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NRA OF AMERICA, INC. v. KLEPPE

December 17, 1976

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., Plaintiff,
v.
THOMAS S. KLEPPE, et al., Defendants and NATIONAL WILDLIFE FEDERATION AND DEFENDERS OF WILDLIFE, Intervening Defendants


Joseph C. Waddy, United States District Judge.


The opinion of the court was delivered by: WADDY

JOSEPH C. WADDY, UNITED STATES DISTRICT JUDGE

 This action for declaratory and injunctive relief arises under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.

 Plaintiff is the National Rifle Association of America, Inc. (NRA), an independent not-for-profit membership organization whose stated purposes include, inter alia, promoting good sportsmanship and fostering the conservation and wise use of renewable wildlife resources. Complaint para. 5. A substantial portion of NRA's membership of over one million men and women engage in hunting, many of them hunting ducks, geese, swans and coots throughout the United States, including the Atlantic Flyway, using shotguns with twelve gauge bores or larger. Complaint para. 6.

 Defendants are Thomas S. Kleppe, Secretary of the Interior, who is responsible for approving regulations promulgated under the Migratory Bird Treaty Act, and Lynn A. Greenwalt, Director of the U. S. Fish & Wildlife Service (the Service), who is responsible for promulgating regulations under that Act.

 Intervening as defendants pursuant to Rule 24(b)(2), permissive intervention, Fed. R. Civ. P., are: (1) the National Wildlife Federation (NWF), a national conservation and sportsman's organization with over two million members, which has been involved in study, research and recommendations regarding the controversy in this case since 1970; and (2) Defenders of Wildlife (Defenders), a non-profit nationwide organization of approximately 35,000 members, many of whom are ornithologists, bird-watchers and hunters, which seeks to preserve and protect all species of wildlife.

 Plaintiff seeks a declaration that the adoption of regulations promulgated pursuant to authority under the Migratory Bird Treaty Act, 16 U.S.C. § 704, *fn1" which require the use of steel shot in 12 gauge or larger shotguns in the hunting of ducks, geese, swans (Anatidae) and coots (Fulica americana) in certain designated locations beginning with problem areas in the Atlantic Flyway, *fn2" violates NEPA and is arbitrary, capricious, an abuse of discretion and otherwise unlawful under Section 706 of the APA. Plaintiff further seeks an injunction proscribing defendant from enforcing the steel shot regulations.

 The stated purpose of the steel shot regulations is

 
"to limit further deposition of lead pellets in areas used by aquatic birds. . . . [which cause] lead intoxication and death to a portion of their populations each year. . . . the net environmental result will be the elimination of lead poisoning from ingested lead shotgun pellets as a significant mortality factor among these birds." Environmental Impact Statement (EIS) at 1.

 Plaintiff broadly contends that the Environmental Impact Statement (EIS) prepared by the Service fails to answer adequately basic questions about the comparisons of lead to steel shot. It is alleged that defendants have violated NEPA because the regulations do not assure a safe, healthful and productive environment for all Americans, but instead create a risk to human health and safety. Plaintiff further contends the requirements of NEPA have been violated because the Service failed to adequately consider the environmental impact of the proposed action and any irreversible and irretrievable commitments of resources, and by failing to adequately study, develop and describe alternatives.

 Defendants and intervenor-defendants maintain that the EIS is adequate in all respects; that existing evidence shows steel shot to be a safe and effective substitute for lead shot, and that the promulgation of the regulations had a rational basis and was not arbitrary, capricious, an abuse of discretion or contrary to law.

 Plaintiff filed this suit and motions for a temporary restraining order and preliminary injunction on October 4, 1976. On that same day, the Court denied plaintiff's motion for a temporary restraining order. The case was expedited by agreement of the parties. The motion for preliminary injunction and trial on the merits were consolidated pursuant to Rule 65(a)(2), Fed. R. Civ. P., and heard by the Court without a jury beginning October 20, 1976.

 Upon consideration of the pleadings, the testimony of the witnesses, the exhibits, depositions, and documents, including the EIS and the Administrative Record, which were admitted into evidence, and the arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law:

 FINDINGS OF FACT

 I. Background Statement

 1. The problem of lead poisoning in waterfowl due to ingestion of lead shot was documented as early as 1894. Lead poisoning occurs in migratory waterfowl when spent lead pellets are ingested by ducks, geese, swans and other birds while feeding. The ingested pellets are retained in the gizzard and are both dissolved and worn away by the action of the gizzard. This results in soluble lead passing into the body system, causing sublethal effects and death. EIS at 21-23.

 2. A large die-off of waterfowl in Illinois in 1948 led to an extensive study by the Illinois Natural History Survey, in cooperation with Western Cartridge Company (now part of Olin Corporation), the results of which were published in 1959 by Frank C. Bellrose. *fn3" The study contained an extensive review of the lead poisoning problem and reported on experimental studies of lead poisoning, the physiological effects of ingested lead and ingested steel shot pellets, field experiments, surveys to determine the extent of lead shot ingestion, and tests to determine the extent of mortality.

 3. Since the 1959 Bellrose study, the following events have occurred:

 
a. during the period 1962-65, the Mississippi Flyway Council, in cooperation with Winchester Arms Company, tested experimental steel shot loads at Nilo Farms, Alton, Illinois, and published a review of lead shot poisoning, calling for action to eliminate the problem [Record Item I-21];
 
b. in 1966, the Sporting Arms and Ammunition Manufacturer's Institute (SAAMI) formed a committee and provided $ 100,000 to study and develop alternatives to lead shot, in cooperation with the Service. After studies were conducted from 1966 through 1968, steel shot was found by the committee to be the best available alternative [Record Item V-16];
 
d. in 1970, the International Association of Game, Fish and Conservation Commissioners *fn4" passed a resolution calling upon the Service to begin a transition from toxic to nontoxic shot for waterfowl hunting [Record Item I-29];
 
e. during the period 1970-71, there was further development of steel shot ammunition with extensive testing by Remington Arms Company [Record Item IV-8]; and
 
f. in 1972, the National Wildlife Federation filed a detailed petition with the Secretary of the Interior requesting the issuance of regulations prohibiting the use of lead shot in hunting migratory waterfowl [Record Items I-1-2].

 4. In order to obtain more refined information on the degree of waterfowl exposure to lead, to detect regional differences in exposure and to compare the information to that collected by Bellrose, the Service, in 1972, initiated a study to determine the concentration of lead in wingbones of waterfowl. The Service determined there was a statistically significant and positive relationship between the incidence of lead pellets in mallard gizzards reported by Bellrose and the lead levels in the wings of immature mallards analyzed in the Service study. EIS at 33-38.

 5. Among ducks, the annual mortality rate is estimated to be at least 45 percent of the fall flight. Approximately one half of these deaths are attributed to hunting. Deaths caused by lead poisoning are estimated by indirect methods to be from two to three percent of the fall flight not killed by hunters, or approximately 1.6 to 2.4 million birds. *fn5" EIS at 6-7, 38-41.

 6. The highest average lead levels were found in wings from the Atlantic Flyway. *fn6" They were more than twice the levels found on other flyways. Despite several tests, the Service was unable to discover any sources of lead other than from spent lead pellets which would explain the high Atlantic Flyway levels. EIS at 33-38.

 7. In 1972, the Secretary called a meeting of arms and ammunition manufacturers, Flyway Councils and conservation organizations to develop a strategy for solving the lead shot poisoning problem. Advisory steel shot policy and technical coordinating committees were appointed by the Secretary, with representatives from the affected industries, state fish and game agencies and public interests groups. EIS at 62.

 8. From 1972 through 1975, in consultation with the coordinating committees, the Service surveyed the ...


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