COURT REVERSES REFUSAL TO LIST PYGMY-OWL, REJECTS HARMFUL ESA POLICY

In a case we brought on behalf of the Center for Biological Diversity and Defenders of Wildlife, the federal district court in Arizona has issued an important ruling rejecting the Fish and Wildlife Service’s (FWS) refusal to list the cactus ferruginous pygmy-owl, one of the world’s smallest owls, as an endangered or threatened species, based on the agency’s unlawfully narrow interpretation of its listing duties under the Endangered Species Act (ESA).  The ESA requires that species be listed if they are endangered or threatened throughout “all or a significant portion” of their range.  Although the pygmy-owl is gravely imperiled in much of its range in Arizona and northern Mexico, FWS refused to list the species based on a policy that, in effect, equates a “significant portion” with the entirety of the species’ range.  If this approach had been applied in the past, many of the most iconic species that have received critical protection under the ESA – such as the grizzly bear, bald eagle, and wolf – would never have been protected in the U.S. portions of their range.  The Arizona district court has emphatically rejected that self-defeating approach to the Act on the grounds that it violates the plain language of the ESA and undermines the important conservation purposes of the law to protect and bring about the recovery of species such as pygmy-owl.  A copy of the Court’s ruling can be found here and a copy of the Center for Biological Diversity’s press release can be found here.

LAWSUIT FILED TO HALT WIND PROJECT IN ESSENTIAL BIRD HABITAT IN OHIO

On behalf of the American Bird Conservancy (ABC) and the Black Swamp Bird Observatory, we have filed a lawsuit in federal district court in Washington, D.C., challenging a wind power project that is proposed to be built by the Air National Guard on the shore of Lake Erie, in the midst of a globally important corridor for migratory birds, including several endangered and threatened species.  The project is also slated to be built in close proximity to a number of active eagle nests.  Our lawsuit charges that the project violates the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the National Environmental Policy Act.  A copy of ABC’s press release concerning the case can be found here and the Complaint can be found here.

Challenge to FTC’s Decisions Allowing Used Cars to be Sold as “Safe” When They are Subject to Safety Recalls

Today we filed a case in federal district court for D.C. challenging recent decisions by the Federal Trade Commission (FTC) to allow used car dealers to advertise and sell “Certified” used cars as “safe,” “repaired for safety,” and “subject to rigorous inspection” when such cars are subject to pending federal safety recalls, without repairing the cars prior to sale, as long as the dealers disclose that the vehicles “may” be subject to a safety recall.  We represent Consumers for Auto Reliability and Safety, the Center for Auto Safety, and U.S. Public Interest Research Group, representing tens of thousands of consumers who will be at increased risk of economic and personal injury and death as a result of the FTC’s decisions, which will have particularly negative impacts on vulnerable segments of the population that tend to purchase used cars, including the young, poor, and inexperienced first-time purchasers.  Rather than place the burden on the used car industry to repair safety defects prior to sale, the FTC has shifted the burden to consumers to (a) find out if the used car they wish to purchase is subject to a pending safety recall; and (2) if so, make arrangements to have it repaired.  The FTC’s decisions are particularly troubling in light of the fact that there have been millions of vehicles recalled in the last several years for serious safety defects, including the defective ignition switch used by GM which causes the car to suddenly turn off while being driven--disabling the power steering, brakes, and airbag system; and the exploding Takata Airbag, used in millions of vehicles manufactured by nineteen different automakers between 2002-2015.   The agency’s actions are also troubling because used car dealers who, prior to the FTC’s decisions, had been fixing cars subject to recalls have now decided not to do so.  The Complaint filed today asks the Court to set aside the FTC’s decisions as violating the FTC Act which prohibits “deceptive acts or practices,” the agency’s long-standing Used Car Trade Regulation Rule which prohibits used car dealers from “mispresent[ing] the mechanical condition of a used vehicle,” and the Administrative Procedure Act.  A copy of the Complaint can be found here.

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.