NOVEMBER 13, 2009

I. INTRODUCTION

On August 6, 2009, the National Rifle Association (NRA), working with the California Rifle & Pistol Association (CRPA) and various other individuals and groups, won a tremendous victory for California hunters and for the greater scientific community. In a 4-1 vote after hearing and comments, the California Fish and Game Commission ("Commission") rejected a proposed regulation that would expand the current lead ammunition ban within the so-called "Condor Zone" to include .22 rimfire ammunition and shot for hunting small upland game. (See proposed regulations).

NRA was represented at the August 6, 2009, California Fish & Game Commission hearing by NRA liaisons Ed Worley and Paul Payne, along with Chuck Michel, of the law firm of Michel & Associates, P.C. ("M&A") (www.michelandassociates.com), Tony Canales, a researcher working for M&A,, as well as two scientific experts, Don Saba and Erik Randich. All addressed the Commission and presented evidence opposing the proposed regulations. Ultimately, they successfully demonstrated to and convinced the Commission that the science used to suggest a link between lead ammunition and condor mortalities is faulty.

II. BACKGROUND OF PROPOSED REGULATION

The proposal was advocated by "environmentalists" who claimed the expansion of the lead ban was necessary for the survival of the California condor. But in fact the proposed regulation came before the Commission only because it was required to as part of a settlement agreement mandate resolving litigation between the Commission and the Natural Resources Defense Council ("NRDC"), Center for Biological Diversity ("CBD") , et al. (See Wishtoyo Settlement Agreement). Under that settlement agreement, the Commission was only required to consider the proposed regulation – not necessarily adopt it. Nonetheless, in the absence of iron-clad rebuttals to the environmentalist groups’ pseudo-science proposed regulation was almost certain to pass.

Proponents of expanding the current lead ammo ban relied almost exclusively on a study conducted by Dr. Donald Smith and some of his graduate students from the University of California Davis entitled Ammunition is the Principal Source of Lead Accumulated by California Condors Re-Introduced to the Wild (commonly referred to as the "Church Study") (See Church Study). This highly suspect "study" forms the basis for much of the rhetoric of anti-hunting extremists who claim they have "scientific facts" on their side. Continuing reliance upon such data by legislative and regulatory bodies is of great concern to legitimate hunters and sportsmen throughout California and in other states as well.

The Commission has previously relied on the "Church Study" to promulgate other regulations banning lead ammunition in the "Condor Zone." (See Fish and Game Code regulations 353(h), 355 and 475(f)). However, in rejecting the recent proposed expansion, the Commission expressly criticized the scientific scholarship of the "Church Study" – calling it "pseudo-science." The Commission credited its enlightenment of the issue to the information presented by the scientific experts hired by the NRA. (See video: http://www.cal-span.org/cgi-bin/archive.php?owner=CFG&date=2009-08-06 starting at 1:30:25.)

The NRA and CRPA worked with M&A to coordinate opposition to the ill-conceived regulatory proposal. M&A was tasked with and organized the various elements of the opposition to the proposed expansion of the lead ammunition ban, including the collection and coordination of all scientific aspects. All of these efforts depended on M&A’s ability to obtain relevant information in the first place.

III. OBTAINING RELEVANT RECORDS/INFORMATION

To prepare for its hearing, M&A issued nineteen (19) Public Records Act Requests ("PRARs") and Federal of Information Act ("FOIAs") to nearly a dozen separate local, state, and federal agencies. Due to the vast scope of the requests, M&A attorneys spent several months conducting follow-up telephone conversations and correspondence with the various agencies, insisting on and arranging production of the requested records. M&A attorneys negotiated with legal counsel for various agencies, and in some instances, had to threaten lawsuits to gain lawful access to certain public information that the agencies were reluctant to release.

From the agency records that were obtained, as well as independent research, M&A collected and organized tens of thousands of pages of documents relating to condors and relevant ammunition issues. The records include everything from specific knowledge of Condor Recovery Team members and their communications, to raw data such as condor blood-lead levels, to necropsy reports.

With those records, scientists working with NRA analyzed and presented their conclusions to the Commission, which largely discredited the science being used by the other side. In the end, the Commission agreed with the scientists’ conclusions that the science is flawed.

IV. DEBUNKING THE CHURCH STUDY

As mentioned, proponents of the expanded lead ammunition ban relied almost exclusively on the Church Study. The Church Study has constituted the primary evidence that ingestion of lead ammunition is responsible for condor fatalities.

The general premise of the Church Study is that different lead sources have different isotopic ratios, and thus lead-isotopes serve as "fingerprints" or "DNA" to trace and identify a lead source. (An isotopic ratio is the amount of neutrons to protons in the nucleus of an atom of lead. This ratio can vary. For example, lead mined in the U.S. may have a different isotopic ratio than lead mined in Australia.) Thus, according to Church, lead in ammunition has a certain narrow isotopic ratio range that can be traced in condor blood and used to prove existence of lead in the condor came from lead ammo.

At the August 6, 2009 Commission hearing, NRA’s representatives and attorney, the experts, and the researchers presented substantial contradictory scientific evidence regarding ammunition as the most likely culprit in the illness and deaths of California condors. The new information thoroughly debunked the isotopic ratio link theory claimed in the Church Study, and showed that the Church Study simply disregards several inconsistent data points that did not support its conclusion. Ignoring inconsistent data is generally considered scientific heresy.

A. Randich Report

Specifically, Dr. Erik Randich showed that lead used in ammunition cannot be distinguished from any other industrial source of lead. He explained in both his report and his power-point presentation how isotopic ratios in lead have a much wider range than that represented in the Church Study, and thereby cannot be used to find the source of lead, but rather to only possibly exclude a source. See Erik Randich, Ph.D., A Review of "Ammunition is the Principal Source of Lead Accumulated by California Condors Re-Introduced to the Wild" from a Materials Science Standpoint (See "Randich Report").

Dr. Randich also pointed out that Church used selective data, and did not accurately represent that data, which in his words is "unforgivable."

B. Saba Report

Furthermore, with the raw data procured via PRA requests and FOIAs, Dr. Saba demonstrated in both his power-point presentation and report that the Church Study authors manipulated their findings by omitting critical data points. The omission of those data points show the Church Study’s findings to be scientifically unsound and irrelevant. See Don Saba, Ph.D. & Dr. Tammie Pearce BS DVM, Comment to the California Fish and Game Commission in Opposition to the Proposed Regulations to Proscribe the Use of Lead Ammunition for Upland Game Hunting (See "Saba Report" attached hereto). As well, Dr. Saba has released a previously peer-reviewed criticism of the Church paper that has been largely ignored until now. See Don Saba, Ph.D., Comment on "Ammunition is the Principal Source of Lead Accumulated by California Condors Re-Introduced to the Wild."(See "Saba Report").

C. Canales Report

Through exhaustive PRARs, NRA also obtained internal e-mails between certain agencies’ scientists and members of the Condor Recovery Team. Using those records, Mr. Tony Canales, a researcher working for M&A, also showed in his report and power-point presentation that the public records reveal doubts even among members of the Condor Recovery Team as to the effect of lead ammunition on condor health. His report also showed that the Condor Recovery Team may be ignoring more serious threats to the survival of the condor. Anthony Canales, Information Discovered From Public Records Act Requests Regarding the Condor Recovery Program Shows that Critical Information has Been Kept from Officials and the Public at Large.(See "Canales Report").

V. REASONS FOR COMMISSION’S REJECTION OF

The Commission rejected the proposed expansion of the lead ammunition ban primarily based on the testimony and reports of the experts working for NRA. This is best illustrated by the Commissioners’ remarks explaining their votes. Commissioner Rogers (who previously supported lead ammunition bans) stated: "with this new evidence that has been put in front of us...I detect there is a distinct possibility that what we were presented with last time was pseudo science and quite a bit of ideology." Additionally, Commissioner Kellogg stated: "I think that was fantastic new evidence we heard today." (See video: http://www.cal-span.org/cgi-bin/ archive.php?owner=CFG&date=2009-08-06, starting at 1:30:25) (emphasis added).

The experts working with NRA were the only ones who presented new evidence to the Commission at the August 6 hearing. The Fish and Game Department staff report did not reference NRA-submitted studies, and simply stated there is no evidence one way or the other. Thus, it was NRA’s submissions that convinced the Commission there is not sufficient evidence to justify expansions on lead ammunition bans for the well-being of the condor.

VI. CONCLUSION: VICTORY FOR GUN OWNERS AND HUNTERS

After examining the evidence from both sides of this controversial issue, the California Fish and Game Commission voted 4 – 1 not to expand the ban of traditional lead ammunition in the area known as the "Condor Zone."

The decision was the product of a long, laborious campaign waged by the NRA/CRPA Legal Action Project and dozens of activists, including a coalition of hunters, firearms owners, sportsmen, activists, conservation groups, and associations came together to oppose the proposed expansion of the ammunition ban along with the NRA, including the California Rifle and Pistol Association (CRPA), the California Outdoor Heritage Alliance (COHA), the National Wild Turkey Federation (NWTF), activists from Internet forum Calguns.net (CGN), and others.

This project involved hours of meetings between interested parties to plan, research, and conduct clerical work, make a myriad of formal requests for documents from government agencies via Public Records Act requests ("PRARs") and Freedom of Information Act requests ("FOIAs"), organize and analyze documents, and ultimately prepare a searchable database of tens of thousands of documents, that included consultations with various experts to interpret the data and study reports obtained from agencies or located by independent research, legal research and tracking the actions of the Commission, researching and analyzing its procedural rules, initiating and maintaining correspondence, and attending its hearings, to name just a few of the tasks involved in bringing this victory.

This decision was a victory for firearms owners, hunters, sportsmen, science, and most of all – common sense.