Natural Resources & Environmental Conservation

Beaches

Beach renourishment: On behalf of the Florida town of Golden Beach and environmental groups, we won an injunction from the United States District Court for the Southern District of Florida, halting the "renourishment" of Miami Beach until the United States Army Corps of Engineers engaged in additional environmental review and solicited the views of the local communities most likely to be adversely affected. The "renourishment" project, which entailed digging up tons of sand from the ocean floor and dumping it on the beach, threatened harm both to the fragile coral reefs in the area as well as endangered turtle species. The Miami Herald referred to this case as the "first big battle" over beach renourishment in Florida.

In a separate challenge to another renourishment project, we represented a marine biologist and St. Lucie, Florida environmental activists, in an effort to halt a dredging operation that the plaintiffs feared would wipe out several unique marine organisms. After we won a temporary restraining order against the multi-million dollar project, we settled the case, with the Corps agreeing to avoid dredging near the organisms and to spend several hundred thousand dollars funding future research.

Florida Barrier Beaches: On behalf of the Coast Alliance and the Center for Marine Conservation, we won a ruling halting federally subsidized development on coastal barriers in Florida which serve as vital habitat for endangered sea turtles and other rare species. See Coast Alliance v. Babbitt, 6 F. Supp. 2d 29 (D.D.C. 1998).

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Big Cypress

Big Cypress Preserve: We represented the Florida Biodiversity Project and other Florida environmental activists in a novel legal challenge to the National Park Service's failure to protect the fragile ecosystems of the Big Cypress National Preserve from excessive off-road vehicle use and other impacts. We settled the lawsuit when the Park Service agreed to prepare, for the first time, a comprehensive ORV Management Plan for the Preserve. See The Florida Biodiversity Project v. Kennedy, Case No. 95-CIV-FTM-24(D) (settlement approved Feb. 25, 1996) (M.D. Fla. 1995).

Off-Road Vehicles in Big Cypress: We represented a coalition of eleven environmental and animal protection groups in defense of restrictions on off-road vehicles (ORV) in Big Cypress National Preserve in South Florida that are vital to the protection of the endangered Florida panther and other species. As intervenors we sought to halt the ORV users' attack on the National Park Service's ORV management plan which provides critical protection for this sensitive ecosystem. The district court ruled for Big Cypress, upholding the restrictions.

On behalf of Defenders of Wildlife, the Florida Biodiversity Project, The Wilderness Society, The Humane Society of the United States, Wildlands CPR, Sierra Club, National Parks Conservation Association and others, we have challenged the National Park Service's attempt to reopen certain environmentally sensitive areas of Big Cypress National Preserve to ORV use. These areas, which include important Florida Panther habitat, had previously been closed pursuant to the ORV management plan that NPS issued as a result of the parties' previous settlement agreement.

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Commerce Clause Challenge Defense

ESA/Commerce Clause Challenge: We assisted Defenders of Wildlife in successfully defending against a Commerce Clause challenge to the Fish and Wildlife Service's "special rule" concerning the reintroduction of the red wolf to a wildlife refuge in North Carolina -- a state from which the wolf had long been extirpated, largely due to hunting and habitat destruction. See Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert denied, 2001 WL 137648.

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Cypress Creek

Cypress Creek: On behalf of the Sierra Club, Gulf Restoration Network, Clean Water Action, and several individuals, we have challenged a Clean Water Act ("CWA") section 404 dredge and fill permit issued by the Army Corps of Engineers for the construction of Cypress Creek Town Center, a massive retail, office, hotel and residential complex, on the grounds that the permit violates the Endangered Species Act ("ESA"), the CWA and the National Environmental Policy Act ("NEPA"). The permit authorizes the destruction of over fifty acres of wetlands and occupied habitat for two federally listed species will result in,the effective severance of a government designated critical wildlife linkage connecting other conservation lands in the area, and threatens Cypress Creek, an Outstanding Florida Water, with significant degradation. The Corps has suspended the pending permit and is now reviewing the legality of the permit pursuant to a remand from the Court.

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Endangered Species Act Consultation Regulations

Bush Administration Regulations: On behalf of several conservation organizations, we challenged regulations issued by the Bush Administration eviscervating the inter-agency consultation process mandated by Section 7 of the ESA and eliminating consultation on global warming effects on species. Shortly after we filed the suit, the regulations were withdrawn by the Obama Administration.

PENDING
Self-Consultation Regulations: On behalf of Defenders of Wildlife and other groups we filed a challenge to the Bush Administration's "self-consultation" regulations, under which the Forest Service and other agencies may make their own decisions regarding whether timber sales and similar projects will affect endangered and threatened species, and need no longer "consult" with the Fish and Wildlife Service or National Marine Fisheries Service concerning such impacts. The case is pending in the U.S. District Court for the District of Columbia.

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Endangered Species Act Species Listing

PENDING
"Warranted But Precluded" Challenge: On behalf of the Center for Biological Diversity and other conservation organizations, we have challenged the Fish and Wildlife Service's refusal to list hundreds of imperiled species on the grounds that their listing is "warranted but precluded" by the need to list other species as endangered or threatened. In the case – which is pending in the U.S. District Court for the District of Columbia – we contend that the FWS is making virtually no progress in listing species, and hence cannot invoke the "warranted but precluded" rationale for listing other species on the verge of extinction.

Multi-species Listing Settlement: On behalf of a nationwide coalition of conservation groups, in 1992, we settled a massive lawsuit with the Interior Department, in which the government agreed to substantially expedite the protection of over four hundred animals and plants under the Endangered Species Act. When the settlement was approved, The New York Times referred to it as one of "the most significant developments" ever in the protection of endangered and threatened species in this country. In 1996, we defeated an effort by the Interior Department to avoid its responsibilities under the settlement with regard to approximately 85 remaining candidate species. Instead, under pressure from the Court, the Department agreed to extend its obligations under the agreement until December 1998.

"Category 2" Candidate List: On behalf of the Biodiversity Legal Foundation and other groups, we challenged the Fish and Wildlife Service's failure to provide public notice and comment before eliminating thousands of species as "candidates" for listing. We settled the case, with the FWS agreeing to subject the decision to public review. See Biodiversity Legal Foundation v. Babbitt, Civ. No. 96-641 (D.D.C., settlement approved, Oct. 17, 1996).

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Everglades

Everglades Rock Mining: On behalf of the Sierra Club, the Natural Resources Defense Council, and the National Parks Conservation Association, we have sued the U.S. Army Corps of Engineers and the US Fish and Wildlife Service over the Corps' permitting of a massive mining operation on the border of Everglades National Park. Plaintiffs argue that, in approving this project, the Corps has not only undermined the multibillion dollar Everglades Restoration Plan's ongoing efforts to restore this ecologically critical area, but has also violated numerous federal environmental laws, including the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. The United States District Court for the Southern District of Florida ruled for plaintiffs. see Sierra Club v. Flowers, 423 F.Supp 2d 1273 (S.D. Fla. 2006), and enjoined mining closest to the aquifer used by the Miami-Dade County for drinking water. In response to an appeal by the mining companies, the U.S. Court of Appeals for the Eleventh Circuit remanded the case for further proceedings on certain claims. On remand the district again determined that the mining permits were unlawfully issied, and vacated the permits.

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Horses

Horse Slaughter: We represented the Humane Society of the United States, the Animal Welfare Institute, and other plaintiffs in a suit against a Department of Agriculture (USDA) regulation that permits horse slaughter plants to pay for the costs of USDA inspections. The regulation was designed to subvert a recent federal law intended to halt horse slaughter by defunding these inspections. The district court found that the regulation had been issued in violation of the National Environmental Policy Act and enjoined its implementation. See HSUS v. Johanns, 520 F.Supp. 2d (D.D.C. 2007). An appeal by the horse slaughter plants was dismissed by the D.C. Circuit.

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National Parks Protection

Directional Oil and Gas Drilling: On behalf of the Sierra Club, Texas Committee on Natural Resources and others, we challenged a new Park Service policy regarding "directional drilling" -- i.e., drilling from a surface location outside a National Park to reach oil and gas beneath the Park. Under the new policy, in analyzing the impacts of the drilling, the agency must ignore the impacts of the surface operations, even where they take place immediately outside the park and pose concrete threats to park resources. Recognizing that the policy is irreconcilable with the agency's mandate to protect park resources, during the course of the litigation the agency changed course, and claimed that it actually does consider these impacts. In light of this development, the Court reviewed three specific drilling operations at Big Thicket National Preserve, and concluded that, in each instance, the agency had not meaningfully analyzed whether the surface activities associated with the drilling either risk impairing park resources or may have significant environment effects. The Court therefore remanded all the decisions to the agency for further analysis.
See Sierra Club v. Manella, 459 F.Supp 2d 76 (D.D.C. 2006).

Snowmobiles in National Parks: In coordination with a large coalition of environmental groups, in January 1999, we submitted a rulemaking petition for a ban on snowmobiling in national parks. At the end of the Clinton Administration, the Park Service announced that, in response to this petition, it planned to institute a nationwide ban on snowmobiles in most of the national parks in the lower 48 states. We filed a lawsuit challenging the Bush Administration's delay in formally responding to the Petition, and the Court ordered the agency to respond. See The Fund For Animals v. Norton, 294 F. Supp.2d 92 (DDC 2003).

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National Wildlife Refuges

National Wildlife Refuge Hunting: We represent the Fund For Animals and more than a dozen individual Refuge users in a suit challenging the agency's decision to expand public uses, including hunting, throughout the Refuge System under six final agency rules promulgated by the Fish and Wildlife Service. The rules initiate or expand sport hunting in thirty-seven units of the National Wildlife Refuge System, including thirty-one refuges where hunting has never before been allowed, and twenty-one refuges within the Mississippi flyway - a critical migration corridor for numerous species of birds protected under the Endangered Species Act and the Migratory Bird Treaty Act. The Court held that the Fish and Wildlife Service did not comply with the National Environmental Policy Act in issuing the six challenged rules, because the agency did not adequately analyze the cumulative impacts of expanding hunting on the Refuges to such sensitive resources as migratory birds and threatened and endangered species. See The Fund For Animals v. Hall, 448 F. Supp. 2d 127 (DDC 2006).

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"No Surprises" Rule

No Surprises I: On behalf of Spirit of the Sage Council and other conservation groups, we challenged the Interior Department's controversial "No Surprises" policy, under which holders of Incidental Take Permits ("ITPs") receive extraordinary guarantees that for the life of their permits, they will never be required to conserve more habitat than initially required by the Department, even if environmental circumstances or available information drastically change. We initially brought a challenge under the Administrative Procedure Act, arguing that Department had adopted the No Surprises approach without even affording the public an opportunity to comment. We settled that case, with the Department agreeing to solicit public comment from scientists, conservation groups, and other members of the public before making a final decision on the No Surprises approach. Despite widespread public opposition, the Department then issued a formal rule adopting the No Surprises approach.

No Surprises II: After the Interior Department embodied the No Surprises policy in a formal rule, we filed a new case in the United States District Court for the District of Columbia, challenging that rule as violative of the Endangered Species Act and Administrative Procedure Act.. In response to our lawsuit, the government issued a new rule providing that ITPs can be revoked where species are being jeopardized due to new circumstances, thus calling into question the entire premise of the No Surprises approach, but adopting a very narrow revocation standard with no advance public comment. The Court held that the government committed "flagrant" violations of the law in adopting this rule and remanded all of the regulations for additional consideration. See Spirit of the Sage Council v. Norton, 294 F.Supp. 2d 67 (D.D.C. 2003). The Court of Appeals subsequently dismissed the government's and industry's appeals of the district court order. See Spirit of the Sage Council v. Norton, 411 F.3d 225 (D.C. Cir. 2005)

No Surprises III: After the Interior Department repromulgated its narrow ITP revocation standard, and refused to change the No Surprises Rule despite many public comments urging it to do so, we brought another challenge to the closely related rules. The district court rejected our facial challenges to the rules but left the door open to as applied challenges to particular ITPs.

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Nuclear Facilities

DOE Contempt: On behalf of the Natural Resources Defense Council, we challenged the Departmentof Energy's failure to comply with a 1990 Court Order, which obligated the Department to prepare a Programmatic Environmental Impact Statement (PEIS) concerning environmental restoration activities at defense nuclear facilities around the country. The United States District Court for the District of Columbia issued an order to show cause why the Department should not be held in contempt for failing to prepare the PEIS, and allowed us to take extensive discovery. As a result, we reached a sweeping settlement with DOE, which, among other commitments, obligated the Department to create a new, publicly accessible database on radioactive materials stored at defense nuclear facilities, and to spend more than $6 million funding research by citizen groups into conditions at such facilities.

Radioactive Waste Cleanup in Southern California: We represented NRDC and Committee to Bridge The Gap in a challenge to the Department of Energy's (DOE) plan to transfer ownership of a portion of the Santa Susana Field Laboratory in Simi Valley, California, without first insuring that the former nuclear testing area is free of radioactive and chemical contamination. The district court issued a permanent injunction preventing DOE from transferring the area before it completes an Environmental Impact Statement on its cleanup plans. See NRDC v. DOE, No. C-04-04448-SC (BZ), 2007 WL 1302498.

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Oil Tanker Regulation

Oil Tanker Safety: We represented the Bluewater Network and Ocean Advocates in a challenge to the Coast Guard's failure to carry out key provisions of the 1990 Oil Pollution Act ("OPA") enacted after the Exon Valdez spill, including one which requires that oil tankers install devices that detect leaks in their holding tanks. The DC Circuit ordered the Coast Guard to fulfill the OPA's mandate "promptly." In re Bluewater Network and Ocean Advocates, 234 F.3d 1305 (D.C. Cir. 2000).

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Personal Watercraft Regulation

Personal Watercraft: We represented the Bluewater Network and other groups in a challenge to the Park Service's decision to continue to allow personal watercraft, or jet skis, in many National Park units. In a Settlement Agreement, the government agreed to disallow jet skis in any national park unit unless the agency first considers full scientific and public comment. We subsequently represented Bluewater Network in defense of several challenges to PWC closures at particular parks.

Personal Watercraft II: We represent Bluewater Network (now part of Friends of the Earth) and The Wilderness Society in a challenge to the Park Service's decision to reintroduce jet skis to two national parks – Gulf Islands National Seashore and Pictured Rocks National Lakeshore. The suit contends that the Service's decision to let jet skis back into these Parks after they had been banned as a result of our earlier Settlement Agreement violates that Settlement as well as the National Environmental Policy Act. The suit is pending in federal district court in D.C. Bluewater Network v. Kempthorne, 08-841 (GK) (DDC).

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Southern Utah

Oil and Gas Exploration: We assisted the Southern Utah Wilderness Alliance and Natural Resources Defense Council in a challenge under the National Environmental Policy Act to the Department of Interior's approval of oil and gas exploration on the doorstep of Arches National Park. In 2002 the U.S. District Court for the District of Columbia ruled that, in approving the project, the Department of Interior failed to comply with the National Environmental Policy Act. Specifically, the Court ruled that the Bureau of Land Management failed to consider alternatives to the proposed exploration and unlawfully relied on the permittee's insistence that there were no such alternatives, and that the Interior Board of Land Appeals failed to consider evidence that the mitigation measures BLM imposed were not effective in reducing the adverse environmental impacts. The Court remanded the matter to the Interior Board of Land Appeals. See Southern Utah Wilderness Alliance v. Norton, 237 F. Supp. 2d 48 (D.D.C. 2002).

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Timber Sale Appeal Regulations

Forest Service Employees Appeal Rights: On behalf of the Forest Service Employees for Environmental Ethics, we assisted in a challenge to a Forest Service rule which prohibited Service employees from filing administrative appeals of timber sale and other decisions. After we moved for summary judgment, the Forest Service agreed to rescind its rule and replace it with one which allows employees to participate in the appeal process.

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Toxic Spill Regulation

Natural Resource Damages: On behalf of the Environmental Defense Fund, we filed suit in the United States Court of Appeals for the D.C. Circuit, seeking to compel the issuance by the Interior Department of long-overdue rules for the assessment of damages to wildlife and other natural resources caused by toxic waste spills. We settled the lawsuit, with the Interior Department agreeing to a deadline for issuance of the regulations.

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Ward Valley

Ward Valley Land Transfer: We represented the Committee to Bridge the Gap and other California activists in a lawsuit brought by a California state agency and a private contractor seeking to force the transfer of federal land of great ecological and cultural value for use as a nuclear dump site. The United States District Court for the District of Columbia granted our motion to intervene on the side of the federal government, which resisted the transfer, and then granted our motion for summary judgment. California Dep't of Health Services v. Babbitt, 46 F. Supp. 2d 13 (D.D.C. 1999). The D.C. Circuit then dismissed, on standing grounds, an appeal of the district court's ruling by the private contractor. See U.S. Ecology Inc v. U.S. Department of Interior, 231 F.3d 20 (D.C. Cir. 2000).

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Yellowstone National Park

Winter Use of Yellowstone: On behalf of the Fund for Animals and other groups, in 1997 we settled a suit against the Park Service requiring the agency to prepare an environmental impact statement (EIS) concerning winter use in Yellowstone National Park. In 2001, the agency completed the EIS by deciding to eliminate snowmobiling in the Park, but to continue grooming snow-packed roads, despite their adverse impacts on bison. In early 2003, after the Bush Administration reversed this decision and announced that snowmobiles would remain in the Park, we represented the Fund, Bluewater Network and others in a challenge to that decision. A federal judge found that the Park Service had failed to provide a rational explanation for its reversal on snowmobiles, and that the agency still failed to adequately study the impacts of snow-packed roads. The Court also ordered the agency to respond to Bluewater Network's 1999 Petition seeking a ban on snowmobiling and trail grooming throughout the Park system. See Fund For Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003).

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