Safe Air For Everyone v. MeyerSafe Air For Everyone v. Meyer
Gary H. Baise, Baise & Miller, Washington, D.C., for the defendants-appellees.
Jon M. Bauman, Elam & Burke P.A., Boise, ID, for amicus curiae American Lung Association of Idaho/Nevada.
Karl T. Klein, Givens Pursley LLP, Boise, ID, for amicus curiae Idaho Medical Association, Inc.
Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-02-00241-EJL.
Before: WARDLAW, GOULD, and PAEZ, Circuit Judges.
GOULD, Circuit Judge:
We consider whether grass residue remaining after a Kentucky bluegrass harvest is “solid waste” within the meaning of the Resource Conservation and Recovery Act (“RCRA“). Safe Air for Everyone (“Safe Air“) appeals the district court‘s dismissal of its complaint for injunctive relief under RCRA. We conclude that the district court erred in dismissing the case on jurisdictional grounds. However, because we determine that Safe Air has failed to demonstrate that a genuine issue of material fact exists as to whether grass residue is “solid waste” under RCRA, we affirm the judgment of the district court.
In Idaho, Kentucky bluegrass is typically planted in the spring but does not flower and produce seed until the summer of the following year. By the time the flowers have produced seed, the bluegrass plants are fifteen to thirty-six inches tall. To harvest bluegrass seed, farmers first cut the crop close to the ground to prepare the crop for combining (i.e., separating the seed from the crop). A “curing” process dries out and ripens the head of the crop. After the curing process is complete, a combine separates the seed from the straw, leaving the straw on the field. The seed is prepared for commercial distribution. However, straw and stubble (the part of the crop not cut from the ground) remain in the field. Bluegrass farmers burn these remnants, a practice called “open field burning” or “open burning.” Bluegrass farmers can repeat this process for several years, depending on the length of the productive life of each bluegrass field.
Safe Air is a non-profit corporation formed by individuals from northern Idaho, Washington, and Montana. One of Safe Air‘s objectives is to stop the practice of open burning. Safe Air asserts that smoke resulting from open burning endangers the public because it contains high concentrations of pollutants that create severe respiratory problems for residents in areas immediately surrounding bluegrass farms. Defendants-Appellees (“the Growers“) are a group of 75 individuals and corporations that plant and harvest Kentucky bluegrass seed commercially in Idaho. All of the Growers engage in open burning in the process of growing Kentucky bluegrass.
Safe Air filed a complaint in the United States District Court for the District of Idaho on May 31, 2002, alleging that the Growers, by engaging in open burning, violated the Resource Conservation and Recovery Act,
On July 10-12, 2002, the district court held an evidentiary hearing on Safe Air‘s request for preliminary injunction at which the testimony of twenty-three witnesses was given subject to cross examination. On July 19, 2002, the district court dismissed Safe Air‘s complaint, concluding that it was without jurisdiction to resolve Safe Air‘s RCRA claim because, inter alia, grass residue did not constitute “solid waste” under RCRA.2
Safe Air appeals. We have jurisdiction under
We first address the unusual procedural posture of the case. The Growers filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12. The district court construed the Growers’ motion to dismiss as proceeding under Rules 12(b)(1) and 12(b)(6), and granted the Growers’ motion under Rule 12(b)(1).
Safe Air argues that the district court erred in dismissing its complaint because: (1) the district court reviewed evidence outside the complaint (i.e., evidence from the preliminary injunction hearing) without converting the motion to dismiss into a summary judgment motion under Rule 56; and (2) the district court erroneously construed as a jurisdictional issue the question of whether grass residue (i.e., the straw and stubble that remain on the Growers’ fields after the bluegrass harvest) is “solid waste” under RCRA. We disagree with Safe Air on the first issue because the district court, in this context, was not obligated formally to convert the Growers’ motion into a motion for summary judgment solely because it reviewed evidence outside the complaint. However, as to the second issue, we agree that, in the circumstances of this case, the district court erred by treating the issue of whether grass residue is solid waste under RCRA as a jurisdictional issue.
The district court dismissed Safe Air‘s claim for lack of subject matter jurisdiction under Rule 12(b)(1). A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. The Growers’ jurisdictional attack was factual because the Growers challenged Safe Air‘s contention that grass residue constitutes solid waste under RCRA. Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir. 2003) (jurisdictional challenge was a factual attack where it “relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings“).
In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003) (citing White, 227 F.3d at 1242). The court need not presume the truthfulness of the plaintiff‘s allegations. White, 227 F.3d at 1242. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n. 2.
However, “[j]urisdictional dismissals in cases premised on federal-question jurisdiction are exceptional, and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678 (1946).” Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983). In Bell, the Supreme Court determined that jurisdictional dismissals are warranted “where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.” 327 U.S. at 682-83.
We have held that a “[j]urisdictional finding of genuinely disputed facts is inappropriate when `the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits’ of an action.” Sun Valley, 711 F.2d at 139 (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)).3 The question of jurisdiction and the merits of an action are intertwined where “a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff‘s substantive claim for relief.” Id. See also Thornhill Publ‘g Co. v. Gen. Tel. Co., 594 F.2d 730, 734 (9th Cir. 1979) (“[W]hen a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs’ substantive claim for relief, a motion to dismiss for lack of subject matter jurisdiction rather than for failure to state a claim is proper only when the allegations of the complaint are frivolous.“) (quotation omitted).
Safe Air filed its claim under the “citizen suit” provision of RCRA,
against 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 which may present an imminent and substantial endangerment to health or the environment.
(emphasis added). Because this provision of RCRA “provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff‘s substantive claim for relief,” the question of jurisdiction and the merits of this action are intertwined. For this reason, we hold that the district court‘s characterization of its dismissal under Rule 12(b)(1) was error. Sun Valley, 711 F.2+d at 139.
III
For the reasons expressed above, we review the district court‘s order below not as a dismissal for lack of subject matter jurisdiction but rather as a grant of summary judgment on the merits for the Growers. Great W. Bank & Trust v. Kotz, 532 F.2d 1252, 1254 (9th Cir. 1976) (per curiam) (reviewing the district court‘s dismissal for lack of jurisdiction as a grant of summary judgment where the district court‘s dismissal was based on its conclusion that the note in question was not a “security” within the Securities Exchange Act).4 Thus we review RCRA and its definition of “solid waste,” interpretations of the statutory language in case law, and RCRA‘s legislative history to determine if Safe Air has demonstrated a genuine issue of material fact on the issue of whether grass residue is “solid waste” under RCRA.
RCRA‘s legislative history also reinforces our conclusion that grass residue is not the type of material that Congress intended to proscribe under RCRA. The House Report reveals that RCRA was intended as “a multi-faceted approach toward solving the problems associated with the 3-4 billion tons of discarded materials generated each year, and the problems resulting from the anticipated 8% annual increase in the volume of such waste.” H.R.Rep. No. 94-1491, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6239. Congress was concerned with waste products of all types that were contributing to ever-increasing landfills:
In addressing this problem, the Committee recognizes that Solid Waste, the traditional term for trash or refuse is inappropriate. The words solid waste are laden with false connotations. They are more narrow in meaning than the Committee‘s concern. The words discarded materials more accurately reflect the Committee‘s interest.
Not only solid wastes, but also liquid and contained gaseous wastes, semi-solid wastes and sludges are the subjects of this legislation. Waste itself is a misleading word in the context of the committee‘s activity.... An increase in reclamation and reuse practices is a major objective of the Resource Conservation and Recovery Act.
Id. at 2-3, reprinted in 1976 U.S.C.C.A.N. at 6239-41.
In enacting RCRA, Congress also declared that agricultural products that could be recycled or reused as fertilizers were not its concern. The same House Report stated, “[m]uch industrial and agricultural waste is reclaimed or put to new use and is therefore not a part of the discarded materials disposal problem the committee addresses.... Agricultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials in the sense of this legislation.” Id. at 3, reprinted in 1976 U.S.C.C.A.N. at 6239-41.
The burning of bluegrass residue by farmers is not the evil against which Congress took aim. To the contrary, the bluegrass residue is the type of agricultural remnant, used by farmers to add nutrients to soil, that Congress did not consider to be “discarded.” H.R.Rep. No. 94-1491, at 3 (1976), reprinted in 1976 U.S.C.C.A.N. at 6239-41 (“[m]uch industrial and agricultural waste is reclaimed or put to new use and is therefore not a part of the discarded materials disposal problem the committee addresses.... Agricultural wastes which are returned to the soil as fertilizers or soil conditions are not considered discarded materials in the sense of this legislation.“).
Safe Air‘s response to RCRA‘s legislative history is unpersuasive. Safe Air argues that because the House Report states that “much industrial and agricultural waste is reclaimed,” “much” does not mean “all,” and this leaves open the possibility that grass residue is solid waste. However, the possibility of such a distinction in theory does not persuade us that there is a genuine issue of material fact as to whether blue-grass residue can properly be considered “solid waste” within RCRA‘s meaning.
Given the uncontroverted evidence that the Growers reuse the grass residue in a continuous process for Kentucky bluegrass production, and do so in accord with farming practices that are beneficial in increasing crop yields, Safe Air has not demonstrated a genuine issue of material fact on the issue whether grass residue is a “solid waste” under RCRA.
We discern from Congress‘s explicit language in RCRA, focusing on discarded materials as a touchstone for solid waste, and from Congress‘s stated purposes, no Congressional declaration or intent to prohibit the established farming practice of open burning of Kentucky bluegrass residue. The benefits to the Growers of this practice were established beyond dispute in the evidence presented to the district court. Safe Air has not demonstrated that there is a genuine issue of material fact as to whether grass residue is “solid waste” under RCRA. On the undisputed evidence, we conclude that Kentucky bluegrass residue is not a “solid waste,” and that RCRA does not prohibit the Growers’ general practice of open burning.
AFFIRMED.
PAEZ, Circuit Judge, concurring in part, dissenting in part:
I concur in Part II of the majority opinion, in which the majority concluded that we should review the district court‘s dismissal for lack of jurisdiction as a grant of summary judgment on the merits for the Growers. I respectfully dissent, however, from Part III, which holds that Safe Air has not demonstrated that the post-harvest crop residue is a “solid waste” under RCRA. Because I disagree with the legal standard that the majority applies to determine whether the post-harvest crop residue has been “discarded,” I would conclude instead that the Growers have discarded the post-harvest crop residue within the meaning of RCRA. Even if I were to agree with the majority‘s interpretation of the RCRA statute, I would nonetheless hold that there are genuine triable issues of fact. Accordingly, I would reverse the district court‘s judgment and remand for trial.
Notes
against ... 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.
First, the dissent argues that grass residue is “discarded material” under a dictionary definition and maintains that is dispositive. In our textual discussion we noted the dictionary meaning of “discard” as “cast aside; reject; abandon; give up,” and we have fairly applied this definition. As we explain in our analysis, we conclude that grass residue is not “solid waste” under RCRA. Thus, while both this opinion and the dissent agree that we start with the statute‘s language, in our view the dissent goes astray with an incomplete analysis.
Second, the dissent contends that the out-of-circuit cases that we cite are inapplicable because they involve EPA regulations that have a narrower definition of “solid waste.” This argument is without merit. Because these cases involve challenges to EPA‘s regulation of particular items, these cases necessarily address whether those items were within RCRA‘s statutory definition of “solid waste” as “discarded material,” the same definition at issue here. ILCO, 996 F.2d at 1132; AMC I, 824 F.2d at 1185; AMC II, 907 F.2d at 1186. These cases analyze the term “discarded,” are persuasively contrary to the dissent‘s analysis, and are relevant to the issue before us which has never been decided by our circuit.
Third, the dissent argues that our holding permits any disposal process as long as the waste residue is eventually returned to soil. This is an incorrect overstatement. We only hold that, in these circumstances of Kentucky bluegrass farming, grass residue customarily used in the farming cycle is not “solid waste” under RCRA.
Finally, the dissent urges that a genuine issue of material fact exists as to the value of grass residue to the Growers. But as we explain in our textual discussion, the Growers introduced uncontested testimony, during an extensive evidentiary hearing in the district court, that grass residue has benefits to the Growers. The dissent does not point to any testimony contradicting this point that the district court found uncontested. It is not enough for Safe Air merely to argue that the uncontested benefits are ancillary.