                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CENTER FOR BIOLOGICAL                            No. 13-16684
DIVERSITY; SIERRA CLUB; GRAND
CANYON WILDLANDS COUNCIL,                        D.C. No. 3:12-cv-08176-SMM

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

UNITED STATES FOREST SERVICE,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                    Argued and Submitted November 18, 2015
                            San Francisco, California

Before: McKEOWN, RAWLINSON, and PARKER,** Circuit Judges.

       The Center for Biological Diversity, Sierra Club, and Grand Canyon

Wildlands Council (collectively the “Center”) appeal the district court’s dismissal


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
of their complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction on Article III standing grounds. The complaint was brought under the

citizen-suit provision of the Resource Conservation and Recovery Act (“RCRA”).

42 U.S.C. § 6972(a)(1)(B). The Center alleged that the Forest Service failed to

regulate the disposal of spent lead ammunition in the Kaibab National Forest, thus

making the Forest Service liable as a “contributor” to an “imminent and substantial

endangerment to health or the environment” by permitting the poisoning of

California condors and other wildlife. We conclude the Center has Article III

standing. Because the district court did not have occasion to decide the Forest

Service’s Rule 12(b)(6) motion to dismiss for failure to state a claim, we reverse

and remand.

       At the motion to dismiss stage, the Center bears the burden of pleading

sufficient facts to show there is an injury in fact, that the injury is fairly traceable to

defendant’s conduct, and that a favorable decision would likely redress the alleged

injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Questions of

constitutional standing are reviewed de novo on appeal. Hayes v. County of San

Diego, 736 F.3d 1223, 1228 (9th Cir. 2013).

       The Center established injury in fact through declarations of intent to

continue visiting the Kaibab National Forest and the allegations that the Forest


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Service’s tacit permission for hunters to use lead ammunition endangers wildlife.

The complaint also sufficiently established causation by drawing a connection

between the Forest Service’s refusal to exercise its authority to regulate the use of

lead, the continuing use of lead ammunition by hunters, and the poisoning of

condors and other wildlife that scavenge remains contaminated by the lead. See

Covington v. Jefferson County, 358 F.3d 626, 639 (9th Cir. 2004) (“If [the

government entity] declined to take any . . . regulatory actions, such inaction,

which is correctable by court order or sanction, meets the causation and

redressability elements of standing.”). The fact that hunters, not the Forest Service

itself, actually dispose of the lead, does not make the causal connection too

attenuated because the Forest Service has the authority to control certain conduct

of the third-party hunters. Finally, the order sought by the Center is likely to

redress at least partially the alleged injuries. The complaint alleged that spent lead

ammunition is the leading cause of condors’ lead exposure, and thus condors (and

other, less-migratory, wildlife) would likely benefit from agency action to curb the

use of lead ammunition. We conclude that the complaint was adequate to establish

Article III standing.

      The district court held that redressability could not be established, in large

part because of the Supreme Court’s decision in Norton v. S. Utah Wilderness


                                          -3-
Alliance. Norton held that a suit brought under section 706(1) of the

Administrative Procedure Act to “compel agency action unlawfully withheld”

could not proceed where there was an absence of a “discrete agency action that it is

required to take.” 542 U.S. 55, 64 (2004) (citing 5 U.S.C. § 706(1)). However,

Norton addressed suits brought under 5 U.S.C. § 706(1) and is inapplicable to the

citizen-suit provision here, which provides a cause of action that by its own terms

is not limited to compelling non-discretionary action unlawfully withheld. Rather,

the citizen-suit provision grants courts the power to “restrain any person who has

contributed to” disposal of a solid or hazardous waste that presents an imminent

and substantial danger, and to “order such person to take such other action as may

be necessary.” 42 U.S.C. § 6972(a) (emphasis added). At oral argument, the

government conceded that an open-ended order to the Forest Service to abate a

contribution under 42 U.S.C. § 6972(a)(1)(B) would not implicate Norton.

      In connection with its Rule 12(b)(6) motion to dismiss, the government

argued that the Forest Service could not be a “contributor” under

42 U.S.C. § 6972(a)(1)(B) on the facts alleged. The district court did not address

the Forest Service’s motion and we do not do so here. Notably, the government

did not raise the “contributor” argument in its briefing on appeal with respect to the

standing question, and thus it is waived as to that issue. This waiver does not


                                         -4-
affect the government’s ability to address the merits of this argument on remand.

At this stage, we simply resolve that the claim is not “wholly insubstantial and

frivolous,” such that it defeats standing. Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 89 (1998) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)

(internal quotation marks omitted)).

      Whether there is a valid cause of action sufficient to survive the Forest

Service’s motion to dismiss under Rule 12(b)(6) is a question left to the district

court on remand. At this stage, however, the plausibility of the legal basis for the

claim does not factor into the Rule 12(b)(1) motion to dismiss for lack of

constitutional standing, because the question of whether there is a valid claim

under RCRA is fairly debatable.

      REVERSED AND REMANDED.




                                          -5-
