Lawsuit Filed Challenging the Bureau of Land Management’s Decision to Permanently Remove All Wild Horses from Public Lands Outside of Caliente, Nevada

Yesterday, on behalf of American Wild Horse Campaign, Western Watersheds Project, and the Cloud Foundation, we filed a lawsuit in the United States District Court for the District of Columbia challenging the Bureau of Land Management’s (“BLM”) decision to round up and permanently remove all wild horses from over 700,000 acres of public lands called the Caliente Complex, located outside of Caliente, Nevada, on the purported grounds that there is not enough forage and habitat for the horses. The BLM determined that the removal of all wild horses from these longstanding wild horse management areas, where wild horse populations have existed since 1971, was necessary to improve the health of the range, despite the fact that the BLM permits grazing on the same public lands by thousands of cattle that, unlike wild horses, are not statutorily protected. In making its decision, the BLM violated its obligations under the Wild Free-Roaming Horses and Burros Act to protect and manage wild horses as “living symbols of the historic and pioneer spirit of the West,” and ensure that management of wild horse populations are conducted at the minimal feasible level. Additionally, the BLM violated its obligations under the National Environmental Policy Act by failing to give full and accurate consideration to the alternatives to, and the environmental impacts of, the proposed action. In particular, the BLM declined to provide the range monitoring data supporting its decision to remove all wild horses from the Caliente Complex—despite several requests from our clients and other interested parties—and as such, fell far short of the requirement to adequately disclose and consider baseline information and the environmental impacts of its action. Moreover, the BLM failed to examine the impacts of livestock grazing on the availability of forage, water, and other resources in the Caliente Complex, and did not determine whether, and to what extent, livestock, rather than wild horses, adversely affect the range’s resources. Most untenably, in making its decision to permanently extirpate wild horses from the Complex, the BLM failed to consider the obvious alternative of reducing the amount of livestock permitted on these federal public lands to improve the health of the range. You can read our Complaint here.

Photo courtesy of AWHC

Lawsuit Brought Under New York Open Records Law To Shed Light on Outdated Experiments on Cats and Primates by the State University of New York (SUNY).

Yesterday, on behalf of Citizens for Alternatives to Animal Research & Experimentation (“CAARE”), and with the Animal Legal Defense Fund, we filed a lawsuit in the Supreme Court of New York challenging the State University of New York’s unlawful withholding of records under New York’s Freedom of Information Law (“FOIL”), the state’s open government law. CAARE is a national non-profit 501(c)(3) organization dedicated to promoting a fundamental change in the way the United States conducts biomedical research. CAARE advocates shifting, where feasible, from outdated animal research to modern scientific technologies that do not rely on the use of animals, and are both effective and far more humane. To further its mission, CAARE submitted a FOIL request to SUNY seeking access to records that will shed light on issues of national significance–i.e., the need to phase out unnecessary animal research, especially when non-animal alternatives are currently available, and the need to protect those animals that are used in such research from unnecessary pain, distress, and suffering. CAARE’s FOIL request also sought to ascertain whether NIH and the USDA are ensuring that this taxpayer-funded research—which has already cost the taxpayers more than $7.95 million—is in compliance with all applicable laws and regulations. SUNY denied CAARE’s FOIL request, citing the statutory exemptions allowing state agencies to withhold records on the grounds that disclosure will endanger public health and safety, and that the records constitute proprietary information and trade secrets. However, as our Petition explains, SUNY cannot withhold purely factual, noncommercial information that describes how publicly funded research on animals is being or has been performed, including information concerning the care and treatment of such animals. Moreover, SUNY cannot deny access to the requested records based solely on the grounds that CAARE is an animal protection organization, especially where no credible threat exists and, as CAARE’s website explains, it abhors violence and is dedicated only to peaceful dialogue about the need for and efficacy of such research. Therefore, in accordance with FOIL’s broad standard of open disclosure, we have asked the New York Supreme Court to order SUNY to release the requested records to CAARE. You can read our petition here.

Court Orders USDA to Develop Conservation Program for Southwestern Willow Flycatchers

After a half-decade of litigation, a court has ordered the U.S. Department of Agriculture and its sub-agency the Animal and Plant Health Inspection Service to develop an appropriate and meaningful conservation program for the highly endangered Southwestern willow flycatcher.  The court gave the federal government fifteen months to undertake a decisionmaking process to develop this conservation program, which must include review under the National Environmental Policy Act, consultation under the Endangered Species Act, and public comment.  This order comes in the wake of the court’s finding in August 2017 that these agencies violated section 7(a)(1) of the Endangered Species Act after they released hundreds of thousands of non-native, invasive beetles throughout the Southwest to defoliate saltcedar trees that provide nesting habitat to flycatchers, but then walked away from the program when beetles reached flycatcher critical habitat without implementing any mitigation measures to ameliorate the ongoing effects of their beetle release program.  The remedial order can be found here.

Photo courtesy of National Park Service

FURTHER ANALYSIS SOUGHT ON HARMFUL NEBRASKA TRANSMISSION LINE

On behalf of a number of Nebraska landowners, we have filed a petition asking the U.S. Fish and Wildlife Service (“FWS”) to issue a supplement to the Draft Environmental Impact Statement (“DEIS”) for the Incidental Take Permit (“ITP”) for the R-Project Transmission Line in north-central Nebraska (the “R-Project”). After the publication of the DEIS for the R-Project, significant new information has come to light concerning the R-Project’s impacts on the environment, wildlife, and historic/cultural resources. In particular, an independent expert hired by the FWS to review the DEIS’s assessment of risk to the critically endangered whooping crane—which was conducted by the project applicant, the Nebraska Public Power District (“NPPD”)—has issued a report highlighting significant flaws in NPPD’s risk assessment, which the FWS relied upon in determining that the whooping crane did not have to be addressed as a “covered species” in the ITP. Dr. Davis’s report therefore raises serious concerns regarding NPPD’s analysis of impacts on a highly endangered species that were not addressed (or even considered) in the DEIS. Additionally, recently developed maps identifying the tracts of land that have been reserved for wind development, and new information regarding the relationship between NPPD and wind developers directly contradict NPPD’s summary dismissal of the impacts of wind energy development as not “reasonably foreseeable.” To the contrary, this new information confirms that the impacts from wind energy development are not only reasonably foreseeable, but are, in fact, fully expected and virtually certain to occur. The maps also demonstrate that the footprint of the R-Project has expanded to an extent not contemplated in the DEIS. Finally, new information regarding the R-Project’s impacts to the Oregon-California Trails—in particular, to the final resting place of a group of gold prospectors who were afflicted with cholera and died on their way to California—was never contemplated in the DEIS, nor were any alternatives to avoid adverse effects to the site. Because new information demonstrates that the R-Project will impact the environment, wildlife, and historic/cultural resources to a significant extent not considered in the DEIS, we have asked the FWS to publish a Supplemental DEIS for public comment before it proceeds further in its consideration of NPPD’s ITP application. You can read our letter here.

Photo credit: Diane Nunley, courtesy of U.S. Fish & Wildlife

LAWSUIT FILED CHALLENGING TRUMP ADMINISTRATION REVERSAL ON BIRD CONSERVATION

On behalf of four leading bird and wildlife conservation organizations—National Audubon Society, American Bird Conservancy, Center for Biological Diversity, and Defenders of Wildlife—today we filed a lawsuit in the United States District Court for the Southern District of New York challenging the Trump Administration’s decision to undermine the Migratory Bird Treaty Act (MBTA), one of the nation’s oldest and most important conservation laws.  The MBTA makes it unlawful for anyone to kill or “take” a migratory bird without a permit from the Fish and Wildlife Service (“FWS”). For decades, both Democratic and Republican Administrations construed this language as encompassing major industrial actions—such as building transmission lines, storing oil in pits, and erecting industrial wind turbines—that have the foreseeable consequence of killing large numbers of migratory birds when built near important bird habitats, even if that is not the specific purpose of the activity. That interpretation has had the beneficial effect of conserving many millions of birds, particularly by prompting a number of industries to adopt best practices and other measures for avoiding or minimizing bird impacts. However, in response to lobbying from the oil and gas industry, the Trump Administration’s Solicitor of the Interior in December 2017 abruptly reversed course—with no prior public notice or comment—and declared instead that only actions that are specifically intended to kill or take birds (such as hunting) are covered by the MBTA’s protections. The lawsuit filed today contends that this about-face—which has been severely criticized by former Department of Interior officials from both past Republican and Democratic Administrations—flies in the face of the plain language and overriding purpose of the MBTA, and also contravenes the public’s right to comment on such a dramatic change in policy and violates the National Environmental Policy Act. A copy of the Complaint can be found here and a press release on the lawsuit can be found here.

Photo credit: National Park Service

Brief Filed to Save the Iconic Jackson Elk Herd from Chronic Wasting Disease

Last week, on behalf of Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and the Gallatin Wildlife Association, we filed a legal brief asking the U.S. District Court for the District of Wyoming to invalidate a U.S. Forest Service special use permit that allows the State of Wyoming to artificially feed the Jackson elk herd on federal public lands in the Bridger-Teton National Forest.  Despite the overwhelming scientific consensus that the practice of artificial feeding concentrates elk in unnaturally dense congregations and thereby increases the rate of disease spread and transmission among elk—including of the lethal Chronic Wasting Disease that is approximately forty miles from this iconic and culturally important elk herd—the Forest Service authorized artificial feeding through 2028 without examining whether it should instead eliminate or phase out the practice before Chronic Wasting Disease is introduced into this herd.  Thus, we have asked the court to set aside the special use permit allowing this activity until and unless the Forest Service takes a hard look at its contribution to the introduction and spread of this lethal disease and considers reasonable alternatives to artificial feeding that would mimic natural conditions while providing sustainable forage for this wildlife population.  The brief can be found here.

FWS Required to Give Bald Eagles in CO a Second Chance at Survival

After filing suit in February 2018 on behalf of the non-profit Front Range Nesting Bald Eagle Studies challenging the U.S. Fish and Wildlife Service’s (“FWS”) permit authorizing lethal incidental take of nesting bald eagles in Colorado during construction of an apartment complex only a few hundred feet from the nest, FWS has agreed to suspend the permit and consider imposing more protective measures to avoid or minimize take of these eagles.  In particular, whereas FWS initially “categorically excluded” this permit from any environmental review under the National Environmental Policy Act, FWS has agreed in response to our lawsuit to prepare an Environmental Assessment and to solicit public comment from interested parties to ensure that this permit receives the transparency required by federal law.  Our clients have long explained to FWS that the minimal construction buffers routinely adopted by FWS for permits of this kind are biologically indefensible and thus have urged FWS to analyze and adopt more stringent buffers, measures, and other permit conditions to ensure against the loss of these eagles and their nests (and other similarly situated eagles and nests).  FWS will finally address these concerns as part of its new environmental review process.

Case Filed to Protect Nesting Bald Eagles in Colorado

Earlier this week, along with co-counsel from the Law Offices of Randall Weiner, we filed suit in federal court in Colorado on behalf of a non-profit organization called Front Range Nesting Bald Eagle Studies challenging the U.S. Fish and Wildlife Service’s (“FWS”) issuance of a nest disturbance permit under the Bald and Golden Eagle Protection Act (“BGEPA”).  The lawsuit seeks to vacate FWS’s permit – which authorizes construction of a massive multi-family residential development only 600 feet from an active eagle nest – for failing to make the necessary legal findings under BGEPA and for categorically excluding this action from any analysis under the National Environmental Policy Act despite the fact that this action will result in significant environmental impacts.  The complaint can be found here.

CAPE WIND PROJECT COMES TO AN END

After a protracted legal battle, in which we represented wildlife protection groups and individual advocates, the controversial Cape Wind project has finally come to an end, with the project proponent formally relinquishing its federal lease last week. The poorly sited project would have been very harmful to migratory birds, including several listed as endangered or threatened, and would have also posed threats to whales, including the highly endangered right whale. On behalf of Public Employees for Environmental Responsibility, the Alliance to Protect Nantucket Sound, and others, we won a number of important legal battles since filing suit in 2010. Although development of renewable energy is vitally important, particularly in an era in which anti-science climate change skeptics occupy the highest rungs of political power, Cape Wind proved to be a cautionary tale of how not to transition away from our nation’s dependence on fossil fuels.  Cape Wind’s formal notice of project abandonment is here.

Freedom of Information Act Suit Over National Monument Records

On behalf of Friends of the Earth we filed a Freedom of Information Act case in federal district court in D.C. to compel the Department of Interior to release records concerning DOI Secretary Ryan Zinke’s recent recommendation that President Trump reduce the size of several national monuments in the West.  In September, Secretary Zinke provided Trump with a report recommending that the President reduce the size of several monuments, including Bears Ears in southeastern Utah, the Grand Staircase-Escalante in southern Utah, Gold Butte in Nevada, and Cascade-Siskiyou in southern Oregon, and possibly two additional pacific ocean marine monuments—the Pacific Remote Islands and Rose Atoll.  Zinke’s report also recommended that Trump amend the national monument proclamations for ten additional monuments. If Trump accepts the recommendations, this could mean that these pristine public lands would for the first time be opened to extractive uses, including mining, grazing, logging, fishing, and other commercial uses. Friends of the Earth has for months been trying to obtain records that would shed light on the role of the extractive industries in these recommendations, including that of James Cason, the Associate Deputy Secretary for DOI, who has a long history of lobbying for and working on behalf of the oil, gas, coal, and mining industries.  Although FOE’s requests have been pending for months, DOI has failed to provide any substantive response to FOE.  The lawsuit seeks immediate release of the requested records. A copy of the Complaint can be found here.