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Wildlife & Animal Protection African Antelopes: On
behalf of the Humane Society of the U.S., Defenders of Wildlife,
the Kimya Institute, Born Free USA., a scientist, and several other
individuals, we challenged a decision by the United States Fish
and Wildlife Service to issue a regulation under section 10 of the
Endangered Species Act that allows the "canned hunting"
of three endangered species of African antelope - the oryx, dama
gazelle, and addax, where such animals are captive-bred in the United
States. The plaintiffs challenged the blanket authorization for
hunting of the endangered antelope for sport without providing the
public, including the plaintiffs, with the opportunity to review
and comment on any application materials to hunt the antelope, or
requiring the FWS to make certain findings before authorizing such
conduct - i.e., a process that is required by the statute itself.
Grizzly Bear Recovery Plan: On behalf of The Fund for Animals and a coalition of grassroots activists concerned with the plight of the threatened grizzly bear, we brought a lawsuit in federal court in D.C. challenging the adequacy of the Fish and Wildlife Service's Recovery Plan for the bear. In the first successful legal challenge to a recovery plan, we won a ruling from the Court that the recovery plan did not adequately take into account human impacts on quantity and quality of grizzly habitat. As a result of this ruling, the government was ordered to strengthen its efforts to safeguard grizzly bear habitat. See Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995). Polar Bears: We represented People for the Ethical Treatment of Animals, Puerto Rico Humane Society, and other plaintiffs in a challenge to the US Fish and Wildlife Service's and the Department of Agriculture's decisions to allow the Suarez Brothers traveling circus to import seven polar bears into the United States and to use them in their traveling circus act. Although polar bears are extremely susceptible to overheating, even in frozen, arctic environments, the Department of Agriculture authorized the circus to keep the bears outdoors in Puerto Rico in small metal cages without pools of water or air conditioning in temperatures exceeding 110 degrees - a decision that drew universal condemnation, including from the US Marine Mammal Commission, the American Zoo and Aquarium Association, and many members of Congress. In response to our lawsuit, the Fish and Wildlife Service seized all seven polar bears from the Circus in November 2002 and relocated them to new homes at AZA accredited zoos in Maryland, North Carolina, Michigan, and Washington State. Polar Bear Hunting: We represent a coalition of groups that have intervened in a lawsuit by the Safari Club that seeks to force the United States to allow hunters to import polar bear body parts into this country. When the polar bear was recently listed as a threatened species under the Endangered Species Act, it also became a "depleted" species under the Marine Mammal Protection Act. As a consequence, the U.S. Fish and Wildlife Service can no longer issue import permits allowing polar bear "trophies" to come into the U.S., as it had been doing prior to the listing. Safari Club is challenging that import ban, and we represent groups defending the ban. Safari Club v. Kempthorne, 08-881 (EGS) (DDC). Bison: On behalf of the Fund for Animals and other groups, we have brought several successful challenges in connection with federal and state efforts to harm wild bison, on the unsubstantiated and speculative basis that they may infect cattle with brucellosis. In one such case, we halted an effort by the USDA to lure bison out of Yellowstone to be used in inhumane and biased research. See Fund for Animals, Inc. v. Espy, 814 F. Supp. 142 (D.D.C. 1993). Bison – The Jackson Hole Herd: We represented the Fund For Animals in a challenge to a joint plan by the US Fish and Wildlife Service, the National Park Service, the Department of Agriculture, and the State of Wyoming to kill "excess" bison on federal lands in Jackson, Wyoming. After the Fund learned that defendants were planning to institute a controlled "hunt" for the purpose of reducing the size of the bison herd, we filed a request for a preliminary injunction in the US District Court for the District of Columbia, arguing that the program violated the National Wildlife Refuge System Administration Act and the National Environmental Policy Act. After finding that the agencies' own practice of artificially feeding bison and elk was the actual cause of the alleged "overpopulation" of bison, the District Court issued an injunction prohibiting the killing of any member of the Jackson Bison Herd on federal lands in the Jackson Hole area. See Fund for Animals v. Clark, 27 F. Supp. 2d 8 (D.D.C. 1998). Winter Use of Yellowstone: On behalf of the Fund for Animals and other groups, in 1997 we settled a suit against the Park Service requiring the agency to prepare an environmental impact statement (EIS) concerning winter use in Yellowstone National Park. In 2001, the agency completed the EIS and decided to eliminate snowmobiling in the Park, but to continue grooming snow-packed roads, despite their adverse impacts on bison. In early 2003, after the Bush Administration reversed this decision and announced that snowmobiles would remain in the Park, we represented the Fund, Bluewater Network and others in a challenge to that decision. A federal judge found that the Park Service had failed to provide a rational explanation for its reversal on snowmobiles, and that the agency had still failed to adequately study the impacts of snow-packed roads. The Court also ordered the agency to respond to Bluewater Network's 1999 Petition seeking a ban on snowmobiling and trail grooming throughout the Park system. See Fund For Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003). Jaguarundis/Ocelots at Border: We represented a coalition of groups, including Defenders of Wildlife, Sierra Club and Frontera Audubon Society, in a challenge to the Border Patrol's "Operation Rio Grande" in South Texas. This massive project includes stadium lighting, fences, boat ramps and other intrusions in critical wildlife habitat for jaguarundis, ocelots and myriad other wildlife. As a result of our suit, the Border Patrol entered into formal consultation with the FWS, and is preparing an Environmental Impact Statement (EIS) on this project. After we filed for summary judgment seeking an injunction to halt certain activities associated with the project while the environmental review processes were underway, we entered into a detailed settlement that committed the Border Patrol to strictly limit the operation until it has fully evaluated the impacts in an EIS and Biological Opinion under the ESA. Lynx Listing and Critical Habitat: On behalf of Defenders of Wildlife, the Biodiversity Legal Foundation, and other conservation groups, we challenged the Fish and Wildlife Service's refusal to list the entire contiguous US population of the lynx as an endangered or threatened species. We obtained a ruling from the United States District Court for the District of Columbia that the Service's "not warranted" finding violated the Endangered Species Act and ignored the views of the agency's own lynx experts. See Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997). Following this decision, the Service conceded that listing of the lynx was warranted, but asserted that it was "precluded" by unspecified higher priorities. We brought another lawsuit, and, under great pressure from the Court, the Service entered into a settlement in which it agreed to finally propose the lynx for listing. After the Service unlawfully delayed making a final decision, we filed a third lawsuit, after which the Service finally listed the lynx as a threatened species throughout its range in the contiguous US. We then filed another case challenging the Fish and Wildlife Service's failure to designate critical habitat for the Lynx, as well as the Service's decision to list the Lynx as a threatened, rather than an endangered, species. The court ruled in our favor on both issues, ordering the Service to reconsider whether to list the speces as endangered and to designate critical habitat. Pending the designation of critical habitat, the Court also enjoined the FWS from approving any projects that might affect Lynx without engaging in "formal consultation" – the first such relief issued for the FWS's failure to designate critical habitat. See Defenders of Wildlife v. Norton, 239 F.Supp.2d 9 (D.D.C. 2002). When the Bush Administration adopted a competely inadequate designation, the Court ruled that the decision was politcally motivated and imposed a strict timetable on the agency. The Obama Administration has now designated 25 million acres as critical habitat -- one of the largest such designations in the history of the Act. White-Tailed Deer: On behalf of several groups, we halted the National Park Service's unprecedented efforts to kill massive numbers of white tailed deer in two national park areas, the Cuyahoga National Recreation Area in Ohio and, for two years, in the Gettysburg National Battlefield. In the Ohio case, after the United States District Court for the District of Columbia issued a preliminary injunction because the Park Service had failed to comply with the National Environmental Policy Act, the Park Service agreed to terminate the program pending further review. In the Gettysburg case, the Park Service was forced to delay the deer killing program for two years after conceding that it had failed to comply with procedures required by the National Historic Preservation Act. We also represented the Fund For Animals and others in a challenge to the Department of Agriculture's Wildlife Services Division's (formerly "Animal Damage Control") program to slaughter white-tailed deer in the State of Iowa. After finding that plaintiffs were likely to prevail on their claim that the program was adopted in violation of the National Environmental Policy Act, the United States District Court for the District of Columbia issued a temporary restraining order prohibiting Wildlife Services from killing white-tailed deer in the State of Iowa. Plaintiffs agreed to settle their claims after Wildlife Services terminated the deer killing program. Ringling Brothers: We represent the ASPCA, Animal Welfare Institute, Animal Protection Institute, Fund for Animals, and a former elephant handler in a suit under the Endangered Species Act against Ringing Brothers and Barnum & Bailey Circus concerning endangered Asian elephants. The suit alleges that Ringling Bros.' routine beating of elephants with bull hooks, and its chaining of elephants for long periods of time constitute the unlawful "take" of these endangered animals in violation of the ESA. In February 2003, the U.S. Court of Appeals for the D.C. Circuit unanimously held that plaintiffs had Article III standing to bring the case. In February - March, 2009, the Honorable Emmet G. Sullivan of the U.S. District Court for D.C. held a six-week long trial of the case challenging Ringling Bros.' treatment of Asian elephants in the circus. ASPCA et al. v. Feld Entertainment, Civ. No. 03-2006, and plaintiffs are awaiting a decision. Several former Ringling Bros. employees testified that the circus routinely strikes elephants with sharp bull hooks and keeps the elephants chained for the majority of their lives. The plaintiffs submitted voluminous evidence, including internal FEI documents and USDA documents, supporting their claims, and some of the world's leading experts on elephants testified that Ringling Bros.' routine practices "wound," "harm," and "harass" the elephants in violation of the Endangered Species Act. The Wildlife Advocacy Project has additional information on its Web site, www.wildlifeadvocacy.org. ASPCA, et. al., v. Ringling Bros., No. 017166 (ES) (D.D.C.). To review plaintiffs' post trial filings; trial transcripts and exhibits, please see Animal Welfare Institute website and/or Animal Protection Institute website.
Swaziland Elephants: On behalf of Born Free USA, PETA, IDA, AWI, The Elephant Sanctuary, and other animal protection organizations and individuals we sued the Fish and Wildlife Service for permitting two U.S. zoos to import wild, juvenile African elephants from Swaziland. The lawsuit challenged the FWS’s controversial decision to issue import permits to the two zoos without complying with the Convention on International Trade in Endangered Species of Flora and Fauna, the National Environmental Policy Act, and the Endangered Species. In response to our lawsuit, the two zoos surrendered their original permits to FWS. The FWS then issued new permits to the two zoos, which were upheld. The
Hawthorn Elephants: On behalf of People
for the Ethical Treatment of Animals and an individual we sued the
U.S. Department of Agriculture (USDA) over its decision to permit
the transfer of four abused Hawthorn Corporation elephants to Carson
and Barnes' – a circus notorious for mistreating elephants
– breeding compound the Endangered Ark Foundation (C&B).
The USDA filed suit against the Hawthorn Corporation and various
employees for 47 violations of the Animal Welfare Act (AWA) including
the failure to establish and maintain programs of adequate veterinary
care and failure to handle elephants with a minimal risk of harm
to the animal. USDA and Hawthorn entered into a Consent Decision
settling the case and requiring the Hawthorn Corporation to donate
all 12 of their elephants to a USDA approved facility that has demonstrated
its ability to comply with the AWA. Although USDA had previously
determined that C&B did not meet these criteria, and that The
Elephant Sanctuary in Tennessee would be appropriate, the agency
did an about face and approved C&B, even though the elephant
manager was caught on videotape instructing elephant trainers and
handlers to hit elephants until they scream. The lawsuit challenged
the USDA's approval decision as arbitrary and capricious because
the agency both failed to provide an explanation for its change
in position regarding C&B and failed to justify its rejection
of The Elephant Sanctuary in Tennessee that was willing to take
all 11 female elephants in September, 2005 when its new facilities
were ready. Due to the delay caused by the lawsuit, two of the four
elephants are now at The Elephant Sanctuary in Tennessee. The other
two elephants have been sent to PAWS' Sanctuary in California. Asian Elephant Importation Halted: On behalf of In Defense of Animals, The Elephant Sanctuary, other animal welfare organizations, and concerned citizens we sued the Fish and Wildlife Service for permitting the Six Flags/Marine World of California to import two endangered adolescent Asian elephants from India. The lawsuit challenged the FWS's precedential decision to issue an import permit to an amusement park without adequate public involvement and without complying with the requirements of the Endangered Species Act, the Convention on International Trade in Endangered Species, and the National Environmental Policy Act. In response to our lawsuit, Marine World surrendered its permit, which the government then rescinded. Wild Horses and Burros: We represented the Fund for Animals in an effort to stem abuses in the Bureau of Land Management's wild horse and burro program. Under pressure from the United States District Court for the District of Nevada, BLM settled the case by agreeing, for the first time in the history of the program, to require prospective adopters to swear, under penalty of perjury, that they are not adopting animals for slaughter or commercial use. BLM also agreed to other important reforms, which are leading to fewer wild horses being sold for slaughter. USDA Horse Slaughter Regulations: We represented the Humane Society of the United States, the Animal Welfare Institute, and other groups, in a challenge to a USDA regulation authorizing horse slaughter operations to fund their own inspections. The regulation was designed to circumant a Congressional Ban on federally funded inspections. The U.S. district court held that the regulation violated the National Environmental Policy Act and enjoined its implementation.
Cheat River Canyon: We represented, as co-counsel, Cheat Lake Environment and Recreation Association, the Friends of Blackwater, and the Sierra Club in a suit against Allegheny Wood Products, a timber company, concerning the company's logging activities in Cheat River Canyon, West Virginia, which harm the endangered Indiana bat and the threatened flat-spired three toothed-land snail -- an extremely rare species known only to occur in Cheat River Canyon -- in violation of Section 9 of the Endangered Species Act. The parties entered into a settlement agreement in February 2007, under which AWP agreed to set aside permanent reserve areas as habitat for the snail; to engage in a collaborative scientific process to identify and protect additional snail habitat; and to adopt measures for minimizing impacts on the Indiana bat. PENDING Indiana Bat and Virginia Big-Eared Bat: On behalf of Friends of Blackwater and a coalition of ten other organizations, we submitted a letter to NedPower, Dominion Virginia Power, and Shell Wind Energy Inc. notifying them of the likelihood that their wind power plant on a ridge on West Virginia's Mount Storm is likely to take Indiana bats and Virginia big-eared bats in violation of the Endangered Species Act. Indiana bats, which travel many miles along ridge lines to migrate and forage, have been documented in numerous caves near the Mount Storm site. Despite the proximity of these endangered bats to the NedPower project, and the fact that studies of operational wind plants near the site with similar topography have documented unprecedented numbers of bat kills, those responsible for the project have baselessly concluded that it is not likely to take Indiana bats. The NedPower Mount Storm site is also within five
miles of at least two caves known to be used by Virginia big-eared
bats, and part of the site is within essential habitat of Virginia
big eared bats. These bats are known to travel long distances between
summer roosts and winter hibernacula. They also forage along cliffs,
and there are cliffs on the ridge lines where NedPower is constructing
turbines. Despite the likelihood of fatal interaction between Virginia
big-eared bats and turbines during foraging and travel, those responsible
for the NedPower project have asserted that it is not likely to
result in the take of this endangered species. Koala Listing: We assisted the Fund for Animals and Australians for Animals in petitioning the Fish and Wildlife Service to provide protection for the koala under the Endangered Species Act. On May 9, 2000, the Service agreed to list the Koala as threatened due to ongoing destruction of its habitat in Australia. Florida Manatee Protection: We represented Save the Manatee Club and 17 other conservation organizations in a lawsuit in federal court in Washington to address the greatest immediate threat to the survival of manatees - collisions with power boats in critical manatee habitat. Among other claims, we argued that the US Army Corps of Engineers has ignored the cumulative effects of its permitting decisions on the manatee and its critical habitat. On January 4, 2001, we settled the case with the government agreeing to pursue significant new steps to protect manatees, including by designating refuges and sanctuaries throughout Florida, adopting special rules for minimizing the adverse effects of Corps-permitted projects, and studying the cumulative effects of development activities on manatees and their habitat. In July 2002, the Court ruled that the Bush Administration had violated the settlement by failing to create new manatee refuges and sanctuaries throughout peninsula Florida. The Court ordered the Administration to create such protections by November 1, 2002 and the Court also ordered high-ranking officials, including Secretary of the Interior Gale Norton, to show cause why they should not be held in contempt. See Save the Manatee Club v. Norton, 215 F. Supp. 2d 88 (D.D.C. 2002). The Interior Department then agreed to adopt new speed limits and other protections in some of the highest mortality areas in the State. On behalf of Save the Manatee Club, Defenders of Wildlife,
and other organizations, we filed an amicus brief opposing a lawsuit
filed by the Florida Marine Contractors Association that argued
that the Marine Mammal Protection Act does not protect manatees
(or other marine mammals) in “inland waters” of states.
This position, if it had prevailed, would
have largely stripped manatees of MMPA protection and would have
also harmed many other marine mammals. The United States District
Court for the Middle District of Florida rejected this position
as contrary to Congress’s clear intent in enacting the MMPA.
See Florida Marine Contractors v. Williams, Case No. 2:03-cv-229-T-30SPC
(July 13, 2005). PENDING Prebles Meadow Jumping Mouse:
On behalf of Defenders of Wildlife, the Center for Native Ecosystems,
and other conservation organizations we challenged the Bush Administration's
decision to delist the threatened Prebles Meadow Jumping Mouse in
the Wyoming portions of its range. The decision is based on a controversial
policy change that we are also challenging, under which species,
subspecies, and distinct population segments may be protected under
the Endangered Species Act in only a portion of their presently
occupied range. The case was filed in federal court in Denver. Chimpanzees: On behalf of the Animal Legal Defense Fund, we won a landmark "standing" ruling in the en banc D.C. Circuit, which recognizes the ability of individuals to sue over conditions which cause suffering to captive or wild animals. The case, which arose in the context of a challenge to the US Department of Agriculture's regulations implementing the Animal Welfare Act recognized that humans suffer a cognizable injury when they witness animals being mistreated and neglected. See Animal Legal Defense Fund v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (en banc). Orangutans: On behalf of People for the Ethical Treatment of Animals, the Fund for Animals and several individuals, we brought a lawsuit challenging the Interior Department's issuance of permits, under the Endangered Species Act, which allowed a Nevada Las Vegas nightclub performer to purchase and mistreat endangered orangutans. As a result of the lawsuit, the government withdrew the permit and substantially tightened the permitting regulations applicable to captive-bred endangered and threatened species. Sonoran Pronghorn I: On behalf of Defenders of Wildlife, we challenged the Air Force's program of practicing bombing in the midst of habitat used by the extremely endangered Sonoran Pronghorn antelope. The Air Force settled the case by agreeing to engage in "formal consultation" with the United States Fish and Wildlife Service, and by monitoring for the presence of pronghorn prior to dropping bombs. See Defenders of Wildlife v. Widnall, Civ. No. 96-2117 (D.D.C. Settlement approved, Feb. 5, 1997). However, given the deficiencies of that analysis, we sued the Air Force and six other federal agencies concerning the failure to consider cumulative impacts on the Pronghorn. Sonoran Pronghorn II: On behalf of Defenders of Wildlife, we sued all the branches of the military, as well as several Interior agencies and the Border Patrol, concerning the plight of the critically imperiled Sonoran Pronghorn on the Goldwater Range in Southwest Arizona. With as few as 125 of these animals left in the US, we sought to have the court set aside numerous Biological Opinions (BO's) permitting the additional "take" of pronghorn, and to order the agencies which are dropping bombs, shooting bullets, and engaging in a host of other activities in pronghorn habitat to engage in a multi-agency ESA and NEPA (National Environmental Policy Act), process to assess the cumulative impacts of these activities on the species. The US District Court for the District of Columbia issued a sweeping ruling, finding that each agency failed to consider cumulative impacts in the manner required by the ESA and NEPA and remanding the BO's and several EIS's for this analysis. The Court also set aside the recovery plan for the Pronghorn, finding that it lacked the elements necessary to ensure the species' survival and recovery. See Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121 (D.D.C. 2001) Delmarva Fox Squirrel: We represented Defenders of Wildlife and a local conservationist in an action to compel the US Fish and Wildlife Service to protect and recover the endangered Delmarva Fox Squirrel, a critically imperiled species that exists in only four counties on the Eastern Shore of Maryland. Plaintiffs' principal contention was that the Service authorized private development of dwindling fox squirrel habitat without following the requirements of either the ESA or NEPA. The U.S. Court of Appeals for the D.C. Circuit ruled in our favor, holding that the Service had issued an "Incidental Take Permit" for a major development in fox squirrel habitat without complying with the ESA. See Gerber v. Babbitt, 294 F.3d 173 (D.C. Cir. 2002). Mt. Graham Red Squirrel: On behalf of local and national Audubon societies and a broad coalition of environmental organizations, we won a ruling in the United States Court of Appeals for the Ninth Circuit that the United States Forest Service and University of Arizona could not build one of the largest telescopes in the world on Mount Graham, Arizona, home to the highly endangered Mt. Graham Red Squirrel and a sacred Apache site, without complying with the Endangered Species Act and the National Environmental Policy Act. As a result of the case, construction was halted for several years until Congress passed a legislative rider allowing the project to proceed. See Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir. 1995). Gray Whales: We represented Australians for Animals, The Fund for Animals, and others in a lawsuit against the US Department of Commerce regarding the federal government's promotion and authorization of the Makah Indian Tribe's controversial plan to kill California Gray Whales within the Olympic Coast National Marine Sanctuary in northwest Washington state - the first authorized whale hunt in 100 years. The United States Court of Appeals for the Ninth Circuit issued a ruling agreeing with our arguments that the government had approved the whale killing in violation of the National Environmental Policy Act, and it ordered the federal government to terminate its whaling agreement with the Makah Tribe and prepare a new analysis of the environmental impacts of the government's plan to authorize whaling in a National Marine Sanctuary. Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000). After the government again approved the hunt, we represented the Fund for Animals, the Humane Society of the United States, and other environmental and animal protection organizations in another challenge to the National Marine Fisheries Service's authorization of the hunt. We argued that the government again violated the National Environmental Policy Act by authorizing the hunt without adequately analyzing it's environmental impacts. We also argued that the government acted in violation of the Marine Mammal Protection Act. The U.S. Court of Appeals for the Ninth Circuit issued a ruling agreeing with our arguments and setting aside the federally authorized hunt. See Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2003). The National Marine Fisheries Service is now in the process of determining whether to grant the Tribe an unprecedented waiver from the requirements of the Marine Mammal Protection Act. North
Atlantic Right Whale: We represented
a coalition of groups, including Defenders of Wildlife and HSUS,
seeking to protect the critically imperiled North Atlantic right
whale from collisions with marine vessels. Reducing ship speeds
and rerouting vessels are the most effective mechanisms to address
these ship strikes. After plaintiffs filed two lawsuits over ship
speeds, NMFS finally promulgated ship speed restrictions in important
right whale habitat. As for ship routing, the D.C. Circuit rejected
the Coast Guard's argument that it had no obligations to address
ships routing under the Endangered Species Act because routing decisions
are made by the International Maritime Organization. Defenders
of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008). As
a result of this ruling the Coast Guard agreed to consult with NMFS
over the impacts of these routing measures on right whales. See
Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir.
2008) Pacific Right Whales: We represented the Center for Biological Diversity and others in a lawsuit challenging the National Marine Fisheries Service’s refusal to designate critical habitat for Right whales in the North Pacific Ocean. The United States District Court for the Northern District of California agreed that NMFS had violated the Endangered Species Act and its own Recovery Plan for the Right Whale by failing to designate critical habitat. See Center for Biological Diversity v. Evans, 2005 WL 1514102 (N.D. Ca. 2005). Alexander Archipelago Wolf: On behalf of the Southwest Center for Biological Diversity and the Biodiversity Legal Foundation, we won rulings from the US District Court for the District of Columbia, overturning the Fish and Wildlife Service's refusal to protect, under the Endangered Species Act, two imperiled Alaskan species, the Queen Charlotte Goshawk and the Alexander Archipelago Wolf, both of which are present in the Tongass National Forest in Alaska. See Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996); Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996). We are presently pursuing a new case concerning the Service's failure to list the Goshawk in light of a new forest management plan for the Tongass. See Goshawks. ESA/Commerce Clause Challenge: We assisted Defenders of Wildlife in successfully defending against a Commerce Clause challenge to the Fish and Wildlife Service's "special rule" concerning the reintroduction of the red wolf to a wildlife refuge in North Carolina - a state from which the wolf had long been extirpated, largely due to hunting and habitat destruction. See Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000). Mexican Wolves: We represented the Center for Biological Diversity in a lawsuit to compel the U.S. Fish and Wildlife Service to make a final decision on a Rulemaking Petition that sought to amend certain Endangered Species Act regulations concerning the reintroduction of the Mexican wolf. FWS failed to make a final decision on the Petition even though for years scientists have urgently recommended that amending the regulations is necessary to ensure the survival of wild Mexican wolves. The FWS, in apparent response to the suit, finally initiated rulemaking proceedings to address all of the concerns raised in the lawsuit. 72 Fed. Reg. 44,065 (2007). BIRDS Queen Charlotte Goshawk: On behalf of the Southwest Center for Biological Diversity and the Biodiversity Legal Foundation, we won rulings from the US District Court for the District of Columbia, overturning the Fish and Wildlife Service's refusal to protect, under the Endangered Species Act, two imperiled Alaskan species, the Queen Charlotte Goshawk and the Alexander Archipelago Wolf, both of which are present in the Tongass National Forest in Alaska. See Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996); Southwest Center for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996). We then filed another case representing a coalition of national and Alaskan environmental groups in a challenge to the US Fish and Wildlife Service's refusal to list the Queen Charlotte Goshawk – a subspecies of the northern goshawk that lives only in the Tongass National Forest of Alaska and in British Columbia - as either endangered or threatened under the Endangered Species Act, due largely to massive clearcutting of the goshawk's old-growth habitat. Southwest Center for Biological Diversity, et al., v. Babbitt, Civ. No. 98-00934 (D.D.C.). On July 29, 2002, a Magistrate Judge for the US District Court for the District of Columbia issued a Memorandum Opinion recommending that the District Court Judge issue a ruling that the agency's "not warranted" finding is not supported by the record because of the goshawk's precarious status on Vancouver Island – which the Magistrate held is a "significant portion" of the goshawk's range. The District Court has issued a final ruling remanding the issue to the Fish and Wildlife Service. On November 8, 2007, the FWS announced that it had decided that listing the goshawk on Vancouver Island was "warranted". 72 Fed. Reg. 63113. Migratory Birds: We represented the Humane Society of the United States, the Animal Protection Institute, Virginia Citizens for the Protection of Wildlife, and others in a challenge to the Department of Agriculture's Wildlife Services Division's (formerly "Animal Damage Control") annual program to round up and slaughter thousands of migratory birds throughout the State of Virginia. Plaintiffs also challenged the US Fish and Wildlife Service's policy of allowing federal agencies to kill migratory birds in violation of the Migratory Bird Treaty Act. In 1998, the US District Court for the District of Columbia issued an emergency injunction prohibiting the destruction of local bird populations. In 1999, the Department of Agriculture attempted to resume its migratory bird killing program on a much larger scale. In response, plaintiffs reopened the case and moved for a permanent injunction against any further killing of migratory birds. After rejecting defendants' contention that federal officials are not required to comply with the Migratory Bird Treaty Act, the District Court permanently enjoined the defendants from killing migratory birds in violation of federal law. The Court of Appeals for the District of Columbia Circuit upheld the District Court's decision. See HSUS v. Glickman, 217 F.3d 882 (D.C. Cir. 2000). Pygmy Owl: We assisted Defenders of Wildlife and the Center for Biological Diversity in a challenge to the US Army Corps of Engineers' failure to consider the cumulative effects of its "nationwide permits" on the critically endangered Cactus Ferruginous Pygmy Owl. In October 1999, the US District Court for the District of Arizona agreed that the Corps has violated both NEPA and the ESA, and it enjoined reliance on the permits until adequate cumulative impacts analysis was performed. Defenders of Wildlife v. Army Corps of Engineers, 73 F. Supp. 2d 1094 (D. Ariz. 1999). A settlement in the Ninth Circuit preserved our legal victory and also committed the Corps to soliciting public comment on the effects of new nationwide permits. Pheasant Hunt: On behalf of The Fund for Animals, The Humane Society of the United States, and the Massachusetts Society for the Prevention of Cruelty to Animals, we sued the National Park Service for its ongoing authorization of hunting of pheasants in the Cape Cod National Seashore. Plaintiffs argued that hunting in the Seashore was in violation of the National Environmental Policy Act because the Park Service never conducted an adequate environmental analysis. In particular, plaintiffs argued that the Park Service's authorization of the annual importation, release, and sport-shooting of hundreds of farm-raised pheasants - which are not a native species to Cape Cod and have no ability to survive in the wild - is an egregious violation of NEPA, as well as of the Park Service's own internal Management Policies. A Massachusetts federal court agreed with plaintiffs, ruling that the Seashore hunting programs violated NEPA, and ordering the Park Service to conduct an environmental assessment of those programs. The court also enjoined the pheasant hunt from going forward until that environmental assessment is completed. See Fund for Animals v. Mainella, 283 F.Supp.2d 418 (D.D.C. 2003). Live Pigeon Shoot: We represented Pennsylvania humane agents, in conjunction with the Fund for Animals, in several lawsuits to enjoin "pigeon shoots" on the grounds that they violate the anti-cruelty code. As a result of a unanimous ruling we obtained from the Pennsylvania Supreme Court concerning the Hegins pigeon shoot in Hegins, Pennsylvania, that event has been permanently canceled. Cape Sable Seaside Sparrow: On behalf of the Biodiversity Legal Foundation and other conservationists, we sued the US Fish and Wildlife Service in federal district court in Washington, DC for its failure to make a "one-year finding" under the Endangered Species Act, concerning revision of the critical habitat of the highly endangered Cape Sable seaside sparrow. The sparrow is one of the most imperiled songbirds in this country, and lives almost entirely within Everglades National Park and the Big Cypress National Preserve in southern Florida. The Service has conceded that the sparrow "is at significant risk of imminent extinction" and that revising the sparrow's critical habitat designation "is essential to ensuring the continued existence of the species," yet nonetheless has refused to revise the designation, in violation of the ESA. A federal judge in Washington ordered the Interior Department to increase protection for the sparrow by revising the critical habitat designation to reflect its current biological needs. The court ruled that the service is under a legal duty to proceed with the designation, and the Court imposed a concrete schedule for doing so. See Biodiversity Legal Foundation v. Norton, 285 F.Supp.2d 1 (2003). Mute Swans: On
behalf of the Fund for Animals and several residents of Chesapeake
Bay, Maryland, we filed suit challenging the U.S. Fish and Wildlife
Service's (FWS) issuance of numerous, sweeping permits authorizing
the State of Maryland and other parties to kill thousands of Mute
Swans in violation of the Migratory Bird Treaty Act and the National
Environmental Policy Act. After the federal district court for the
District of Columbia issued a preliminary injunction halting the
killing of swans in Maryland, see Fund for Animals v. Norton,
281 F. Supp. 2d 209 (D.D.C. 2003), the case was settled in exchange
for the Service's decision to cancel all permits authorizing the
killing of Mute Swans nationwide.
OTHER ANIMALS
American Eel: On behalf of environmental activists Doug and Tim Watts, we challenged the failure of the Fish and Wildlife Service to issue a one year determination as to whether the American Eel warrants listing under the Endangered Species Act. The case was settled with the Service's agreement to make a one year determination by February 2007. Coaster Brook Trout: On behalf of the Sierra Club, Huron Mountain Club and Marvin Roberson, we challenged the failure of the Fish and Wildlife Service to issue 90-day and one year determinations as to whether the Coaster Brook Trout warrants listing under the Endangered Species Act. The case was settled with the Service's agreement to make a one year determination in December 2008. In a case we litigated on behalf
of the New Jersey Society for the Prevention of Cruelty to Animals,
Farm Sanctuary, and a coalition of other animal welfare organizations
and farmers, the New Jersey Supreme Court on July 30, 2008 issued
a landmark decision regarding the humane treatment of farmed animals.
In a unanimous opinion, the Court held that the New Jersey Department
of Agriculture failed to fulfill its legislative mandate to develop
"humane" standards for the care of domestic livestock
because it had unlawfully exempted from the animal cruelty code
all "routine husbandry practices." The Court further rejected
agency regulations that certain mutilations of farmed animals such
as castration, debeaking, and toe-trimming are "humane"
as long as they are carried out by a "knowledgeable individual"
"in a way to minimize pain." The Court ruled that such
regulations created a standardless and "unworkable enforcement
scheme." In addition, the Court overturned a regulation authorizing
the tail docking of cattle, on the grounds that there is no evidence
that this practice is humane. Yellow-Legged Frog: On behalf of the Biodiversity Legal Foundation and two scientists, we successfully challenged the Fish and Wildlife Service's failure to initiate the listing process for the Southern California Mountain Yellow-Legged Frog, a desperately endangered species. The United States District Court for the District of Columbia ruled in our favor, holding that the Service could not rely on its own "listing priority guidance" as an excuse for not responding to the listing petition within the statutorily required 90 days. See Biodiversity Legal Foundation v. Babbitt, Civ. No. 96-1156 (D.D.C. March 27, 1997). California Tiger Salamander: On behalf of the Center for Biological Diversity, we challenged the Fish and Wildlife Service's critical habitat designation for the endangered Sonoma County distinct population segment of the California Tiger Salamander. The critical habitat designation – which excluded the entire range of the salamander's habitat – was politically motivated and contrary to the recovery goals of the ESA. This case was settled with the Service's agreement to make a new critical habitat designation by July 2011. See Center for Biological Diversity v. Kempthorne, Civ. No. 08-4595 (N.D. Cal. 2008). Atlantic Salmon Listing: In a suit filed in Washington, DC, we represented Defenders of Wildlife and a coalition of environmental groups in a challenge to a decision by the US Fish and Wildlife Service and the National Marine Fisheries Service to withdraw their proposal to list the imperiled Atlantic Salmon under the ESA based on a voluntary and unenforceable "conservation agreement" developed by the State of Maine. After we filed our brief on the merits, the defendants did an about-face and re-proposed the species for listing. The government then entered into a court-ordered stipulation that it would make a final listing decision by November 2000. On November 17, 2000, the Services published a final rule listing the Atlantic Salmon as endangered. Atlantic Salmon-Maine: After we won a case challenging the government's refusal to list the Atlantic Salmon as endangered under the ESA, Maine businesses and the State of Maine challenged the listing and sued in Maine. We represented Defenders of Wildlife and others as amici in that action. The court rejected Maine’s claims, thus ensuring continued protection for this critically imperiled species. See State of Maine v. Norton, 257 F. Supp.2d 357 (D. Me. 2003) Snake
River Salmon: On behalf of American Rivers and Idaho Rivers
United, we filed a Petition for a Writ of Mandamus to compel the
Federal Energy Regulatory Commission to respond to American Rivers,
et al.'s 1997 Petition To Initiate Consultation Under The Endangered
Species Act. The 1997 Petition concerned FERC's 11-year failure
to engage in "formal consultation" under the Endangered
Species Act to insure that the ongoing operations of the Hells Canyon
Complex -- a major, three-dam hydropower project on the Snake River
in the Pacific Northwest -- do not jeopardize the continued existence
of four highly imperiled species of Snake River salmon and steelhead
trout. The D.C. Circuit ruled in our favor, ordering FERC to respond
to the Petition. See American Rivers v. FERC, 372 F.3d 413
(D.C. Cir. 2004).
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