Wednesday, November 28, 2012

Suit Brought To Help Stop The Extinction Of The Endangered Mexican Wolf

We today filed a lawsuit with the Center for Biological Diversity challenging the Fish and Wildlife Service’s delay in improving conditions for the Mexican Wolf – a species teetering on the brink of extinction in the Southwest.  Although the species was reintroduced in the late 1990s after being exterminated largely by the livestock industry, the FWS has failed to implement important measures to assure the survival and recovery of the species.  As a result, only about 58 wolves remain in the wild – far below the 102 the FWS said were needed by 2006 to ensure the species’ recovery.  In addition to severely restricting the areas in which the wolves may disperse, the agency removes wolves caught preying on livestock – most recently resulting in the separation of a female from her five newborn pups who are not expected to survive the winter without her.  The lawsuit, which was filed in the federal district court in D.C., seeks a court order requiring the agency to finish a rule-making it started over six years ago to address the Center’s request for stronger measures to ensure the wolf’s recovery.

Court Orders Hard-Hitting Corrective Statements By Tobacco Companies

In our ongoing litigation before the district court that in 2006 found tobacco companies responsible for massive consumer fraud under RICO, the court yesterday issued a comprehensive ruling on the “corrective statements” remedy, pursuant to which the companies must publish statements in newspapers, on TV, and in other media explaining the truth about smoking, addiction and other topics, and explaining that they had previously “deliberately deceived” the public about these matters.  We represent the American Cancer Society, Tobacco-Free Kids, and other groups that intervened in support of this and other remedies, and the court’s ruling today largely adopts the statements our clients initially proposed.  The Court’s ruling is here.

Petition Filed To Challenge Environmental Review For Relicensing Limerick Nuclear Power Plant

On behalf of the Natural Resources Defense Council (NRDC), we filed a petition last week before the Nuclear Regulatory Commission (NRC) seeking the waiver of an NRC regulation that would otherwise preclude NRDC from challenging the relicensing of the Limerick nuclear power plant outside Philadelphia.  NRDC seeks to insure that the NRC fully considers the best ways to mitigate against the impacts of severe accidents at the plant, and obtaining the waiver would be an initial step in that process.

Monday, November 12, 2012

Briefs Filed Defending Polar Bear "Trophy" Import Ban

On behalf of HSUS, Defenders of Wildlife, and IFAW, on Friday we filed two briefs in the D.C. Circuit defending the Fish and Wildlife Service's (FWS) denial of U.S. sport-hunters' applications to import polar bear "trophies" from Canada.  Once the polar bear was listed under the Endangered Species Act in 2008, the FWS stopped granting these permits, but sport-hunters filed several lawsuits claiming imports should continue despite the ongoing destruction of the species' sea-ice habitat due to climate change.  The district court upheld the import ban, and the sport-hunters have appealed.  The appeals will be decided next year. 

Friday, November 9, 2012

Government Drops Plans To Kill Deer In Rock Creek Park This December

After our firm filed a lawsuit on behalf of several D.C. residents and the animal protection organization In Defense of Animals, the National Park Service has agreed to drop its plans to begin killing white-tailed deer in Rock Creek Park in Washington, D.C. this December.  Under an agreement reached with the plaintiffs in the lawsuit that was filed on October 25, 2012, the parties have asked the Court to rule on the matter by March 15, 2013, before which the Park Service has agreed not to kill any of the 157 deer that were otherwise slated for death by gunfire or arrows.  The Court has set oral argument in the matter for March 4, 2013 at 3:00pm.

Monday, November 5, 2012

Amicus Brief in Supreme Court Clean Water Act case

On behalf of the Pacific Coast Federation of Fisherman’s Associations and other groups, we have filed an amicus brief in the U.S. Supreme Court in a Clean Water Act case addressing whether logging roads that discharge polluted stormwater into rivers, streams, and other water bodies must obtain National Pollutant Discharge Elimination Permits under the Clean Water Act.  Our amicus brief explains that the runoff from logging roads impairs the habitat of salmon and other species and harms downstream businesses that depend on healthy ecosystems.  A copy of the amicus brief can be found here.

Thursday, October 25, 2012

Oxfam America Seeks To Intervene In Challenge To SEC’s New Extractive Industry Disclosure Regulation

On behalf of Oxfam America, we have filed a Motion to Intervene in a suit filed by the American Petroleum Institute and others challenging a new regulation governing payments for the extraction of natural resources. The “Cardin-Lugar” provision of the Dodd-Frank Wall Street Reform Act directs the Securities and Exchange Commission (SEC) to issue regulations mandating that publicly traded companies disclose payments they make to governments - at home and abroad - associated with extracting oil, natural gas, and minerals.  The SEC recently issued implementing regulations requiring these disclosures, which will both provide vital information to investors while at the same time allowing people in communities where these natural resources are found, and their international allies, to hold governments accountable for natural resource revenues.  API has challenged the regulation on First Amendment and other grounds, and we represent Oxfam in defending the regulation.  Our motion to intervene is here.

Lawsuit Filed To Stop The National Park Service From Killing Deer In Rock Creek Park

Today we filed a lawsuit on behalf of local D.C. residents and In Defense of Animals to stop the National Park Service (NPS) from killing white-tailed deer in Rock Creek Park this winter. 

Our complaint alleges that in choosing to kill native wildlife for the first time since the Park was established in 1890 NPS is violating the law that created the Park, which requires NPS to preserve wildlife in “its natural condition, as nearly as possible.”  Because there are less drastic ways to control the deer population, including fencing and contraception – successfully used to control wildlife populations in several other areas in the country, such as Fire Island National Seashore in New York –   NPS has failed to carry out its statutory mandate. 

The plaintiffs further allege that the Park Service failed to consider how luring hundreds of deer to bait stations at night to be shot by guns and arrows will impair the overall character of the Park as an oasis of serenity and peace in the middle of our nation’s capital, in violation of the National Environmental Policy Act.

Follow the links for our complaint and a press release.

Monday, October 22, 2012

Ninth Circuit Rules For Conservation Groups in Pipeline Dispute

In a case we litigated on behalf of the Center for Biological Diversity, Defenders of Wildlife, and others, the U.S. Court of Appeals for the Ninth Circuit has agreed with our position that the massive Ruby Pipeline Project – a 678-mile natural gas pipeline extending from Wyoming to Oregon – was approved by the federal government in violation of the Endangered Species Act (ESA).   The Court held that the determination by the Fish and Wildlife Service that the pipeline – which crosses 209 rivers and streams that support federally endangered and threatened fish species – will not jeopardize listed species was improperly based on purported protective measures for the species that were set forth in a “conservation plan” that was not enforceable under the ESA.   The Court also held that the Service failed properly to take into consideration the impacts of the project on groundwater resources.  A copy of the ruling is attached here.

Wednesday, October 17, 2012

Comments Filed on Behalf of Conservation Groups for Changes at the Criterion Wind Project

On behalf of a coalition of eight conservation organizations, MGC recently submitted comments to the U.S. Fish and Wildlife Service urging that the agency take action at the Criterion Wind Project in Western Maryland to reduce bird and bat mortality. The comments were submitted in response to a draft Environmental Assessment, an application for an Incidental Take Permit, and a proposed Habitat Conservation Plan at the wind energy facility that currently holds the highest per-turbine bird mortality rate ever documented in North America. The groups’ primary concerns reference violations of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Protection Act (BGEPA). A press release from American Bird Conservancy, one of the organizations signing onto our comments, can be read here, and the comments submitted to the agency can be downloaded here.

Wednesday, October 10, 2012

Brief Calls for Vacating Key Approvals of Cape Wind to Protect Wildlife

Today, we filed our opening brief in a case challenging the authorization of the Cape Wind project, a massive wind power facility proposed for waters off the coast of Massachusetts, on behalf of Public Employees Environmental Responsibility, Three Bays Preservation, Cetacean Society International, the Alliance to Protect Nantucket Sound, and other organizations and individuals.

We demonstrate that federal agencies’ authorizations for the project violate the Endangered Species Act and Migratory Bird Treaty Act.

Our brief highlights critical documents in the administrative record that reveal:
  • The Fish and Wildlife Service determined that temporary, seasonal shutdowns were necessary to protect endangered and threatened birds, but removed the protections after the developer determined they were too costly.  Of particular importance, the Fish and Wildlife Service never made an independent determination that absent such protections, the spinning turbine blades would not jeopardize the continued existence of the protected species– an error compounded by the fact that no effective mechanisms exist for monitoring the deaths of birds over open water.
  • Despite their awareness that the Migratory Bird Treaty Act prohibits killing even a single migratory bird, and projections that the wind power facility will kill thousands or tens of thousands of birds, the agencies authorized the project without taking measures to reduce the bird kill or require the developer to get a permit.
  • The National Marine Fisheries Service rejected the notion that tens of thousands of boat crossings associated with the facility would put North Atlantic right whales at risk, even though being hit by boats is the primary source of mortality for the highly imperiled species.  After discovering the whales in areas where high-speed boats will cross, the Service came to the absurd conclusion that their presence in the area somehow "supports” a conclusion they won’t be there in the future.  The agency imposed no speed limits on the boats at all.
  • The agencies allowed the developer to increase the duration of preconstruction surveys ten to twenty times over a previous proposal without analyzing how the more intensive surveys will harm endangered sea turtles present in Nantucket Sound.

Repeatedly citing the agencies’ own administrative records to demonstrate that key decisions were rushed by politics, our brief calls on the Court to vacate approval of the project.

Judge To Hold Hearing On Corrective Statements Remedy For Tobacco Companies’ Massive Fraud

In our ongoing litigation against major cigarette companies – stemming from a 2006 decision that found them responsible for massive consumer fraud – the court has scheduled a hearing for October 15, 2012 to consider the content of “Corrective Statements” the companies must air in TV Ads, major newspapers, and on their products.  The government has proposed accurate statements, such as “cigarettes are a finely-tuned nicotine delivery device designed to addict people,” and “smoking reduces circulation, triggers asthma, and can cause infertility and erectile dysfunction.” We will be supporting these proposals on behalf of six public health organizations that intervened in the suit to advocate for strong and effective remedies.  The Court recently invited the parties to submit supplemental briefs in advance of the hearing, and our briefs can be found here and here.

Firm Files Brief Supporting Its Claim Against Feld Entertainment

On Friday MGC filed an opposition to a motion by Feld Entertainment, Inc. (“FEI”) to dismiss MGC’s abuse of process counterclaim, which was filed in a SLAPP suit FEI brought against the firm and several leading animal protection organizations, in the aftermath of their lawsuit contending that FEI’s treatment of Asian elephants violates the Endangered Species Act’s prohibition on “harming” members of an endangered species without a permit.   The ESA case was dismissed on standing grounds, and so the court never addressed the merits of our claim in the ESA case that various FEI practices – particularly striking the elephants with bullhooks and keeping them chained for many hours at a time – violate the ESA.   Our abuse of process counterclaim contends that FEI’s real purpose in bringing its retaliatory lawsuit is to punish and deter further criticism and advocacy directed at such practices.   

Tuesday, August 28, 2012

Challenge To USDA’s Decision To Renew License to Miami Seaquarium Where Orca Named Lolita Is Kept in Substandard Conditions

On behalf of the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the Orca Network, and several individuals, we filed a case last week in the federal district court for Northern California challenging the USDA’s most recent decision to allow the Miami Seaquarium to renew its Animal Welfare license although it keeps the Orca named Lolita in conditions that violate the AWA – including a tank that is far below the agency’s own minimum standard set in 1978, without shelter from the intense Miami sun, and without any companions of her own species.  Lolita was captured from the wild in the 1970s off the coast of Washington State and is a member of the L-pod of the Southern Resident Killer Whales –  listed as an “endangered” species in 2005.  The suit seeks to have the Seaquarium’s AWA license set aside as unlawful, as a first step to having Lolita transferred to a more humane setting, and hopefully reintroduced into the wild.

Thursday, August 23, 2012

Lawsuit Filed To Restore Protections To Cactus Ferruginous Pygmy Owl

This week, we filed a lawsuit in the U.S. District Court for the District of Arizona on behalf of the Center for Biological Diversity and Defenders of Wildlife, which seeks to reinstate Endangered Species Act protections for the pygmy owl – a species that was previously listed as endangered under the Act from 1997 to 2006.  In 2011, the U.S. Fish and Wildlife Service found, in response to a petition by the conservation groups, that the pygmy owl is in fact threatened in its Sonoran Desert region but nevertheless declined to afford any protections to the species based on the agency’s conclusion that this portion of the range is not vital to the overall survival of the species – a far more restrictive interpretation of the agency’s statutory listing authority than the Service has previously employed.  This new interpretation stems from a draft policy that the Service released for public comment several months after the pygmy owl decision, that was strenuously opposed by conservation groups and the scientific community, and that the Service has yet to finalize. The complaint can be found here and the press release can be found here.

Friday, July 27, 2012

D.C. Circuit Rules For Public Health And Against Tobacco Companies

In the latest step to hold the major tobacco companies accountable for decades of fraud on the American people, today the D.C. Circuit affirmed two lower court rulings in a long-running lawsuit the United States has pursued against the companies for more than a decade.  In this round, the companies argued that the district court’s findings and remedies in connection with their 50-years of fraud should be set aside in light of the 2009 legislation which gave the Food and Drug Administration authority to regulate cigarettes.  Rejecting all of the defendants’ arguments, the D.C. Circuit ruled that the district court’s overwhelming findings of fraud supported the conclusion that misconduct will continue despite the new law.  The Court also rejected the companies’ effort to restrict the tobacco marketing data that the Department of Justice may review to monitor the companies’ compliance with the Court’s ruling.  We represent six public health organizations, including the American Cancer Society and Tobacco-Free Kids, who intervened in the suit to advocate for strong and effective remedies, and participated in both of the appeals resolved today.  The two opinions are available here.

Tuesday, July 17, 2012

Emergency Petition Submitted To USFS To Maintain Burnt Mountain's Roadlessness

Yesterday, on behalf of The Ark Initiative, we submitted an emergency petition to the U.S. Forest Service requesting that the agency revisit an erroneous roadless determination on Burnt Mountain near the Maroon Bells - Snowmass Wilderness Area in Colorado.  The practical effect of this error is that a private company, which has received authorization from the Service to conduct tree cutting and other irreversible activities in this parcel based on the error, plans to imminently begin felling trees and thus permanently destroy the roadless characteristics and wilderness qualities of this unique parcel of public land.  We have requested a response from the Service by the end of the week.  The petition can be found here.  

Wednesday, July 11, 2012

Court Rejects NPS's Attempt To Open Destructive ORV Trails In Big Cypress

Yesterday, a federal district court ruled that the National Park Service ("NPS") and Fish and Wildlife Service violated several environmental laws (NEPA, ESA, and the Park Service Organic Act, among others) when NPS opened sensitive areas of the Bear Island Unit of the Big Cypress National Preserve to off-road vehicle use that the same agency had expressly forbidden seven years earlier.  Because the agencies provided no coherent explanation for changing their course of action to allow ORV use in these areas, which the agencies anticipated would adversely affect water, vegetation, and federally protected wildlife, the court set aside the decision and thus closed all of these trails to ORV use within 14 days.  The decision can be found here.

Tuesday, July 10, 2012

Lawsuit Filed To Protect Grand Staircase Escalate National Monument

On behalf of Western Watershed Project, we filed a lawsuit in federal district court in D.C. on Friday challenging the failure of the Bureau of Land Management (BLM) to protect resources in the spectacular Grand Staircase Escalate National Monument in southern Utah.  Public lands grazing is seriously degrading portions of the Monument.  Although six years ago BLM identified specific actions that must be taken to address this problem, these actions have never occurred.  Through the lawsuit plaintiffs seek a Court Order directing that BLM finally carry out these specific actions.  A copy of the Complaint is here.

Wednesday, June 27, 2012

Federal Agencies Sued Over Failure to Disclose Correspondence with Wind Industry

On behalf of the American Bird Conservancy (ABC), we sued the Fish and Wildlife Service and Bureau of Indian Affairs for failure to comply with mandatory deadlines under the Freedom of Information Act (FOIA).

ABC filed six requests under FOIA – all of them more than eight months ago. ABC’s FOIA requests asked for the Fish and Wildlife Service’s correspondence with wind developers regarding birds and bats, as well as related information about wildlife impacts, such as studies showing which bird and bat species were in the area and how many had been killed by the facilities. The Fish and Wildlife Service subsequently referred one request to the Bureau of Indian Affairs. Under FOIA’s strict deadlines, the agencies were required to fulfill the requests or claim exemptions within 20 working days, and hence ABC has a right to seek judicial intervention.  The case was filed in the U.S. District Court for the District of Columbia.

ABC’s FOIA requests were in regard to proposed and existing wind energy developments in Arizona, California, Florida, Minnesota, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Texas. Birds that could potentially be harmed include Bald and Golden Eagles, as well as birds that have been federally designated as threatened and endangered, such as Whooping Cranes, Northern Aplomado Falcons, Least Terns, Piping Plovers, Marbled Murrelets, Snail Kites, Wood Storks, and Northern Crested Caracaras.

Monday, June 25, 2012

In Response to Wild Horse Groups’ Legal Arguments, BLM Withdraws Pancake Complex Roundup Decision

Several weeks after a federal judge ruled that the Bureau of Land Management (“BLM”) should have considered declarations from four leading wild horse scientists who criticized the agency’s radical approach to wild horse management, which involves castrating male horses and returning them to the range with unknown, and likely severe, impacts to individual horses, their herds, and the public’s ability to view these horses in their natural “wild” state, BLM has filed a motion for voluntary remand asking for an opportunity to reconsider its decision.  Once the request is approved by the court, BLM’s November 2011 roundup decision will be withdrawn, and no management actions can be taken to round up wild horses in the Pancake Complex or to castrate male horses that live there unless and until BLM issues a new decision that fully complies with the Wild Free-Roaming Horses and Burros Act and the National Environmental Policy Act. 

Wednesday, June 13, 2012

Company Pulls The Plug On Industrial Wind Farm In Critical Indiana Bat Habitat

After years of controversy, energy company Gamesa has withdrawn its plans to build an industral wind power facility near Shaffer Mountain, Pennsylvania.  The project would have been placed in an important migratory corridor for Golden eagles and in the midst of a maternity colony of critically endangered Indiana bats.  This would have been the first time that a wind project – which according to leading experts would have killed and harmed Indiana bats due to turbine collisions and a pressurizing condition called barotrauma – would be sited in such a sensitive location for an endagered species.  On behalf of several conservation organizations and community members, we submitted multiple notice letters and comments to the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers detailing various violations of the Endangered Species Act, Clean Water Act, and National Environmental Policy Act, which inevitably influenced the company’s decision to withdraw from this project in lieu of more sustainable project locations elsewhere that will better allow for clean, renewable energy without sacrificing our nation’s important natural resources.   

Thursday, May 10, 2012

Judge Says “Neigh” To BLM’s Refusal to Consider Expert Declarations about Wild Horse Gelding

A federal judge ruled yesterday that the Bureau of Land Management (“BLM”) should have considered the declarations of four leading wild horse scientists who criticized the agency’s new radical approach to wild horse management, which involves castrating male horses and returning them to the range with unknown, and likely severe, impacts to individual horses, their herds, and the public’s ability to view these horses in their natural “wild” state.  In making its novel decision to castrate hundreds of male horses at the Pancake Complex in Nevada, BLM studiously avoided considering these declarations, despite the fact that they had been submitted to the agency in a prior challenge to the same “pilot” program by conservation organizations in a case that the BLM mooted out by withdrawing the gelding proposal.  The court has now ordered the parties to re-commence summary judgment briefing on whether the use of gelding required an Environmental Impact Statement and was consistent with the mandates of the Wild Free-Roaming Horses and Burros Act, and whether the agency complied with its legal duties by proposing to permanently remove thousands of horses from the public lands on the grounds that the horses were damaging the range, while leaving tens of thousands of cattle to graze the same lands.  The decision can be found here.

Thursday, May 3, 2012

Court Finds Plaintiffs Have Standing To Challenge ESA Violations At Sharp Park Golf Course

Last week the federal district court in San Francisco rejected the City of San Francisco’s arguments that plaintiffs lack Article III standing to challenge the City’s unlawful “take” of the imperiled California red-legged frog (CRLF) and San Francisco garter snake (SFGS) at Sharp Park golf course, a city-owned course that provides vital habitat for these ESA listed species.  The City had argued that there were so many CRLF at Sharp Park that plaintiffs interests in the species are not harmed when the City’s massive water pumping operations kill CRLF egg masses, and that there are so few SFGS that plaintiffs’ interests in that species are also not injured by activities, such as mowing operations, that risk killing SFGS. 

Finding that plaintiffs meet all the elements of Article III standing, the court explained that plaintiffs would have standing to challenge the take of CRLF irrespective of the species’ population, but that in addition “new evidence” suggests that the species may be declining at the golf course.  As regards the SFGS, the Court concluded that it “would be incongruous with the purposes of the ESA” to conclude that a plaintiff lacks standing where the species “is difficult to see, or worse, that because there are so few of the animals left, a person cannot be harmed by continued take.”

Because the City is seeking a Biological Opinion from the U.S. Fish and Wildlife Service for its golf course operations, the court temporarily stayed proceedings in the suit.  The parties must update the court on the progress of that process over the next several months, after which the court will determine how to proceed.

A copy of the court’s ruling is here.

Wednesday, April 4, 2012

Court Finds That Rule To Protect Endangered Antelopes Must Not Be Delayed

In a long-running litigation saga, a federal district court yesterday denied two requests – both by organizations that represent canned hunting facilities and the sport hunters who frequent them – to temporarily block a rule from going into effect that will protect three highly imperiled species of antelopes that were listed as endangered in 2005.  In 2009, on behalf of Defenders of Wildlife, the Humane Society of the United States, and Born Free USA, we obtained a judgment requiring the U.S. Fish and Wildlife Service to ensure that these species are not harmed under the Endangered Species Act unless strict permitting requirements are first satisfied to enhance the species’ recovery.  The rule went into effect today, and yesterday’s ruling – in which we participated on behalf of the same organizations as in the earlier lawsuit – effectively means that, at present, members of these species cannot be killed or otherwise harmed unless and until an entity obtains the permits required by law.  The court’s ruling can be viewed here.

Thursday, March 1, 2012

Congratulations to Several MGC Alums (and future law clerk)!

This past weekend, former MGC paralegal Michelle Sinnott (a 2L at Vermont Law School) obtained the Best Brief Award at the National Animal Law Moot Court Competition at UCLA.  In the same event's legislative competition, former MGC law clerk Shari Berger Kulanu (a 3L at Drexel Law School) won the Legislative Drafting & Lobbying Competition, and also received an award for Best Bill and Fact Sheet.  At the Pace National Environmental Law Moot Court Competition, 2012 MGC summer law clerk Trevor Smith took home the Best Oralist Award.  Great job!

Wednesday, February 15, 2012

Lawsuit Prompts U.S. Forest Service To Cancel Wild Horse Roundup

On the hooves of a federal lawsuit we filed in December 2011 challenging various aspects of a wild horse gather decision by the Bureau of Land Management and the U.S. Forest Service, the Forest Service has decided to withdraw its participation in the roundup.  The Forest Service’s agreement not to gather horses as part of this decision means that 198 wild horses in the Monte Cristo Wild Horse Territory will be spared from roundups at this time, and will not be subject to gelding, sex-ratio skewing, and other controversial population control techniques that would otherwise have been implemented there.

Thursday, January 26, 2012

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.

Wednesday, January 25, 2012

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.

Tuesday, January 10, 2012

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.