I’m trying to get the lead out, but it’s not easy

Dear editor,

I have no time for a column this month, as I need to rehearse my legal defense to avoid hundreds of dollars in fines due to an unjust citation. Attached is an outline of my courtroom strategy to which you or your readers may provide feedback:

Your Honor, my case before you is less about being wrongly ticketed by a game warden than it is an indictment of dirty legislative tactics known as “sunrising” and the microeconomic principle of “loss aversion.” After my explanation, you’ll find I’m clearly the victim and of these forces; I was virtually compelled to bring a forbidden element onto a wildlife refuge.

Note: Judge may roll her eyes. Ignore. Continue.

We’ve all heard of “sunset” provisions written into laws to make them more appealing. After a few years, the law ends, so there’s much less complaining because we think “It’s going away in a few years anyway.”

In 2013, Gov. Jerry Brown signed clever “sun rising” legislation to phase out the use of lead bullets in California across a six-year period.

Phase 1 started in 2015, innocently enough, banning lead ammunition when taking Nelson bighorn sheep and on all California Department of Wildlife areas.

Phase 2 came in 2016, dictating that no lead shot be used when taking upland game birds like pheasants with a shotgun.

Phase 3, in 2019, says we can’t use lead when hunting anything in California.

Politicians have always used time as a tool, but banning lead shot while hunting in California was done sneakily and hunters see it for what it is – just another way to squeeze us.

On your bench you’ll find the book “The Timing of Lawmaking” in which editors Frank Fagan and Saul Levmore defined sunrising as “Intentionally or even drastically beginning (a law or regulation) at some future time, even though it would be easy enough to begin at an earlier point … to avoid the consequences of lawmaking.”

Your Honor, if lead was so deadly to our wildlife, why wasn’t it banned immediately? Answer: we hunters would have turned in our lead at the State Capital at about 1500 feet per second. The law inched up on us, just as the politicians planned.

Judge nods slowly, wisely, then asks, “So that’s your excuse for hunting pheasants on a refuge with leaded shells?”

That I fell victim to a cognitive bias called “loss aversion,” a powerful psychological tendency to strongly favor avoiding losses over acquiring gains. Loss aversion is why we stay and watch a movie we hate because “I already paid for the ticket, I don’t want to waste my money!” But you don’t get your money back by watching a bad movie.

See, I had this half a box of old leaded pheasant loads I didn’t want to waste. Like, five bucks worth.”

Judge: “Unbelievable. You referred to being “unfairly” ticketed. What’s ‘unfair’?”

In the vast 7,400 acres of tules and wetlands of the North Grasslands Wildlife Area outside of Gustine, I was sure I could see a warden coming for miles and was shocked when his green pickup pulled up only yards behind me in a cloud of milkweed. I tried to shuck the lead shells into the weeds but he saw me. That warden snuck up on me like a bad law, which makes it not fair.”

Note: This needs work.

If it pleases the court, I’m entering “Secretarial Order 3346” into evidence, my Trump card. Our new Interior Secretary, Ryan Zinke reversed Obama’s Federal ban on lead ammunition and fishing tackle on all Federal refuges his first day in office back in March, because it “was issued without significant communication, consultation or coordination with affected stakeholders.” He was talking about hunters, judge. Game. Set. And match!”

Judge: “You may have been on a California State controlled hunting unit, smartass, and do you really want to go back to spraying toxic lead all over the swamps for ducks to eat?”

Of course not, your Honor. Twenty-million birds die of lead poisoning each year because of the 100,000 tons of lead we hunters and fishers leave behind, according to the Center for Biological Diversity. I just had those last few shells to use up.”

Judge: “Get out of my courtroom!”

This story was originally published December 16, 2017 at 6:21 AM with the headline "I’m trying to get the lead out, but it’s not easy."