
For example, we cited Sycamore Industrial Park Associates,
in which the Seventh Circuit concluded that “the phrase ‘has
contributed or is contributing’ requires affirmative action . . .
rather than merely passive conduct.” Id. at 851 (quoting
Sycamore Industrial Park Associates v. Ericsson, Inc, 546
F.3d 847, 854 (7th Cir. 2008)). In that case a prior owner of
22 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
an industrial property installed a new heating system, but left
the old, inoperative one in place. When the new owner
discovered that the old system had asbestos, it sued the prior
owner under RCRA. The Seventh Circuit held that there was
no “affirmative action rather than merely passive conduct”
on the part of the prior owner and that “leaving a heating
system in place when selling the real estate” did not
“contribute” to the disposal of the asbestos within the
meaning of RCRA. Sycamore, 546 F.3d at 854; see also
ABB Indus. Sys. Inc. v. Prime Tech., Inc., 120 F.3d 351, 359
(2d Cir. 1997) (property ownership was insufficient for
RCRA liability where defendants had not themselves
contaminated the site).
The Third Circuit similarly affirmed an active
involvement requirement to find liability under RCRA. See
Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 263 F. Supp.
2d 796, 845 (D.N.J. 2003) (“[A] property owner’s ‘studied
indifference’ is insufficient to impose RCRA liability.”),
aff’d, 399 F.3d 248 (3d Cir. 2005). We can contrast these
cases with Goldfarb v. Mayor & City Council of Baltimore,
791 F.3d 500 (4th Cir. 2015), where the Fourth Circuit
determined that Baltimore could be liable under RCRA for
contributing to waste disposal when the city owned the land
and “exacerbated” the spread of hazardous waste through its
“well-intentioned efforts to remediate contamination.” Id. at
545; see Cox, 256 F.3d at 296–98 (holding Dallas liable for
its contractor’s dumping of city waste at an unlawful
landfill).
In this case, USFS has not taken any affirmative action
in addition to property ownership which would give it actual,
as opposed to hypothetical, control over the disposal of spent
lead ammunition. Without more than passive ownership,
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 23
USFS has not “contributed to” the disposal of waste in the
active sense required under RCRA.
B. Motion to Amend to Add Arizona Officials
Following our remand in CBD IV, CBD sought to amend
its complaint to add claims against Arizona officials. The
proposed amendment did not state any new claims against
USFS or allege additional facts to support CBD’s existing
claims; nor did CBD add any new theories of RCRA
liability. As it had alleged with respect to USFS, CBD’s
proposed amendment claimed that
Arizona Officials have control over the
regulation and administration of hunting
within Arizona . . . . [and] have contributed
and are contributing to the past or present
disposal of solid or hazardous waster . . . by
issuing and/or failing to take acts to stop the
issuance of, hunting licenses that do not
prohibit the use of spent lead ammunition on
the Kaibab.
In its motion to file an amended complaint, CBD repeated
that Arizona officials control the use of lead ammunition in
the Kaibab both “separate and apart from” and “subordinate
to” USFS’s authority. Although RCRA only permits suit
against a “governmental instrumentality or agency, to the
extent permitted by the Eleventh Amendment to the
Constitution,” 42 U.S.C. § 6972(a)(1)(B), CBD sought
declaratory and injunctive relief under Ex Parte Young, 209
U.S. 123 (1908). Ex Parte Young “allows suits seeking
prospective relief against a state official who has a fairly
direct connection to an ongoing violation of federal law.”
City of San Juan Capistrano v. Cal. Pub. Util. Comm’n, 937
24 CTR. FOR BIOLOGICAL DIVERSITY V. USFS
F.3d 1278, 1281 (9th Cir. 2019) (internal quotation marks
and citation omitted); see also Sofamor Danek Grp., Inc. v.
Brown, 124 F.3d 1179, 1184 (9th Cir. 1997) (state officials
may be subject to suit “to permit the federal courts to
vindicate federal rights and hold [them] responsible to the
supreme authority of the United States”).
“When justice requires, a district court should “freely
give leave” to amend a complaint.” Ariz. Students’ Ass’n v.
Ariz. Bd. of Regents, 824 F.3d 858, 871 (9th Cir. 2016)
(quoting Fed. R. Civ. P. 15(a)(2)). However, a district court
has discretion to deny leave to amend when there are
“countervailing considerations” such as “undue delay,
prejudice, bad faith, or futility.” Benko v. Quality Loan Serv.
Corp., 789 F.3d 1111, 1117 (9th Cir. 2015). Amendment is
futile when “it is clear, upon de novo review, that the
complaint could not be saved by any amendment.”
Armstrong v. Reynolds, 22 F.4th 1058, 1071 (9th Cir. 2022);
Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma County,
708 F.3d 1109, 1118 (9th Cir. 2013); see also Ariz. Students’
Ass’n, 824 F.3d at 871. One reason amendment may be
futile is “the inevitability of a claim’s defeat on summary
judgment.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th
Cir. 1991); see Yakama Indian Nation v. Wash. Dep’t of
Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999) (where
Eleventh Amendment immunity would bar claims against
the individual state officers as a matter of law, a proposed
amendment is futile).
The proposed amendment fails to allege any violation of
federal law. Like the claims against USFS, the claims
against Arizona officials in CBD’s proposed amendment are
premised on Arizona’s failure to use its regulatory authority
to prevent the disposal of spent lead ammunition on the
Kaibab. Indeed, in its motion to amend, CBD conceded that
CTR. FOR BIOLOGICAL DIVERSITY V. USFS 25
the “proposed claim is legally similar to the claim against the
Forest Service.” CBD has thus failed to allege an ongoing
violation of RCRA for the same reasons it has failed to allege
a violation of RCRA by USFS. As the Ex parte Young
exception does not apply, any amendment would futile. We
note the district court denied the motion to amend without
prejudice, giving CBD ample time to develop another legal
theory against either USFS or the Arizona officials. It did
not do so, and we decline to manufacture a legal theory under
which the Arizona officials would fall within the Ex parte
Young exception. See Armstrong, 22 F.4th at 1071.
C. Reassigning the Case
CBD also requested that this case be reassigned to
another district judge. Because the district court did not err
in dismissing the complaint and denying CBD’s motion to
amend, the request for reassignment is moot.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED.