Posted on February 21, 2014 by Craig Johnston
There is a very interesting case pending in the Ninth Circuit regarding lead ammunition and its impact on raptors and scavenger birds, including California condors, in and around the Kaibab National Forest in Arizona. In Center for Biological Diversity v. U.S. Forest Service, the Center is pursuing a citizen suit alleging that the Forest Service is contributing to an “imminent and substantial endangerment” to wildlife under the Resource Conservation and Recovery Act by allowing the continued use of lead by hunters in the National Forest.
Factually, the allegations in the case are straightforward. Despite the existence of a “voluntary” program designed to reduce the use of lead ammunition in the Kaibab, hunters are still using it and the wildlife are still suffering the consequences, including mortality. Condors and other wildlife species are exposed to spent lead ammunition when they consume animals that have been shot but not retrieved or when they feed on the remains of field-dressed animals (also known as “gut piles”) that have been killed with lead ammunition. When lead-core rifle bullets strike an animal, they often fragment into hundreds of small pieces of lead that can be found several inches from the site of the wound in large game animals. A very small lead fragment is enough to severely poison or kill a bird, even one as large as a California condor, North America’s largest flying bird. Wildlife that ingest spent lead ammunition, even in minute amounts, experience 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. In turn, wildlife experiencing these effects are far more susceptible to other forms of mortality, such as predation.
Nowhere is the threat of spent lead ammunition more apparent than on the Kaibab National Forest, an approximately 1.6 million-acre parcel of federal property in northern Arizona, bordering both the north and south rims of the Grand Canyon. Lead ingestion and poisoning from ammunition has been documented in many avian predators and scavengers that inhabit the Kaibab, including bald and golden eagles, northern goshawks, and ferruginous hawks. The most acute threats in the Kaibab are those posed to the condors. There are currently only approximately 75 free-flying condors in northern Arizona and southern Utah. Lead poisoning from exposure to spent lead ammunition is the primary cause of mortality in this fragile population. Even the surviving condors frequently need to have their blood treated for lead contamination; one female condor recently received 16 life-saving treatments over a 16-year period, before she ultimately died of lead poisoning.
The legal issues currently pending before the Ninth Circuit involve standing. The district court found that the Center lacks standing, relying both on its view that the Government would need to undertake a rulemaking in order to ban the use of lead ammunition in the Kaibab and on the fact that the condors’ range extends beyond the Kaibab itself, and thus that they might ingest lead elsewhere even were the Center to prevail. On appeal, the United States relies primarily on the latter of these two theories, which is interesting given that the condors’ lead exposure levels correlate strongly with the deer-hunting season on the Kaibab. As Alan Zufelt of the Arizona Department of Game and Fish put it: “We can put it on the calendar that every year right after the deer hunt there’s going to be a huge spike in condor lead poisoning.”
If the Ninth Circuit holds that the Center has standing, which, in this author’s view, it should, the case will then proceed to the merits, where the key legal question will be whether a landowner that knowingly allows visitors to engage in activities that result in the spread of poisons on its property may be deemed to be “contributing” to any resulting endangerment to wildlife. This issue could have implications not only for condors and the other wildlife on the Kaibab, but ultimately in other land-management contexts as well.