The Bureau of Land Management (“BLM”) today decided to drop a gruesome series of experiments on sterilization of wild mares that are the subject of a lawsuit that we brought on behalf of our clients Ginger Kathrens, The Cloud Foundation, the American Wild Horse Campaign, the Animal Welfare Institute, and Carol Walker.  Last Friday, the District of Oregon issued a preliminary injunction against BLM’s experiments, finding that we are likely to succeed on claims that BLM’s restrictions on public access to observe these experiments violated our clients’ First Amendment rights and that BLM had unlawfully and inexplicably abandoned any consideration of whether the public would find these experiments socially acceptable.  Now, rather than defending its attempt to prevent meaningful public oversight of these experiments, BLM has abandoned them altogether.  This development marks an important victory for wild horses and for public oversight and accountability.   

Photo courtesy of The Cloud Foundation


In a major victory for wild horses and our clients, MGE today secured a preliminary injunction from the District Court in Portland, Oregon to stop a series of experiments on a gruesome procedure called ovariectomy via colpotomy, which the Bureau of Land Management had planned to perform on 100 wild mares.The Court found that our clients, Ginger Kathrens, The Cloud Foundation, the American Wild Horse Campaign, the Animal Welfare Institute, and Carol Walker, have a right under the First Amendment to the United States Constitution to observe this important government activity, and that the BLM had unlawfully infringed on that right by forbidding observation of this experiment by an independent veterinarian or through the use of cameras.The Court also found that BLM had unreasonably abandoned its previous effort to assess whether this procedure is “socially acceptable.” Focusing on Ms. Kathrens’ role on BLM’s own Wild Horse and Burro Advisory Board, the Court granted a preliminary injunction that will stop these experiments while the case moves forward and that will protect our clients’ constitutional rights.


Yesterday, on behalf of several conservation organizations, we submitted extensive public comments to the U.S. Army Corps of Engineers (“Corps”) concerning its Final Environmental Impact Statement (“FEIS”) for the Northern Integrated Supply Project (“NISP”), a major water diversion and supply project undertaken by the Northern Colorado Water Conservancy District (“Northern Water”) in northeastern Colorado. As proposed, NISP will involve the construction and operation of two new reservoirs along the Poudre River, and requires a Section 404 permit under the Clean Water Act (“CWA”). However, our comments explain that the FEIS utterly fails to demonstrate NISP’s compliance with the Section 404 Guidelines that set forth the requirements for permitting discharges of fill material into the waters of the United States. First, the FEIS fails to demonstrate that less environmentally damaging practicable alternatives to NISP do not exist. To the contrary, the Corps impermissibly relied on narrow “screening criteria” to artificially constrain the range of reasonable alternatives and exclude less environmentally damaging practicable alternatives from detailed consideration in violation of its obligations under both the CWA and the National Environmental Policy Act (“NEPA”). Second, it is clear that the preferred alternative will permanently destroy or degrade aquatic habitat that is crucial to the survival of the federally-listed threatened and endangered species, and will destabilize the Poudre River’s ecosystem, precipitating an ecological regime shift that will adversely impact hundreds of acres of high-functioning wetland and riparian habitat. The overwhelming evidence regarding these effects alone requires denial of the permit. Moreover, the Corps’ failure to adequately analyze these impacts, meaningfully respond to expert comment, and satisfactorily explain its decision render the FEIS legally inadequate to support the issuance of the permit. The comment letter also addresses the Corps’ failure to comply with its other obligations under the National Environmental Policy Act by narrowly construing its purpose and need statement to constrain its alternatives analysis, failing to include a true “no action” alternative, and considering only action alternatives that are substantially similar. Finally, the comment letter emphasizes the Corps’ obligation to reinitiate consultation under the Endangered Species Act (“ESA”) in light of the fact that the Corps’ water quality analyses are fundamentally flawed and as such, cannot serve as a basis for an effects determination under the ESA, as well as its obligation to ensure that Northern Water obtains an incidental take permit under the Bald and Golden Eagle Protection Act prior to issuing any permit. Our comments can be found here.

Image courtesy of Save the Poudre: Poudre Waterkeeper


Today, we filed suit 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 mares. We filed a similar suit in 2016 that led the BLM to drop a similar round of experiments. Now, the BLM has resurrected this highly invasive set of experiments and has again failed to provide the public with a meaningful opportunity to see for itself how inhumane the agency’s treatment of these federally protected wild horses really is.  Meaningful independent observation is essential to allow the public to determine whether this highly invasive surgery is socially acceptable—which is an inquiry that the BLM stressed was critically important in its 2016 experiments but has now inexplicably abandoned.  Our lawsuit, on behalf of Ginger Kathrens, The Cloud Foundation, the American Wild Horse Preservation Campaign, the Animal Welfare Institute, and Carol Walker, aims to protect the public’s constitutional right to know what its government is doing to these federally protected wild horses. Read the Complaint here.


Late last week, on behalf of Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and Gallatin Wildlife Association, our firm won a decisive victory from the U.S. District Court for the District of Wyoming concerning the deleterious practice of artificial feeding of the Jackson elk herd in the Greater Yellowstone Ecosystem.  In 2015, the United States Forest Service issued a decision permitting the State of Wyoming to continue for more than a decade unnaturally concentrating thousands of elk on a feedground on national forest lands, but in that decision the Forest Service refused to analyze the impacts of the federal government’s contribution to the rapid spread of lethal chronic wasting disease and less harmful alternatives that would slow disease spread and transition elk to natural forage by phasing out the practice of artificial feeding on federal land.  The court ruled in favor of the conservation organizations, and on that basis vacated and remanded the decision to the Forest Service.  The ruling can be found here.

Photo courtesy of NPS


In ongoing FOIA litigation on behalf of Friends of the Earth, today we secured an order requiring the Department of Interior to specifically identify records that are responsive to our clients’ FOIA requests. After failing to respond to FOIA requests until litigation was filed, the government sought to respond to Friends of the Earth by dumping records online under uninformative, broad category headings, and sending Friends of the Earth form letters that provided no information about what records were responsive to which FOIA requests. Today’s ruling ensures that the government must comply with FOIA by identifying which records respond to Friends of the Earth’s requests, which will help the public get to the bottom of the administration’s unprecedented shrinking of national monuments.


On behalf of the Niskanen Center we have prevailed in a Freedom of Information Act lawsuit seeking to pry loose documents relating to an influential federal advisory committee: the National Coal Council (“Council”). The Council uses its preferential access to the Department of Energy (“DOE”) and other federal officials to promote the use of coal as an energy source. Nonetheless, DOE withheld, in response to Niskanen Center’s FOIA request, documents bearing on who is paying for the work of the Council as well as other documents of significant interest to the public.  Judge James Boasberg of the U.S. District Court for the District of Columbia agreed with our arguments that the public has a right to these materials under FOIA. The Court also agreed that DOE’s search for responsive documents was inadequate, including because DOE failed to search for materials in the Office of the Secretary of Energy. A copy of the Court’s ruling is ­here.

Final Victory for Pryor Herd

In light of the Judge’s Order granting our request for a temporary restraining order (see Aug. 31 Blog), the Bureau of Land Management has decided not to go forward this year with the removal of any horses from the Pryor Mountain Wild Horse Range, located in Montana and Wyoming. This means that for now the genetic viability of this historic one-of-a-kind herd has been preserved.

Photo courtesy of The Cloud Foundation

Petition to Stop the Killing of the Rock Creek Park Deer

Today on behalf of several DC residents we submitted a new request to the National Park Service to halt all further killing of white-tailed deer in Rock Creek Park until the agency conducts supplemental review of the program under the National Environmental Policy Act (NEPA). The Petition was based on recent data we obtained for our clients under the Freedom of Information Act (FOIA) that revealed that the Park Service’s most recent vegetation study in Rock Creek Park does not support the basis for its lethal control program—i.e., that the deer are interfering with native forest regeneration. Although the U.S. Geological Survey initially withheld both the draft and final versions of this Report from our clients in its entirety under Exemption 5 of FOIA, requiring us to file a FOIA lawsuit, after we filed our opening brief in opposition to the government’s motion for summary judgment, the agency relented and provided us with both versions of the Report.  Contrary to what the Park Service has told the public—i.e., that the deer must be killed to protect the native vegetation in the Park—the Final USGS Report concluded that there were no “significant differences” in the amount of native vegetation between the vegetation plots in the park that were fenced (thereby excluding the deer) and unfenced. Based on the conclusions from this Report, as well as the fact that the deer population is actually increasing in the Park, despite the annual slaughter of deer—suggesting that the lethal program is not only ineffective in reducing the deer population, but also causing a rebounding effect—and previous conclusions by Dr. Oswald Schmitz, Director of Yale University’s Institute for Biospheric Studies, that “there is no evidence that deer are impairing forest regeneration in Rock Creek Park,” we have requested supplemental NEPA review of this project.  The Park Service began killing this wildlife in 2013—the first time any wildlife has been allowed to be killed there since Rock Creek Park was established in 1890. When the Park Service made its decision to kill the deer it told the public that forest regeneration would be “the primary measure of the plan’s success.” Therefore, our request explains, because forest regeneration has not been affected at all by the exclusion of deer, this program needs to be re-evaluated.  A copy of the letter requesting supplemental NEPA review can be found here.

Photo courtesy of Rock Creek Park Deer

Victory for World-Famous Pryor Herd

Today, in a victory for the wild horses of the Pryor Mountain Herd in Montana, the District of Montana granted our motion for a temporary restraining order that we filed last week on behalf of The Cloud Foundation and Emmy-award winning documentarian Ginger Kathrens. Our clients challenged BLM’s decision to remove dozens of wild horses from the Pryor Mountain Herd on September 2, 2018, as the removal would have decimated the genetic viability of the herd. Ms. Kathrens submitted detailed information about the individual horses slated for removal, demonstrating that BLM’s action would result in the elimination of bloodlines and unique phenotypes from the Pryor Mountain Herd. The court found that our brief raised serious questions as to whether BLM’s action was in compliance with the Wild Horse Act and the Pryor Mountain Herd Management Area Plan. The court also found that BLM’s action would cause our clients irreparable harm, holding that BLM’s insistence that one removal action would not result in the permanent loss of genetic diversity of the Pryor Herd was “contrary to the evidence before the court” because our clients had “specifically pointed out that the BLM’s gather will result in the extinction of at least one Pryor Wild Horse bloodline, and potentially more.” The court’s order enjoins BLM from conducting the wild horse gather until it conducts a full hearing on our motion for a preliminary injunction, set for late September.  A copy of the Court’s Order can be found here.

Photo courtesy of The Cloud Foundation