(CN) — The U.S. Forest Service has no responsibility to regulate the use of lead ammunition in the Kaibab National Forest, regardless of health hazards to endangered species, a Ninth Circuit panel ruled Friday.
The panel affirmed the lower court's dismissal of the Center for Biological Diversity’s claim that the Forest Service contributes to and is responsible for the “disposal of any solid or hazardous waste,” by allowing hunters to use and abandon lead ammunition in the Kaibab. The panel sided with the federal government, reasoning in a 25-page memo that while the government has the authority to regulate type of ammunition, the Resource Conservation and Recovery Act doesn’t require it to do so.
The Forest Service’s choice not to regulate the land use doesn’t manifest actual control over or contribution to the problem under the Resource Conservation and Recovery Act, the panel found, nor does mere ownership of the land that people dispose of lead waste upon establish contributor liability.
“A decision by an agency not to regulate — whether the lack of regulation represents a conscious decision or a lack of initiative — is passive conduct,” U.S. Circuit Judge Jay Bybee wrote in the memo. “In and of itself, nonregulation contributes nothing to the disposal of hazardous waste.
“If USFS required hunters to use lead ammunition, our analysis might be different. But, within the Kaibab, USFS has no actual control over lead ammunition at the time it is discharged by hunters.”
The center argued that the Forest Service does have some control over lead ammunition because it distributes special use permits for commercial hunting. Bybee called this argument “an iteration of its broader failure-to-regulate argument,” and rejected it for the same reasons.
The panel dismissed the center’s action for failure to state a claim and sided with a recent trial court ruling that denied the center’s motion to bring the same claim against Arizona officials. That claim is invalid for the same reason the claim against the Forest Service is, Bybee, a George W. Bush appointee, wrote.
The ruling marks the third Ninth Circuit intervention in 10 years, though it remanded the case the first two times. The center first raised the issue in 2013, asking an Arizona federal judge to enjoin the Forest Service from allowing hunters to abandon lead bullets after hunting.
While the use of lead bullets to hunt waterfowl was federally banned in 1991 to prevent human exposure and ingestion, hunters still use them to hunt other animals in the Kaibab. The center demanded the Forest Service require hunters to retrieve lead bullets after use to protect scavenger birds like the endangered California condor, which eat dead animals left full of lead.
“What a horrible day for our endangered condors while the Arizona Game and Fish Department and its dominant cadre of self-centered uncaring hunters are cheering,” center cofounder Robin Silver said about the ruling.
Only 506 California condors remain in the wild, and only 76 live in northern Arizona and southern Utah, according to the center. It reasoned in its lawsuit that lead poisoning caused nearly 50% of all diagnosable condor deaths from 1996 to 2011, and spent ammunition is the most common form of exposure.
“The ingestion of spent lead ammunition, even in minute amounts, by wildlife causes many adverse behavioral, physiological and biochemical health effects, including seizures, lethargy, progressive weakness, reluctance to fly or inability to sustain flight, weight loss leading to emaciation, and death,” the center said in its 2013 lawsuit. “The existence of such adverse health effects makes the wildlife experiencing them more susceptible to other forms of mortality, such as predation.”
The case was dismissed in 2013 for lack of standing, then remanded by the Ninth Circuit in 2016. The federal judge dismissed the case a second time for the same reason, and the Ninth Circuit remanded it again in 2019, ordering the judge to address whether the center has stated a viable claim. He decided in 2021 that it had not. Center attorney Alex Houston presented the case to the appellate panel a third time this past February. This time, the panel affirmed the most recent dismissal and denied the center's request for a new lower court judge as moot.
“An agency’s choice not to regulate despite authority to do so does not manifest the type of actual, active control contemplated by (the Resource Conservation and Recovery Act),” Bybee wrote.
U.S. Circuit Judges Patrick Bumatay, a Donald Trump appointee, and M. Margaret McKeown, a Bill Clinton appointee, rounded out the panel.
The Department of Justice declined to comment on the decision. The Forest Service hasn't replied to a request for comment.
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