Federal Court Criticizes Fish and Wildlife Service for “Selling” Export Permit To Yerkes In Violation of Endangered Species Act

On September 14, 2016, the federal district court in D.C. issued a final ruling in our case on behalf of the New England Anti-Vivisection Society (NEAVS) and its coalition of sanctuaries, chimp experts, and individuals challenging the decision by the Fish and Wildlife Service (FWS) to allow Yerkes Research Center to export seven endangered chimpanzees to an unaccredited zoo in England.  Although the Court ruled that the Plaintiffs lacked Article III standing to pursue the case, the Court included some harsh criticism of the FWS’s “pay to play” approach to issuing permits under the Endangered Species Act (ESA) by which it allows entities to engage in otherwise strictly prohibited activities with endangered species in exchange for a promise to contribute money to a conservation organization.  The Court explained that “the plain language” of the ESA, which authorizes the agency to permit such activities where needed to “enhance the survival” of the species does not permit such an approach, and that “the FWS’s broad interpretation appears to thwart the dynamic of environmental protection that Congress plainly intended when it mandated that no export of endangered species be allowed . . . unless the agency permits such export pursuant to certified specified circumstances.”   The Court further stated that “Plaintiffs have ably made the persuasive argument that, far from viewing Section 10(a) as a limit on the circumstances in which the permitting of activities that impact endangered species can occur, FWS now apparently views that provision as a green light to launch a permit-exchanged program wherein the agency brokers deals between, on the one hand, anyone who wishes to access endangered species in a manner prohibited by the ESA and has sufficient funds to finance that desire, and on the other, the agency’s own favored, species-related recipients of funds and other services.”  The Court further emphasized that “[t]his Court considers doubtful FWS’s insistence that, when Congress penned Section 10(a) it intended to authorize the agency to ‘sell’ its permits in this fashion . . .” While we disagree with the Court’s ruling on standing, we hope that the Court’s strong critique of the FWS’s approach will persuade the Service to reconsider the unlawful “pay to play” system.  There is also time for Yerkes to reconsider the fate of the seven chimpanzees, especially since a number of U.S. sanctuaries have made clear that they are willing to accept these animals who have already suffered so much and deserve a far better fate than being shipped overseas to an unaccredited zoo in England.      

A copy of NEAVS’ press release about the case can be found here

BLM Abandons Invasive Wild Horse Sterilization Experiments In Response to First Amendment Lawsuit

In direct response to our lawsuit on behalf of the Cloud Foundation and the American Wild Horse Preservation Campaign, the Bureau of Land Management (BLM) on Friday September 9 withdrew its authorization for invasive experiments on wild horse sterilization in Burns, Oregon.  On behalf of our clients, we had requested that the BLM allow for public observation of these experiments in order to document the agency’s inhumane experimentation on these federally protected animals.  After the BLM denied any opportunity for public observation, we filed suit and moved for a preliminary injunction to protect our clients’ First Amendment right to observe these controversial experiments.  Rather than file any response to our preliminary injunction motion, the BLM abandoned its experiments altogether, making clear that BLM recognizes that the public would likely be appalled by these experimental techniques.  Attached is a press release our clients issued on BLM’s decision.

Brief Filed Challenging Eagle-Killing Wind Project in California

We have filed a brief in federal court in San Diego on behalf of the Protect Our Communities Foundation and several conservationists challenging the Bureau of Indian Affairs’ (“BIA”) approval of a lease to construct and operate a commercial wind project on ridgelines above the McCain Valley in San Diego and Imperial Counties in California.  Because of the location of the proposed project – which contains active golden eagle nests and which serves as a critical migratory route for golden eagles and other bird species – the U.S. Fish and Wildlife Service and the California Department of Fish and Game have roundly criticized the project and urged BIA to move the project to a lower-risk location or at least eliminate the most high-risk turbines to eagles and other birds.  In authorizing project construction and operation, however, BIA refused to adopt the recommendations of the expert wildlife agencies and failed even to conduct any review under the National Environmental Policy Act (“NEPA”) analyzing the exceptionally high risk to eagles and other birds.  Thus, Plaintiffs’ brief – which may be accessed here – requests that the court compel BIA to fully evaluate the impacts of, and alternatives to, this action in a formal NEPA document. 

Lawsuit And Preliminary Injunction Motion Filed To Protect Wild Horse Advocates’ First Amendment Rights

Yesterday, we filed suit—as well as a preliminary injunction request—against the Bureau of Land Management (“BLM”) to protect wild horse advocates’ First Amendment right to observe and document the government’s treatment of federally protected wild horses.  BLM is planning to conduct a series of highly invasive sterilization experiments on 225 wild mares in eastern Oregon, which the agency expects to contribute to its ongoing effort to sterilize many more wild horses on the public range—a plan that our firm has helped wild horse advocates successfully oppose in the past.  In an effort to reveal to the public the reality of the BLM’s inhumane treatment of these mares and to hold BLM publicly accountable for its plans to sterilize wild horses on the range, wild horse advocates requested access to observe and document the agency’s gruesome sterilization experiments.  However, providing only conclusory and unsubstantiated assertions, BLM denied any public access to observe its highly invasive, inhumane sterilization experiments.  Because the public and the press have a right to observe government activities under the First Amendment, BLM’s attempt to conduct these experiments behind closed doors is unconstitutional, and BLM’s denial of these wild horse advocates’ requests to observe these procedures is also arbitrary and capricious for various reasons.  Our clients are The Cloud Foundation, its founder and executive director and Emmy-award-winning wild horse documentarian Ginger Kathrens, the American Wild Horse Preservation Campaign, and Deniz Bolbol, an employee of AWHPC with a long record of documenting BLM’s inhumane treatment of wild horses.  You can access the complaint here and the preliminary injunction here.

Summary Judgment Sought In Case Challenging FWS’s Refusal To Protect Pygmy-Owl Based On Harmful Endangered Species Act Policy

On behalf of the Center for Biological Diversity and Defenders of Wildlife, we have filed our opening summary judgment motion in a case challenging the Fish and Wildlife Service’s (FWS) refusal to list the pygmy-owl as an endangered or threatened species under the Endangered Species Act (ESA).  The pygmy-owl is a tiny owl that has been reduced to 50 or fewer birds in all of the Arizona portion of its range because of rampant urban development, grazing, invasive species, and other threats.  While conceding the owl’s highly imperiled status in the U.S. portion of its range and in adjacent habitat in northern Mexico, the FWS has refused to list the owl – and thus afford it the critically needed protection of the ESA – based on a recent policy change adopted by the Obama Administration, under which species such as the pygmy-owl may receive no protection under the ESA so long as they may be more plentiful in other parts of their range.  Applying that policy, the FWS determined that simply because the pygmy-owl is not in as desperate straits in southern Mexico, it should be allowed to go extinct in Arizona and northern Mexico.  We have challenged that decision, and the underlying policy, as contrary to the overriding conservation purpose of the ESA to safeguard imperiled wildlife in the U.S. even if they be more abundant elsewhere.  Indeed, as our brief points out, under the harmful policy applied to the pygmy-owl, such iconic species on the American landscape as grizzly bears, wolves, eagles, jaguars, and many others would never have received protection under the ESA.  Our case is pending in the U.S. District Court for the District of Arizona.  A copy of our summary judgment motion is here.

Federal Court Requires Further Study For Environmentally Destructive “Purple Line” Project

A federal judge in Washington, D.C. has agreed with our claims – made on behalf of the Friends of the Capital Crescent Trail and two environmental activists – that the proposed “Purple Line” requires further environmental review before it may move forward.  The Purple Line is a massively expensive, environmentally harmful project that, if built, would destroy precious park land and seriously impair the popular Capital Crescent Trail, threaten area wildlife, including rare species found only in the Washington, D.C. vicinity, and degrade the quality of many of the region’s water ways.  Far less environmentally harmful alternatives, such as expanding and improving bus service, would accomplish the project’s purported objectives at a fraction of the cost and impact.  In the case decided yesterday, the U.S. District Court for the District of Columbia ruled that the Federal Transit Administration and its counterparts in the State of Maryland violated the National Environmental Policy Act by failing to prepare a Supplemental Environmental Impact Statement (SEIS) analyzing the need for the project in view of the “recent extraordinary events involving seemingly endless Metrorail breakdowns and safety issues.”  Although the Purple Line is not technically part of the Metrorail system, as proposed, the Purple Line is heavily dependent on Metro riders for its projected ridership, and even the project name is intended to emphasize the interrelationship with the Metro system.  Consequently, the Court concluded that the federal and state agencies’ refusal to prepare an SEIS in view of the “serious issues” plaguing the Metro system, “which may have long-term effects on Metro ridership, only underscores how important it was for defendants to take the requisite hard look at the potential effect of Metro’s safety issues on future Purple Line ridership and any related environmental issues.”  The Court further opined that “WMATA and the FTA’s cavalier attitude toward these recent developments raises troubling concerns about their competence as stewards of nearly a billion dollars in federal taxpayers’ funds” that would be spent on the Purple Line.  The Court therefore vacated the Record of Decision approving the project and required the defendants to prepare an SEIS before it may proceed.

 A copy of the Court’s opinion is ­here, and a press release concerning the ruling is here.

Conservation Groups Petition The Supreme Court To Ensure The Integrity Of The Roadless Inventory

On behalf of several conservation organizations and individuals, we filed a petition for certiorari asking the United States Supreme Court to review our challenge to the Forest Service’s dramatic shift in how it classifies roadless areas in the nation’s roadless inventory.  In the Colorado Roadless Rule, the Forest Service departed from four decades of uniform agency policy and practice by applying political and economic factors to roadless inventory classification decisions, thereby transforming the process from an objective and empirical one into an arbitrary, politically driven one based on which industry applies the most pressure to the Forest Service.  However, the Forest Service never even acknowledged that it was deviating from its past policy and practice, nor did the agency solicit public comment on this radical shift.  As the petition explains, the Supreme Court’s review is necessary to avoid conflict with longstanding administrative law precedents issued by the U.S. Supreme Court and various federal courts of appeal.  The petition can be accessed here.

Petition to United States Department of Agriculture Requesting New Regulations to Confiscate and Protect Animals When Facilities Go Out Of Business

On behalf of and with the Animal Legal Defense Fund (ALDF) we submitted a rulemaking petition to the United States Department of Agriculture requesting it to promulgate new regulations that would provide for the protection of animals held at exhibition facilities that go out of business, either on their own, or because their USDA license has been revoked or otherwise terminated.  Under the current system, the USDA takes the position that it lacks authority to confiscate and relocate animals from a facility once the facility is no longer “licensed” under the Animal Welfare Act.  As a result, in those cases where a facility either stops doing business as an exhibitor or its license is revoked or terminated, the USDA does nothing to protect the animals in the possession of the facility.  The petition submitted today explains that the USDA has sufficient statutory authority to take measures to insure that any such animals are rescued and placed in appropriate sanctuaries.  A copy of the petition can be found here.

Working To Hold The BLM Publicly Accountable For Experimentation On Wild Horses

To hold the BLM publicly accountable for its plan to conduct highly invasive sterilization experiments on wild horses, we have filed a request that the BLM respect our clients’ First Amendment rights by providing the American Wild Horse Preservation Campaign and The Cloud Foundation with access to observe and record these inhumane procedures.  The BLM is conducting several types of invasive sterilization experiments on wild horses, which the agency will likely use as part of its ongoing effort to sterilize wild horses on the range.  Our efforts to ensure public accountability for this invasive, inhumane experimentation will help our clients promote responsible agency behavior and safeguard the welfare of federally protected wild horses.

DC Circuit Brief Filed to Preserve Federally Protected Wild Horses in CA’s Modoc National Forest

On behalf of wild horse advocates, we have filed a brief seeking to ensure the integrity of public lands in California’s Modoc National Forest that for more than three decades have been allocated for use by federally protected wild horses, in addition to livestock and endangered and threatened wildlife.  In 2013, the Forest Service announced that it would be eliminating nearly 24,000 acres of public lands from the center of the Devil’s Garden Wild Horse Territory, meaning that wild horses can no longer access the meadows and water sources located in this area nor will there be any genetic interchange between the two remaining isolated wild horse units.  The Forest Service’s sole justification for the decision—which was strongly urged by the local Farm Bureau whose members graze domestic cattle and sheep on these same public lands at below-market rates that are highly subsidized by taxpayer dollars—was that this area had been erroneously added to the wild horse territory three decades earlier as an administrative oversight and thus the agency was merely correcting that previous error.  In reality, however, the Forest Service formally incorporated this area into the territory in 1991 after an extensive public planning process.  Accordingly, we argue that there is no basis in the decisionmaking record for summarily reversing course as to the treatment of these public lands, nor are there any grounds for avoiding the procedural safeguards that apply under the National Forest Management Act and the National Environmental Policy Act when an agency is undertaking an action, as here, that will result in a significant change to the status quo with inevitable environmental consequences.  Our brief can be accessed here.