The Center for Biological Diversity (“CBD”) and the U.S. Fish and Wildlife Service (“FWS”) have achieved a settlement in principle regarding CBD’s lawsuit challenging the 2020 FWS rule opening new hunting and fishing opportunities on over two million acres of federal lands. CBD alleged that these new hunting and fishing opportunities put endangered species at risk from harassment and the detrimental impact of increased use of lead ammunition and tackle. Safari Club International (“SCI”) and partners, including the NRA, Sportsmen’s Alliance Foundation, and the Rocky Mountain Elk Foundation, denied these allegations and sought to intervene and to dismiss CBD’s baseless claims. However, the FWS has apparently agreed to phase out the use of lead ammunition and tackle on refuges, and to pay CBD attorneys’ fees. SCI condemns the proposed settlement agreement. CBD’s lawsuit should have been dismissed on the merits. Further, allowing CBD to collect attorneys’ fees and costs is a gross waste of hunter and taxpayer dollars.
The National Wildlife Refuge System (“Refuge System”) consists of 568 different refuges that span 95 million acres across 50 states and five territories. Many of the lands that make up the refuges were purchased with hunter dollars, and refuge lands provide important hunting opportunities to the public.
The 2020 rule that CBD challenged is part of an annual exercise to open hunting and fishing opportunities as required by the Refuge System’s governing law. The 2020 rule expanded hunting on almost 100 refuges. But CBD’s complaint focuses on the alleged harmful impacts to endangered wildlife living on only eight refuges: Swan River in Montana, Leslie Canyon in Arizona, Laguna Atascosa in Texas, Everglades Headwaters and St. Marks in Florida, Kirwin in Kansas, Patoka in Indiana, and Lacreek in South Dakota. Based on the parties’ perceived need to focus on settlement negotiations, the case has been stayed for almost a year, extending through November 2, 2022.
During the stay, the FWS finalized and published its 2022 rule expanding hunting on 18 refuges. However, unlike prior rules which simply open new opportunities, the 2022 rule shuts down the otherwise lawful use of lead ammunition and tackle on these refuges. The rule adopts regulations for the newly opened hunting opportunities which either immediately prohibit use of lead ammunition, or pledge to phase out use of lead ammunition by 2026. The FWS went forward with these restrictions on lead ammunition and tackle despite thousands of public comments—including from SCI—emphasizing the fact there is simply not enough scientific support for an across-the-board prohibition on use of lead ammunition. SCI also warned that banning the use of lead ammunition on refuges is essentially a closure of hunting, as non-lead ammunition remains difficult to obtain and because there are entire bullet calibers and weights for which no non-lead alternative exists. Banning the use of lead on public lands will close down access—especially for new hunters and youth hunters, who depend on widely available lead-based ammunition in many cases. A decline in hunter participation would result in a decline in conservation funding generated by the sale of hunting, fishing, and shooting gear, damaging state conservation and wildlife management programs.
The FWS ignored these comments in adopting the 2022 rule and pledging to ban lead ammunition on these refuges—apparently because it was caving to CBD’s litigation demands. Yet the annual expansion of hunting and fishing is one of the most carefully considered and documented activities that the FWS undertakes. SCI’s motion to dismiss underscores the weakness of CBD’s claims. Yet the FWS has agreed to pay CBD attorneys’ fees regardless. The apparent settlement agreement is a gross example of anti-hunting groups abusing the system to make money off frivolous lawsuits.
