good afternoon it may please the court alice and the plant for upon center for biological diversity share a club in grand canyon wild wings council i'd like to try to reserve four minutes of my time for rebuttal that clock they're trying to help you as well the two closely related questions before the court today are first whether the forest service has the power to stop the poisoning of california condors and other wildlife in the national forest and is thus the cause or of cause of plaintiff's injuries and second whether an order from the district court directing the forest service to abate the known endangerment would at least partially redress plaintiff's injuries here the answer to both questions is yes as directed by this court's precedent and the statute issue the resource conservation and recovery act ereka with respect to causation the district court probably found that the center's injuries are fairly traceable to the forest service refusal to stop the disposal of lead ammunition on the cob national forest no first the forest service unquestionably has the authority to stop the lead contamination on the national forest both as the landowner and as the agency primarily charged with managing the forest to protect it and the forest service does not and really cannot dispute this is already rather it points to its practice of deferring to the state of arizona on hunting regulation but that practice of deferring to the state of arizona as hunting regulations is not defeat causation in this case the practical matter how would it work we what would our order read would we  require the fourth ervice to promulgate a regulation not necessarily on of the the district court of course has broad discretion discretion and formulating an equitable relief in this case it would not necessarily have to involve rule making this to to issue an order i'm just trying to think practically speaking how would that work sure and your honor it's somewhat difficult of a question to answer because we're so new in the case relatively speaking and we haven't gone through discovery or expert testimony and i think that having the benefit of expert testimony to help decide on both sides to help decide what the particulars of any remedy order would look like after trial would be helpful but i think that's a bit at odds with what i thought the brief said which would be to open your honor we think that an order from the district court ordering the forest service to abate the ongoing in danger meant posed by spent let em unit lead ammunition would be would be adequate my point only was that as a practical matter after trial and after expert testimony it may become clear that more forest is that how you envision that the order would at this stage honor that's correct it's hard to point if it's that kind of an order it's hard to distinguish that norton and here on the law and dismiss a lot of twelve b six correct your honor but doesn't affect the question of reversibility collapse and to the cause of action and now assists in this kind you know and i think there are distinct here and we certainly of course don't have to prove that we would prevail on the merits in order to win on the causation question i think there is some relation between the question of causation and whether the forest service is contributing to an ongoing in danger ment on the national forest so in that respect they're somewhat related but it's a distinct question here because the question of causation as this court has held before is whether the agency has the power and ability to act in that respect this case is very similar to the case of covington versus jefferson county there there were two agency defendants essentially that had jurisdiction over the landfill in question and one of the agencies argued that there was no causation because it was not the lead agency and didn't have and only had regulatory oversight but this court held rejected that argument and held that declined to take any regulatory actions by doing that such understanding of the forest service decided to go out and do something you would likely have an impact maybe tiny but it doesn't say it has to be big so and particularly we're potentially on species that don't migrate so the causation question seems to me to be different than there was i mean and maybe you can alumina your view on that i think the two questions are closely related i think the redress ability question goes more to whether the court has the power to order the forest service to do something and if it would make a difference to me that's the can we order any effective relief that's or can in any court order effective relief that's the that's the issue that concerns me the most whether or not any order that the court enters would make a difference in terms of what the lead in the forest i mean you know in a way i think the are saying that we order the forest service to do an affirmative act that they don't have an obligation to do that's what that's what's troubling me a little bit about this ron if i could try to take those both of those questions race and see them as sort of separate first with respect to whether a court could issue an order that would be effective the answer to that question is yes what we know is that california condors are being poisoned and other wildlife is being poisoned on the national forest the plaintiffs complaint clearly alleges not just harm to congress but to other species that as judge mckeown pointed out don't travel quite as far as the california condor but even with respect to the california condor if they are good less risk that they will be exposed to put lead poisoning on the bad even if they're exposed in utah that doesn't mean that the court's order to reduce the lead exposure and arizona wouldn't be effective for these the there are so few birds only seventy three fully free flying birds left they are there opportunistic feeders that feeding groups even one poisoned carcass can kill several different birds at one time and what we know from the the limited facts that are in the record is that even small number of deaths for these birds can make a big difference to their population sustainability i understand that my question is the forest service is directly responsible for the lead the forest service itself is not spreading the lead through through its actions and so that's why it's kind of a what's removed type of harm and i'm just that's why the redress the bill of the is is of concern to me because if you are asking i mean if the if the hunters themselves were being compelled to not use them when i would see the redress the bill is directly the once removed part of it is what's troubling me in terms of the redress the bill of honor so i think what the court has to assume is that the forest service would comply with the district court order to abate the endangerment and that hunters would comply with the law so for example if what the forest service did was so we talked in our briefs about how it issues special use permits to commercial hunting outfits on the national forest so if the forest service required a provision in its special use permits that said you must use non lead ammunition then we would assume that no no commercial outfits would go out unless they complied with a permit forest service issue permits for hunting in the in the forest for commercial outfits or not for individual hunters so not so your argument is it would be a partial redress in that respect because it would reach the individual hunters honey commercial as opposed to individual you know your own i don't know the exact number it's relatively small so clearly to invite the into a debate the endangerment the district court order would need to go beyond that in the forest service actions would need to go beyond that and so again the forest service has the authority to issue orders to promulgated rules that could actually prohibit hunting with lead ammunition in the national forest when i read your brief and then i heard your answer about a general open in order it seems to track almost the language in norton which said basically there the utah wilderness alliance was contending that a federal court could simply enter a general order compelling compliance with that mandate talking about the wilderness act mandate i'm not impairment without suggesting any particular manner of compliance and it goes on to say that this really involves it's a broad exercise of discretion that it lacks the specificity required  and then of course they dismissed the case and i recognize that the twelve b six case but why isn't this the same thing it's not the same thing your honor because that's the problem the plaintiffs had in th versus norton case was that they were bringing a cause of action under the ministry of procedure act a p a section seven zero six one and justice scalia's opinion in that case was very much tied to the statutory language of the a p a and what justice called scalia was concerned about with the language that judge mccune is reading is that only specific types of agency actions can be compelled under the administrative procedure act this case of course is not brought under the administrative procedure act and in fact couldn't be brought under the administrative procedure act  you're almost halfway through your argument and you haven't touched on it seems to me you're clear is shot through the standing issues which is simply the text of the statute you soon you know this is isn't just a kind of a general procedural case and recurrent gives you specific remedies you can sue the government the government is a person on the record and you have a specific statutory what i wholeheartedly agree your honor and i think that's the other reason that this case is quite different than the sewage case because the language the broad language where congress provided a right of action against any person including the united states to abate an imminent substantial endangerment gave courts the power to restrain any person or to take any other action as necessary to abate that endangerment we have a remedy here i'm susan we have the best believe that's what distinguishes this case from north absolutely that this a citizen suit brought under the record of statutory provision in which congress has effectively created our redress ability and it's different than the sewer case because that was brought under the authority to sue agencies as well that's correct your honor but what we know from the supreme court's decision and bennett versus fear is that citizens cannot bring suit under the a p a when they have another cause of action here we have a cause of action under wreck rest so we would not even be able to bring up to me that there is no distinction between being able to sue under one statute as opposed to being able to sue under different statute to me that's a distinction without a difference because both of them give an avenue to sue the federal government so why does that make a difference in terms of redress ability i think it makes a difference your honor to get at the very concern from the quoted language judge mckeown was reading about concern about the court issuing an order to compel a duty that's not discreet enough here congress gave the courts the right to issue t of order explicitly and request section seven thousand and two and the plaintiffs in the norton the sewer case didn't have a similar cause of action to sue under so they were simply trying to use the a p a to essentially try to enforce a statutory obligation question because congress has given us that authority now to address in the last few minutes if i can just address another argument the government made in its briefing and the government suggests that the plaintiffs in this case  are prohibited from bringing or from relying on certain case law because we do not have a procedural right and harm that that's been harmed and to be clear plaintiffs acknowledge that our right is substantive that the harm here is substantive that it's not procedural but the point in our briefing is is that because what we need to happen here is agency action that necessarily involves process some of the case law talking about procedural rights and the fact that you can't exactly predict the outcome of agency process is relevant to this case is your point that it changes the standard a review as it would in a procedural case or has some other impact just that it's relevant by analogy your honor element for what well for for putting the court at ease that the plaintiffs need not show the exact outcome of the forest service regulatory process so the district court erred because the district court thought it was uncertain we have whether we had redress ability because the forest service might need to promulgated a rule it might need to go through in that case was substantive it was they were concerned about pollution and water from construction sites essentially but when the court was analyzing the redress ability there acknowledged that because what was going to be promulgated were f one limitation guidelines  discretion in what it promulgated we just we can't predict the exact outcome that didn't defeat redress ability in that case and there are that was a clean water case that was a  they're suing under a very specific statute with specific mandates that's correct your honor and it would probably have been argued it was argued in the norton case that the aspect of the wilderness act would be equivalent to the non contribution aspect here is that matter the nature of the language in the underlying statute i mean why i don't know that there's much distinction in the in between the well in a sack and the obligation imposed here in terms of the way it's worded i think there is some similarity in the language your honor but i think the the big difference again is whether we have a cause of action and we do have a cause of action here because congress created that cause of action we were not in the wilderness act they were going to ask the government about this i assume you ought not be arguing cause of action here though as much as stand please the court alan brabender with the department of justice here on behalf of the forest service but if the court got it right point of slack standing here because there is a redress ability problem and there's a causation problem now first with respect to causation here the lead poisoning and condors is the result of the actions of numerous third parties not before the court where it is introduced through the choices of the individual hunters who choose to use live ammunition while hunting big game and the plaintiffs are asking for another district it was they weren't quite as clear in the district court as they are here and what type of order they were seeking that's why the district court thought that they were asking for a regulation banning what i mean ition but if what they're saying now is that they're seeking a general order ordering the forest service to come into compliance with with rick roe the court would have that authority to enter such an order and the four service would comply but that's what i thought they said right but even if you want and that's what they're saying now but that's not what they said before is that what you're about they weren't quite as clear before as to what they were what they're seeking but even if the court entered that sort of general directive the plaintiffs have not pled sufficient facts to show that such a directive and the four services actions would redress their injuries well so what the difficulty i had then would be you know you on a twelve b one motion you'd be down to arguing some of the scientific facts on how you read the report and whether if they had such an order it would have some diminution and it could help maybe the contours less than it could help the other species i mean if they if they allege that this could occur at the standing stage isn't that more a question of remedy and cause of action well we think with this particular with respect to the cause of action here at it and mirrors the causation problem here and that is in action is not sufficient to confer cause under article three and that's because in the american system you must have a duty to act you cannot be held responsible for a for an action unless you have a duty  allegations of this complaint is sitting bull i was all live shot is being used which you know everybody knows is toxic to lots of wildlife you can use it in most places to shoot dogs for this reason that shot is you know everyone knows what it's used for big game but everyone knows about environmental  real question sure but and for this court have jurisdiction for service must be a legally sufficient cause of the plaintiff's injuries but it isn't and you know it if the question then i think is maybe hair splitting but the district court dismissed this on like a standing correct correct and we're cautioned by the supreme court in various cases in later years that we ought to be distinguishing between lack of jurisdiction and failure to state a claim under twelve six so they don't have to prove causation to have standing correct church but whether they have alleged something that would potentially at least give allegation that there's causation right there is not in that year in order for the force of us to have a duty under under rick ross they must have taken some sort of action in action isn't enough you need a measure of control and control of an action word you  exercise control not doing anything under that this court has investment decision in order for the plaintiff to have stated a claim they have to have alleged that the poor service took some sort of action and they haven't done that you know  and the waste just blows the end to the river and they didn't you know and then then they don't do anything about it and maybe a flows in from a third party under your theory well there would never be a recruiter claim because they didn't do anything they just said by well if the government was operating the nuclear facility they would have they would have had control over the west it's a third party and the and the government's not doing anything they just say what well the service is not a contributor it would be the the individual hunters or perhaps the state of arizona as a regulatory agency but they don't know that on your you've completely lost me because rigorous specifically in this is six you know  relief including in one or two of the offending person to take such action as may be necessary to abate the threat for that is true only against contributors and the united states and the forest service is not a contributor because they didn't under this court's case law and hines investment i didn't have a measure of control over the waste at the time of the disposal and and was not actively involved in the process they have the plaintiffs have only alleged in action which is not sufficient to state a claim on the record and even if the forest service were a cause of redress ability would be lacking here to establish for dress ability the plaintiffs must plead sufficient facts showing that it is likely as opposed to merely being speculative that a favorable decision would redress their injuries and as the difficult found here the condors behavior and eating habits and wide range mean that congress will be detrimental exposed to lead their allegations of injury have paid paragraph thirty five to forty two pertain specifically to condors and therefore the point is have done even west with respect to other species and the have with condors and as we state in our brief arizona has a very successful voluntary live production program where up to ninety percent of hunters in the condo or range in arizona are taking steps to reduce the availability of lead with these  us any person including the united states and any other governmental instrumentality or agency and it includes prast or present generator past or present transport or or past or present or operator of a treatment storage or disposal facility who has contributed or who is contributing which of those did the plaintiffs say that the forest service was  transporter or past or present owner operator of a treatment storage or disposal facility who has contributed right or who is contribute so those words are not in isolation they're tied to a description of the types of persons who can be liable under it sure and i think what the plaintiffs if i recall the plaintiffs have parroted that language in their complaint and so it's i think that's what i was curious which which category i don't much which category they believe you know they're just think contributor generally without a category as listed in requests for an order where do you make the argument that you made under hines a man to go about this them not being a contributor apart from i mean you said that really it's arizona because they're regulating hunting but did you make the argument that the forest service cannot as a matter of law be deemed a contributor  hard to address this argument here because i didn't that was an argument that i heard from you you know now i read it differently in your brief that you talk about arizona but not about the legal status of the service why wouldn't this be it can't be a cause because it's not a contributor which is an argument you didn't mean what we made below and to the extent the court is uncomfortable the united states would be perfectly would accept a rematch to the district court to address whether or not the plaintiffs have rematch except the for the fact that we also believe redress ability is lacking because even if the court were to enter the sort of order that the plaintiffs are seeking they have not shown that it would make a difference and that is because as a result of arizona's program lead levels have been significantly reduced in arizona yet the condo recovery team reports that there has been no observable reduction in lead exposure to overall and that is because contours that visit the florida places such as utah and are poisoned there and this makes a difference because of the plaintiff's claim of injury when it is they are not claiming injury based on the mere presence of lead in the environment they claim injury based on the diminished opportunities to see conjurers in the wild and specifically the cobb national forest so what they cannot show is one  and flies to utah and it and they are of lead poisoning that a forest service van in this one area would it would increase their opportunities to see condos in the wild action that you are get under a motion to dismiss but was not argued here is alternative grounds for affirming the district are correct and finally this is not a procedural rights case and therefore the traditional redress ability standard applies the plaintiff must show that it's likely as opposed to me being near it merely being speculative that their injuries would be redressed and your take on the norton well i don't think if what the plaintiffs are seeking is the sort of general directive that the forest service come into compliance with record if that's the and they believe then the court leaves t discretion with how to accomplish that with the agency we don't believe there that's who was strictly relevant here so you're saying that if what they're asking is this broad direction that that then the norton or the two a case would not really be implicated right as much as i would like to say applies i think i have  pretend i just wanted to understand and i think it's for the reason i argue that judge parker addressed thank you just a few brief points mr brady under spent much of his time actually talking about the merits of the case which are not before the court at this point and in doing so conflated the question of whether or not we can prevail on the merits with whether there is causation in this case and so at one point mr bender stated that the government doesn't have causation because there is inaction can't be a basis for causation but as a side of the case before in covington versus jefferson county this court held exactly the opposite in fact stated that in action can definitely be a basis for causation now the government's claim that inaction can't be a basis for our cause of action in this case is also incorrect judgments and you asked about what our theory of liability is in our theory of liability is that the forest service is liable as a landowner just like any other land owner would be liable under rekha now the united states own guidance on inforcing record where in the record statute are you taking your argument that owner operator of a treatment storage or disposal pithily right that that's why that's not the most relevant language i think it's the language is contributing to and in fact actually there's a predicate there is a predicate a phrase before who has contributed or who is contributing to those who are not in isolation that's right but it's states any person in the united including the united states right but you don't disregard the rest of the statute  we're not disregarding the rest of the statute your honor in fact actually it's helpful to look at who's charged with administering ministering record generally speaking e p a s own guidance on how to interpret it in the united states actually states and it's guidance that the word contributing to should be broadly construed and should be used explicitly recognizes that contributes contribute i'm sorry but but you don't ignore the words that come before contributing to there isn't there's a predicate phrase that comes before that that describes the types of persons who are liable under record that's that's correct your honor that there is a predicate phrase that comes before there but in the way that the united states has interpreted the act and it has there have been many cases in which the united states has gone off after past or present landowners for contributing to waste on the disposal when they've operated facilities that to handle or store treatment or treatment facilities that's that's true i'm  honor the cut probably the closest case from this circuit is price v united states navy and that is thirty nine f third ten eleven it's one thousand nine hundred four that was a case in which a citizen suit was brought against the navy and the ultimately the citizens who did not it was with respect to a property that the navy had formerly owned so if the navy was being sued as a former landowner of the problem isn't that where they had the shells is that the case you're talking about you know this was a toxic paint so lead and other contaminants from paint that had been essentially dumped and then maybe was struck on the river wall because the it was the former landowner so the question though before the court the plaintiffs did not prevail in that case but that was because they couldn't establish an imminent substantial endangerment not because they didn't have a cause of action against the united states or because that as a former landowner there's some sort of exception that apply there when i think we're in that case when they've been the successor in interest to someone who just posed as somebody they were there they were the ones who were responsible under that under the theory at the time of the disposal but you have to be there was a disposal act of disposal there was the by the news right well your honor it's been interpreted i can give you another example of a case not against the united states but by owning a property and having third parties come onto the property i think that the case about spent spent ammunition is probably the most relevant case that's