NRA Moves to Intervene on Behalf of Hunters in Potentially Pivotal Lawsuit

NRA MOVES TO INTERVENE ON BEHALF OF HUNTERS IN POTENTIALLY PIVOTAL LAWSUIT SEEKING TO LIMIT CONSERVATIONISTS’ RIGHTS

SEPTEMBER 7, 2012

For years, NRA has been fighting in the courts on behalf of conservationists, hunters and recreational shooters to stop the efforts of self-proclaimed environmental groups using lawsuits to limit access to public lands. These groups try to stretch the limits of environmental laws like the Endangered Species Act (ESA) and the National Environmental Protection Act (NEPA), to use these laws in unintended ways in order to limit the managed public use of wilderness areas and parks for hunting, shooting, and other recreation.

Now, in a threatening new twist, the Center for Biological Diversity (CBD) and several co-plaintiffs have sued the United States Forest Service (the Service) under the Resource Conservation and Recovery Act (RCRA). (Center for Biological Diversity, et al. v. United States Forest Service (D. Ariz., Case No. 3:12-cv-08176)) RCRA allows citizen groups to sue those who are allegedly contributing or have contributed "to the past or present disposal of solid or hazardous waste, which may present an imminent and substantial endangerment to health or the environment[.]" 42 U.S.C. § 6972(a)(1)(B). Stretching RCRA beyond the breaking point, CBD’s newest lawsuit contends that the Service is acting illegally by allowing hunters in the Kaibab National Forest in Arizona to use traditional lead-based ammunition. CBD’s lawsuit contends this is a violation of RCRA.

The implications of CBD’s lawsuit are frightening. If the novel RCRA legal liability theory is adopted by a court, it would provide a template for anti-hunting groups to implement a RCRA-driven legal strategy that could devastate hunting and sport shooting. If CBD is able to convince a judge that the mere presence of spent lead projectiles in Kaibab National Forest "may present an imminent and substantial endangerment to health or the environment" under RCRA, the legal precedent could cause a domino effect. One public hunting or shooting location after another could be shut down based on exaggerated claims of the "threat" posed by the mere presence of some lead bullets in the outdoors. Under CBD's new RCRA logic, tens of millions of acres of public hunting lands could be closed to traditional hunting based on a theory that simply hunting with lead ammunition "may present an imminent and substantial endangerment to health or the environment."

NRA will meet CBD head on in this new RCRA lawsuit. The fight starts with NRA’s soon to be filed motion to intervene in this lawsuit. NRA will be joined by the Safari Club International (SCI) in that effort. NRA and SCI have assembled a legal team that is well versed in environmental litigation. And NRA has devoted resources to deconstruct the faulty "science" relied on by those anti-hunting groups seeking to ban the use of lead-based ammunition. In fact, NRA and the scientists it works with recently persuaded the California Fish & Game Commission that a special joint committee, including NRA, should be created to evaluate the merits of what one Commissioner has called "pseudo-science" about the alleged hazards of lead ammunition.

NRA has successfully sought and been granted intervention into three lawsuits brought by CBD in the last four years. CBD previously brought and lost a case in northwestern Arizona in which it claimed, among other things, that the Bureau of Land Management (BLM) failed to take the procedural actions legally required regarding the protection of the experimental population of California condors introduced to Arizona in 1996 under the Endangered Species Act (i.e., a 10(j) designated flock). Those animals were introduced into Arizona only after the federal government expressly promised that the introduction of the condors would not limit hunting in any manner. CBD's current lawsuit against the service, like its previous one against the BLM, seeks to force the federal government to reneg on that promise.

More recently, NRA intervened in a case wherein CBD failed to convince the District Court for the District of Columbia (D.D.C.) that the EPA has the authority to regulate bullets and shot under the Toxic Substances Control Act (TSCA) notwithstanding the fact that TSCA has a clear exception regarding firearms, cartridges, and shells. That lawsuit was dismissed on procedural grounds, because CBD failed to bring its lawsuit in a timely fashion. CBD recently filed another action in the D.D.C., nearly a carbon copy of the previous complaint. NRA intervened in that action, and several motions to dismiss, including one filed by NRA and SCI, are now pending.

To combat the misguided efforts by environmental activists and researchers seeking to infringe on hunting and shooting sports regulations, the NRA and CRPA have collected tens of thousands of documents via public records act requests over the last several years pertaining to the use of lead ammunition. Many of these documents raise serious doubts about the veracity of claims that lead ammunition is poisoning California condors, wildlife, or humans. The NRA and CRPA Foundation have used these documents to debunk the faulty science being used to implement various lead ammunition bans across the country. These efforts are critical in defending the status quo for hunters and recreational shooters nationwide and have resulted in the rejection of several proposed and ill-conceived bans throughout the United States.