SAN FRANCISCO (CN) – Pushing for a government crackdown on lead ammunition in a national forest near the Grand Canyon, environmentalists urged the Ninth Circuit on Friday to protect for the endangered California condors.
Claiming that 45 to 95 percent of the condor population in the Kaibab National Forest tests positive for lead exposure every year, the Center for Biological Diversity, the Sierra Club and Grand Canyon Wildlands Council sued the U.S. Forest Service in 2012.
Though a federal judge dismissed the complaint for lack of standing, Allison LaPlante of Earthrise Law Center told the Ninth Circuit to consider Thursday “whether the Forest Service has the power to stop the poisoning of California condors and other wildlife and whether an order from the District Court would at least partially redress the plaintiffs’ injuries.”
Judge Johnnie Rawlinson asked how such an order would read.
“Redressability is the concern I have,” Rawlinson said. “How could an order be phrased that would redress the issue of the lead ammunition in the forest? How could that be phrased in such a way that the court could compel the Forest Service to issue an order?”
Portland, Ore.-based LaPlante said her clients believe that an order requiring the Forest Service to “abate the ongoing ammunition” would be adequate.
Rawlinson said she is most concerned as to “whether or not any order that the court enters would make any difference.”
“The Forest Service is not spreading the lead through its actions,” the judge added. “It’s kind of a once-removed harm. That’s why the redressability is of concern to me.”
LaPlante argued that the case is a citizen suit under the Resource Conservation and Recovery Act, “for which Congress has effectively created our redressability.”
“Congress gave the courts the right to issue that kind of order,” LaPlante said.
Representing the government, Justice Department attorney Allen Brabender insisted that the plaintiffs lack standing because of the lack of redressability and the “causation problem.”
Second Circuit Judge Barrington Parker, sitting on the panel by designation from the Manhattan-based federal appeals court, asked if the Forest Service could, “if it was so inclined, ban the use of lead ammunition in the forest?”
Brabender agreed that the agency does have such authority, but that “this case is not about whether the agency has the authority.”
“This case is about whether the agency caused the harm,” he said. “And inaction is not sufficient to convert cause.”
“You just told us that the Forest Service could ban lead shot,” Parker said.
Brabender said he did, but that still does not mean the agency was the “cause” of the harm to the species.
“The Forest Service isn’t out shooting doe, or field-stripping elk,” Parker said. “No one’s claiming that.”
“But if, I understand, the allegation in this complaint is sitting by when lead shot is being used, which everybody knows is toxic to wildlife,” the judge continued. “Everyone knows it’s environmentally really questionable.”
Brabender contended that even if the Forest Service were a cause of the injuries, “redressability would be lacking here.”
The panel did not indicate when it intends to rule.
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