Firm Launching New Website July 1st!

We are excited to share the news that the firm will be launching a new website on July 1, which will no longer use this Blogger platform.  Thus, if you remain interested in receiving updates about our firm’s work, please “like” our Facebook page and also come back to our website after July 1 to sign up for updates from our new blog.  Thank you so much for your support!

Fish and Wildlife Service Ends “Split-Listing” of Chimpanzees and Makes All Chimps “Endangered” and Entitled To the Full Protections of the Endangered Species Act.

Today, the Fish and Wildlife Service (FWS) announced its final decision to end the dual status for chimpanzees under the Endangered Species Act (ESA) and to list all chimpanzees – whether in the wild or in captivity – as “endangered” under the Act.  This is a project that was conceived by our Firm many years ago and has finally come to fruition.  On behalf of a coalition of organizations, including the Jane Goodall Institute, the Humane Society of the United States, the New England Anti-Vivisection Society, the Wildlife Conservation Society, the Pan African Sanctuary Alliance, and the American Association of Zoological Parks and Aquarium, in 2010 we submitted a formal petition to the FWS to end the “split-listing” of chimpanzees by which the captive members of the species were not afforded any of the protections of the ESA.  As explained by the Petition which can be found here, not only was the “split-listing” of the species illegal under the plain language of the statute, but the exploitation of captive chimpanzees has made it more difficult to conserve the wild chimpanzees, by opening up a huge market for these “cute” human-like baby chimpanzees who are then captured from the wild to be sold as pets on the black market.  As Jane Goodall explained in the materials filed with the Petition, capturing a wild baby chimp requires killing its mother and dragging the baby away from her.  The Petition also explains that the wild scale commercial exploitation of captive chimps in this country – in entertainment, on greeting cards, and in other comedic forums –  has also harmed conservation efforts for wild chimps because African countries where the species is in dire need of  protection have lost respect for the United States’ efforts to truly conserve the species.  A copy of the FWS’s final decision can be found here http://www.fws.gov/endangered/what-we-do/chimpanzee.html

Court Orders Advance Remedies Against Big Tobacco

The D.C. Circuit and the district court have issued new rulings that will require the largest cigarette companies to finally issue “corrective statements” disclosing the truth about their products, including forcing the companies to place television and newspaper ads informing the American public that they “intentionally designed cigarettes to make them more addictive.”   The D.C. Circuit ruling rejected the companies’ arguments that they cannot be required to disclose their manipulation of nicotine, and remanded the issue to the district court to reconsider the preambles that will introduce the corrective statements.  The district court ruling rejected R.J. Reynolds’ (RJR) argument that it should not be required to run a television ad as the successor to Brown and Williamson, which was a defendant in the suit but was acquired by RJR.    
Together these rulings further advance the remedies our clients – the American Cancer Society, American Heart Association, American Lung Association, Americans For Nonsmokers’ Rights, the National African American Tobacco Prevention Network, and Tobacco-Free Kids Action Fund – have sought since they intervened in this long-running consumer fraud suit in 2006.  

USDA Publishes And Requests Public Comment On Rulemaking Petition For Better Standards To Protect Primates Used In Research

Today, the USDA published in the Federal Register for public comment a petition we filed last year on behalf of several clients, seeking stronger mandatory standards for the psychological well-being of primates used in research. The Petition, which can be found here, was filed on behalf of the New England Anti-Vivisection Society, the North American Primate Sanctuary Alliance, the Laboratory Primate Advocacy Group, and the Animal Legal Defense Fund. It asked the USDA to adopt as standards under the Animal Welfare Act the recommendations recently accepted by the National Institute of Medicine for "ecologically appropriate environments" for chimpanzees used in federally-funded research, and to apply those standards to all non-human primates used in all research.  The AWA was amended in 1985 to require the USDA to issue "minimum standards" for a "physical environment adequate to promote the psychological well-being of primates."  Since then, the USDA has failed to promulgate effective standards requiring primates to be housed socially and to be provided basic environmental enrichment -- the agency’s own enforcement personnel have complained that the current standards are weak and unenforceable.  The Petition requests that the agency adopt new standards, based on scientific evidence and expertise from the world’s leading primate experts, that would require all research facilities to provide for the psychological well-being of primates by requiring them to be housed in social groups, and providing them various forms of additional environmental enhancement, including access to outdoors, and opportunities for choice and self-determination – all vital to primates’ psychological well-being.  The Petition has been given the Docket No. APHIS - 2014-0098-1, and the USDA will receive public comment until June 30, 2015.

Motion to Dismiss Granted in Wyoming Wild Horse Case

The Federal District Court of Wyoming granted our motion to dismiss a case brought by the State of Wyoming in an attempt to compel the Bureau of Land Management (BLM) to remove wild horses from public lands across Wyoming. We moved to intervene in this case on behalf of the American Wild Horse Preservation Campaign, the Cloud Foundation, Return to Freedom, and two individual wild horse photographers and advocates, Carol Walker and Kimerlee Curyl. In the order granting our motion to dismiss, as well as that of federal respondent BLM, the Court agreed with our argument that the Wild Free-Roaming Horses and Burros Act affords BLM broad discretion in determining when removal of wild horses is necessary and that consideration of various factors is required to determine what actions should be taken to achieve a thriving natural ecological balance on the public rangelands. The decision can be found here. 

Brief Filed In Challenge To Regulation Allowing Thirty Years Permits For Eagle Killing

On behalf of the American Bird Conservancy and five individuals who study and enjoy eagles, we have filed a summary judgment brief in our case challenging the Fish and Wildlife Service’s recent regulation increasing the maximum duration of permits to kill or otherwise “take” Bald and Golden Eagles from five to thirty years.  The regulation, which was adopted at the urging of the wind power industry, places eagle populations at grave risk but was issued without any compliance with the National Environmental Policy Act or Endangered Species Act.  Our brief argues that the rule was adopted in flagrant violation of federal environmental law and that the poorly conceived rule should be vacated pending further study and public input.  

 

The Norfolk Eagles Have Eaglets!

We are thrilled to announce the birth of eaglets who are the offspring of the Norfolk Botanical Garden Eagles we have been working to protect for several years on behalf of the Eagle On Alliance.  Despite the Wildlife Services’ efforts to keep the eagles from nesting – having torn down nine different nests at the Norfolk Botanical Garden – the eagles outsmarted the federal government and moved to a loblolly pine tree on private property where they cannot be touched by Wildlife Services.  After the Fish and Wildlife Service granted the City of Norfolk permits to destroy the eagles’ nests at the Botanical Garden on the grounds that the eagles posed a threat to human safety at the nearby Norfolk International Airport, we filed suit on behalf of EOA to stop the nest destruction, arguing that none of the standards for such activities had been met under the Bald and Golden Eagle Protection Act, especially when the well-heeled Airport had failed to take minimum steps to reduce the chance of a bird strike, instead spending millions of dollars putting in a skylight and marble floors at the Airport.  When Wildlife Services lost its bid to be dismissed from the suit, the Airport hired full-time staff to detect and deter wildlife at the Airport and the eagles wisely relocated to safer quarters.  Eagle On Alliance dismissed its lawsuit and started monitoring the new nest activities to ensure the eagles would remain unharmed – and undeterred – in their tenth effort to start a family.  They started building their new nest several months ago, the private property owners steadfastly refused to allow the destruction of the nest, and now, as of yesterday, we have new born eaglets!  The photo below are the Norfolk eagles attending to their young. 

Mike Inman ©

Success In Thwarting Efforts To Remove Wild Horses From The Nevada Range

Judge Du of the Federal District Court for Nevada has granted our motion to dismiss a lawsuit brought by various Nevada ranching interests to compel the Bureau of Land Management (BLM) to remove thousands of wild horses from public lands in Nevada and to give management priority to livestock interests on those lands.  On behalf of the American Wild Horse Preservation Campaign and two individuals we intervened in the case last fall.  Granting our motion to dismiss, Judge Du held that the livestock interests  “fail[ed] to identify any final agency action that warrants judicial review, or any inaction that can be compelled; rather, Plaintiffs ask the Court to ensure that Federal Defendants’ management of wild horses and burros in Nevada complies with [their view of ] the Wild Horse Act.  The Court lacks jurisdiction to oversee such a sweeping request.”  The full decision can be found here.

Ringling Brothers Announces It Will No Longer Use Elephants In Its Circus

Ringling Brothers and Barnum & Bailey Circus today announced that it will finally phase out the use of Asian elephants in its Circus.  See New York Times.  With the help of many animal advocates and elephant experts, the Firm has been working on this issue for many years and took the lead in representing a coalition of animal protection groups and Tom Rider, a former barn man for the Circus, in a lawsuit brought under the Endangered Species Act (ESA), contending that the Circus “takes” the endangered elephants – i.e., “wounds” and “harms them within the meaning of the ESA – by hitting them with sharp bull hooks to make them perform circus tricks, and by keeping them chained on concrete and other hard surfaces for many hours each day.  Elephants are extremely social, intelligent animals, who, in the wild, walk many miles each day.  Although the ESA case was dismissed in 2010 because the Judge found that none of the Plaintiffs had demonstrated adequate Article III standing – and hence he concluded that he did not have jurisdiction under the Constitution to decide the merits of the Plaintiffs’ claims of mistreatment – the evidence produced at the 7 week trial corroborated the plaintiffs' claims concerning the way that the elephants must be treated in order for them to participate in a traveling circus.  Here is Katherine Meyer discussing this development on NPR.

Legal Effort Launched To Save Rare Evergaldes Bird From Extinction

On behalf of the Center for Biological Diversity and renowned biologist Dr. Stuart Pimm, we have put the U.S. Army Corps of Engineers and Fish and Wildlife Service on formal notice that the Corps’ activities in managing water resources in Everglades National Park are jeopardizing the continued existence of a highly imperiled Everglades-dwelling species, the Cape Sable seaside sparrow.  The notice explains that the Corps is systematically allowing the flooding of the habitat of a crucial subpopulation of sparrows and that the FWS has now acknowledged that far more must be done to protect this subpopulation, which is essential for the survival and recovery of the species as a whole.  A closely related species – the dusky seaside sparrow – went extinct while on the endangered species list, and we are endeavoring to ensure that the same sad fate does not befall the Cape Sable sparrow.  A copy of our notice letter is here.

Groups Object To Use Of Plutonium At The National Ignition Facility

On behalf of NRDC and Tri-Valley CAREs, we have objected to plans for using plutonium in experiments at the National Ignition Facility (NIF), a Rose Bowl-sized laser facility at the Lawrence Livermore Laboratory in Livermore, California.  We have urged that the plutonium experiments not move forward until environmental and non-proliferation concerns are addressed by the Department of Energy (DOE), which oversees the facility.  These include the risks for worker or public exposure to radioactive material, the likelihood that these experiments may undermine the moratorium on nuclear testing, and the implications of contaminating the facility with plutonium for the potential to use the NIF for non-weapons research in the future.  Our letters to the agency are here.

Lolita The Orca Whale To Be Added To The Endangered Species List

Two years after petitioning the National Marine Fisheries Service (NMFS) to list Lolita the Orca whale as an endangered species, on behalf of People for the Ethical Treatment of Animals, the Animal Legal Defense Fund, the Orca Network, and others, we are happy to announce that NMFS has agreed to add her to the list, thus protecting her under the Endangered Species Act, the nation’s strongest wildlife conservation law.  Our listing petition can be found here, NMFS’ announcement can be found here, and the Federal Register Notice is to be issued on February 6, 2015.  This means that Lolita is officially a member of an “endangered species” who may no longer be “taken” – i.e., “harmed,” “harassed” or otherwise injured by the Seaquarium, a Miami aquarium, where she has been maintained and forced to perform tricks for the public for the last forty years after being taken from the wild.  Lolita’s wild family – the Southern resident killer whale population – was listed as endangered in 2005 as a “distinct population segment.”  However, in the final listing rule, with no explanation, NMFS excluded Lolita – the only remaining member of this population who lives in captivity.   Because Lolita is a member of the listed entity and genetically valuable to its conservation, we petitioned to have her included in the listing.  NMFS’ decision to include Lolita in the endangered listing is an important step to having her finally returned to her wild family.  We are also currently representing the organizations and individuals in a lawsuit against the United States Department of Agriculture for renewing the Seaquarium’s Animal Welfare Act (AWA) license each year when the facility is keeping Lolita in conditions that violate several AWA standards.  The first round of that litigation is scheduled for oral argument in the 11th Circuit Court of Appeals next month.

Norfolk Eagle Case Voluntarily Dismissed

Our client Eagle On Alliance (EOA) ended 2 ½ years of litigation by voluntarily dismissing its case against the Fish and Wildlife Service and USDA Wildlife Services.  As EOA explained to the Judge presiding over the case, the Norfolk Eagles have now moved to private property where their nests can no longer be destroyed by the federal government, and the Norfolk International Airport recently hired full-time staff to detect and deter birds on the runways at the Airport (evidently in response to our lawsuit).  Because protecting the eagles and having the Airport do more to avoid collisions between birds and aircraft were the main goals of the lawsuit, EOA determined that there was no reason to continue with the suit.  The case was dismissed “without prejudice” meaning that if any action is taken to harm the Eagles, EOA would not be foreclosed from bringing another case. The Eagles have spent the last several months building their nest and are clearly getting ready to produce a new clutch!  Here is a recent photograph of “Dad Norfolk” standing in his new nest; and of the Norfolk pair.

Court Grants Wild Horse Advocates’ Motion to Intervene in State of Wyoming’s Suit Seeking Removal of Wild Horses from Range

The United States District Court for the District of Wyoming has granted our motion to intervene on behalf of the American Wild Horse Preservation Campaign (AWHPC), The Cloud Foundation, Return to Freedom, and wild horse advocates and photographers Carol Walker and Kimerlee Curyl, in a case brought by the State of Wyoming against the Bureau of Land Management (BLM).  Wyoming seeks a court order requiring the removal of hundreds of wild horses from public lands in Wyoming—a state in which fewer than 2,500 wild horses remain, which is far below the federal government’s established Appropriate Management Level for the state’s wild horse population. Our clients wanted to intervene in the case to ensure that the interests of wild horses are protected from the pro-ranching special interests and their allies in state government. The purpose of our intervention is to prevent the federal government from acceding to the State’s claims that the horses must be removed from the public lands to protect the private livestock that are allowed to graze on the same lands, and which outnumber wild horses in the state by the thousands. The Judge’s Order granted our clients intervention as a matter of right in order to protect their aesthetic, educational, and economic interests in the wild horses that roam the range in Wyoming.

Brief Filed to Conserve Endangered Songbird Habitat in Response to USDA’s Ill-Advised Use of Invasive Beetles

Today we filed our opening merits brief in Nevada against various federal agencies for their roles in deliberately releasing an invasive beetle species in the southwestern United States and then, when confronted with evidence that it was having unanticipated and severe effects on critical habitat of the endangered southwestern willow flycatcher, simply abandoning the beetle release program without implementing any mitigation measures to ameliorate the widespread harm that has been caused, and continues to occur, to flycatcher habitat as a result of previous releases.  The beetle release efforts were led by the U.S. Department of Agriculture, through its Animal and Plant Health Inspection Service, and in consultation with the U.S. Fish and Wildlife Service.  The continued spread of the beetle – which has already invaded the nesting areas of flycatchers in Nevada, southern Utah, and northern and western Arizona – is seriously threatening the flycatcher’s survival and recovery prospects, and continues to significantly and adversely modify the species’ critical habitat.  The agencies’ refusal to implement any reasonable mitigation measures to offset the harm caused by the beetle release program is especially troubling considering that USDA expressly committed itself to developing and implementing appropriate mitigation measures in the event that the beetles spread into flycatcher habitat, as now has occurred in a substantial manner.  The brief filed today can be found here.

Brief Filed to Force Big Tobacco to Finally Tell the Truth about Cigarettes

As part of the United States’ long-running consumer fraud suit against Big Tobacco, the district court ruled that the companies must run television and newspaper advertisements stating that they "deliberately deceived the American public," and then stating the truth regarding the toxicity and addictiveness of cigarettes, as well as their manipulation of cigarette nicotine levels. The statements must also appear on cigarette pack onserts and the companies’ websites.　

The companies appealed to the D.C. Circuit, arguing that such "corrective statements" violate their First Amendment rights. We have just filed a brief defending the district court’s ruling, on behalf of six public health groups, including the American Cancer Society and Tobacco-Free Kids. Our brief explains that the statements are amply supported by the court’s massive factual findings, which show that for decades the companies emphatically denied that smoking is harmful or addictive, while they not only knew these statements were false, but also manipulated cigarettes to ensure they would be addictive – and marketed "light" and "low tar" cigarettes to satisfy demand for a healthier alternative while they knew that these cigarettes are just as addictive and deadly. Oral argument is scheduled for February, 2015. Our brief is here.

Lawsuit Filed Seeking Protection for Tiny Owl, Challenging New Policy Restricting Listing of Imperilled Species

On behalf of the Center for Biological Diversity and Defenders of Wildlife we have filed a lawsuit in federal court in Arizona seeking to overturn the Fish and Wildlife Service’s refusal to list as endangered or threatened the Cactus-Ferruginous Pygmy Owl – an owl that is less than a foot long and is at grave risk of extinction from development and other impacts in the northern portion of its range in Arizona and northern Mexico. Although the Service concedes that the pygmy-owl faces myriad threats in the northern part of its range, and that this portion – called the Sonoran Desert Ecoregion – is important to the species’ conservation, the Service has refused to protect the owl under the Endangered Species Act based on a new Obama Administration policy that says, in effect, that a species must presently be at risk of extinction everywhere it exists in order for the species to gain any protection under the Act. This policy drastically reduces the number of species eligible for protection under the Act and also means that highly endangered populations in the United States will be allowed to go extinct simply because the species may be more abundant elsewhere, in direct contravention of a central objective of the ESA to safeguard wildlife for the benefit of the nation and its citizens. A copy of the Complaint is here and a press release on the lawsuit is here.

Brief Filed Asking Court To Dismiss Ranchers’ Suit Seeking Wild Horse Round-Ups

On behalf of the American Wild Horse Preservation Campaign (AWHPC), The Cloud Foundation, Return to Freedom, Utah photographer John Steele, and wild horse advocate Lisa Friday, we filed a motion asking the federal district court in Utah to dismiss a case brought by the Western Rangeland Conservation Association and Utah livestock owners against the Department of the Interior’s Bureau of Land Management (BLM). The ranchers seek to compel BLM to remove from both public and private lands in Utah hundreds of federally protected wild horses that compete with privately-owned livestock for water and forage on the range.  The livestock owners have “permits” that allow them to graze cattle and sheep on public lands, subsidized by the federal taxpayers. These grazing interests ask the court to order the removal of wild horses even though BLM has not determined that any “excess” wild horses exist in these areas. In its response to the ranchers’ suit, the government denies wild horses are damaging rangeland resources in these areas. A copy of the brief filed seeking dismissal can be found here.  

Lawsuit Filed Over California Energy Project That Threatens Regional Golden Eagle Population in Southern California

This week, we filed suit in federal court on behalf of the nonprofit Protect Our Communities Foundation and two backcountry landowners and naturalists seeking a court order that would require the Bureau of Indian Affairs to comply with the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and the National Environmental Policy Act in connection with the agency’s authorization of a lease to build an industrial wind energy project on BIA-administered lands in Southern California. Among other concerns, the project’s siting design has been repeatedly criticized by federal and state wildlife agencies as presenting an extremely high risk to federally protected golden eagles – concerns that BIA has never addressed in any public process analyzing the project’s anticipated environmental impacts or siting/operational changes that could significantly reduce eagle mortality. A copy of the complaint can be found here, and press on the filing of the lawsuit can be found here: http://www.kcet.org/news/rewire/wind/group-sues-over-wind-project-threat-to-eagles.html

NPS Settles Suit and Curbs ORV Use in Big Cypress National Preserve

Today, we entered into a settlement agreement with the National Park Service (“NPS”) on behalf of the Center for Biological Diversity, Sierra Club, WildEarth Guardians, and South Florida Wildlands Association, in which NPS agreed to close all secondary off-road vehicle (“ORV”) trails in the Turner River Unit and the Corn Dance Unit of Florida’s Big Cypress National Preserve.  The coalition of conservation organizations brought suit in 2013 after NPS opened more than 100 miles of secondary trails without conducting any analysis under the National Environmental Policy Act, the NPS Organic Act, the Endangered Species Act, or other federal environmental laws.  After the U.S. District Court for the Middle District of Florida ruled that NPS could not avoid judicial review of its legal violations merely by starting a belated environmental review process while ORV use continued to destroy the Preserve’s sensitive natural resources, NPS agreed to settle the lawsuit without further court intervention by closing the unlawfully opened trails.  A press release on the settlement can be found here: http://www.biologicaldiversity.org/news/press_releases/2014/big-cypress-09-22-2014.html