                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CENTER FOR BIOLOGICAL DIVERSITY;        No. 17-15790
SIERRA CLUB; GRAND CANYON
WILDLANDS COUNCIL,                        D.C. No.
              Plaintiffs-Appellants,   3:12-cv-08176-
                                           SMM
                 v.

UNITED STATES FOREST SERVICE, a          OPINION
United States Government Agency,
                Defendant-Appellee,

NATIONAL RIFLE ASSOCIATION OF
AMERICA, INC.; SAFARI CLUB
INTERNATIONAL; NATIONAL
SHOOTING SPORTS FOUNDATION,
INC.,
   Intervenor-Defendants-Appellees.



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

       Argued and Submitted September 7, 2018
              San Francisco, California

                  Filed May 30, 2019
2         CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    Before: Marsha S. Berzon and Michelle T. Friedland,
    Circuit Judges, and Kathleen Cardone, * District Judge.

                    Opinion by Judge Berzon


                          SUMMARY **


         Resource Conservation and Recovery Act

    The panel reversed the district court’s dismissal for lack
of jurisdiction and remanded in an action brought under the
citizen suit provision of the Resource Conservation and
Recovery Act seeking to require the United States Forest
Service to address the use of lead ammunition by hunters in
Arizona’s Kaibab National Forest.

    Plaintiffs alleged that the California condor and other
scavenger wildlife species living in the Kaibab National
Forest ingest lead ammunition left in animal carcasses by
hunters. The scavengers then suffer lead poisoning.
Plaintiffs sought a declaratory judgment that the Forest
Service had violated the Resource Conservation and
Recovery Act, as well as a permanent injunction preventing
the Forest Service from “creating or contributing to the
creation of an imminent and substantial endangerment to
human health or the environment” in the Kaibab. The
district court dismissed the lawsuit for lack of jurisdiction on

     *
     The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
    **
       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

the basis that plaintiffs were requesting an advisory opinion.
The court also ruled that any order requiring the Forest
Service to prohibit lead ammunition would be an improper
intrusion into the Service’s domain.

    The panel held that plaintiffs’ suit satisfied the two
requirements that distinguish justiciable controversies from
requests for advisory opinions. First, the panel determined
there was no doubt that the case concerned a genuine
adversary issue between the parties. Second, the panel held
that a ruling in plaintiffs’ favor would require the Service to
mitigate in some manner—not necessarily by banning use of
lead ammunition in the Kaibab—the harm caused by spent
lead ammunition, thereby leading to a change in the Forest
Service’s operation of the Kaibab.

    The panel rejected the Forest Service’s contention that
the district court had discretion to decline jurisdiction over
the case because plaintiffs were seeking equitable relief. The
panel held that the district court’s order dismissing the case
was based squarely on its determination that it lacked
jurisdiction, not on any exercise of discretion to decline
jurisdiction. The panel next noted that the Forest Service
had failed to establish that this case falls within any of the
categories outlined in Quackenbush v. Allstate Insurance
Co., 517 U.S. 706 (1996), where abstention is warranted.
The panel further rejected the contention that the district
court had discretion to decline jurisdiction under the
Declaratory Judgment Act’s permissive language. The panel
noted that the suit was brought as a citizen suit under the
Resource Conservation and Recovery Act, and nothing in
the Act’s private civil action provision conferred judicial
discretion to decline to entertain such a suit.
4        CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    The panel held that because the district court dismissed
for lack of jurisdiction, it never had the chance to consider
the questions of first impression pertaining to contributor
liability under the Resource Conservation and Recovery Act
in the factual context presented by this case. Given the
circumstances, the panel thought it wise to permit further
proceedings at the district court rather than reach the merits,
both so the parties could present the issues as they had
evolved more fully and so that plaintiffs had the opportunity
to seek to amend the Complaint so as to more fully spell out
the bases for the Forest Service’s contributor liability.


                         COUNSEL

Allison LaPlante (argued), Lia Comerford, and Kevin
Cassidy, Earthrise Law Center, Lewis & Clark Law School,
Portland, Oregon, for Plaintiffs-Appellants.

Allen M. Brabender (argued), Dustin J. Maghamfar, and
John Smeltzer, Attorneys; Eric Grant, Deputy Assistant
Attorney General; Jeffrey H. Wood, Acting Assistant
Attorney General; Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Gary Fremerman, Office of the General Counsel,
United States Department of Agriculture, Washington, D.C.;
for Defendant-Appellee.

Norman D. James (argued), and Ronald W. Opsahl,
Fennemore Craig P.C., Phoenix, Arizona, for Intervenor-
Defendant-Appellee National Shooting Sports Foundation.

Scott M. Franklin and C.D. Michel, Michel & Associates
PC, Long Beach, California; Michael T. Jean, Fairfax,
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS                 5

Virginia; for Intervenor-Defendant-Appellee National Rifle
Association of America.

Anna M. Seidman, Washington, D.C., for Intervenor-
Defendant-Appellee Safari Club International.


                          OPINION

BERZON, Circuit Judge:

    The California condor and other scavenger wildlife
species living in Arizona’s Kaibab National Forest (“the
Kaibab”) ingest lead ammunition left in animal carcasses by
hunters. The scavengers then suffer lead poisoning.
Plaintiffs-Appellants Center for Biological Diversity, Sierra
Club, and Grand Canyon Wildlands Council (collectively,
“the Center”) seek an injunction under the citizen suit
provision of the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6972, to require the Kaibab’s
administrator, the United States Forest Service (“USFS”), to
address hunters’ use of lead ammunition in the Kaibab. The
Center alleges that USFS is liable for “contributing to the
past or present . . . disposal” of a solid waste, 42 U.S.C.
§ 6972(a)(1)(B), and it requests declaratory and injunctive
relief to require USFS to “abate the endangerment” from
lead ammunition in the Kaibab.

    The last time this case was before this court, we reversed
the district court’s earlier dismissal for lack of standing. Ctr.
for Biological Diversity v. U.S. Forest Serv., 640 F. App'x
617, 620 (9th Cir. 2016). When the case returned to the
district court, USFS filed a motion to dismiss for failure to
state a claim. USFS maintains that it is not subject to suit in
this case because RCRA only governs parties that actively
6        CTR. FOR BIOLOGICAL DIVERSITY V. USFS

contribute to the disposal of solid waste. Two groups of
intervenors (“Intervenors”) filed separate motions
presenting additional arguments as to why USFS cannot be
sued under the statute with respect to the use of lead
ammunition in the Kaibab. Rather than addressing these
arguments, the district court held that the Center was
requesting an improper advisory opinion and dismissed the
lawsuit on justiciability grounds. The Center appealed.

                              I.

                             A.

    The Kaibab is both home to a variety of wildlife species,
including several species of avian predators, and a favorite
site for big-game hunting. Some hunters in the Kaibab use
lead ammunition, and some of them leave behind the
remains of their kill, either because they prefer not to “pack
out” the remains or because the hunted animal runs away
after it is shot and then dies elsewhere. Other animals feed
on those remains and ingest fragments of spent lead
ammunition. Lead ingestion, even in small amounts, can
cause significant adverse effects on animals’ health,
including death. Because of such health consequences, the
federal government has banned the use of lead bullets for
waterfowl hunting nationwide since 1991. 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. 22,100, 22,100–
01 (May 13, 1991).

    The Center alleges that, in particular, lead ammunition
has a significant impact on the endangered California
condor, only 73 of which lived in the Southwest at the time
of filing. Because condors rely on animal carcasses as a
          CTR. FOR BIOLOGICAL DIVERSITY V. USFS                         7

primary food source, the Complaint alleges, “[l]ead
poisoning has been and continues to be the leading cause of
condor mortality in Arizona,” and “[s]pent lead ammunition
has been and continues to be the primary source of the
condors’ lead exposure in Arizona.”

    Despite its authority to do so, 1 USFS does not regulate
hunting in the Kaibab outside certain narrow restrictions,
and does not regulate the use of lead ammunition in the
Kaibab at all. Nor does the agency require a permit for
hunting in the Kaibab. See 36 C.F.R. § 251.50(c) (“A special
use authorization is not required for noncommercial
recreational activities, such as . . . hunting . . . .”). USFS
does require that any commercial entities operating in the
Kaibab, including hunting outfitters, obtain “special use”
permits, but those permits do not regulate the hunting itself.
Instead, USFS defers to Arizona’s hunting regulations,


    1
       “[T]he Forest Service has the authority to control certain conduct
of the third-party hunters.” Ctr. for Biological Diversity v. U.S. Forest
Serv., 640 F. App’x 617, 619 (9th Cir. 2016); see also 36 C.F.R.
§§ 261.50(a); 261.70(a)(4). At oral argument during the Center’s earlier
appeal, USFS recognized that it could remove the lead bullets left on
Forest Service land, require hunters to do so, or prohibit the use of lead
bullets. Oral Argument at 18:18, Ctr. for Biological Diversity v. U.S.
Forest Serv., 640 Fed. App’x 617 (9th Cir. 2016) (No. 13-16684),
http://www.ca9.uscourts.gov/media/view_video.php? pk_vid=0000008
616. Congress has, however, repeatedly prohibited federal agencies
from spending funds “to regulate the lead content of ammunition.” See
Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 418, 133
Stat. 13, 262 (2019); 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).
8        CTR. FOR BIOLOGICAL DIVERSITY V. USFS

which govern National Forest System lands in Arizona. See
Ariz. Rev. Stat. § 17-234.

    Arizona allows hunters to use lead ammunition except
when hunting waterfowl. See generally Ariz. Admin. Code
§ R12-4-304. Arizona has taken steps to reduce the impact
of spent lead ammunition on the condor and other species.
Among other efforts, the state runs a “voluntary lead
reduction program” that encourages hunters to use non-lead
ammunition and provides hunters with non-lead ammunition
free of cost during the big-game hunting season. The Center
alleges that lead poisoning is nevertheless still a significant
problem in the Kaibab.

                              B.

    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). The statute aims “to reduce the 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. (quoting 42 U.S.C.
§ 6902(b)).

    The Environmental Protection Agency (“EPA”) has
“[c]hief responsibility” for implementing RCRA.
Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d
502, 506 (9th Cir. 2013). To promote robust enforcement,
RCRA includes a citizen suit provision, section 7002, that
allows “any person” to “commence a civil action on his own
behalf.” Resource Conservation and Recovery Act of 1976,
Pub. L. No. 94-580, § 7002, 90 Stat. 2795, 2825 (1976)
(codified at 42 U.S.C. § 6972(a)). One prong of section
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS               9

7002, as amended in 1984, creates a private right 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.

Hazardous and Solid Waste Amendments of 1984, Pub. L.
98-616, § 401, 98 Stat. 3221, 3269 (codified at 42 U.S.C.
§ 6972(a)(1)(B)). When a case is brought under this
provision, the district court “shall have jurisdiction . . . to
restrain any person” who has violated the statute, “to order
such person to take such other action as may be necessary,
or both.” 42 U.S.C. § 6972(a).

                              C.

    In 2012, the Center filed suit under RCRA, alleging that
USFS’s failure to regulate in any way the use of lead
ammunition created “an imminent and substantial
endangerment to health or the environment.” The Center
contends that USFS is responsible for curbing or remedying
hunters’ disposal of spent lead ammunition on two grounds:
(1) “failing to use its broad authority [pursuant to both its
landowner status and regulatory authority] to stop the
disposal of . . . spent ammunition,” and (2) “issuing Special
10       CTR. FOR BIOLOGICAL DIVERSITY V. USFS

Use permits for guiding and outfitting activities that do not
prohibit the use of lead ammunition.” The Center sought a
declaratory judgment that USFS had violated RCRA, as well
as a permanent injunction preventing USFS from “creating
or contributing to the creation of an imminent and substantial
endangerment to human health or the environment” in the
Kaibab.

    USFS moved to dismiss for lack of standing under
Federal Rule of Civil Procedure 12(b)(1) or, in the
alternative, for failure to state a claim under Rule 12(b)(6).
The district court dismissed on standing grounds. The court
determined that although the Center had demonstrated an
injury that was fairly traceable to USFS’s conduct, it had not
shown that a judgment in its favor was likely to redress that
injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). Construing the Center’s requested relief as requiring
USFS to engage in rule making under the Administrative
Procedure Act (“APA”), the court reasoned that it was “not
empowered” to order the agency do so under Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55 (2004).
Norton held that a suit brought under the APA to “compel
agency action unlawfully withheld . . . can proceed only
where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” Id. at 63–
64. Even if it had not been constrained by Norton, the court
further concluded, it was “speculative at best” whether the
any rule making that it ordered USFS to conduct would
produce a final rule that would better protect the at-risk
species and thereby redress the Center’s alleged injury.

    We reversed in a memorandum disposition. USFS
conceded at argument in that appeal that Norton did not
apply because the Center’s suit was brought under RCRA,
not under the APA. Ctr. for Biological Diversity, 640 F.
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS              11

App’x at 619. With Norton posing no bar to relief, we
concluded that the relief the Center sought was “likely to
redress at least partially the alleged injuries.” Id. USFS had
not argued on appeal that the Center had failed to state a
claim under RCRA. We “left [it] to the district court” to
assess in the first instance whether it was appropriate to
dismiss the Center’s claim under Rule 12(b)(6). Id. at 620.

    On remand, the district court did not address the question
we remanded for determination—whether the Center had
stated a viable claim against USFS. Instead, the court
dismissed for lack of jurisdiction on the basis that the Center
was requesting an advisory opinion. The court stated that
the case did not present an “actual, justiciable controversy,”
because any judicial directive would be “nothing more than
a recommendation to the USFS,” not “conclusive” or
“binding” on the agency. The court also reasoned that any
order requiring USFS to prohibit lead ammunition “would
be an improper intrusion into the domain of the USFS.” On
these grounds, the court granted USFS’s motion to dismiss.

                              II.

                              A.

    The rule against advisory opinions is “the oldest and
most consistent thread in the federal law of justiciability,”
reflecting the same core considerations that underlie the
justiciability doctrine more generally. Flast v. Cohen,
392 U.S. 83, 96 (1968) (quoting Charles Alan Wright,
Federal Courts 34 (1963)).           The advisory opinion
prohibition ensures that “[f]ederal judicial power is limited
to those disputes which confine federal courts to a rule
consistent with a system of separated powers and which are
traditionally thought to be capable of resolution through the
judicial process.” Id. at 97.
12       CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    In line with these considerations, to present a justiciable
dispute rather than a request for an advisory opinion a case
must satisfy two requirements: First, the case must present
“an honest and actual antagonistic assertion of rights by one
[party] against another.” U.S. Nat’l Bank v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 446 (1993) (alteration in
original) (quoting Muskrat v. United States, 219 U.S. 346,
359 (1911)); see also Flast, 392 U.S. at 95. Second, the court
must be empowered to issue a decision that serves as more
than an advisement or recommendation. U.S. Nat’l Bank,
508 U.S. at 446. A party does not seek an advisory opinion
where “valuable legal rights . . . [would] be directly affected
to a specific and substantial degree” by a decision from the
court. Id. (alterations in original) (quoting Nashville, C. &
St. L. Ry. v. Wallace, 288 U.S. 249, 262 (1933)).

    The Center’s suit satisfies the two requirements that
distinguish justiciable controversies from requests for
advisory opinions. First, there is no doubt this case concerns
a “genuine adversary issue between the parties.” United
States v. Johnson, 319 U.S. 302, 304 (1943) (per curiam).
We so determined when we concluded in our earlier
disposition that the Center had satisfied the injury and
causation requirements for standing:

       The Center established injury in fact through
       declarations of intent to continue visiting the
       Kaibab National Forest and the allegations
       that the Forest 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
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS                13

        ammunition by hunters, and the poisoning of
        condors and other wildlife that scavenge
        remains contaminated by the lead.

Ctr. for Biological Diversity, 640 F. App’x at 619.
Moreover, the parties did not collude to bring this case to
court; this case is not one “conducted under the domination
of only one” party, Johnson, 319 U.S. at 305.

    Second, a ruling in the Center’s favor would require
USFS to mitigate in some manner—not necessarily by
banning use of lead ammunition in the Kaibab—the harm
caused by spent lead ammunition, thereby leading to a
change in USFS’s operation of the Kaibab. Again, we have
already determined that the relief the Center seeks “is likely
to redress at least partially the alleged injuries.” Ctr. for
Biological Diversity, 640 F. App’x at 619.

    Largely ignoring our previous disposition, the district
court provided three overlapping justifications for its
decision. All three rest on a misperception of the effect of a
ruling in favor of the Center.

    First, the court concluded that an order requiring USFS
to “abate the endangerment” from lead ammunition would
“amount to nothing more than a recommendation to the
USFS that the USFS would be free to disregard.” This
conclusion rests on the assumption that USFS would
maintain discretion over whether to regulate lead
ammunition no matter what a judicial order directed it to do.

    RCRA specifically provides otherwise. It specifies that
“the district court shall have jurisdiction . . . to restrain any
person who has contributed or who is contributing to [a
substantial endangerment to health or the environment], to
order such person to take such other action as may be
14      CTR. FOR BIOLOGICAL DIVERSITY V. USFS

necessary, or both.” 42 U.S.C. § 6972(a). And it defines
“person” to include “the United States and any other
governmental instrumentality or agency.”              Id.
§ 6972(a)(1)(A). As the Supreme Court has explained, the
meaning of these provisions is evident:

            Under a plain reading of [RCRA’s]
       remedial scheme, a private citizen . . . could
       seek a mandatory injunction, i.e., one that
       orders 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.

Meghrig, 516 U.S. at 484. And it is incontrovertible that “a
person subject to an injunction must ordinarily obey it.”
Irwin v. Mascott, 370 F.3d 924, 931 (9th Cir. 2004) (citing
Walker v. City of Birmingham, 388 U.S. 307 (1967)). So,
whatever discretion USFS otherwise has regarding
regulating—or not regulating—hunting in the Kaibab, the
agency would have to comply with an order from the court
regarding the disposal of lead bullets in the Kaibab.

     Second, the district court reasoned that the Center was
asking for an order “with no clear terms for attainment,” and
that any such order “would necessarily be subject to later
review, input, or alteration by other entities.” For this
critique the district court principally relied on Chicago &
Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103
(1948). Waterman has no relevance to this case.

    Waterman involved sections of the Civil Aeronautics
Act of 1938, 49 U.S.C. §§ 601, 646, that provided for both
presidential and judicial review of an administrative order
granting an application for an overseas air route. Waterman,
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS              15

333 U.S. at 104–05. The Supreme Court held this dual
review system unconstitutional regardless of the order in
which each stage of review took place. Id. at 114. If the
President approved the order first, then that order would
“embody Presidential discretion as to political matters
beyond the competence of the courts to adjudicate.” Id. If a
court reviewed the order first, then its decision—still subject
to presidential approval—would be “an advisory opinion in
its most obnoxious form.” Id. at 113.

   This case could not be less similar to Waterman.
Waterman was fundamentally about separation of powers
within the federal government concerning a matter as to
which the President had unreviewable discretion. Here, the
agency—USFS—has no such unreviewable discretion.
Section 7002 expressly grants the judiciary authority

       to restrain any person who has contributed or
       who is contributing to the past or present
       handling, storage, treatment, transportation,
       or disposal of any solid or hazardous waste
       referred to in [§ 6972](a)(1)(B), to order such
       person to take such other action as may be
       necessary, or both . . . .

42 U.S.C.A. § 6972(a). USFS might have some discretion
over how to implement an order from the court, but not over
whether to follow it.

    The district court also cited in support of its “no clear
terms for attainment” holding a series of statutes and
regulations directing USFS to cooperate with other federal
and state entities in the exercise of its duties. None of those
statutes allow USFS to disregard a judicial directive
specifically authorized by RCRA if the requisite liability
findings are made.
16       CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    Third, the district court maintained that an order to
“‘abate the endangerment’ . . . would be an improper
intrusion into the domain of the USFS.” Because regulation
of lead ammunition “is a matter on which the USFS has
knowledge and expertise,” the court reasoned, it was “not
authorized” to direct USFS as to that matter.

    That justification would preclude courts from issuing
injunctions against expert administrative agencies, which, of
course, we regularly do. We have done so against the USFS
with regard to such matters within its “knowledge and
expertise” such as riparian reserves, Or. Nat. Res. Council
Fund v. Goodman, 505 F.3d 884, 898 (9th Cir. 2007), and
hiking access on public lands, High Sierra Hikers Ass’n v.
Blackwell, 390 F.3d 630, 649 (9th Cir. 2004).

    At bottom, the district court’s holding, albeit purportedly
grounded in separation of powers principles, is
irreconcilable with the system those principles exist to serve.
See N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 58 (1982). In RCRA, Congress expressly
authorized private suits such as this one and set forth specific
conditions for the exercise of judicial authority in such suits.
To the extent the exercise of that authority “intrudes”—to
use the district court’s term—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.

                              B.

    USFS does not defend the district court’s holding that the
Center is seeking an advisory opinion. Instead, USFS
recasts the district court’s ruling and then defends its version
of what the court meant: USFS maintains first that “[t]he
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS              17

district court’s decision is better construed as declining
jurisdiction based on equitable factors, including deference
to the policy choices of the other branches of the federal
government.” USFS then goes on to argue that the district
court had discretion to decline jurisdiction over the case
because the Center is seeking equitable relief. There are two
fatal flaws in this position.

                              1.

    The district court’s opinion cannot plausibly be read as
anything other than a dismissal for lack of jurisdiction.
Although the court stated in its order that a federal court has
discretion over whether to issue a declaratory judgment
under the Declaratory Judgment Act, it did not suggest that
it had similar discretion to decline to exercise jurisdiction
over a request for the injunctive relief expressly authorized
by Congress in RCRA.

    The district court declared at the outset that “a federal
court first must be satisfied that the lawsuit passes
constitutional muster and fulfills statutory jurisdictional
prerequisites before it exercises its [declaratory judgment]
discretion” (emphasis in original). The court then explained
that because “there [was] no real and substantial
controversy” before it, “the relief requested by Plaintiffs
would necessarily take the form of an advisory opinion.”
The court’s subsequent analysis rested entirely on the
jurisdictional concerns surrounding advisory opinions.
There was no discussion of whether the court might have
discretion to decline jurisdiction over the Center’s request
for equitable relief if there were jurisdiction over the case.
The district court concluded its analysis by reiterating that
“[w]ithout jurisdiction the court cannot proceed at all in any
case.”
18       CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    The district court’s order dismissing this case was based
squarely on its determination that the district lacked
jurisdiction. It was not based on any exercise of discretion
to decline jurisdiction.

                              2.

    In any event, the district court could not properly have
exercised discretion to decline jurisdiction over the case.
Federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them.” Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817
(1976). In outlining the rare exceptions to that principle, the
Supreme Court has noted that “[t]he doctrine of abstention,
under which a District Court may decline to exercise or
postpone the exercise of its jurisdiction, is an extraordinary
and narrow exception to the duty of a District Court to
adjudicate a controversy properly before it.” Id. at 813
(quoting County of Allegheny v. Frank Mashuda Co.,
360 U.S. 185, 188 (1959)).

    USFS insists, without support for its sweeping theory,
that the general rule that a court should exercise the
jurisdiction it is given does not apply when a party requests
“equitable relief such as . . . an injunction.” In support,
USFS cites Quackenbush v. Allstate Insurance Co., 517 U.S.
706 (1996).

    Quackenbush stated generally, at the beginning of its
analysis, that “a federal court has the authority to decline to
exercise its jurisdiction when it ‘is asked to employ its
historic powers as a court of equity.’” Id. at 717 (quoting
Fair Assessment in Real Estate Ass’n, Inc. v. McNary,
454 U.S. 100, 120 (1981) (Brennan, J., concurring)). But
then, echoing Colorado River, Quackenbush reiterated that
“federal courts have a strict duty to exercise the jurisdiction
          CTR. FOR BIOLOGICAL DIVERSITY V. USFS                     19

that is conferred upon them by Congress,” id. at 716,
including jurisdiction to issue equitable relief. And, again
like Colorado River, Quackenbush outlined specific
“exceptional circumstances” in which “denying a federal
forum would clearly serve an important countervailing
interest,” id.

        [F]ederal courts have the power to refrain
        from hearing cases that would interfere with
        a pending state criminal proceeding, or with
        certain types of state civil proceedings; cases
        in which the resolution of a federal
        constitutional question might be obviated if
        the state courts were given the opportunity to
        interpret ambiguous state law; cases raising
        issues “intimately involved with [the States']
        sovereign      prerogative,”     the     proper
        adjudication of which might be impaired by
        unsettled questions of state law); cases whose
        resolution by a federal court might
        unnecessarily interfere with a state system for
        the collection of taxes; and cases which are
        duplicative of a pending state proceeding
        ....

Id. at 716–17 (second alteration in original) (citations
omitted). USFS does not suggest that this case falls into any
of these categories, in which the Supreme Court has
recognized that “abstention is warranted,” and the case does
not. 2 Id. at 716.


    2
      At oral argument, USFS’s counsel said that the district court
exercised “Brillhart abstention,” an apparent reference to Brillhart v.
Excess Insurance Co. of America, 316 U.S. 491 (1942). Brillhart is not
20        CTR. FOR BIOLOGICAL DIVERSITY V. USFS

    USFS also points the court to the Declaratory Judgment
Act’s permissive language, see 28 U.S.C. § 2201(a), to argue
that the district court had discretion to decline jurisdiction.
This suggestion rests on USFS’s erroneous representation
that the Center’s “complaint identifies the Declaratory
Judgment Act (and not RCRA) as the source of the district
court’s jurisdiction to grant declaratory and injunctive
relief.” The Center does cite the Declaratory Judgment Act
in its Complaint. But the very first page of the Complaint
states that “[t]his is a citizens’ suit brought to enforce the
Resource Conservation and Recovery Act (RCRA). It is
authorized under Section 7002 of RCRA, 42 U.S.C. § 6972.”
And the Center’s “Request for Relief” cites RCRA.

    As we have explained, the RCRA private cause of action
provision permits “any person” to “commence a civil action”
alleging specified government actions, 42 U.S.C. § 6972(a),
and authorizes judicial injunctive relief to curb such actions.
Nothing in the private civil action provision confers judicial
discretion to decline to entertain such a suit.

    USFS also cites a series of cases addressing when a court
has “discretion to deny relief.” Whether a court may decline
to issue an injunction after balancing the relevant harms is
an entirely separate question from whether the court has
jurisdiction over the merits, including the request for
injunctive relief, in the first place.




cited in USFS’s briefing and is not relevant here. Brillhart concerns the
relevance to a federal case of concurrent state proceedings, id. at 494.
There were no concurrent state proceedings here.
          CTR. FOR BIOLOGICAL DIVERSITY V. USFS                       21

     In sum, the district court did not purport to exercise
discretion with regard to whether to hear this case, nor could
it properly have done so.

                                  III.

    Because the district court—improperly—determined
that there was no jurisdiction over this case, it did not decide
whether the operative Complaint states a claim under section
7002 and applicable pleading standards. “The matter of
what questions may be taken up and resolved for the first
time on appeal is one left primarily to the discretion of the
courts of appeals, to be exercised on the facts of individual
cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Here,
the relevant considerations favor remanding for further
proceedings so that the district court may in the first instance
consider the merits of the potentially complex and unsettled
issues presented by this case.

      To state a claim under RCRA’s citizen suit provision, a
party must establish that the defendant “has contributed 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.”
42 U.S.C. § 6972(a)(1)(B) (emphasis added). 3              The

    3
      We note that the present Complaint alleges only that USFS is liable
for contributing to the “disposal” of lead ammunition, defined in the
statute as “the discharge, deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous waste into or on any land or
water so that such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or
discharged into any waters, including ground waters.” 42 U.S.C.
§ 6903(3). It does not allege that USFS has contributed to the “storage”
of those bullets. That term is defined in the statute with regard to
22        CTR. FOR BIOLOGICAL DIVERSITY V. USFS

Complaint alleged USFS’s “fail[ure] to take action to stop
the disposal of lead in the form of spent ammunition on
Forest Service land” as grounds for finding contributor
liability. The Center in the district court argued that that
USFS is a “contribut[or]” both because it possesses unused
regulatory authority over the hunters and because Section
7003’s liability standards are analogous to those imposed on
private landowners at common law. The latter position
analogizes USFS’s “contribut[ion]” to a landowner’s
common law liability for nuisances caused by known
abatable artificial conditions on her property.          See
Restatement (Second) of Torts § 839 (Am. Law Inst. 1979);
Staff of H.R. Subcomm. on Oversight & Investigation, H.R.
Comm. on Interstate & Foreign Commerce, 96th Cong.,
Hazardous Waste Disposal 31 (Comm. Print 1979) (Section
7003 “is essentially a codification of the common law public
nuisance.”).

    USFS may be correct that the Center’s first argument
based on USFS’s unexercised authority is foreclosed by
Hinds Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir.
2011). Hinds concerned whether a manufacturer of a
product that generated hazardous wastes could be held liable
as a “contributor” to the disposal of those wastes by a
business using the product. 654 F.3d at 849. But, at the time
of the disposal, the manufacturer had no ongoing connection
to the product or to the place where it was used and disposed
of. See id. And although Hinds placed great emphasis in
determining contributor liability on whether the defendant’s
actions regarding the disposal were “active,” id. at 850–52,
it had no cause to consider the question presented here:
whether owning or managing land on which disposal of solid

hazardous waste, but not with regard to solid waste, at issue here. See
id. § 6903(33).
         CTR. FOR BIOLOGICAL DIVERSITY V. USFS             23

waste by third parties is ongoing, known, and unabated can
be a sufficiently active role to permit contributor liability.

    The parties dispute what the case law says about the
potential for landowner abatement liability under the
Center’s second argument. There is some tension, or at least
ambiguity, in suggestions from other circuits and from
district courts as to whether ownership or management of
property where disposal of solid waste is occurring and
discarded wastes have accumulated is a sufficient basis for
contributor liability. See, e.g., Cox v. City of Dallas,
256 F.3d 281, 294–98 (5th Cir. 2001); Conn. Coastal
Fisherman’s Ass’n v. Remington Arms Co., 989 F.2d 1305,
1316 (2d Cir. 1993), United States v. Waste Indus., Inc.,
734 F.2d 159, 161 (4th Cir. 1984); Benjamin v. Douglas
Ridge Rifle Club, 673 F. Supp. 2d 1210, 1221 (D. Or. 2009).

   The district court, in dismissing for lack of jurisdiction,
never had the chance to consider these questions of first
impression in the factual context presented by this case.
Given these circumstances, we think it wise to permit further
proceedings at the district court rather than reach the merits
now, both so the parties can present the issues as they have
evolved more fully and so the Center has the opportunity to
seek to amend its Complaint so as to more fully spell out the
bases for USFS’s contributor liability, if it so chooses.

                             IV.

    For the foregoing reasons, the case is justiciable. We
REVERSE the district court’s dismissal and REMAND for
further proceedings consistent with this opinion.
