AB 711 BECOMES LAW DESPITE NON-PRODUCTION OF KEY GOVERNMENTAL REPORT
ON OCTOBER 23, 2013. POSTED IN AB 711, LATEST NEWS
Earlier this month California’s governor signed Assembly Bill (AB) 711 into law, which, when implemented, will make it illegal to hunt in California with traditional, lead-based ammunition. Some observers have noted, however, that the public release of a key governmental report on the presence of lead in blood samples taken from California condors (“Condors”) has been improperly delayed. In fact, even though it is now weeks after AB 711 was signed into law, the report is still yet to be issued. The report, which should have been produced in June 2013 – while AB 711 was being debated in the legislature – was not available for review prior to AB 711 landing on the governor’s desk.
California law currently prohibits the use of lead-based ammunition for most hunting applications in the “Condor Zone,” an area spanning much of central and southern California where Condors can be found. The law that created the Condor Zone ban also requires the California Department of Fish & Wildlife (the “Department”) to produce reports on the levels of lead found in Condors for calendar years 2008, 2009, and 2012, with each report to be produced in June of the following year. The Department’s report is dependant on blood-lead data that is collected by California Condor Recovery Team (“CCRT”) partners, and transferred to the Department by CCRT partner the United States Fish & Wildlife Service (the “Service”).
The 2008 and 2009 reports were both issued on time (in June 2009 and June 2010, respectively). Strangely, however, the 2012 report, due by June 30, 2013, is more than three months overdue. The agenda for the next California Fish & Game Commission (November 6, 2013) includes a presentation by the Department regarding the “status update on report regarding levels of lead found in California Condors during 2012[.]” Very recently, however, a representative of the Department stated that it had not received the necessary information from the Service, and that the Department’s report may be delayed until at least December 2013.
Certainly, some will speculate that the Service intentionally delayed the release of the data upon seeing that the data did not “fit” with the current attempt to ban lead ammunition, or that the Service simply de-prioritized the matter, regardless of the fact that doing so would force the Department to miss the statutory deadline for production of its report. And though preliminary analysis of blood-lead data obtained via requests under public record access laws does suggest that the 2012 data does not support a statewide lead-based ammunition ban, the delay may also have resulted from more prosaic factors, e.g., budget shortfalls or, as the Department has suggested, the federal government shutdown (though this explanation falls somewhat flat, as the Service’s failure to timely produce data to the Department had occurred well before the government shutdown).
Regardless of why the 2012 report has been delayed, AB 711 proponents continue to aggressively market their message, simply ignoring the fact that a key, on-point government report has not been produced. The reason this occurred was simple: the Condor Zone ban “has been largely ineffective, both sides agree.”
AB 711’s proponents do not want to admit that the statutorily required reports shine a light on the fact that AB 711 is, at best, drastically overreaching, in light of the failure of the Condor Zone ban. That is, AB 711 proponents like John McCamman, the Service’s California Condor Coordinator, argue that “[f]armers, ranchers and others still use lead ammunition to kill varmints and other animals . . . and the condors range over a very large area. Poachers still kill deer with lead bullets as well.”
As to the first and third points, the arguments are without merit, as the conduct described is already illegal in the Condor Zone in most instances. It is patently illogical to expand a lead-based ammunition ban to reach conduct that is already illegal. As to point two, it is true that Condors “range over a large area[;]” but unless Mr. McCamman was referring to Condors venturing outside of the Condor Zone, the point is moot as the complained of conduct is already illegal in the Condor Zone. And if the reference to sorties outside the Condor Zone, the proper response would be to increase the Condor Zone based on scientific evidence of where Condors are actually going in large numbers, not a blanket ban without any nexus to Condor’s activity.
Clearly, AB 711 is an attempt to move the anti-lead agenda forward, regardless of the fact that the data (and likely the next Department report) shows the prior lead-ban regulation has failed, and that, whatever the problem is, the problem is not hunters who follow the law. Fortunately for law-abiding hunters, the original conservationists, advocates like the National Rifle Association of America, the California Rifle and Pistol Association, and HuntForTruth.org are digging in their heels. Scientific and practical weaknesses of AB 711 will not go away just because the governor signed this ill-conceived piece of legislation, the delayed implementation schedule for AB 711 should give hunters’ rights advocates time to formulate a solid challenge to be raised prior to AB 711 becoming enforceable law in California.
There is a very narrow exception that allows for the use of lead-based ammunition when hunting small game (e.g., jackrabbits, cottontail rabbits, and tree squirrel) with .22 caliber rimfire ammunition in the Condor Zone. But that exception does not create any recognized risk of Condors being exposed to lead as a result of legal conduct. As the Department itself correctly recognizes, small game is generally required to be collected once harvested, and therefore collected game is simply not available for Condors to scavenge. And regardless, other than proffered food, there is little evidence to suggest that Condors actually feed on small mammals in any substantial way when in the wild.