by Mark Chesnut - Thursday, September 7, 2023
The National Rifle Association’s ongoing battle against unjust lead ammunition bans for hunters hunting on publicly owned lands recently got a big boost in a California courtroom.
On Sept. 1, the United States Court of Appeals for the Ninth Circuit agreed with defendants, including the NRA, that the U.S. Forest Service (USFS) is not violating the Resource Conservation and Recovery Act (RCRA) by allowing hunters to use lead ammo on the Kaibab National Forest in Arizona.
The decision in the lawsuit Center for Biological Diversity v. United States Forest Service affirmed an earlier District Court ruling against the anti-hunting group and others seeking to have lead ammunition banned for those hunting in the area.
The area in question—the Kaibab National Forest—consists of about 1.6 million acres of public land bordering the Grand Canyon. It is home to a variety of wildlife and is a popular hunting destination, particularly renowned for big-game hunting.
The Center for Biological Diversity (CBD) and other anti-hunting groups targeted the Kaibab National Forest, owned and operated by the USFS, for the lead ban, and the lawsuit has been ongoing for more than a decade. The Ninth Circuit Court, however, didn’t buy the plaintiff’s arguments that by not banning lead, the USFS violated the RCRA.
“Despite having broad regulatory authority over national forest lands, USFS has not issued regulations restricting the use of lead ammunition or requiring hunters to remove spent lead ammunition,” the court ruling stated. “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. In and of itself, nonregulation contributes nothing to the disposal of hazardous waste.”
The court went on to explain, “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. 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 NRA’s Institute for Legislative Action (NRA-ILA) was greatly encouraged by the court ruling.
“This case affirms that the states have primary responsibility over wildlife management, including all aspects related to hunting,” said Michael Jean, NRA-ILA’s Director of the Office of Litigation Counsel. “Courts will not entertain ‘failure to regulate’ lawsuits against the federal government for merely honoring state hunting laws. It’s also a rejection of an attempt to apply a federal law that was designed to regulate large-scale commercial waste disposal to ordinary American hunters,” a fact also explained by media outlets including the Washington Examiner.
Plaintiffs had also argued that the District Court had erred when it denied CBD’s motion to amend its complaint and add RCRA complaints against Arizona officials.
“We hold that CBD’s proposed amendment does not add any new claims or allegations against the Forest Service, and its claims against Arizona officials are barred by the Eleventh Amendment,” the ruling stated.
Additionally, the court further found against the plaintiffs in their request that the case be heard by a different district judge than the one who had made the earlier ruling.
“Because the district court did not err in dismissing the complaint and denying CBD’s motion to amend, the request for reassignment is moot,” the ruling stated.
The proposed lead ammunition ban in the Kaibab National Forest is just one such proposal that the NRA and other hunter-backed groups have been fighting on several different fronts for decades. As the NRA-ILA and NRA Hunters’ Leadership Forum websites reported in the past, such bans would make hunting more difficult and more expensive for hunters who want to access these public lands.
Additionally, lead ammo-ban proponents simply don’t have sound science supporting their side of the debate. Absent sound scientific evidence demonstrating a population impact caused by using traditional ammunition, there is no justification for restricting or banning its use.
About the Author
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC in Jenks, Okla. An avid hunter, shooter and field-trialer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.
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