Hunters in Arizona won’t be barred from using lead ammunition even if the bullets left behind can cause the death of other animals.
In a new ruling Friday, the 9th Circuit Court of Appeals rejected a bid by the Center for Biological Diversity to order the U.S. Forest Service to ban the use of the ammo in the Kaibab National Forest.
Judge Jay Bybee, writing for the unanimous three-judge panel, acknowledged that the Forest Service owns the land. And, he continued, it has the right to regulate hunting and fishing activities.
But Bybee said it is the state that generally regulates hunting. And he said the Forest Service “rarely exercises its authority to preempt state laws related to hunting and fishing.”
More to the point, the appellate judge said that decision by the Forest Service to take no role in hunting regulations means it cannot be held responsible for the damages caused by lead ammo.
Friday’s ruling, unless overturned, leaves the environmental group with no remedy.
The Arizona Game and Fish Department in 2020 asked hunters to use non-lead ammo, at least in two game management units in the north Kaibab National Forest and along the Arizona strip to help save condors, citing studies that it said “suggest” lead shot and bullet fragments and carcasses left behind are a source of lead exposure. But there is no outright ban.
“This unfortunate ruling is a step backward for California condor recovery,” said Jonathan Evans, senior attorney for the Center for Biological Diversity. “Condors can’t recover from the brink of extinction until we get lead ammo out of key habitat like the Kaibab National Forest.”
Filed in 2012, the lawsuit is based on arguments that hunters who frequent the 1.6 million acres of public land bordering the Grand Canyon commonly use lead ammunition.
Sometimes, the lawyers for the environmental group said, lead is left behind when an animal is shot but not retrieved because it evades the hunter and dies elsewhere. Other times hunters may “field dress” a kill, removing the internal organs at the site and leaving them behind.
The result, they said, is that other animals feed on the remains, ingesting the toxic lead.
“Lead ingestion and poisoning attributable to spent ammunition has been documented in a number of avian species in Arizona’s Forest Service land, including endangered California condors, bald and golden eagles, northern goshawks, ferruginous hawks, turkey vultures and common ravens,” the ruling states. In fact, the judges said, the federal government banned lead ammo for waterfowl hunting nationwide more than 30 years ago.
In filing suit, the Center for Biological Diversity sought to use the federal Resource Conservation and Recovery Act, which governs the treatment, storage and disposal of solid and hazardous waste. The organization alleged the Forest Service is violating that law by creating “an imminent and substantial endangerment to health or the environment” through the failure to regulate the use of lead ammo in the Kaibab.
Bybee, however, said that the only way the Forest Service would have a duty to regulate the disposal of lead ammo in hunting activities if there were some direct requirement under the law. He said the general requirements of the Resource Conservation and Recovery Act “imposes no greater or lesser duty on an agency of the United States than it imposes on any other person.”
And here, Bybee said, even the Center for Biological Diversity admits the Forest Service is not the source of lead ammunition found in the Kaibab. So what that leaves, he said, is the claim that the Forest Service is failing to use its regulatory powers, something the appellate court said does not fall under the federal law.
“If USFS required hunters to use lead ammunition, our analysis might be different,” Bybee wrote.
“But within the Kaibab, USFS has no actual control over lead ammunition at the time it is discharged by hunters,” he continued. “An agency’s choice not to regulate despite authority to do so does not manifest the type of actual, active control contemplated by RCRA.”
The appellate judges were no more impressed by arguments that the Forest Service is liable because it owns the land.
“We conclude that something more than mere ownership is required to establish contributor liability under RCRA,” they said.
Thursday’s ruling is not just a victory for the Forest Service. It also is a win for the National Rifle Association, the Safari Club and the National Shooting Sports Foundation, all of which intervened in an effort to kill the litigation.
Evans said it would take only minimal federal regulation to protect wildlife.
“Simply requiring hunters to carry out gutpiles, along with the rest of the hunted animals, would be a major step in helping these majestic condors recover,” he said.