In ongoing FOIA litigation on behalf of Friends of the Earth, today we secured an order requiring the Department of Interior to specifically identify records that are responsive to our clients’ FOIA requests. After failing to respond to FOIA requests until litigation was filed, the government sought to respond to Friends of the Earth by dumping records online under uninformative, broad category headings, and sending Friends of the Earth form letters that provided no information about what records were responsive to which FOIA requests. Today’s ruling ensures that the government must comply with FOIA by identifying which records respond to Friends of the Earth’s requests, which will help the public get to the bottom of the administration’s unprecedented shrinking of national monuments.
On behalf of the Niskanen Center we have prevailed in a Freedom of Information Act lawsuit seeking to pry loose documents relating to an influential federal advisory committee: the National Coal Council (“Council”). The Council uses its preferential access to the Department of Energy (“DOE”) and other federal officials to promote the use of coal as an energy source. Nonetheless, DOE withheld, in response to Niskanen Center’s FOIA request, documents bearing on who is paying for the work of the Council as well as other documents of significant interest to the public. Judge James Boasberg of the U.S. District Court for the District of Columbia agreed with our arguments that the public has a right to these materials under FOIA. The Court also agreed that DOE’s search for responsive documents was inadequate, including because DOE failed to search for materials in the Office of the Secretary of Energy. A copy of the Court’s ruling is here.
In light of the Judge’s Order granting our request for a temporary restraining order (see Aug. 31 Blog), the Bureau of Land Management has decided not to go forward this year with the removal of any horses from the Pryor Mountain Wild Horse Range, located in Montana and Wyoming. This means that for now the genetic viability of this historic one-of-a-kind herd has been preserved.
Photo courtesy of The Cloud Foundation
Today on behalf of several DC residents we submitted a new request to the National Park Service to halt all further killing of white-tailed deer in Rock Creek Park until the agency conducts supplemental review of the program under the National Environmental Policy Act (NEPA). The Petition was based on recent data we obtained for our clients under the Freedom of Information Act (FOIA) that revealed that the Park Service’s most recent vegetation study in Rock Creek Park does not support the basis for its lethal control program—i.e., that the deer are interfering with native forest regeneration. Although the U.S. Geological Survey initially withheld both the draft and final versions of this Report from our clients in its entirety under Exemption 5 of FOIA, requiring us to file a FOIA lawsuit, after we filed our opening brief in opposition to the government’s motion for summary judgment, the agency relented and provided us with both versions of the Report. Contrary to what the Park Service has told the public—i.e., that the deer must be killed to protect the native vegetation in the Park—the Final USGS Report concluded that there were no “significant differences” in the amount of native vegetation between the vegetation plots in the park that were fenced (thereby excluding the deer) and unfenced. Based on the conclusions from this Report, as well as the fact that the deer population is actually increasing in the Park, despite the annual slaughter of deer—suggesting that the lethal program is not only ineffective in reducing the deer population, but also causing a rebounding effect—and previous conclusions by Dr. Oswald Schmitz, Director of Yale University’s Institute for Biospheric Studies, that “there is no evidence that deer are impairing forest regeneration in Rock Creek Park,” we have requested supplemental NEPA review of this project. The Park Service began killing this wildlife in 2013—the first time any wildlife has been allowed to be killed there since Rock Creek Park was established in 1890. When the Park Service made its decision to kill the deer it told the public that forest regeneration would be “the primary measure of the plan’s success.” Therefore, our request explains, because forest regeneration has not been affected at all by the exclusion of deer, this program needs to be re-evaluated. A copy of the letter requesting supplemental NEPA review can be found here.
Photo courtesy of Rock Creek Park Deer
Today, in a victory for the wild horses of the Pryor Mountain Herd in Montana, the District of Montana granted our motion for a temporary restraining order that we filed last week on behalf of The Cloud Foundation and Emmy-award winning documentarian Ginger Kathrens. Our clients challenged BLM’s decision to remove dozens of wild horses from the Pryor Mountain Herd on September 2, 2018, as the removal would have decimated the genetic viability of the herd. Ms. Kathrens submitted detailed information about the individual horses slated for removal, demonstrating that BLM’s action would result in the elimination of bloodlines and unique phenotypes from the Pryor Mountain Herd. The court found that our brief raised serious questions as to whether BLM’s action was in compliance with the Wild Horse Act and the Pryor Mountain Herd Management Area Plan. The court also found that BLM’s action would cause our clients irreparable harm, holding that BLM’s insistence that one removal action would not result in the permanent loss of genetic diversity of the Pryor Herd was “contrary to the evidence before the court” because our clients had “specifically pointed out that the BLM’s gather will result in the extinction of at least one Pryor Wild Horse bloodline, and potentially more.” The court’s order enjoins BLM from conducting the wild horse gather until it conducts a full hearing on our motion for a preliminary injunction, set for late September. A copy of the Court’s Order can be found here.
Photo courtesy of The Cloud Foundation
Today on behalf of The Cloud Foundation and Emmy-award winning Ginger Kathrens, we filed a motion for a temporary restraining order and preliminary injunction to halt the Bureau of Land Management’s plan to remove dozens of wild horses from the very special Pryor Mountain Herd in Montana and Wyoming. The Pryor Herd has been the subject of Ms. Kathrens’ award-winning films and books about Cloud—a Pryor stallion. Ms. Kathrens has been studying this Herd since 1994 and knows all of the horses by name, as well as their family histories. Her films, Cloud: Wild Stallion of the Rockies; Cloud’s Legacy: The Wild Stallion Returns; and Cloud: Challenge of the Stallions, have been the most popular films ever aired on PBS’s Nature series. As explained by both Ms. Kathrens, who is also a member of the BLM’s statutorily created Advisory Board, and the Pryor Mountain Mustang Center—which for years has been keeping track of these horses for BLM—the BLM’s planned removal will decimate the genetic viability of this Herd and thus doom its existence on the public lands for all time. BLM issued its final decision on August 3, 2018, and is planning to start the removal on September 2, 2018—which is why we had to file a motion for a temporary restraining order. As explained in our Complaint and TRO papers, BLM’s decision violates the Wild Horse Act and the National Environmental Policy Act, and also contravenes BLM’s 2009 decision to preserve the genetic viability of the Pryor Herd. The horses are the only known descendants of rare Spanish breeds brought to North America in the 1500s. Our TRO Brief can be found here.
Photo courtesy credit of The Cloud Foundation
Last week, we filed a brief in the D.C. Circuit asking for a more detailed evaluation of an enormous transmission line project, which will place seventeen towers up to 295 feet tall in the James River and the surrounding historic district that contains many of our nation’s most valuable historic and cultural treasures such as Jamestown. In approving the project, the U.S. Army Corps of Engineers (“Corps”) acknowledged the unique and nationally important resources that would be affected, but did not even subject the project to scrutiny in an Environmental Impact Statement under NEPA or examine (let alone adopt) any of the far less damaging alternatives urged by the National Park Service and other agencies with expertise over the affected resources in violation of NEPA and the Clean Water Act. The brief can be viewed here.
In an Endangered Species Act (“ESA”) case in which we helped represent Miami Waterkeeper, Tropical Audubon Society, and others, a settlement has been reached that will result in the restoration of thousands of federally protected staghorn corals in Miami-Dade County over the next three years. The case stems from the U.S. Army Corps of Engineers’ authorization of an extensive dredging operation designed to facilitate the use of PortMiami by massive shipping vessels. However, the dredging resulted in far more damage to coral reefs in the area than the Corps had predicted or that had been approved by the U.S. Fish and Wildlife under the ESA. The requirement in the settlement agreement to restore 10,000 staghorn corals will help to mitigate some of the damage caused by the Corps’ action. A copy of a press release announcing the settlement is here.
Yesterday, on behalf of American Wild Horse Campaign, Western Watersheds Project, and the Cloud Foundation, we filed a lawsuit in the United States District Court for the District of Columbia challenging the Bureau of Land Management’s (“BLM”) decision to round up and permanently remove all wild horses from over 700,000 acres of public lands called the Caliente Complex, located outside of Caliente, Nevada, on the purported grounds that there is not enough forage and habitat for the horses. The BLM determined that the removal of all wild horses from these longstanding wild horse management areas, where wild horse populations have existed since 1971, was necessary to improve the health of the range, despite the fact that the BLM permits grazing on the same public lands by thousands of cattle that, unlike wild horses, are not statutorily protected. In making its decision, the BLM violated its obligations under the Wild Free-Roaming Horses and Burros Act to protect and manage wild horses as “living symbols of the historic and pioneer spirit of the West,” and ensure that management of wild horse populations are conducted at the minimal feasible level. Additionally, the BLM violated its obligations under the National Environmental Policy Act by failing to give full and accurate consideration to the alternatives to, and the environmental impacts of, the proposed action. In particular, the BLM declined to provide the range monitoring data supporting its decision to remove all wild horses from the Caliente Complex—despite several requests from our clients and other interested parties—and as such, fell far short of the requirement to adequately disclose and consider baseline information and the environmental impacts of its action. Moreover, the BLM failed to examine the impacts of livestock grazing on the availability of forage, water, and other resources in the Caliente Complex, and did not determine whether, and to what extent, livestock, rather than wild horses, adversely affect the range’s resources. Most untenably, in making its decision to permanently extirpate wild horses from the Complex, the BLM failed to consider the obvious alternative of reducing the amount of livestock permitted on these federal public lands to improve the health of the range. You can read our Complaint here.
Photo courtesy of AWHC
Yesterday, on behalf of Citizens for Alternatives to Animal Research & Experimentation (“CAARE”), and with the Animal Legal Defense Fund, we filed a lawsuit in the Supreme Court of New York challenging the State University of New York’s unlawful withholding of records under New York’s Freedom of Information Law (“FOIL”), the state’s open government law. CAARE is a national non-profit 501(c)(3) organization dedicated to promoting a fundamental change in the way the United States conducts biomedical research. CAARE advocates shifting, where feasible, from outdated animal research to modern scientific technologies that do not rely on the use of animals, and are both effective and far more humane. To further its mission, CAARE submitted a FOIL request to SUNY seeking access to records that will shed light on issues of national significance–i.e., the need to phase out unnecessary animal research, especially when non-animal alternatives are currently available, and the need to protect those animals that are used in such research from unnecessary pain, distress, and suffering. CAARE’s FOIL request also sought to ascertain whether NIH and the USDA are ensuring that this taxpayer-funded research—which has already cost the taxpayers more than $7.95 million—is in compliance with all applicable laws and regulations. SUNY denied CAARE’s FOIL request, citing the statutory exemptions allowing state agencies to withhold records on the grounds that disclosure will endanger public health and safety, and that the records constitute proprietary information and trade secrets. However, as our Petition explains, SUNY cannot withhold purely factual, noncommercial information that describes how publicly funded research on animals is being or has been performed, including information concerning the care and treatment of such animals. Moreover, SUNY cannot deny access to the requested records based solely on the grounds that CAARE is an animal protection organization, especially where no credible threat exists and, as CAARE’s website explains, it abhors violence and is dedicated only to peaceful dialogue about the need for and efficacy of such research. Therefore, in accordance with FOIL’s broad standard of open disclosure, we have asked the New York Supreme Court to order SUNY to release the requested records to CAARE. You can read our petition here.