Meyer

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.

I.

Because RCRA does not define “discarded” we look to the “ordinary, contemporary, common meaning” of that term. 1 *1048 Wilderness Soc’y v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc) (internal quotation marks omitted). Thus, our ultimate task is…

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.

I

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…