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.

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.

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.

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!

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.

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.