(CN) — For the third time in 10 years, the Ninth Circuit took up the fight between the Center for Biological Diversity and the U.S. Forest Service, which was sued in 2013 under the Resource Conservation and Recovery Act for failing to regulate the disposal of lead bullets on public lands in northern Arizona.
Because of lead’s toxicity and known negative health effects related to exposure and ingestion, the use of lead ammunition for hunting waterfowl was federally banned in 1991. But lead bullets are still used to hunt other animals, and the Forest Service issues hunting permits in the Kaibab National Forest that don’t restrict the use of lead ammunition.
The animals hunted in the Kaibab are typically big game like deer and elk, but the Center for Biological Diversity claims the ammunition that’s left behind doesn’t just hurt the animals it’s been shot at — it also affects scavenger birds like hawks, vultures, eagles and the California condor, which eat dead animals with lead ammunition still inside of them.
There are only 76 wild California condors left in northern Arizona and southern Utah, according to the center. Nearly 50% of all diagnosable condor deaths from 1996 to 2011 were caused by lead poisoning. Anywhere from 45% to 95% of the condors test positive for lead exposure annually, the center says in its lawsuit. Spent ammunition is the most common form of exposure for the birds.
After a federal judge in Arizona dismissed the case for failing to state a claim, a three-judge Ninth Circuit panel questioned Thursday morning whether the act of leaving bullets in the Kaibab National Forest is considered disposal of solid waste, and whether the Forest Service plays a role in that disposal.
Norman James, an attorney representing the National Shooting Sports Foundation, one of the three groups that intervened in the case, said lead bullets shot in the forest aren’t considered solid waste because they are used for their intended purpose.
“Materials that enter the environment as an expected consequence of their intended use are not solid waste,” he said. “The intended use of ammunition, you’re shooting your rifle at a deer.”
James said the Ninth Circuit has in the past relied on the U.S. Environmental Protection Agency’s 1997 military munitions rule, which states that the military’s use of munitions in shooting ranges doesn’t substantiate the disposal of solid waste.
Center for Biological Diversity attorney Alex Houston noted however the same rule also specifies that if ammunition lands outside of a designated range and isn’t retrieved, it then becomes waste. But he also argued the focus is on the “wrong temporal moment” of the use of the ammunition.
“It’s not shooting the rifle,” he said. “It’s leaving the bullets and not going back to them. Once the bullet is left, it’s not being used for its intended purpose.”
U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, challenged that, saying one doesn’t need to control the consequences of the intended action even after the action is complete.
Whether hunters leaving lead bullets in the forest constitutes disposal of solid waste, Justice Department attorney Allen Brabender argued the Forest Service has no obligation to regulate it.
He said the Forest Service isn’t liable for any damage the so-called waste might cause because it doesn’t have “active involvement” in contributing to the waste, even if it allows the disposal to continue.
“Passivity to someone else’s disposal is insufficient, even if that passivity assists in creating the waste,” Brabender said.
Houston countered that while the Forest Service might not be actively disposing waste, the Center for Biological Diversity doesn’t have the prove that. To prove a Resource Conservation and Recovery Act claim, he said, a party must prove either active involvement or direct control and the center has already proven the latter.
“The Forest Service has direct control, which it’s admitted, to prohibit the use or deposit of lead in the Kaibab,” Houston said.
U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, worried the stipulation is too broad, and it can lead to any municipality or government agency can be held liable for solid waste. But Houston said safeguards like the need for plaintiffs to prove environmental damage will prevent a slippery slope.
U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee, questioned whether “mere regulatory authority” could make the Forest Service liable for the waste, but Houston argued owning the land and issuing special use permits further implicate the Forest Service.
Brabender said the special use permits don’t regulate hunting. Instead, they regulate commercial use — people selling services as guides in the forest, whether for hunting, hiking or any other recreation. In other words, a permit isn’t required to hunt, but it is to guide a commercial hunting tour.
“Could the Forest Service say ‘you cannot guide hunters using lead ammunition’?” Bumatay asked Brabender.
Brabender said it theoretically could but isn’t required to do so.
But the center isn’t asking for a total ban on lead ammunition in the Kaibab. Instead, Houston said the group would be happy if the Forest Service mandated that hunters retrieve their lead ammunition or bury carcasses that contain it — actions that are already encouraged but not required.
The case has ping-ponged to and from the Ninth Circuit a few times. After the National Rifle Association, the National Shooting Sports Foundation and Safari Club International intervened on behalf of their hunter members, the case was dismissed for failure to state a claim. The Ninth Circuit reversed that dismissal in 2016.
The Arizona judge dismissed the case again in 2017 for the same reason, but the Ninth Circuit remanded again in 2019. It was dismissed again in 2021 and appealed for the third time.
The panel didn't say when it will issue a ruling.
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