A few weeks ago, Gov. Jerry Brown signed Assembly Bill No. 711 (AB 711) into law. The media has reported that the bill banned the use of lead ammunition for hunting in order to protect wildlife and the environment from the toxic effects of lead. But what does this mean exactly? Is it illegal to even possess lead ammunition in a hunting zone, or just to shoot it? Does the ban apply to all hunting grounds and all types of game? And what are the penalties for violating the law?
The bill amended California Fish and Game Code § 3004.5, which already required the use of non-lead centerfire ammunition within the condor range or when taking “big game” or coyotes with a rifle or pistol in specified deer-hunting zones. The existing statute also required the Fish and Game Commission (“commission”) to establish a system for certifying ammunition as non-lead and, “to the extent that funding is available,” to establish a process that will provide hunters in the affected zones with “non-lead ammunition at no or reduced charge.”
The amended statute keeps the requirements that the commission develop certification criteria and provide hunters with free or discounted ammunition, but it extends the ban to the hunting of all game in all hunting areas: “[N]on-lead ammunition, as determined by the commission, shall be required when taking all wildlife, including game mammals, game birds, nongame birds, and nongame mammals, with any firearm.” Cal. Fish & G. Code § 3004.5(b) (emphasis added). Of course, with the current funding shortfalls, we can safely assume that the state will not be handing out free ammunition any time soon. The Dept. of Fish and Game’s website provides a helpful list of manufacturers certified as selling non-lead ammunition.
When the Dept. of Fish and Game promulgates regulations to implement this law, one can expect that they will contain language similar to that of the existing regulations implementing the previous version of § 3004.5. For example, current regulations ban the possession of both lead ammunition and a firearm capable of firing it “while taking or attempting to take any big game” within the specified areas. 14 C.C.R. § 353(h). That final phrase, “while taking or attempting to take,” seems to require more than just possessing the two items, although it depends on what counts as an “attempt.” Is one’s mere presence in a hunting area while possessing the two items sufficient evidence of an attempt? Or do you have to have your firearm pointed at the animal? Arguably, the wording suggests that you must be caught in the act of trying to shoot game with the prohibited ammunition in order to run afoul of the regulation. Under the California Penal Code, an attempt to commit an offence consists of two elements: “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” Cal. Pen. Code § 21a. In any case, the existing regulations specifically state that merely possessing lead ammunition without a firearm capable of firing it is not a violation. 14 C.C.R. § 353(h).
The commission must begin phasing in the new regulations on July 1, 2015 and have them “fully implemented statewide by no later than July 1, 2019.” Cal. Fish & G. Code § 3004.5(i). However, the statute does provide some flexibility: If the director finds that “non-lead ammunition of a specific caliber is not commercially available from any manufacturer because of federal prohibitions relating to armor-piercing ammunition pursuant to [18 U.S.C. § 921],” then the ban “shall be temporarily suspended for a specific hunting season and caliber….” Cal. Fish & G. Code § 3004.5(j)(1).
The new version of the statute keeps the same penalties as before. Violators will be guilty of an infraction punishable by a $500 fine for the first offense. Additional violations are punishable by a fine of between $1,000 and $5,000. Cal. Fish & G. Code § 3004.5(g).
One interesting aspect of this law is how it ties in with regulations for target shooting on public land where hunting is also allowed. In an FAQ for the prior version of the statute, the Dept. of Fish and Game addressed the question, “What about target shooting, ‘plinking,’ or firearms for personal protection?” Answer: “The Commission does not regulate these activities. Use of lead projectiles is legal unless another government entity has determined otherwise for lands they administer. The regulations prohibiting lead only relate to possession while engaged in specified hunting activities.” This leads to some counterintuitive results. For example, a person hunting in a National Forest would be prohibited from shooting lead ammunition at animals, but that same person could shoot as much lead ammunition as he or she wants at a nonliving target. A fair question, then, is whether the legislature will ban the use of lead ammunition for target shooting to remove this inconsistency.
To sum up, if you hunt or target-shoot in California, there are several things to keep in mind about this law: (1) Like its predecessor, the new law does not make it illegal merely to possess lead ammunition. Rather, it makes it illegal to use lead ammunition while hunting. For more specifics, we will have to wait until the Commission promulgates regulations implementing the Act. In the meantime, the preexisting law banning the use (or attempted use) of ammunition for hunting in specified hunting areas remains in effect. (2) The new law has no effect on the legality of shooting targets with lead ammunition on public land where target shooting is allowed, including in areas that allow both hunting and target shooting. (3) It seems likely that the Commission will pass regulations clarifying that lead ammunition is still legal at commercial shooting ranges and private gun clubs.
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