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California: NRA/CRPAF Reveal Obstruction Of Lead Ammunition Research Probe But Efforts to Obtain Information Continue

Thursday, September 15, 2011

National Rifle Association (“NRA”) and the California Rifle and Pistol Association Foundation (“CRPAF”) representatives made presentations to the California Fish and Game Commission (“Commission”) at its June 30, 2011 meeting in Stockton, California. The presentations revealed the numerous obstacles frustrating the NRA/CRPAF’s pursuit of underlying data behind taxpayer funded “research” that is being used to advocate proposed lead ammunition bans in California and in other states.

The information behind these research studies must be critically evaluated to determine the legitimacy of claims being used to support lead ammunition bans. But despite being paid for with scarce taxpayer dollars, the data is not being made publically available. This lack of transparency has limited meaningful participation by NRA, CRPAF, or the general public in this important regulatory policy debate.

The recent NRA and CRPAF presentations to the Commission highlighted just some of the difficulties encountered while seeking to obtain these vital public records. Obstacles being thrown up in the face of the NRA/CRPAF probe include claims that data has been destroyed, and that other data is being withheld on legal grounds. To see the letter to the California Department of Fish and Game (“DFG”) laying out these problems, click here. To view the Commission meeting video, click here for part one and click here for part two.

For several years, NRA/CRPAF attorneys have been seeking the original research data underlying the claims being made to purportedly justify proposals to ban the use of lead ammunition in California. Significantly, analysis of the data obtained so far has revealed significant problems with the research methods and samples used to support these proposals. For example, the NRA probe revealed that the authors of the “Church Report” had not incorporated all the relevant underlying data into their findings and had omitted data that did not support their conclusions. When these omissions were revealed to the Fish & Game Commission in August 2009, proposals to expand the current condor zone lead ammunition ban statewide, to include all lead ammunition under the ban, to ban lead .22 rimfire ammunition for hunting rabbits, and to ban lead shot for hunting migratory upland game were all rejected by the Commission. At the time, the “Church Report” was one of the primary scientific studies being relied on to support the lead ammo ban proposals. Upon seeing that data had been selectively excluded from consideration, several Commissioners criticized the scientific validity of the “Church Report” findings. One Commissioner even called it “pseudo-science.”

More recently, NRA/CRPAF public records requests have sought the underlying data being used to support conclusions reached in new University of California, Davis (“U.C. Davis”) lead ammo studies. Some of the requests seeking public records related to these taxpayer-funded research projects have been blocked by various governmental agencies and the universities. Both the University of California, Santa Cruz (“U.C. Santa Cruz”) and U.C. Davis refused to produce the documents and underlying data, claiming they were exempt from production under the California Public Records Act under an alleged “researcher’s privilege.” Both universities claim that information relating to scientific research is “privileged” until that study is published in a peer reviewed journal. But the California Public Records Act contains no exception for a “researcher's privilege” and such "unpublished" studies are being routinely used by the researchers to influence the public policy debate on the regulation of lead ammunition. This is a clear double standard.

Apart from the claimed "researcher's privilege," U.C. Santa Cruz has also made excuses, including claiming it will take eighty weeks to provide responsive documents relating to published studies, even for those to which the alleged researcher’s exemption admittedly does not apply (i.e., published studies). U.C. Santa Cruz’s actions forced the CRPAF to initiate litigation to obtain the information.

After the NRA / CRPAF presentations at the June 30, 2011 Stockton hearing, Commissioner Richard B. Rogers expressed great concern about the problems with public access to data, saying that the situation is “quite troubling.” Commissioner Daniel M. Richards went on to say, “I think the good news I’ve heard across the Commission . . . is that there is unanimity that everybody wants to have all of the data to make the right decisions.”

But the stonewalling continues. Now NRA and CRPAF are asking the Commission to assist the associations in getting the information needed to evaluate the legitimacy of the “research” behind the proposed lead ammunition bans.

In response to claims by environmentalist groups that lead ammunition is the primary source of poisoning condors, and their efforts to ban the use of lead ammunition nationally, the NRA has engaged the expertise of environmental experts and scientists, as well as the civil rights and environmental law firm of Michel & Associates. For several years the NRA and CRPAF have been spearheading an effort to gather information and science to oppose the expansion of lead ammunition bans. This has involved coordinated efforts between interested parties to plan, research, conduct clerical work, and make numerous formal requests for documents from government agencies via Public Records Act requests and Freedom of Information Act requests. NRA’s team has been engaged in the long and arduous process of obtaining and analyzing tens of thousands of pages of public records concerning information relied on to propose lead ammunition bans, including original data and internal documents not previously obtained or reviewed by independent analysts or the public at large. The effort has already resulted in the rejection of several proposed ill-conceived lead ammo bans in California.
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