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.

COMMENTS ON PROPOSED NEBRASKA TRANSMISSION LINE

On Monday, on behalf of directly affected landowners, we submitted extensive public comments to the Fish and Wildlife Service (“FWS”) concerning its consideration of a request by the Nebraska Public Power District (“NPPD”) for an Incidental Take Statement (“ITP”) and Habitat Conservation Plan (“HCP”) for the R-Project Transmission Line in north-central Nebraska, a vitally important habitat for migratory birds and other wildlife. The transmission line will have significant adverse impacts on protected species, including the American Burying Beetle and the Whooping Crane, both of which are protected under the Endangered Species Act. Despite the fact that FWS identified alternate routes that were technically and economically feasible, as well as far less environmentally harmful, FWS summarily dismissed the routes from detailed analysis in its Draft Environmental Impact Statement (“DEIS”), citing the delay that such consideration might cause. Additionally, NPPD ignored the best available science when it refused to treat the whooping crane as a covered species in its HCP, submitting a risk analysis that severely underestimates the collision risk that the Project poses to whooping cranes. In our comments, we explained to FWS that it is legally foreclosed from rejecting reasonable and practicable alternatives that would lessen the adverse impacts on imperiled species merely because there might be some delay in implementation. We also submitted detailed comments and an expert analysis on the flaws in NPPD’s whooping crane risk analysis, and demonstrated that the Project will result in the killing and injuring of whooping cranes although NPPD has not sought any authorization for such take. The comment letter also address the FWS’s failure to meaningfully assess the Project’s impacts on migratory birds, bald eagles, and historic and cultural resources and conclude that FWS should deny the ITP application and explore less environmentally destructive alternatives. Our comments can be found here.

Petition for Mandamus to Compel the Department of Transportation to Issue a Safety Standard for Rear Seat Belt Reminder

We have filed in the U.S. Court of Appeals for the D.C. Circuit a Petition for a Writ of Mandamus to require the Department of Transportation (DOT) to issue a long-overdue safety standard that would trigger an audio warning in vehicles when people in the back seat were not wearing their seatbelts.  We represent KIDS AND CARS, Inc. and the Center for Auto Safety. Every year thousands of people, including many children, die in automobile crashes because they are not wearing their seat belts. The problem is particularly acute for passengers in the back seats of cars, which is where most parents place their children, because children often do not buckle up, do not buckle their seat belts correctly, or unfasten their seat belts at some point while the car is in motion.  A current motor vehicle safety standard already requires an audio warning if the driver of the car is not fastened up, but no such standard is in place for the rear seat passengers.  In 2012 Congress sought to remedy this problem by requiring DOT to issue a rear seat belt warning standard in all new cars. Although the legislation required DOT to publish a proposed rule by October 1, 2014 and a final rule by October 1, 2015, to date, DOT has not even issued a proposed rule. The Petition for Mandamus seeks to have the Court of Appeals compel DOT to move forward expeditiously with promulgation of this much needed safety standard. A copy of the Petition can be found here.

Court Rules Against Sterilizing Entire Wild Horse Herd

In a major victory for federally protected wild horses and their public land habitat in Idaho, the District of Idaho on Friday held that the Bureau of Land Management’s (BLM) poorly considered decision to sterilize an entire wild horse herd was arbitrary and capricious and in violation of federal law. Our clients—the American Wild Horse Campaign, Return to Freedom, the Cloud Foundation, and Virginia Hudson—challenged the BLM’s decision to sterilize the entire Saylor Creek herd of wild horses, because the BLM had failed to consider authoritative scientific information showing that sterilization causes serious damage to wild horses’ behavior and herd dynamics. The court agreed, holding in our clients’ favor on virtually all of our legal claims. In particular, the court found that the BLM failed to consider scientific information that the agency itself had commissioned, and had failed to consider how its decision conflicts with the agency’s duties to maintain viable herds of wild horses and to preserve horses’ free-roaming behaviors. You can read the ruling here.

DC Circuit Vacates Forest Service’s Unlawful Decision to Exclude Federally Protected Wild Horses from Public Lands

Nearly two months after criticizing the Forest Service’s unexplained and arbitrary elimination of more than 23,000 acres of public lands in California from a longstanding wild horse territory, the U.S. Court of Appeals for the District of Columbia Circuit granted a rehearing petition our firm filed on behalf of several conservation organizations and individuals asking the court to vacate – i.e., set aside – the agency’s decision to ensure that the Forest Service would no longer exclude horses from this region.  In granting this rehearing petition and amending its earlier opinion, the D.C. Circuit sent a strong message to the Forest Service that it must manage these public lands in accordance with federal laws that afford these wild horses protection from death, harassment, or other forms of interference with their wild and free-roaming behaviors.  The court’s amended opinion can be found here

D. C. Circuit Rules That USDA Must Reconsider Decision to Renew the License of Chronic Violator of the Animal Welfare Act

For the first time in the history of the Animal Welfare Act, a court has ruled that the USDA may not renew a license of a chronic violator of the Act based on the exhibitor’s mere “certification” that it is in compliance with all Animal Welfare Act standards when the record before the agency shows that the exhibitor has habitually been cited for major violations of the statute.  With in-house counsel from the Animal Legal Defense Fund (ALDF), we represented ALDF and two women who had visited the Cricket Hollow Zoo in Iowa on several occasions and witnessed animals being deprived of water, clean cages, and basic veterinary care, as well as primates being housed in isolation from other primates.  Despite repeatedly citing the Zoo for AWA violations and internal USDA memoranda acknowledging that the Zoo was a “chronic” violator of the statute, the USDA kept perfunctorily renewing the Zoo’s AWA license each year claiming that the agency was required to do so under its regulations that provide for such renewals upon the payment of a renewal fee and a certification that the exhibitor is in compliance with all applicable AWA standards. Plaintiffs argued that this system violates the plain language of the AWA and that the issuance of this Zoo’s renewal license was arbitrary and capricious, particularly when the USDA knew that the certification was false.  Although the D.C. Circuit disagreed with our statutory argument, it nevertheless held that in light of the “smoking gun” evidence that this Zoo was repeatedly operating in violation of the AWA, including on the very day that it received its most recent license renewal, the district court erred in not determining whether the renewal decision was arbitrary and capricious.  The D.C. Circuit therefore reversed the district court on this aspect of the case and remanded the case for this determination.  A copy of the decision can be found here.

Suit Brought To Compel Trump Administration To Issue Critical Motor Vehicle Safety Standard to Protect Children from Death and Injury

Today on behalf of Kids and Cars, Inc. and the Center for Auto Safety, we filed a lawsuit in federal district court for the District of Columbia to compel the Secretary of Transportation (DOT) to issue a long overdue standard requiring a warning to go off if passengers in the back seats of cars are not wearing their seat belts, like the warning that is heard in cars if the driver is not wearing a seat belt.  In October 2012 Congress enacted legislation requiring DOT to initiate rulemaking for the rear seat warning system by October 2014 and to issue a final standard by October 2015.  To date, no rulemaking has even been initiated, and there is no sign that the Trump Administration is even working on the standard. DOT’s National Highway Traffic Safety Administration (NHTSA) estimates that 38 people each day who do not wear seat belts are killed in motor vehicle crashes each day, and that half of those would be alive if they had worn their seat belt—which means that 6,935 people each year would be saved if they wore their rear seat belt, or 13,879 since the standard was required to be in place. Many more people are seriously injured in crashes when they are not wearing seat belts. Parents put their children in the back seat believing it to be the safest position in the car.  Yet many parents forget to fasten their children’s seat belts, and children who are initially buckled in often remove their seatbelts.  Studies have confirmed that drivers using cars with seat belt reminders are 66% more likely to buckle up. Accordingly, prompt issuance of the standard mandated by Congress five years ago will unquestionably save many lives. The suit explains that by failing to comply with Congress’s mandated deadlines, DOT has “unreasonably delayed” and “unreasonably withheld” agency action required by law, and requests the federal court to order the Secretary to issue this critical safety standard. A copy of the Complaint can be found here:

DC Circuit Slams Forest Service’s Unexplained Decision to Reduce Public Lands for Wild Horse Management

Today, the U.S. Court of Appeals for the DC Circuit, in a strongly worded ruling, agreed with our clients’ major objections to the U.S. Forest Service’s decision in 2013 to eliminate more than 23,000 acres in California’s Modoc National Forest from the Devil’s Garden Wild Horse Territory that had been home to federally protected wild horses for many decades.  Although the Forest Service argued that it could bypass crucial safeguards under the National Environmental Policy Act and the Administrative Procedure Act because the agency was merely correcting a purported “administrative error,” the court issued a stinging rebuke in finding that the Forest Service’s “head-in-the-sand approach” failed to “candidly confront the relevant environmental concerns” resulting from this significant shift in the agency’s management of these public lands.  We represent the American Wild Horse Campaign, Animal Legal Defense Fund, Return to Freedom, and wildlife advocates in this case.  The court’s opinion can be found here.

Photo courtesy of ReturntoFreedom.org

Court Holds that USDA Failed to Conserve Highly Endangered Southwestern Willow Flycatchers and Their Critical Habitat

After years of litigation, the U.S. District Court for the District of Nevada ruled yesterday that the U.S. Department of Agriculture (“USDA”) violated the Endangered Species Act by failing to adopt any conservation program to conserve the highly imperiled southwestern willow flycatcher and its critical habitat.  We filed suit on behalf of the Center for Biological Diversity and Maricopa Audubon Society after USDA released hundreds of thousands of non-native, invasive beetles throughout the Southwest to defoliate saltcedar trees that provide nesting habitat to flycatchers, but when beetles decimated flycatcher habitat USDA merely terminated its program without implementing any mitigation measures to ameliorate the ongoing and long-lasting effects of its beetle release program.  On those facts, the court held that “USDA has not satisfied its ongoing obligations under [Endangered Species Act section] 7(a)(1) by simply terminating the beetle program found to adversely affect the flycatcher.”  USDA must now timely cure this major legal violation by adopting meaningful conservation measures to benefit this species and its habitat before it is driven to extinction.  The ruling can be found here.