On behalf of the Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, National African American Tobacco Prevention Network, and Americans for Nonsmokers’ Rights, today we filed a brief in the U.S. Court of Appeals for the D.C. Circuit in the long-running litigation against cigarette manufacturers for defrauding the American public for decades concerning the public health risks and addictiveness of cigarettes. In the brief filed today, we argue that “corrective statements” approved by the federal district court – which must be included in cigarette packages, as well as in newspapers, on television, and in other forms of dissemination – telling the truth about the hundreds of thousands of deaths caused each year by cigarettes and their intentional design to addict smokers to deadly products, is an appropriate remedy for the cigarette manufacturers’ violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and is fully consistent with the First Amendment. A copy of the brief can be found here.
On behalf of a group of individuals who live near Rock Creek Park in Washington, D.C., we sent a letter to the National Park Service asking it to prepare a Supplemental Environmental Impact Statement before killing any more white-tailed deer in the Park this year and in the future. When the Park Service decided to initiate its lethal control program in 2013 – the first time it killed any native wildlife in this National Park since its establishment over 120 years ago – it purportedly based that decision on the belief that the deer were interfering with the regeneration of native vegetation in the Park and said it wanted to reduce the deer density to between 15 to 20 deer per square mile, which the Service claimed would allow for “successful forest regeneration.” Our clients argued unsuccessfully that the problem was not an over-population of deer but that the Park has for decades been overrun by invasive non-native plant species, many of which originate from private and commercial landscaping that surrounds the Park. Now, after three years and the killing of hundreds of deer, we have learned from records obtained under the Freedom of Information Act that the deer density is only 19 deer per sq. mile – i.e., it is now within the Park Service’s desired range -- yet there is no evidence that the reduction of deer has had any impact whatsoever on native forest regeneration. At the same time, the non-native plant species continue to proliferate throughout the Park unabated. Because agencies have an obligation under the National Environmental Policy Act (NEPA) to rethink actions that have a negative impact on the environment if circumstances change or new information shows that the action is no longer justified, we have asked the Park Service to prepare a Supplemental EIS before killing any more of this native wildlife. A copy of the letter can be found here.
Sadly, our friend, client, and colleague Clarence Ditlow has passed away at the age of 72. Clarence, the Executive Director of the Center for Auto Safety since 1976, was one of the leading automobile safety advocates in the country for many decades and his work led directly to safety improvements that saved the lives of many thousands of people. We recently represented Clarence in a major Freedom of Information Act case relating to the bailout of the auto industry and we worked closely with him on other issues over the years. In addition to being a leading consumer advocate, Clarence was an ardent animal lover and gardener. We are honored to have called him friend and colleague and will miss him greatly.
New York Times obituary about Clarence
Earlier this year, the U.S. Court of Appeals for the District of Columbia ruled in favor of our clients in a long-running challenge to the Cape Wind Project under the Endangered Species Act and Migratory Bird Treaty Act. In a related case, the Court also ruled that federal regulators violated the National Environmental Policy Act with regard to surveys of the ocean floor that are necessary before construction and operation of the project. This week, the American Bar Association published an article written by Bill Eubanks of Meyer Glitzenstein & Eubanks LLP examining the D.C. Circuit’s ruling and its legal and practical implications for other energy projects. In particular, the article encourages energy developers to work collaboratively with local stakeholders early in the project siting process and stresses the need for federal regulatory agencies to serve in an objective and impartial fashion when reviewing and ultimately approving energy projects located on lands or waters within federal jurisdiction. The article can be found here.
The U.S. Court of Appeals for the D.C. Circuit has struck yet another blow to the tobacco industry’s efforts to avoid informing consumers about the horrific health effects of cigarettes – a product that kills more than 480,000 people each year in this country – as a remedy for defrauding the public for decades about the health effects and addictiveness of cigarettes. In a unanimous ruling, the U.S. Court of Appeals rejected R.J. Reynolds’ argument that it should be relieved of the responsibility to air two sets of Television Corrective Statements concerning the adverse health effects of cigarettes – an argument that RJR made after it merged with Brown & Williamson, another company that was also subject to the District Court’s 2006 Order requiring the companies to cease their fraudulent and deceptive practices and to issue corrective statements in newspapers, on TV, the companies’ websites, and on package inserts. RJR had argued that because of the merger it should only be required to air one set of TV ads. The Court of Appeals disagreed and accepted the arguments we advanced on behalf of our public health clients that are participating as intervenors in the Justice Department’s RICO case against the tobacco industry – the Tobacco Free Kids Action Fund, the American Cancer Society, the American Heart Association, the American Lung Association, American for Nonsmokers’ Rights, and the National African American Tobacco Prevention Network -- that RJR had waived its opportunity to make such arguments and that it is required to air two sets of TV corrective statements. The TV statements must be run on one of three major networks at least once a week for a year. A copy of the D. C. Circuit’s decision can be found here.
On behalf of the American Bird Conservancy and the Black Swamp Bird Observatory, we have sent a detailed Notice of Intent to Sue letter regarding the Ohio Air National Guard’s proposal to construct a wind turbine at Camp Perry in Ottawa County, Ohio. As explained in the letter, from a wildlife standpoint, the project is proposed to be built in one of the worst possible locations to construct and operate a wind power project – in close proximity to the Ottawa National Wildlife Refuge and in a major bird migration corridor. The letter also explains that the project would set a dangerous precedent for the construction of other wind turbines on the shore of Lake Erie, an area of crucial importance to migrating songbirds, raptors, and shorebirds as well as bald eagles that reside in the area. The letter explains that proceeding with the project would violate the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the National Environmental Policy Act. A copy of the letter can be found here and the American Bird Conservancy’s press release can be found here.
We have filed our opening brief in the Fourth Circuit Court of Appeals concerning a challenge by People for the Ethical Treatment of Animals to the policy of the United States Department of Agriculture whereby the USDA automatically renews the licenses of Animal Welfare Act exhibitors, every year, regardless of whether the exhibitors are operating in violation of the Animal Welfare Act. On behalf of PETA we have challenged the policy – and five separate license renewal decisions – on the grounds that the policy violates the plain language of the Animal Welfare Act which provides that “no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary” under the statute. The USDA takes the position that as long at a licensed exhibitor (or dealer) pays its renewal fee on time and certifies that it is in compliance with the statute, the agency has no authority to refuse to renew a license even where evidence before the agency demonstrates that the exhibitor is operating in flagrant violation of the statute – including, for example, by denying food, water, and veterinary care to the animals in its possession. The same legal issue was decided against animal welfare groups by the Eleventh Circuit in Animal Legal Defense Fund v. U.S. Dep’t of Agriculture, 789 F.3d 1206 (11th Cir. 2005), and is also pending in Animal Legal Defense Fund v. Vilsack, No. 16-5073, in the D.C. Circuit. A copy of our Fourth Circuit brief can be found here.
As we blogged on October 14, the U.S. Court of Appeals for the Tenth Circuit announced at that time that it had decided to rule in our favor on a precedent-setting issue concerning wild horse management on public lands. Today, the court issued its more detailed written ruling in which it criticized as contrary to the plain language of the law the Bureau of Land Management’s (“BLM”) recent attempts to treat more than a million acres of public land in the Wyoming Checkerboard as private land for purposes of wild horse management. The “Checkerboard” is a large area in Wyoming that consists of alternating parcels of public and private lands. As the court held, “there is simply no ambiguity in the terms ‘public lands,’ ‘privately owned land,’ and ‘private lands’ that are utilized in Sections 3 and 4 of the [Wild Free-Roaming Horses and Burros] Act, and in turn no basis for BLM to construe the terms ‘privately owned land’ and ‘private lands’ to include the public land sections of the Checkerboard.” The court also held that BLM violated the Federal Land Policy and Management Act by reducing these wild horse populations on public land below their legally enforceable population minimums that are set forth in resource management plans. The ruling can be found here.
For the second time this week, the U.S. Court of Appeals for the Tenth Circuit has ruled in our favor on a precedent-setting issue concerning wild horse management on public lands. In 2014, the Bureau of Land Management (“BLM”) treated more than a million acres of public land in the Wyoming Checkerboard as private land for purposes of wild horse management. The “Checkerboard” is a large area in Wyoming that consists of alternating parcels of public and private lands. Today, the U.S. Court of Appeals for the Tenth Circuit held that BLM violated the Wild Free-Roaming Horses and Burros Act and the Federal Land Policy and Management Act by removing hundreds of federally protected will horses from public lands under the agency’s limited private land removal authority, and in the process ignoring the legal requirements that BLM must satisfy before permanently removing wild horses from public lands. Because all herd management areas either contain private lands within their boundaries or are adjacent to private lands, today’s ruling has enormous precedential implications for wild horse management throughout the American West. The ruling can be found here.
Today, the Tenth Circuit issued a resounding victory for wild horse conservation organizations in a case raising important questions of first impression. In 2014, the State of Wyoming brought a federal lawsuit asserting that the Bureau of Land Management (“BLM”) must permanently remove all federally protected wild horses from seven herd management areas located in Wyoming that were above the respective population minimums set long ago in outdated resource management plans. Wyoming argued that once wild horse population herds exceeded these outdated population minimums, BLM lacked all discretion to determine whether action is needed to permanently remove the animals from the range. In 2015, the U.S. District Court for the District of Wyoming dismissed the State’s case, finding that the Wild Free-Roaming Horses and Burros Act vests BLM with broad discretion in determining, based on current data and information, whether action is necessary to remove wild horses from public lands even when they exceed the “Appropriate Management Level.” Today, the Tenth Circuit affirmed that ruling, holding that the statute clearly affords wide latitude to BLM in determining whether, and when, action is needed to permanently remove animals from the range. This decision – the first of its kind to be resolved by a federal court of appeals – should have important ripple effects in helping to defeat pending lawsuits filed by other States, municipalities, and livestock grazing associations seeking similar relief in Utah, Nevada, and elsewhere. The Tenth Circuit’s ruling can be accessed here.