Faced With Notice Of ESA Violations, FWS Agrees To Reconsider Biological Opinion for Shaffer Mountain Wind Project

On November 3, 2011, we submitted a detailed notice letter on behalf of several conservation groups pointing out the serious scientific and legal errors with the U.S. Fish and Wildlife Service’s 2011 Biological Opinion to the U.S. Army Corps of Engineers, which would have allowed construction and operation of an industrial wind farm in the midst of a critical maternity colony of endangered Indiana bats.  In issuing its opinion, the Service ignored the views of the nation’s leading bat biologists who pressed the Service to consider alternatives to placing a project in this sensitive location, and also applied faulty population models in an effort to greenlight this project that will not only kill highly imperiled Indiana bats, but also golden eagles and migratory birds.  In light of our letter, the Service recently announced that it will reinitiate ESA consultation to consider new evidence before moving forward with a revised Biological Opinion.  In turn, the Corps has agreed to hold its decisionmaking in abeyance, pending the Service’s revised Biological Opinion.  Here are our notice letter, the FWS’s reinitiation letter, and the Corps’ reinitiation letter.

D.C. Circuit Hears Oral Argument on Flying Squirrel Appeal

On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals heard oral argument on whether the West Virginia Northern Flying Squirrel should remain protected by the Endangered Species Act (ESA).

The argument followed briefing on the government’s appeal of our victory on behalf of Friends of Blackwater and other conservation groups which restored ESA protections for the species. On appeal, the issue was whether the Fish and Wildlife Service was free to delist the squirrel without fulfilling the delisting/ recovery criteria the agency itself designated in squirrel’s recovery plan, or providing the public notice and an opportunity to comment on whatever new criteria the agency adopts.

On behalf of the plaintiffs, Jessica Almy argued that Congress specifically required development and implementation of delisting/ recovery criteria in species’ recovery plans to guide the agency’s determination of whether recovery has been achieved and the species should be delisted. Here, because the agency jettisoned the criteria in favor of less protective standards without allowing public notice and comment, the delisting was unlawful and the district court opinion should be affirmed. Read our brief here.

Full ESA Protections Restored for Three Endangered Antelope Species

Today, the U.S. Fish and Wildlife Service published a final rule, which vindicated our clients’ 2009 victory in the U.S. District Court for the District of Columbia that successfully overturned the Service’s unlawful attempt to grant blanket authorization to exotic wildlife ranches to breed and allow the canned hunting of three highly imperiled antelope species. The 2009 ruling found the Service’s action unlawful under the plain language of the Endangered Species Act, and today’s rule requires canned hunting operations to submit case-by-case permit applications to the Service to document whether and how their operations enhance the survival of the species before such entities can allow the endangered antelopes to be killed for profit. Such applications will be made available to the public for comment. The final rule can be found here.

Government Caves In FOIA Litigation and Grants Fee Waiver to Center for Auto Safety

Today, after the Department of Treasury completely capitulated on the issue, the court approved a voluntary stipulation that the government will grant the Center for Auto Safety a complete waiver of all fees associated with its request for electronic emails that will shed light on why the government allowed the auto industry to escape all liability for defective cars after the industry bailout in 2009. We had filed suit on behalf of the Center – the nation’s oldest and most prominent auto safety organization – after the Department tried to charge exorbitant fees in connection with a Freedom of Information Act (FOIA) request for these records.

The Center, the driving force behind the widespread adoption of lemon laws and major recalls of defective cars, seeks government email correspondence that would shed light on the government-led, taxpayer-financed restructuring of the two automotive giants, Chrysler and GM, which left personal injury victims without any recourse for injuries resulting from defective automobiles against the "New Chrysler" and "New GM." Rather than simply providing the Center with a disc containing the electronic documents or granting the Center a "public interest" waiver of duplication fees as provided by FOIA, the government denied access to the Center by assessing photocopying fees in excess of $33,000 for paper copies of the records. We filed a brief in October that challenged the government's position as creating an unlawful barrier to access under FOIA.

Today’s court order approves a voluntary stipulation between the parties that provides that the government has waived all fees in connection with the request and sets a schedule for the production of records.

On Eve Of 40th Anniversary of Wild Horse Act, Case Filed To Stop Extirpation of Wild Horse Population And Castration Of Wild Horses In Nevada

On Wednesday, December 14, 2011 - the day before the 40th Anniversary of enactment of the Free Roaming Wild Horses and Burros Act - on behalf of the American Wild Horse Preservation Campaign, Western Watersheds, The Cloud Foundation, and several individuals we filed a case in the District Court in D.C. to stop the Bureau of Land Management from going forward with its plan to remove the entire population of wild horses from Jakes Wash in Nevada on the purported ground that there is insufficient forage for the horses, when BLM allows thousands of cattle and sheep to graze on these same public lands. The suit also once again challenges the BLM’s decision to remove, castrate, and return gelded males to the range in other areas of Nevada.

Comprehensive Rulemaking Petition Filed Urging FWS to Regulate Wind Energy Impacts on Migratory Birds

On behalf of American Bird Conservancy, today we filed a detailed rulemaking petition with the U.S. Department of the Interior and U.S. Fish & Wildlife Service (FWS). The petition requests FWS to promulgate regulations under the Migratory Bird Treaty Act (MBTA) establishing a comprehensive permitting system for wind power projects that is designed to avoid and minimize adverse impacts on migratory birds. The petition describes the need for such a system and the legal framework under which FWS has more than sufficient authority to promulgate such regulations. Further, the petition examines in detail the several benefits of the proposed permitting system and also offers specific regulatory language that would accomplish the objectives identified in this petition. The proposed regulations seek to protect migratory birds at risk from wind energy projects, and at the same time provide the industry with the legal certainty that wind developers in compliance with a permit would not be subject to penalties for violation of the MBTA.

More information on the petition is available here: http://www.abcbirds.org/abcprograms/policy/collisions/wind_farms.html

Lawsuit Filed To Protect Captive Orcas

On November 17, 2011, we filed a lawsuit in the federal district court in the state of Washington on behalf of the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, and several individuals challenging a decision by the National Marine Fisheries Service to exclude the captive members of killer whales (orcas) from the population that has been listed as endangered under the Endangered Species Act. The listing decision, which was issued over five years ago, inexplicably excluded the captive members of the species, including an orca named Lolita, who was captured from the wild in the 1970s and is maintained at the for-profit Seaquarium in Miami where she is kept in a small tank with no companions of her own species. Because she was excluded from the listing decision, the Seaquarium, which over the years has made tens of millions of dollars from having Lolita perform tricks on command, can continue to keep in her in conditions that “harm” and “harass” her, with impunity under the ESA.