Environmental groups will get a new chance to force the U.S. Forest Service to ban hunters from using lead ammunition in the Kaibab National Forest in a bid to protect condors.
The 9th Circuit Court of Appeals said Thursday U.S. District Court Judge Stephen McNamee was wrong in deciding that he had no right to tell the Forest Service that it had to outlaw that type of ammo. Judge Marsha Berzon, writing for the unanimous three-judge panel, said the environmental groups are entitled to make their case that the failure of the Forest Service to act has endangered the condors.
That sends the case back to McNamee.
Thursday’s ruling is not just a setback for the Forest Service. It also is a defeat 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.
A call to Phoenix attorney Norman James who argued for the National Shooting Sports Foundation was not immediately returned.
The lawsuit, filed in 2012, is based on the fact that condors and other birds essentially are scavengers.
“Some hunters in the Kaibab use lead ammunition, and some of them leave behind the remains of their kill, either because they prefer not to ‘pack out’ the remains or because the hunted animal runs away after it is shot and then dies elsewhere,” Berzon, a President Clinton appointee, wrote. Meanwhile, other animals feed on those remains and ingest fragments of spent lead ammunition.
“Lead ingestion, even in small amounts, can cause significant adverse effects on animals’ health, including death,” she wrote, noting that the federal government and even the state of Arizona has banned the use of lead bullets for waterfowl hunting.
The lawsuit, filed by the Center for Biological Diversity, the Sierra Club and the Grand Canyon Wildlands Council, seeks an order requiring the Forest Service – which had admitted it has the power to ban lead ammo on federal lands – to actually do so.
McNamee, in throwing out the case, concluded that he did not actually have the power to issue such an order, saying any ruling would be “nothing more than a recommendation.” Berzon, however, said that’s not the case.
She pointed out that the claim is brought under the Resource Conservation and Recovery Act. And while that law generally deals with things like dumping of wastes, there is no reason to believe that it also would not cover the question of lead left behind by hunters.
Allison LaPlante, an attorney with Earthrise Law Center in Oregon who is representing the environmental groups, said her task now is to make the connection.
“We need to show that the presence of spent lead ammunition on the Kaibab National Forest is presenting an imminent and substantial endangerment to wildlife, including California condors,” she told Capitol Media Services. LaPlante said the evidence backs that claim.
“We know that condors are being poisoned by lead ammunition,” she said. “This is the single largest threat to their survival in this area.”
According to LaPlante, the number of condors on the plateau is in the 70s.
More alarming, she said, is a 2018 report which shows that 77 percent of condors tested showed evidence of lead exposure greater than 15 micrograms per deciliter, with about a third of the birds showing levels greater than 65.
“It’s just telling because they begin experiencing harms from lead poisoning anywhere greater than 10 micrograms per deciliter,” LaPlante said. “So it doesn’t take very much.”
LaPlante said the burden now is to make that case to McNamee.
“We know what the problem is,” she said. “Our lawsuit calls on the Forest Service to find a solution.”