Another Victory for the Wild Horses of the Wyoming Checkerboard

Yesterday, on behalf of the American Wild Horse Campaign and nationally recognized wildlife photographer Carol Walker, our firm obtained a legal victory from the U.S. District Court for the District of Wyoming in a case challenging the Bureau of Land Management’s (“BLM”) new method of calculating “excess animals” that may be permanently removed from public lands under the Wild Free-Roaming Horses and Burros Act.  After the Tenth Circuit rejected the agency’s first attempt in 2016 to remove non-excess wild horses from these public lands, BLM adopted a new approach in 2017 that uses a different method to achieve the same result—i.e., removing non-excess horses from the range in violation of the plain terms of the statute.  In its ruling, the court held that BLM failed to supply any reasoned explanation for its new practice of removing non-excess horses, and remanded to the agency for further consideration.  The ruling can be found here.


Photo courtesy of Carol Walker


Today, on behalf of Save the Colorado and five other environmental nonprofit organizations, we filed suit in the U.S. District Court for the District of Colorado challenging the U.S. Army Corps of Engineers’ (“Corps”) authorization of a massive expansion of Gross Dam and Reservoir located in Boulder County, Colorado.  If built, this dam would be the tallest dam in Colorado, and it would require clear-cutting more than a half million trees and inundating large amounts of public land in the vicinity of the project site, which is located in a forested area six miles from downtown Boulder.  The lawsuit includes challenges under the National Environmental Policy Act, the Clean Water Act, and the Endangered Species Act, focusing heavily on the flawed purpose and need statement adopted by the Corps and the artificially narrow alternatives analysis conducted by the Corps.  The lawsuit requests that the court vacate and remand various decisions issued by the Corps, as well as a biological opinion issued by the U.S. Fish and Wildlife Service for this project.  The complaint can be found here.


Photo taken by Matthew Jonas, Boulder Daily Camera Staff Photographer.

Victory for Colorado’s Bald Eagles

Late last week, the U.S. District Court for the District of Colorado ruled in favor of our client, Front Range Nesting Bald Eagle Studies, in its challenge to the U.S. Fish and Wildlife Service’s issuance of a permit to take bald eagles under the Bald and Golden Eagle Protection Act.  The court found that the Service violated the National Environmental Policy Act in several ways, including by failing to analyze the cumulative impacts of the action and by failing to explain why it refused to extend the five-working-day public comment period despite myriad requests by the public to do so.  This is the first successful legal challenge to an eagle take permit since the Service revised its eagle permitting regulations in 2016 in response to a separate legal victory our firm obtained in 2015, and the ruling sends a strong message to the Service that it must adhere to the safeguards built into federal law to ensure the conservation of bald and golden eagles before issuing permits that will disturb or otherwise harm these protected animals.  The opinion can be found here.

Amicus Brief Filed in Case Challenging National Park Service’s Authorization of the Atlantic Coast Pipeline

Today, on behalf of National Parks Conservation Association and the Coalition to Protect America’s National Parks, we filed an amicus brief in the United States Court of Appeals for the Fourth Circuit in Sierra Club v. National Parks Service, a case challenging the National Park Service’s (“NPS”) issuance of a right-of-way to Atlantic Coast Pipeline, LLC to construct a natural gas pipeline across the scenic Blue Ridge Parkway (“Parkway”). Despite the significant adverse impacts that the proposed pipeline will have on the Parkway, including adverse impacts to the viewsheds, NPS issued a categorical exclusion (“CE”) for the project, exempting the pipeline from thorough environmental review under NEPA. Our brief explains that the plain language of the specific CE invoked limits its application to the installation of underground utilities in previously disturbed areas, which cannot include a pipeline that will cut across undisturbed Parkway lands. Moreover, even assuming the CE applied, extraordinary circumstances are present that preclude the use of a CE for the project and require the preparation of an environmental impact statement or, at minimum, an environmental assessment to allow for a full evaluation of the significant impacts that the project will have on the Parkway. Finally, our brief explains that NPS violated the Organic Act when it issued the right-of-way for the proposed pipeline because the pipeline’s acknowledged adverse effects on the viewshed are inconsistent with the Parkway’s express purposes to “conserve the scenery” and “provide opportunities for high-quality scenic and recreational experiences.” You can find a copy of our brief here.


Photo credit: National Park Service.

Lawsuit Filed to Challenge National Marine Fisheries Service’s Decision that it Lacks the Legal Authority to Obtain Captive Orcas’ Necropsy Reports from Marine Mammal Parks

Today, on behalf of several scientists, marine mammal advocates, and animal welfare organizations, we filed a lawsuit in the United States District Court for the District of Columbia challenging the National Marine Fisheries Service’s (“NMFS”) decision that it lacks any legal authority under the Marine Mammal Protection Act (“MMPA”) over MMPA permit conditions requiring marine parks and zoos to submit necropsy and clinical history information to the agency upon the death of the marine mammal held under the permit. MMPA permits authorizing the take and importation of marine mammals for captive display that were issued prior to the statute’s amendment in 1994 routinely included provisions requiring the holder to submit necropsy and clinical history information to NMFS within thirty days of the covered animal’s death. The medical and veterinary information contained in the reports is vital not only to understanding the impact of captivity on orcas’ welfare, but also to informing the rescue and treatment of injured or ill marine mammals in the wild. Accordingly, after the recent deaths of three orcas held at SeaWorld parks pursuant to pre-1994 MMPA permits—Tilikum, Kasatka, and Kyara—leading marine mammal scientists and advocacy organizations requested that NMFS exercise its authority under the permits to obtain these important records. In response, NMFS took the position that the legal validity of the permit conditions at issue was extinguished by the 1994 amendments to the MMPA, a position that is at odds with the language of the MMPA, the legislative history underlying the 1994 amendments, and the overriding purpose of the statute to protect marine mammals. Moreover, NMFS has never offered any legal explanation for its determination, in violation of its obligations under the Administrative Procedure Act. A copy of the Complaint can be found here, and a press release on the lawsuit can be found here.


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