In many cases it is ultimately up to the State as to requiring the use of non-toxic shot for non-waterfowl migratory birds. For many years after the imposition of the lead shot ban on migratory waterfowl, the State of New Jersey allowed the use of lead shot for railbird hunting in its wonderful riverine marshes. After early teal season opened, the lead ban went into effect in those areas as well.
This was a great benefit, and much to the state's credit, since to my knowledge at the time of the ban the smallest shot size available in non-toxic loads was #7. Of course the wonderful old loads for the tiny birds in #10 or #11 (#12s 'pulped' the meat too much) lead were just the ticket, regardless of gauge. (My rail hunting mentor's favorite quip was, "No choke is too open and no shot size is too small").
Eventually, the State succumbed to pressure from the 'green' groups and extended the lead shot ban a few years ago to include railbird hunting as well. We owe much to the NJ DNR and State waterfowl management programs who supported and enforced this exemption for the use of lead shot in railbird hunting; it gave us almost 20 years of being able to use lead for rail shooting after the early 1980's ban(s).
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