## Facts

- The United States Department of Defense and the Department of the Navy conducted live-fire training exercises on Vieques Island, Puerto Rico, using a designated impact area for naval gunfire and air-to-ground ordnance.
- During exercises, munitions were fired toward the impact area; some rounds allegedly landed in the impact area and some allegedly skipped or traveled into surrounding waters.
- Water Keeper Alliance and other plaintiffs sued under the Resource Conservation and Recovery Act (RCRA), seeking injunctive relief based on alleged contamination and alleged “imminent and substantial endangerment” from munitions, residues, and unexploded ordnance associated with the training range.
- Plaintiffs also brought claims under the Endangered Species Act (ESA), alleging violations of ESA consultation requirements and unlawful “takes” of listed species related to the training activities.
- Plaintiffs additionally asserted an equal protection challenge to the federal government’s continued use of Vieques for live-fire training.
- Defendants moved to dismiss: they sought dismissal of the ESA and equal protection claims in full, and dismissal of significant parts of the RCRA theories.
- The court addressed the motion to dismiss and evaluated, among other things, the effect of EPA’s interpretation of “solid waste” and the Military Munitions Rule on plaintiffs’ RCRA theories, and whether plaintiffs satisfied the ESA’s 60-day notice requirement for citizen suits.

## Issues

1. Whether ordnance fired during live-fire training is “discarded material” (and thus “solid waste”) under RCRA at the time it is fired or while it is in flight, such that RCRA citizen-suit relief may be used to constrain training on that theory.
2. Whether RCRA permits any narrower claims based on munitions or related materials after use (for example, when ordnance is left on the range or otherwise managed as waste), and whether certain materials (including depleted uranium) are excluded from RCRA’s “solid waste” definition.
3. Whether the court had jurisdiction over plaintiffs’ ESA citizen-suit claims where the plaintiffs’ notice of intent to sue did not give adequate notice of the specific ESA violations later alleged.
4. Whether plaintiffs stated a plausible equal protection claim challenging the selection and continued use of Vieques as a training site.

## Decision

- The court granted defendants’ motion to dismiss.
- The court dismissed substantial portions of the RCRA claims to the extent they depended on the theory that firing munitions for training makes the ordnance “discarded” solid waste at the moment of use (including while the munitions are in flight), relying on EPA’s interpretation reflected in the Military Munitions Rule.
- The court also dismissed RCRA theories that depended on materials excluded from RCRA’s definition of “solid waste,” including depleted uranium.
- The court allowed only a limited, more constrained portion of the RCRA case to proceed—if at all—based on narrower post-use waste-management concepts rather than treating live-fire training itself as waste disposal.
- The court dismissed all ESA claims (both consultation-based claims and “take” claims) for lack of jurisdiction because plaintiffs failed to satisfy the ESA’s 60-day notice requirement with respect to the specific violations asserted in the complaint.
- The court dismissed the equal protection claims for failure to state a claim, concluding that the challenged federal decision to conduct training on Vieques was subject to rational-basis review and was rationally related to legitimate governmental objectives, including military readiness and national defense.

## Legal Principles

- Under RCRA, “solid waste” generally requires that material be “discarded”; items used for their intended purpose are not necessarily “discarded” at the time of use merely because they are expended.
- Courts may defer to EPA’s reasonable interpretation of RCRA and EPA regulations, including EPA’s Military Munitions Rule, when determining whether and when military ordnance becomes “solid waste.”
- The Military Munitions Rule treats munitions used in training (including munitions in flight) differently from munitions that are abandoned, disposed of, or otherwise handled as waste after use.
- RCRA’s statutory and regulatory exclusions can bar citizen-suit theories that depend on treating excluded materials (such as depleted uranium) as “solid waste.”
- ESA citizen-suit jurisdiction requires a valid 60-day notice of intent to sue that identifies the alleged violations with enough specificity to give the agencies an opportunity to address them; inadequate notice is a jurisdictional defect requiring dismissal.
- Equal protection challenges to federal action that do not involve a suspect classification or a fundamental right are reviewed under rational-basis review, and courts give substantial deference to military and national-security judgments when assessing whether the government has a rational justification.

## Conclusion

In this motion-to-dismiss decision, the district court sharply limited the plaintiffs’ effort to use RCRA to attack Navy live-fire training on Vieques by rejecting the claim that munitions become “discarded” solid waste at the moment of firing and by applying RCRA exclusions, while dismissing the ESA claims for lack of jurisdiction due to defective 60-day notice and dismissing the equal protection claims under deferential rational-basis review tied to military readiness and national defense.


Water Keeper Alliance v. United States Department of Defense, 152 F. Supp. 2d 163 (2001)