Brief Filed to Save the Iconic Jackson Elk Herd from Chronic Wasting Disease

Last week, on behalf of Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and the Gallatin Wildlife Association, we filed a legal brief asking the U.S. District Court for the District of Wyoming to invalidate a U.S. Forest Service special use permit that allows the State of Wyoming to artificially feed the Jackson elk herd on federal public lands in the Bridger-Teton National Forest.  Despite the overwhelming scientific consensus that the practice of artificial feeding concentrates elk in unnaturally dense congregations and thereby increases the rate of disease spread and transmission among elk—including of the lethal Chronic Wasting Disease that is approximately forty miles from this iconic and culturally important elk herd—the Forest Service authorized artificial feeding through 2028 without examining whether it should instead eliminate or phase out the practice before Chronic Wasting Disease is introduced into this herd.  Thus, we have asked the court to set aside the special use permit allowing this activity until and unless the Forest Service takes a hard look at its contribution to the introduction and spread of this lethal disease and considers reasonable alternatives to artificial feeding that would mimic natural conditions while providing sustainable forage for this wildlife population.  The brief can be found here.

FWS Required to Give Bald Eagles in CO a Second Chance at Survival

After filing suit in February 2018 on behalf of the non-profit Front Range Nesting Bald Eagle Studies challenging the U.S. Fish and Wildlife Service’s (“FWS”) permit authorizing lethal incidental take of nesting bald eagles in Colorado during construction of an apartment complex only a few hundred feet from the nest, FWS has agreed to suspend the permit and consider imposing more protective measures to avoid or minimize take of these eagles.  In particular, whereas FWS initially “categorically excluded” this permit from any environmental review under the National Environmental Policy Act, FWS has agreed in response to our lawsuit to prepare an Environmental Assessment and to solicit public comment from interested parties to ensure that this permit receives the transparency required by federal law.  Our clients have long explained to FWS that the minimal construction buffers routinely adopted by FWS for permits of this kind are biologically indefensible and thus have urged FWS to analyze and adopt more stringent buffers, measures, and other permit conditions to ensure against the loss of these eagles and their nests (and other similarly situated eagles and nests).  FWS will finally address these concerns as part of its new environmental review process.

Case Filed to Protect Nesting Bald Eagles in Colorado

Earlier this week, along with co-counsel from the Law Offices of Randall Weiner, we filed suit in federal court in Colorado on behalf of a non-profit organization called Front Range Nesting Bald Eagle Studies challenging the U.S. Fish and Wildlife Service’s (“FWS”) issuance of a nest disturbance permit under the Bald and Golden Eagle Protection Act (“BGEPA”).  The lawsuit seeks to vacate FWS’s permit – which authorizes construction of a massive multi-family residential development only 600 feet from an active eagle nest – for failing to make the necessary legal findings under BGEPA and for categorically excluding this action from any analysis under the National Environmental Policy Act despite the fact that this action will result in significant environmental impacts.  The complaint can be found here.

CAPE WIND PROJECT COMES TO AN END

After a protracted legal battle, in which we represented wildlife protection groups and individual advocates, the controversial Cape Wind project has finally come to an end, with the project proponent formally relinquishing its federal lease last week. The poorly sited project would have been very harmful to migratory birds, including several listed as endangered or threatened, and would have also posed threats to whales, including the highly endangered right whale. On behalf of Public Employees for Environmental Responsibility, the Alliance to Protect Nantucket Sound, and others, we won a number of important legal battles since filing suit in 2010. Although development of renewable energy is vitally important, particularly in an era in which anti-science climate change skeptics occupy the highest rungs of political power, Cape Wind proved to be a cautionary tale of how not to transition away from our nation’s dependence on fossil fuels.  Cape Wind’s formal notice of project abandonment is here.

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.