Notice & Comment

Advisory Opinions, Remedial Discretion, and Non-APA Programmatic Challenges: Center for Biological Diversity v. U.S. Forest Service

You may be familiar with fictional gunmen’s euphemistic boast: “the victim died of poising, lead poising!”  Apparently in the Kaibab National Forest, located largely in northern Arizona, animals die from euphemistic and non-euphemistic lead poisoning.  First, hunters shoot big game (such as bison and elk) using lead ammunition, a euphemistic “lead poising;” then scavengers, such as the California condor themselves fall prey to actual lead poisoning when they ingest fragments of spent ammunition in picking over the carcass.  Center for Biological Diversity v. U.S. Forest Service, — F.3d—, 2019 WL 2293425 *2 (9th Cir. May 30, 2019).[1]  The Center for Biological Diversity, and two other like-minded groups, sought to prevent at least the second type of lead poisoning by suing the U.S. Forest Service under the Resource Conservation and Recovery Act of 1976 (“RCRA”), Pub. L. 94-580, 90 Stat. 2795 (1976).  Slip op. at *2.  RCRA is primarily designed to reduce the generation of hazardous waste and to ensure the proper handling of any such waste generated “so as to minimize the present and future threat to human health and the environment.” 42 U.S.C. § 6902(b); Meghrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996).

The Center sought an order requiring the Forest Service to “abate the endangerment” from lead ammunition in the Kaibab National Forest, Slip op. at *2; see, Center for Biological Diversity v. U.S. Forest Service, Dkt. No. 12 Civ. 8176, Complaint, Request for Relief, accessible at 2012 WL 4018013,[2] arguing that both the Forest Services’ stewardship of the land and its regulatory powers enabled it to protect scavengers from lead poisoning.  See Complaint ¶¶21-24.

Theoretically, the Forest Service could address the spent lead ammunition problem by either (1) removing the lead bullets left on Forest Service land, (2) requiring hunters to do so, or (3) prohibiting the use of lead bullets.  Slip op. at *3, n.1 (citing Forest Service’s concession at oral argument).  The last solution is the most obvious and most easily implemented.  However, proposals to ban lead ammunition and fishing tackle have led to fierce debate pitting sportsmen against environmentalists and animal rights activists.[3]  Probably in response to two petitions asking the EPA to act pursuant to the Toxic Substances Control Act, Pub. L. 94–469, 90 Stat. 2003 (1976)(codified as amended at 15 U.S.C. 2601-2697),[4] Congress has, by annual appropriations riders, prohibitted federal agencies from using appropriated funds “to regulate the lead content of ammunition,” under authority conferred by “the Toxic Substances Control Act . . . or any other law.”[5]  Though presumably not literally at midnight, on his last full day in office, January 19, 2017, President Obama’s Director of the Fish and Wildlife Service issued an order banning lead based ammunition and tackle on lands or waters within the Service’s jurisdiction (based on eight statutory authorities that included neither RCRA or TSCA); President Trump’s Interior Secretary, Ryan Zinke, countermanded the order two months later.[6]

Meanwhile, the Center’s RCRA lawsuit did not fare well; indeed the District Court has twice sought to bid it farewell.  The District Court initially ruled that Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)(“SUWA”) barred the suit because plaintiffs were seeking no specific mandatory relief.  Center for Biological Diversity v. U.S. Forest Service, 2013 WL 3335234 (D. Ariz. July 2, 2013).[7]  The Ninth Circuit reversed and remanded in an unpublished opinion, finding that SUWA applied only to Administrative Procedure Act (“APA”) claims, not lawsuits brought under RCRA’s citizen suit provisions. Center for Biological Diversity v. U.S. Forest Service, 640 Fed. Appx. 617 (9th Cir. Jan. 12, 2016).

On remand, the District Court again dismissed the case holding that any ruling on the Center’s claims would constitute an “advisory opinion,” as any resulting judgment would either be unenforceable or intrude into Forest Service’s discretion.  Center for Biological Diversity v. U.S. Forest Service, 2017 WL 5957911 (D. Ariz. March 15, 2017).

On May 30, the Ninth Circuit reversed and remanded again.  Center for Biological Diversity v. U.S. Forest Service, — F.3d —, 2019 WL 2293425.  It rejected the District Court’s argument that it lacked jurisdiction, and the alternative defense of the judgment asserted by the Forest Service, that the Court had relied upon its inherent power to refuse to assume jurisdiction over a claim for equitable relief.

First, it rejected the District Court’s assertion that an order to “abate the endangerment” from lead ammunition would “amount to nothing more than a recommendation that the [the Forest Service] would be free to disregard.” Slip op at *5-*6.  RCRA’s citizen-suit provision empowered private citizens to seek orders requiring “a responsible party to ‘take action’ by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that ‘restrains’ a responsible party from further violating RCRA.”  Id. (citing Meghrig, 516 U.S. at 484).  Thus “[w]hatever discretion [the Forest Service] otherwise has regarding regulating—or not regulating—hunting in the Kaibab, the agency would have to comply with an order from the court to address the disposal of lead bullets in the Kaibab.”  Id. at *6

Second, it rejected the District Court’s invocation of Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948),[8] and the District Court’s conclusion that the Center was seeking an order that both had “no clear terms for attainment,” and “would necessarily be subject to later review, input, or alteration by other entities.” Id. at 6.  In Waterman, the President had unreviewable discretion; but the Forest Service does not possess the same unreviewable discretion.   Slip op. at *6.  The Forest Service “might have some discretion over how to implement an order from the court, but not over whether to follow it.”  Id. (emphasis added).

Third, it rejected District Court’s argument that ordering abatement “would be an improper intrusion into the domain of the [Forest Service],” given the Forest Service’s knowledge and expertise.  To that assertion, the Court responded much as a professor might to a wayward law student’s  Administrative Law exam: “To the extent the exercise of that authority ‘intrudes’ . . . on the exercise of USFS’s discretion, it does so because that discretion is subject to the limits enunciated by Congress, and because Congress has sanctioned judicial “intrusion” if those limits are exceeded. Typically, we call that ‘intrusion’ judicial review.”  Id. at *7.

The Forest Service argued that the dismissal could be affirmed on the alternative ground that the District Court had invoked the discretion it possessed to decline statutorily-conferred jurisdiction when a party seeks “equitable relief.” The Forest Service cited Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996), for the proposition that such discretion existed.  The Court noted that none of the grounds for abstention actually outlined Quackenbush applied. Slip op. at *8.  Moreover, the existence of the type open-ended discretion the Forest Service read Quackenbush to endorse would conflict with the “virtually unflagging obligation . . . to exercise the jurisdiction given them.”  Id. at *8 (quoting Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976)).    And though a court has discretion regarding whether to enter injunctive relief, that determination is entirely distinct from a decision that the court lacks jurisdiction.  Id. at *9.

The appellate panel again remanded the case for a determination of whether the Forest Service was a contributor to the “handling, storage, treatment, transportation, or disposal” of lead ammunition, either because of its failure to exercise its regulatory authority or based on its obligations as a landowner under the common law of nuisance.  Id. at *9-*10.


Center for Biological Diversity may serve as a nice counterpoint to SUWASUWA was unquestionably a statutory interpretation case that hinged on a quite textual reading of the APA as well as the unique history of its provisions.[9]  As Bill Araiza suggested in an article written immediately in SUWA’s wake, given the diversity of government agencies and programs, robust provisions regarding the reviewability of inaction belong in statutes regarding particular agencies, rather than the APA itself.[10]

Nevertheless, SUWA reflected a broader philosophy regarding agency discretion to refuse to further statutory purposes.  In particular, SUWA reflected an earlier writing of Justice Scalia, SUWA’s author, suggesting that agencies should be able to refuse to energetically enforce, and indeed misdirect, prior Congresses’ statutory polities.[11]  SUWA also reflects an earlier concern about the limitations on structural injunctions.[12] 

[1] Apparently one of the reasons hunters do not retrieve the carcasses of fatally-wounded animals is that the hunted animal may die some distance from where it was shot.  Slip op at *2.  Mature bull elk and mature bull bison can weigh as much as 1,200 pounds and 2,500 pounds, respectively, making it difficult for hunters to remove the animal without the help of a motorized vehicle.  Brooke Miller, Appeals Court Upholds Limited Use of Motor Vehicles for Elk and Bison Retrieval In Kaibab Forest, ARIZONA REPUBLIC (March 14, 2019).  In March, the Ninth Circuit upheld a Forest Service policy allowing hunters to retrieve animals by driving off-road.  The panel withdrew its decision and issued a new one on May 6, 2019.  Wildearth Guardians v. Provencio, 923 F.3d 655 (9th Cir. May 6, 2019)(Hawkins, Smith, and Hurwitz).

[2] Most relevantly, plaintiff requested that the Court: (1) “[a]djudge and declare that the Forest Service has contributed and is contributing to the past or present disposal of any solid or hazardous waste which may present an imminent and substantial endangerment in violation of § 7002(a)(1)(B) of RCRA,” and  (2) “[p]ermanently enjoin the Forest Service from creating or contributing to the creation of an imminent and substantial endangerment to human health or the environment within the Kaibab National Forest.”  Complaint, ¶49.

[3] Compare Wayne Pacelle, Trump’s Interior Secretary Reverses Ban on Lead Ammo on National Wildlife Refuges As His First Official Act, A HUMANE WORLD (March 3, 2017) with Congressional Sportsmen’s Foundation, State Programs Team, Issue Briefs 2019 148-150 (Jan. 1, 2019).

[4] See, id. at 149; Center for Biological Diversity, et al., Petition For Rulemaking Under The Toxic Substances Control Act (March 13, 2012).

[5] See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, §418, 133 Stat. 13, 262 (2019)(“None 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, 2018, Pub. L. No. 115-141, §418, 132 Stat. 348, 691 (2018); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, §420, 131 Stat. 135, 498–99 (2017); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, §420, 129 Stat. 2242, 2579 (2016); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, §425, 128 Stat. 2130, 2450 (2015).

These riders raise the question of whether such an appropriations rider should be considered an implied repeal of RCRA to the extent that RCRA requires the Forest Service to ban the use of ammunition containing lead.  See Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)(funding of Tellico Dam did not implicitly repeal the Endangered Species Act); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979)(Hyde Amendment implicitly repealed portions of federal Medicaid Act relating to state funding obligations); see generally, Kyle M. Asher, Judicial Review of Agency Delays Caused by a Lack of Appropriations: The Yucca Two-Step, 2015 MICH. ST. L. REV. 371, 391-98 (discussing cases).

[6] Director’s Order No. 219 re Use 0f Nontoxic Ammunition And Fishing Tackle (Jan. 19. 2017); Order No. 3346 re Revocation of the United States Fish and Wildlife Director’s Order No. 2019 (March 2, 2017).

[7] The Court explained:

“Plaintiffs wish the Court to order Defendant to perform a discretionary duty, an agency action which the Court is not empowered to compel. See Norton, 542 U.S. at 64. Second, even if Defendant could be ordered to initiate the rule making process necessary to prevent the disposal of lead within the [Kaibab National Forest], the outcome would be uncertain because Defendant would be required to consult with Arizona, accept public comments, balance competing interests, and consider a no action alternative. It is therefore speculative at best whether a favorable ruling would be likely to redress Plaintiffs injury.”

The District Court also found that plaintiffs lacked standing.

[8] Waterman involved Civil Aeronautics Board (“CAB”) grants or denials of air carriers’ petitions to engage in overseas and foreign air transportation.  Such orders were subject to revision by the President. The Court held that reviewing such orders before presidential action would constitute an advisory opinion.  Id. at 113.  The Court noted that review of CAB orders after presidential review was inappropriate as well, given the nature of decisions implicating foreign policy:

the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.  Id. at 111.

[9] The SUWA Court relied on both a close reading of the definition of “agency action” and on legislative history that actions under the APA continued to be constrained by principles regarding the exercise of mandamus jurisdiction.

[10] William Araiza, In Praise of a Skeletal APA: Norton v. Southern Utah Wilderness Alliance, Judicial Remedies for Agency Inaction, and the Questionable Value of Amending the APA, 56 ADMIN. L. REV. 979. 992-93, 1002 (2004).

[11] See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881, 897 (1983).  There Justice Scalia said:

Does what I say mean that, so long as no minority interests are affected, “important legislative purposes, heralded in the hall of Congress, [can be] lost or misdirected in the vast hallways of the federal bureaucracy?” Of course it does—and a good thing, too. Where no peculiar harm to particular individuals or minorities is in question, lots of once-heralded programs ought to get lost or misdirected, in vast hallways or elsewhere. Yesterday’s herald is today’s bore—although we judges, in the seclusion of our chambers, may not be au courant to realize it.

[12] See Bernard W. Bell, In Defense of Retroactive Laws, 78 TEX. L. REV. 235, 259-62 (1999)(discussing concerns about the Judiciary’s institutional capacity  to provide structural relief).

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