Legal Cases of Interest

THE TRUMPETER SWAN SOCIETY, ET AL. V. ENVIRONMENTAL PROTECTION AGENCY (TSCA II)

ON JULY 22, 2013. POSTED IN LATEST NEWS, LITIGATION

Washington, D.C. – In a legal victory for the National Rifle Association (NRA) and its constituents, the United States District Court for the District of Columbia dismissed yet another lawsuit driven by the activist group the Center for Biological Diversity (CBD).

The Trumpeter Swan Society, et al. v. United States Environmental Protection Agency, et al., lawsuit, which was filed on June 7, 2012, by CBD and other lead ammunition ban proponents, alleged that the United States Environmental Protection Agency (EPA) is legally obligated to regulate lead ammunition under the Toxic Substances Control Act (TSCA).  CBD pushed for this lawsuit despite having its previous lawsuit CBD v. EPA, which alleged the exact same claims, thrown out of court, and after the EPA twice denied CBD’s petitions to ban lead ammunition because the EPA does not have the authority to regulate ammunition under TSCA.

As part of NRA’s continuing efforts to protect hunters and recreational shooters from special interest groups seeking to restrict or eliminate hunting by banning the use of traditional lead ammunition, the NRA and Safari Club International obtained permission from the United States District Court in Washington, D.C. to intervene in the Trumpeter Swan lawsuit and the previous CBD v. EPA litigation.

Both lawsuits claimed that wildlife, especially scavenging avian such as California Condors and Bald and Golden Eagles, are getting lead poisoning from eating lead bullet fragments in carrion left in the field by hunters. CBD also claimed that humans are at risk of lead poisoning by consuming meat containing lead bullet fragments from harvested game.

The District Court dismissed the Trumpeter Swan suit, however, finding that the EPA acted within its authority when it determined that the 2012 petition that CBD Plaintiffs based their legal action on was a petition for reconsideration rather than a petition for rulemaking and therefore was insufficient to establish jurisdiction for the suit.

You can find all case filings here: Trumpeter Swan Society v. EPA

CENTER FOR BIOLOGICAL DIVERSITY, ET AL. V. UNITED STATES FOREST SERVICE

ON JULY 3, 2013. POSTED IN LITIGATION

Flagstaff, AZ — Senior United States District Judge Stephen McNamee dismissed yet another lawsuit (Center for Biological Diversity, et al. v. United States Forest Service) filed by the activist group, Center for Biological Diversity (CBD).

This lawsuit was filed on September 5, 2012, by the CBD, the Sierra Club, and the Grand Canyon Wildlands Council (GCWC).  It alleged that the U.S. Forest Service (USFS) was legally obligated to regulate the use of lead ammunition under the Resource Conservation and Recovery Act (RCRA), a federal law governing the disposal of hazardous waste.

CBD’s complaint claimed that spent ammunition in the Kaibab National Forest presents an “imminent and substantial endangerment to health or the environment.” Specifically, plaintiffs asserted that wildlife in the Kaibab National Forest, especially scavenging avian such as California condors, and bald and golden eagles, are getting lead poisoning from eating lead bullets in carrion left in the field by hunters. CBD claimed that a prohibition of the use of lead ammunition was needed to protect wildlife.

The federal court, however, dismissed CBD’s case for failing to establish that the court could grant relief based on plaintiffs’ claims.

Dismissal of CBD’s Case

The court dismissed CBD’s case, finding that the plaintiffs did not meet the procedural “standing” requirements necessary to have their case heard by a federal court.  The court ruled this way because plaintiffs in federal court must be able to show that the court can grant the relief the plaintiff seeks.  The court found, however, that it was not empowered to order the U.S. Forest Service to perform discretionary acts such as rule-making under the Administrative Procedure Act, and even if it could compel the USFS to initiate the rule-making process necessary to prevent the disposal of lead within Kaibab National Forest the outcome of such an order “would be uncertain because [the USFS] would be required to consult with Arizona, accept public comments, balance competing interests, and consider a no-action alternative.”  The court further noted that because condors are known for long-distance travel and could easily fly and feed outside the border of Kaibab National Forest, banning lead ammunition in the Kaibab National Forest was unlikely to remedy plaintiffs’ alleged injury.  As such, the court found that it was speculative whether a favorable ruling would be likely to redress Plaintiff’s injury and the court dismissed the case on grounds that the court lacked Article III jurisdiction.

You can find all case filings here: CBD v. U.S. Forest Service

CENTER FOR BIOLOGICAL DIVERSITY V. U.S. BUREAU OF LAND MANAGEMENT, ET AL.

ON SEPTEMBER 30, 2011. POSTED IN LATEST NEWS, LITIGATION

In a major legal victory, a federal judge ruled in favor of the National Rifle Association (NRA) and the federal Bureau of Land Management (BLM) and threw a lawsuit filed by the environmental group, Center for Biological Diversity (CBD) out of US District Court in Phoenix, Arizona.

CBD’s lawsuit, filed on January 27, 2009, alleged that the BLM and Fish and Wildlife Service (FWS) were illegally mismanaging federal lands in Arizona. The lawsuit challenged the allowance of off road vehicles, construction of roads, inadequate protection of desert tortoises, and inadequate protection of California condors. Among other things, the suit sought to force BLM to ban the use of lead ammunition for hunting in the Arizona strip. CBD contended California condors in Arizona and elsewhere were being poisoned from scavenging game that was shot by hunters using lead shot or bullets. But the record plainly showed that California condors were reintroduced to this area of Arizona based on express promises by FWS and other agencies that the “reintroduction” would not impact hunting.

The Court ruled that CBD had waived its claims concerning BLM’s failure to assess the alleged impact of lead ammunition on condors because “[i]t did not argue that BLM was required to include the potential effects of lead ammunition in [BLM’s] analysis of environmental impacts.”

NRA’s intervention on behalf of its members in the case Center for Biological Diversity v. U.S. Bureau of Land Management, et al., has already resulted in several legal victories. A January 13, 2010 court ruling granting NRA’s motion to intervene was published in the official Federal Rules Decision Reporter. The Federal Rules Decisions Reporter is a compendium of selected United States District Court rulings that specifically interpret and apply the Federal Rules of Civil and Criminal Procedure. Publication of this court ruling is important to hunters and NRA members because it sets a legal precedent and confirms that there is a “significantly protectable interest” in hunting that can justify intervention by hunter’s rights groups like NRA in the increasing number of lawsuits filed by so-called environmental groups against state and federal natural resource, game and land management agencies.

You can view all case filings here: CBD v. BLM

CENTER FOR BIOLOGICAL DIVERSITY V. ENVIRONMENTAL PROTECTION AGENCY (TSCA I)

ON SEPTEMBER 30, 2011. POSTED IN LATEST NEWS, LITIGATION

The National Rifle Association (NRA) filed a motion to intervene to fight for hunter’s rights in a lawsuit brought by the Center for Biological Diversity (CBD) that sought to force the Environmental Protection Agency (EPA) to ban the use, manufacture, processing, and distribution of lead shot, bullets, and fishing sinkers throughout the country. The NRA, Safari Club International (SCI), and National Shooting Sports Foundation (NSSF) collectively intervened to defend the rights and interests of hunters and recreational shooters, and others in the firearm industry who would otherwise likely not be adequately represented in the case.  

The lawsuit follows the EPA’s recent denial of a Petition that was filed to force the EPA to pass regulations banning certain lead-based sporting products, including ammunition and fishing tackle. The Petition and the subsequent lawsuit were both filed by the CBD and joined by Public Employees for Environmental Responsibility and “Project Gutpile.” Though the EPA correctly denied the Petition, CBD and the other plaintiffs refuse to accept that decision. They brought this lawsuit hoping to have the EPA’s decision overturned by a court.  

CBD’s legal argument is being used to try to force the EPA to ban lead ammunition and fishing tackle. It is based on a meritless interpretation of the Toxic Substances Control Act (TSCA), which includes a specific exclusion for ammunition. TSCA, section 3(2)(B)(v) precludes the EPA from regulating ammunition. But, CBD wants EPA or a court to hold that the TSCA ammunition exclusion does not apply to bullets and shot because neither bullets nor shot are actually “ammunition” (i.e., a shell, primer, and projectile, etc., in one cartridge or unit). CBD’s argument is founded on an inapplicable interpretation of a tax ruling issued by the IRS in 1954 that distinguished the sale of “separate parts of ammunition” and complete ammunition for taxation purposes only.  

NSSF filed a motion to dismiss CBD’s claims regarding lead ammunition on procedural grounds, and NRA and SCI supported NSSF’s motion. The Court granted the motion and dismissed CBD’s claims against lead ammunition. Though the case continued regarding CBD’s claims against lead tackle, CBD is now in the process of dismissing the entire action.

You can view all case filings here: CBD v. EPA