good morning in may it please the court allison the plan on behalf of balance i'd like to try to reserve four minutes of my time for a bottle the center respectfully request that this court reversed the district court's judgment because the center is plainly not seeking an advisory opinion in this case honor we respectfully request that this court do so for a number of reasons go back to your other with respect to the advisory opinion that no party defends the court's ruling on that this was an advisory  opinion and this court should reverse that judgment because one there is an actual dispute between the parties and two there's a substantial likelihood that a judgment in favor of the center here could bring about an actual effect so the district court clearly had jurisdiction three it seems fairly inconsistent with her earlier ruling on standing absolutely your honor now although the forest service agrees with us that the center is not seeking an advisory opinion in this case the forest service nonetheless defends the district court's decision as the proper exercise of discretion to decline interception but that argument is flawed for a number of reasons first the district court did not in fact conclude that it had jurisdiction but was declining to exercise it is evident in the have it at all this is plainly not true though there is a passing reference to the declaratory judgment act in the background section of our complaint the actual single claim for relief at year twenty four and twenty five and the request for relief at yard twenty five and twenty six  cases that for service relies on are both claims brought pursuant to the declared declaratory judgment act and not claims for equitable relief such as the claim that we brought here for service does not cite the snodgrass decision from this court that we cite in our reply brief where the court made clear that claims that exist independent of the request for a declaration are not subject to the discretionary jurisdictional because a lot of this is not a declaratory judgment act case the courts quote virtually unflagging obligation to jurisdiction applies and not the discretionary standard urged by the forest service in this case now the center as judge was on alluded to the center also requests that this court reached the merits that were fully believe not the merits of the case but the motions to dismiss that were fully briefed below but not reached by the district court and then relatedly deny the s s s motion to strike that's still pending before this court so that was an interesting distinction that you just made so is this a case that's just a pure legal question so there really is nothing other than the motion to dismiss to decide or what would happen if we agree with you what further proceedings would happen your honor we would then engage in discovery guesses there are just motions to dismiss pending at this right now i understand that but it's feels like a legal question like do they have to enforce this or not or i mean what would be the factual development that would happen in this case if the case goes forward we need to prove a number of factors to prove and in particular to prove an imminent substantial endangerment so we intend to take discovery we intend to use experts there was there could possibly be a trial although some of these issues can get resolved on summary judgment and then there would be a remedy phase and for the district court to determine the scope of any injunction if we were to proceed or to prevail on  my understanding is that under the statute if there is a disposal here it has to be for the leaving of the material if there are beyond its useful period  it seems that it's not actually the shooting or the use of the bullets to shoot animals that's not disposal itself is that the disposal occurs once the ammunition is fired it fragments harm citizen provision that there's case law that seems to say that it needs to be active just suppose also we need to know what the disposal is and then see what it is that we're trying to get the law in terms of whether material has been discarded right that's sort of the relevant term looks to whether they're as is as you suggested whether there's any useful purpose but also whether it can be reclaimed whether can be recycled and whether in fact it is and none of none of those things happened the lead bullet fragments into pieces it's not reclaimed it's all to my question is whether under our cook case law which uses language of an act of disposal and lab and so is there some imputed obligation to clean it up is that because you're a land drone i think the your question actually goes to the statutory element that we need to show the forest service is contributing to an imminent substantial endangerment so so i have a question as part of that which is doesn't that go to what judge freedom was saying that this is really an interpretation of the law and i heard you made reference to you have a lot of discovery etc to do but isn't it really just a question of law as to whether under the meaning of contribute within the hour c r a they they are contributing absolutely your honor and that is why we are urging this court to reach that question right now because it's been briefly before the district court twice scase and pending for six years the court has all the information it needs to decide this legal question now to get more specifically into the contributor issue the that is the primary issue again the forest service argues about in heinz investment versus ngo li which is the leading case in this court on this issue the court held that to state a claim for recall liability for contributing to disposal of plaintiff must allege 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 the forest service admitted at oral argument the last time we were before this court that it has the authority to ban the use of lead ammunition for service in its briefing as admitted that its authority is not in dispute so ending the use of this this is why i was trying to distinguish between what the disposal is because it appears that using the lead ammunition in snotty just policy so like one remedy might be to require everyone to pick up the carcasses that is a possible remedy your honor that requiring using other ammunition that's not lead is also another possible remedy but the disposal again happens once the animal has been shot and the lead has fragmented and then it is you know  consumed by the congress and other animals bits of the times when in the quote you were reading it seems like you've tried in your brief to focus on how to measure of control but doesn't the or is otherwise actively involved in the waste disposal suggests that you kind of need some kind of active involvement even if you're thinking about whether there's some control no your honor we we submit that because the court used the word or a measure of control or active involvement that there's actually two ways in which you could establish like otherwise me and then what i was doing i think the book the court was just simply saying or otherwise actively involved i but that doesn't really make sense right it's either if it was just control or active involvement then you don't need otherwise otherwise means that they're kind of both the same doesn't it i don't believe so your honor and i think it's helpful that the forest service urges this court to look at some of the other decisions that sort of informed the court's decision in hindsight and one case i think is helpful on this point about the authority to control in and of itself and that's the a c d o decision from the eighth circuit and this is in storage of solid or hazardous waste i'm sorry i could repeat that i mean you keep concentrating on the postal i'm not i'm not sure your honor that wasn't our theory of liability i think that the material here is not being stored by force or it is there it's sitting on the ground right and go ahead in the decision that this court relied on in hinds that was about defendants who owned relevant pesticides and supplied specifications for the formulation of those pesticides but did not own manage the facility where the pesticides were formulated or where the waste was stored there the court the is circuit held that the that the defendants nonetheless had the authority to control the way in which the pesticides were formulated as well as any waste disposal but they go into the pest side i mean it just feels like a lot more active than what is happening here which is in action problem right what you're really complaining about is in action so it's a little odd with the statute  that sounds more active your honor we are complaining about inaction here what we're talking about is the force of the forest service argument essentially here is that it doesn't matter that there is hazardous waste being disposed of on our land it doesn't matter that we know about it it doesn't matter that it's been happening for decades and it doesn't matter that we can we can stop it all that matters is that we haven't done anything yet and that can't be what rick are intended and if the court looks to the record guidance that we cited in our briefs this is a guidance agency that is charged with implementing the statute e p a as many other courts have said the work contributing to needs to be construed broadly and e p a gives a handful of examples of somebody who might be a contributor guidance we cite it in our in our briefs and there's also a hyperlink in the brief to the guidance it's somewhat difficult to read i know i know what the courts have said that seven thousand and three i believe in united states v price that's one example that seven thousand three should be interpreted in the same way as section seven thousand and two but that language the e p a languages actually require guidance not circle of ideas and regarding this issue of failure to act you mentioned sufficient to state a clay is so are you saying that that there's a claim because they failed to act when they have the authority to control it and they have the authority to act yes your honor and critical to this to that position that they are the lender i'm sorry on that they were simply a regulator and not a landowner would you be in the same position i think we would be in a more difficult position there your honor we're not simply asking the federal government  asking the court to hold the federal government liable for failure to regulate their they're liable here because there is the owner of the parallel cases i mean i know there are since connecticut case but it doesn't really address this problem and assumes maybe but it doesn't address why you have a private landowner who is essentially on which there is an accumulation of hazardous waste that the private landowner is either inviting or at least not dealing with is there any and it just assumes somehow right right will that the court they are held the owner of the gun club facility liable the issues that they were debating were not right and no it was that is she was not fully briefed i don't think it was approved it wasn't discussed and so anything else you know there are a number of other cases that i think are helpful for this court to to draw parallels to i can't cite you a case where the united states has been on the ho for in a situation when asked by united states that's why i want to know about private par parallels  n you give it to us when you stand up ok thank you please the court my name is alan bray bender with the apartment of justice i'm here on behalf of the four service with me counsel table is officer norman james representing the intervenor national shooting sports foundation always the first fifteen minutes of mr james the remaining five would submit that the best reading of the district court's opinion is that he dismissed on two separate grounds first you have a correction to make to your brief before we even get started  on a partial misquote of the complaint well you know you're on i think our or it was correct at page fourteen in the excerpts of record if that's what you're referring to it says the requested  not sure i can promise up at the moment but i thought you had colorado river completely backwards and had a you have met him and moon because colorado river is the case that says several different times that there is an obligation under the broad hard abstention doctrine which is different from colorado river there is there's some useful language from colorado river that's why we cited to it but we're not making the colorado river argument we're making a brill hard argument because that's the argument that the that he  ray opinion he was wrong and that's what he said he didn't say i'm exercising jurisdiction besides which i don't think this jurisdiction exists and never saw or heard of this before that you just say i don't feel like doing i'm not an issue an injunction is i don't feel like and that's essentially what you're saying to have to consider them though so you're not just saying they can decline them you're saying it's ok for them to think they don't even have jurisdiction to consider them and that's just as wrong well that's what milton holds and judge mcnamee i get so excited are four parts to judge back to his decision only parts one in three relate to the advisory opinion there's a whole nother part that talks about the court's unique and substantial discretion  it would be something that there be no relief it's it would be an advisory opinion he thinks he has no jurisdiction and that's why the opinion could be clearer you probably should have said but he lacks jurisdiction  if you're relying on on the says the problem is that you shouldn't abstain from an improper intrusion into the domain of the u s fs well the federal judicial powers invoked to pass an invalidity of actions by the legislative and executive branch but this is this is not a constitutional argument this is a statutory argument that says that if congress a says you can't do x or you have to do x and and the forest service isn't doing what they were told to do by congress is there any authority in it but there that's what they say in their complaint that's what judge mcnamee relied on if you look at page two of judge mcnamee's decision he's relying on the plaintiff's complaint but if the court disagrees then we would suggest that the court should remain and without it's yeah well it's out of respect again for district judges you affirm a district judge on an alternate basis out of respect for its judgment but it's a completely it's it's the flip side of the corn this that generally doesn't direct how a district judge is going to decide or should decide a pending motion it only this court only does so in the context of mandamus and that's really what the point of our seeking here is a de facto petition for e what what's the answer in a case like that well being a passive land owner isn't sufficient under this court's heins process that right that's what i'm asking you i don't know the answer to that yes and i about landowners it wasn't it was sort of back in the other direction and it was somebody who was back here instead of up here but heinz is all about active involvement and being a passive land outside europe especially the government's position is that if you have private land owner and and they put a sign of anybody want to jump hazardous waste here come on and a whole bunch of people came and dumped hazardous waste that would be there not to i know they would be i would be to the act of putting up that sign i saw no sign but they know it and everybody's doing it right and that's because knowledge is not an element to recruit rick ross a strict liability statuettes or knowledge doesn't matter and not contributing to the storage of the hazardous waste by providing the space for it and not doing anything about removing it there rights but i know you didn't mean to i hope because no i did not mean manufacturers of dry cleaning right if i said that i was wrong i didn't mean to say that ok so what do you want to say about honeywell then that it had it held that a passive landowner  not a contributor under rick rock and that's one of the cases that this court cites good contrast because in circle of congress separated out landowners as potential but a separate class but in regular congress didn't do that it made owners liable only to the extent they have some active involvement in the storage disposal transportation handling of which also tell them why isn't providing a land for something not an active involvement in storage before service is not providing of the land  these are public lands they're open to the public unless they're closed by congress or closed by the agency after pursued after pursuing all the clearing all the statutory and regulatory hurdles for closing line doesn't doesn't heins also make reference to the marathon oil case that's a fifth circuit case and there it involves materials it's a defendant railroad company their argument is that they're not in possession or control  hazardous material as they were transporting the materials when they were released they played no role in their disposal yet the court in that case ruled that the plaintiff had stated a claim based on the defend defendant's alleged control over the practices  at the site where this all the stuff was leaked so isn't this more analogous to that kind of a case though i think in marathon in fact the railway company transported the hazardous waste on its cars unloading practices which then closed it was an imposition or control that it was not transporting the materials you say it's it says it was transporting materials if it we're talking about the same marathon oil case yes well it's one sixty you now he's very sympathetic to the person sitting there with me i would say what do you do in that instance you make faces thank you your honor may i please the court my name is norman james i'm with the phantom or craig and phoenix and i represent the  excuse me the national shooting sports foundation obviously we stand by our brief i have a limited amount of time today let me just focus again on the each of whether there is a disposal of solid waste because really that's the big issue here i mean recruit again is broadly written but it applies to the generation disposal of waste it doesn't apply to honey and that's i think what makes this case so also to store and to generation transportation storage and disposal that's correct your honor it's against a broad statute it's intended to be a cradle to grave seppa cradle to grave system to manage hazardous waste it also has sections that deal with solid waste the argument here is honey is producing solid waste obviously we disagree but so what would be wrong with that as judge friedman mentioned just requiring them because it does talk about disposal just requiring them to take the carcasses out of that and that's a very good point your honor the pick the complaint if you look at the complaint attacks the use of le it says hunters that fire a game using lead ammunition or disposing of a solid waste that's the jennet that's that's the basis of their case they mention the the so called got pile problem where one hundred shoots a deer  he field dresses the animal he leaves part of the carcass behind that has trace amounts of lead in it it gets consumed by con doors and other scavengers that's right that's the basic issue i mean one way to cure the what i mean i think it's common ground i hope it is that the disposal is not the shooting it is leaving it there and but the fact that i mean there are three different ways to cure is leaving it there one of them is not put there to begin with and that's through the shooting but i understand so i mean maybe there's something technically wrong with the complaint but that doesn't seem a very good ground and that be a ground for telling to go amend their complaint but it's not going to dispose of the case well so e else well your honor i think it if i could expand on that will because i think it i think it does go to the heart of the case because again the allegations are that honey discharging a bullet made of lead is a recruit but it's not it's the leaving of the carcass so i mean could the forest service say anyone who use our land for hunting with lead bullets needs to take out the carcass you can take out the carcass your honor you could bury the carcass so scavengers can't get to find out ahead i'm just so is say you're representing these hunters so would there be a problem do you think that rick could cover the idea that the forest service should say that hunters to take out the carcasses well first  i don't think i don't think it does and the reason why is again if you look at the case law that deals with honey i think the courts already alluded to this first the discharge is not a disposal ok we're not we're all in agreement about that although what about the even find the bullet it's probably shattered to pieces but then again there's no there's no danger to anyone or talk about the disposal of a carcass right next shoe to deer the bullet goes through the deer same result the the problem is is at least according to the allegations the problem is if you do your shot in this case and it runs off in the hunter can't find it and it dies in the forest it's eaten later by scavengers again there's no active d know there are and that's your right and that's the third and now is getting to that your honor that's the other that's the other problem but again there isn't in contrast to the gun club cases where there's a long term accumulation of sp we're talking about a single animal that has fragments of lead in it there's no expectation to hunter again this goes back to the point you're talking about it's not the lad it's the carcass the carcass it's solid waste but they're saying the forest service needs to do something to stop violating rick because and the way they should do that is do something about got piles or carcasses with lead in them now whether we said the problem is the letter of the carcass it seems like i mean maybe you can tell me as a practical matter what it is there a problem for hunters if they have to take the whole carcase away if it's difficult but what again and i guess i'll just conclude with this thought i'm going way over and i apologize for that again the  fundamental issue here with respect to the plaintiffs is they don't want they don't want a regulation that says you have you can't leave behind i don't buy this if they want to watch as a different question the question is what can they get and i mean the argument that that the forest service doesn't have any obligation to stop the shooting but it may have an obligation to stop the the cumulation on the ground you know it's an argument you can make on the merits when you catch the merits but very simply your link in our briefing on that and to kind of document is that do we have any deference to it your honor i'm not aware of any case that has has applied any sort of formal deference to this particular document but it is an e p a guidance document and again e p a is the the authority not the forest service on how requests should be interpreted and the statements mr bray bender just made about landowners not being held liable under brooklyn only under circle are completely inconsistent with what that what that guidance actually says no judge was on you had asked for a case that i was having a hard time thinking of that that fit within your facts an area and i would point you in our in our briefing we cited the waste industries case which is a fourth circuit case and they lead i'm not sure whether they're specifically inviting them to shoot with lead but those are the that is the preferred choice of some some people and out of where the facts of that well that's why i mean would they be parallel as well in the sense that coastal fishermen's association case because it is i think parallel at least at some level another case that i have you tried to seek foresman or regulation from about this so u p a usually enforces recross it seems like maybe they're the think that that's what you're asking for right because it seems like you're this is a disposal case right so so maybe there are different ways to get at it but it seems like the it's not the lead bullets per se it's the lead bullets left in the carcass on the ground that's your problem so maybe e p a should have a regulation against hunters leaving carcasses e p a has declined to regulate this now but the federal government is no stranger to regulating lead as we shooting of lead bullets but what the leaving of the carcass is on the ground and if not could you amended complaint to do that you and others is there some reason why it's completely necessary to your whole theory of this is that you have to regulate the shooting your honor we have not gotten to the phase of expert discovery i want to know about your complaint will the complaint for the court to restrain the forest service but there's a some entity that gets out hunting permit it's like the tour leader or something a commercial guy the commercial guys have you tried suing them under the supervision no your honor aren't they more active in doing this you are the commercial guiding outfits i would say are probably a smaller percentage of the problem on the national forest as opposed to just individual hunters who go out recreationally to hunt ok thank you