Federal District Court Judge Rejects Decision Denying Animal Legal Defense Fund Intervention In Animal Welfare Act Enforcement Proceeding

In a precedent-setting case in which we are assisting the Animal Legal Defense Fund (ALDF), Judge Christopher Cooper of the federal district court for D.C. has ruled in favor of ALDF in a challenge to a decision by a Judicial Officer of the United States Department of Agriculture (USDA) to deny ALDF intervention to participate as a party in an enforcement proceeding brought by the USDA against the Cricket Hollow Zoo in Iowa.  ALDF had argued that it was an “interested person” entitled by the Administrative Procedure Act, 5 U.S.C. §555(b), to participate in the proceeding which the USDA brought after ALDF sued the agency for once again renewing the license of the Zoo despite a history of non-compliance with AWA standards.  In rejecting the Judicial Officer’s decision denying intervention, Judge Cooper found that “ALDF’s demonstrated interest in the welfare of the zoo’s animals falls squarely within the scope of the USDA enforcement proceeding,” and that the Judicial Officer had failed to provide any basis for the conclusion that ALDF’s participation would disrupt “the orderly conduct” of the proceeding.  ALDF sought to participate to provide the agency voluminous evidence regarding the Zoo’s violation of various AWA standards – evidence that had been produced in discovery in a case brought against the Zoo under the Endangered Species Act but which the agency had declined to include in the record of the AWA case.  Judge Cooper vacated the Judicial Officer’s denial of intervention and remanded the case for an explanation as to how ALDF’s limited participation would disrupt the proceeding, which is currently ongoing.  To our knowledge, this is the first decision by a federal court recognizing that intervention by an animal protection group in an AWA enforcement proceedings may be warranted.  A copy of the decision can be found here.

Elizabeth Lewis has rejoined the firm as our Law Fellow 

In 2015, Lizzie graduated summa cum laude from American University Washington College of Law, where she was a member of the Order of the Coif, the Administrative Law Review (ALR), the Environmental Law Society, and the Animal Law Society. Her note, Whale Wars: Reconciling Science, Public Opinion, and the Public Display Industry Under the Marine Mammal Protection Act, was published in ALR's 66th volume. Lizzie has worked on both domestic and international environmental and conservation issues for various non-profit organizations and government agencies, including Oceana, the Environmental Law Institute, EPA Office of Administrative Law Judges, and NOAA General Counsel's International Section. Prior to returning to Meyer Glitzenstein & Eubanks as a Law Fellow, Lizzie worked as the firm’s Law Clerk, and completed a year-long Knauss Marine Policy Fellowship in the Office of the Assistant Administrator of NOAA Oceanic and Atmospheric Research.  Lizzie will be a valuable member of our team as we help our clients navigate these challenging times.

Lawsuit Filed Demanding Access To Electronic Records Removed From USDA’s Website

On behalf of a coalition of animal protection and research groups and Delcianna Winders, the Animal Law Fellow at Harvard Law School, this morning we filed a lawsuit in federal district court in D.C. challenging the USDA’s removal of thousands of records from the public website operated by the Animal Plant and Health Inspection Service (APHIS).  These records, including inspection reports, annual reports, orders and other enforcement records concerning entities operating under the auspices of the Animal Welfare Act (AWA), were routinely published for public review for years pursuant to the 1996 E-FOIA amendments to the Freedom of Information Act (FOIA), but were abruptly removed from APHIS’s website on February 3, 2017.  The agency’s explanation for the removal – the need to protect personal privacy – is groundless, as the agency has long had the ability to redact personal information from such records under FOIA’s exemption for personal privacy.  However, because FOIA requires the release of all segregable non-exempt portions of records, this does not provide a legitimate justification for the agency’s wholesale removal of these records from its website.  The Plaintiffs, which in addition to Ms. Winders, include People for the Ethical Treatment of Animals, Physicians Committee for Responsible Medicine, Born Free USA, the Massachusetts Society for the Prevention of Cruelty to Animals, and the Beagle Freedom Project, have for years relied on these records to monitor the USDA’s implementation and enforcement (and lack thereof) of the Animal Welfare Act and to advocate for better protection for animals used in exhibitions, for research, and for pets.  The lawsuit demands the immediate release of the records that were removed from the website and the future release of all such similar records.  A copy of the Complaint can be found here.

Suit Filed Challenging FTC Decisions To Allow Sale Of “Certified” Used Cars With Safety Defects

On Monday, February 6, 2017, we filed a Petition for Review in the United States Court of Appeals for the D.C. Circuit challenging recent decisions by the Federal Trade Commission to allow automobile dealers to sell used cars as “certified” without disclosing that such cars are subject to outstanding safety defect recalls or requiring the dealers to fix any such cars.  The case has been brought on behalf of a coalition of auto-safety groups including Consumers for Auto Reliability and Safety (CARS), the Center for Auto Safety, U.S. Public Interest Group, and the California, Connecticut, and Massachusetts Public Interest Research Groups.  The FTC’s Decisions were issued as Consent Decrees settling three administrative actions against General Motors, Jim Koons Management Company, and Lithia Motors, brought under the Federal Trade Commission Act for deceptive and unfair consumer practices.  Rather than fixing the cars before selling them, or disclosing that the cars are subject to safety defect recalls, the FTC is allowing the companies to sell the vehicles as “certified” and safe, as long as they include a disclosure that the cars “may” be subject to a recall.   A recent New York Times story about the issue can be found here.

Appeal Filed Challenging The Use of Crossbows In Deer Management Program in Montgomery County, Maryland

Last week we filed a brief in the Maryland Court of Special Appeals on behalf of Eilene Cohhn, a resident of Montgomery County, in an appeal aimed at stopping the Pilot Archery Managed Deer Hunting Program, which allows participants in the program to use crossbows, rather than sharpshooting, to kill deer in Montgomery County parks for the ostensible purpose of reducing the deer population.  Ms. Cohhn has challenged the method of lethal deer reduction as violating the Maryland Cruelty Code, which exempts hunting but only where “the most humane method reasonably available” is used.  Bow hunting, which results in many deer being wounded, but not immediately dying from their wounds, is not the “most humane method reasonably available,” as the trial court expressly found.  Nevertheless, the trial court ruled against the Plaintiff, stating that it “would find it somewhat inconceivable that a person who complied with all of the regulations of the Department of Natural Resources in bowhunting could be found guilty of animal cruelty.”  However, because Ms. Cohhn is not seeking to enjoin the recreational bow-hunting season, nor to hold anyone criminally liable, but rather to prevent a county management action from being carried out in a manner that violates the cruelty code, she has appealed this decision.

A copy of the brief is available here, and an article on the filing of the appeal, published in Bethesda Magazine, is available here.

Ringling Brothers Circus to End After 146 Years

The stunning news by Ringling Brothers Circus that it is closing its doors and will perform its last show in May of this year means that the horses, llamas, dogs, tigers, and other animals, along with the elephants who left the Circus last year, will no longer have to endure life on the road and the treatment that is required to make them do unnatural tricks on demand.  We salute those members of the public – and especially the younger generation – who have learned that it is much better to enjoy entertainment that does not require the exploitation of animals.  We also celebrate the bravery of Tom Rider – the former barn man for Ringling Brothers – who had the courage to come forward years ago and tell the public what really goes on behind the Big Top.  We now hope that all of the animals will find homes in sanctuaries where they can live out the remainder of their lives in peace.

Brief Filed In Challenge To Highway Bypass Through Sensitive Wetland, Interior Forest, And Threatened Bat Habitat Near Waukesha, Wisconsin

On behalf of two community associations, the Waukesha County Environmental Action League and the Coalition Opposed to the West Waukesha Bypass, we have filed a brief challenging the Federal Highway Administration’s approval of the Wisconsin Department of Transportation’s decision to construct and fund the Waukesha Bypass – a major highway project that would construct a four-lane, north-south highway west of the city of Waukesha, Wisconsin.  In violation of the National Environmental Policy Act’s “look before you leap” requirements, the highway project was approved without proper consideration of reasonable alternatives or the indirect and cumulative effects of the project on wetlands water quality, and air quality.  Additionally, new information recently disclosed demonstrates that the project will disturb improperly disposed hazardous waste, and have increased adverse impacts on wetlands, groundwater, upland forest habitat, and a threatened species newly protected under the Endangered Species Act, the Northern Long-Eared Bat – all of which have never been evaluated but which federal law requires the agencies evaluate.  Our brief argues that the agencies violated federal law when approving this highway project without properly evaluating its potentially significant environmental effects, and by failing to consult with the Fish and Wildlife Service over the project’s adverse impacts to the threatened Northern Long-Eared Bat. A copy of our brief is available here.

Conservation Groups Urge Tenth Circuit To Maintain Longstanding Preliminary Injunction Test

On behalf of more than a dozen national, regional, and local conservation organizations that regularly litigate in the U.S. Court of Appeals for the Tenth Circuit to protect vulnerable public lands, wildlife and animals, and natural resources located in Colorado, Utah, New Mexico, Wyoming, Kansas, and Oklahoma, our firm filed an amici curiae brief in support of a pending request asking the full court of all active Tenth Circuit judges (or alternatively a panel of three judges) to rehear the question of the appropriate legal standard that plaintiffs must satisfy before obtaining a preliminary injunction.  Bucking decades of precedent from the U.S. Supreme Court, other federal courts of appeal, and even the Tenth Circuit’s own longstanding rulings, a three-judge panel recently determined that plaintiffs may only obtain preliminary injunctions where they can conclusively demonstrate at an early stage of the proceedings that they are likely to success on the merits at the end of the case.  In so doing, the panel eliminated a decades-long test, in which plaintiffs could demonstrate the need for a preliminary injunction by establishing that there are “serious questions” as to whether a defendant’s action was lawful under the circumstances while also proving that the other injunction factors (i.e., irreparable harm, the equities, and public interest) strongly support an injunction.  Given the exceptional importance of this question in a Circuit where many public lands and natural resources issues are resolved—and the circuit split caused by the panel’s ruling—our brief requests that the Court reconsider this issue to, among other things, ensure that an overly stringent standard does not frustrate effective judicial review of federal agency actions that often proceed on rapid schedules that overtake the ability of courts to issue final merits dispositions before such actions become moot.  The brief can be found here.

BRIEF FILED ON BEHALF OF PUBLIC HEALTH GROUPS ADVOCATING FOR CIGARETTE “CORRECTIVE STATEMENTS”

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.

Firm Urges National Park Service To Prepare A Supplemental Environmental Impact Statement Before Killing Any More Deer In Rock Creek Park

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.