Major Victory for Tribes, Conservation Groups, and Historic Preservation

On behalf of our clients, the Center for Biological Diversity and Archaeology Southwest, and two Native American Tribes, the Tohono O’odham Nation and the San Carlos Apache Tribe, we obtained a major legal victory today from the U.S. Court of Appeals for the Ninth Circuit in our lawsuit challenging the Bureau of Land Management’s (“BLM”) authorization of the partial construction of the SunZia Southwest Transmission Project (“the Project”) through the heart of the San Pedro Valley, an area that holds immeasurable significance to the two Tribes. Specifically, Plaintiffs’ lawsuit challenges BLM’s failure to engage in a lawful Section 106 consultation process to properly identify historic properties—including the traditional cultural properties within and comprising the San Pedro Valley—and consider alternatives to avoid the Project’s adverse effects to those properties, as required by the National Historic Preservation Act (“NHPA”). The Ninth Circuit found that BLM’s Limited Notices to Proceed (“LNTPs”) authorizing construction to commence in the Valley constituted judicially reviewable final agency action under the Administrative Procedure Act. Accordingly, the Ninth Circuit concluded that Plaintiffs’ lawsuit, filed mere months after BLM issued the LNTPs, is timely and must be allowed to proceed. Plaintiffs’ challenge has been remanded to the District Court for the District of Arizona for further proceedings. The Ninth Circuit’s decision can be read here.

*Photo courtesy of Archaeology Southwest (link with photo)

Federal Court Strikes Down BLM Adoption Policy that Leads to Slaughter of Wild Horses

On behalf of the American Wild Horse Campaign, two wildlife sanctuaries, and several individuals, we obtained a major legal victory today invalidating the Bureau of Land Management’s (“BLM”) Adoption Incentive Program, which pays taxpayer dollars to incentivize the adoption of federally protected wild horses by private individuals. Investigations (including by the New York Times) have shown that BLM’s adoption program has resulted in hundreds of wild horses being sold into slaughter by their adopters, meaning that these adopters are not only pocketing $1,000 per horse in taxpayer dollars but then also obtaining the proceeds of private sales that lead to the slaughter of these animals in a manner that is prohibited by federal law. The ruling by the U.S. District Court for the District of Colorado found that BLM’s adoption program violates the Administrative Procedure Act and the National Environmental Policy Act in various ways. More information can be found in this press release.

*image courtesy of AWHC

Historic Settlement to Restore, Enhance, and Improve the Poudre River in Colorado

Yesterday, we signed a settlement agreement on behalf of Colorado-based conservation organization Save The Poudre, which requires the developer of the Northern Integrated Supply Project to invest $100,000,000 in projects and measures to restore, enhance, and improve the quality of the Poudre River in and near Fort Collins, Colorado. More information can be found in Save The Poudre’s press release. This hard-fought settlement ends a more than 20-year battle by Save The Poudre with respect to this project (including the dismissal of the federal Clean Water Act and National Environmental Policy Act lawsuit our firm brought on behalf of the organization in early 2024). This historic settlement is one of the largest river conservation settlements in U.S. history for a river of this size.

(*image courtesy of Save The Poudre)

Major New Lawsuit Filed and Groundbreaking Legal Victory in Another

This has been an unusually busy week. On Monday — Indigenous Peoples’ Day — we filed suit on behalf of the Standing Rock Sioux Tribe, in its continued effort to bring justice to the Tribe in its effort to fight against the Dakota Access Pipeline that continues to operate without lawful authorization under federal law. Today, in another matter, the U.S. District Court for the District of Colorado issued a precedential opinion holding that the U.S. Army Corps of Engineers violated the Clean Water Act and the National Environmental Policy Act in authorizing the massive expansion of Gross Reservoir in Colorado and the diversion of significant amounts of water from the headwater streams of the Colorado River.

D.C. Circuit Victory Protects Colorado Communities and Rivers

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Surface Transportation Board's ("Board's") authorization for the construction of a new railroad line in Utah that was designed to support new crude oil wells in the Uinta Basin. In reaching that outcome, the D.C. Circuit agreed with many of the points we raised in an amicus brief prepared on behalf of a coalition of Colorado cities, towns, and counties that opposed the railroad and the faulty environmental analysis underlying the Board's authorization. For instance, the Court rejected as "utterly unreasoned" the Board's decision to forgo an analysis of the increased wildfire risk in Colorado caused by increased rail traffic because that traffic is not a new kind of "ignition source." The Court's decision, a copy of which is available here, is a victory for our clients and all those communities situated along Colorado's I-70 corridor.

Eubanks & Associates Promotes Lizzie Lewis to Senior Associate!

Eubanks & Associates, PLLC is pleased to announce that it has promoted Lizzie Lewis to the role of Senior Associate. Lizzie has been and Associate with E&A since its formation in 2019, and prior to that was an Associate with our predecessor firm Meyer Glitzenstein & Eubanks LLP. Lizzie is a nationally recognized expert in ocean, marine, and coastal law, and she frequently teaches, writes, and litigates issues involving marine mammals, fisheries, and the integrity and health of the ocean ecosystem. She also specializes in federal litigation involving public lands management, endangered species and habitat conservation, river and wetland preservation, and open government law. Congrats, Lizzie!

Preliminary Injunction Halts Burning and Logging in the Hoosier National Forest

Today, on behalf of the Monroe County Board of Commissioners, Indiana Forest Alliance, Hoosier Environmental Council, and Friends of Lake Monroe, our firm obtained a preliminary injunction from the U.S. District Court for the Southern District of Indiana. The court’s order — found here — halts the U.S. Forest Service from commencing prescribed burns, herbicide application, and logging across nearly 15,000 acres of the Hoosier National Forest over the next two decades. The court found that our clients are likely to prevail on their claims that the Forest Service failed to adhere to the National Environmental Policy Act before approving this massive project, and it also affirmed that our clients were likely to suffer irreparable harm in the absence of injunctive relief. The court order will prevent significant, permanent harm to both Lake Monroe (which provides drinking water to nearly 150,000 Indiana residents) and to the public lands, wildlife, and recreational users of Indiana’s only national forest.

Photo courtesy of the Indiana Forest Alliance (https://indianaforestalliance.org/2018/05/04/what-you-can-do-to-fight-a-major-new-attack-on-the-hoosier-national-forest/)

Bill Eubanks receives major environmental law award

Here is a message we sent to our firm’s supporters today:

I am writing to express my immense gratitude for your collective role in helping me receive the Kerry Rydberg-Jack Tuholske Award for Excellence in Public Interest Environmental Lawyering at this year's Public Interest Environmental Law Conference. This award is considered one of the highest recognitions in our field, and I am deeply humbled to be a recipient. When accepting the award, I explained that it takes a village to successfully practice law in the public interest, and I am forever grateful to all of you -- clients, colleagues, and friends -- who have supported our firm (and our predecessor firm) for the past 30 years. I would not have received this award if you had not believed in and placed your trust in our firm to handle your important legal matters. I am truly honored to be able to work with each of you and to have you in our firm family. In reality, this award belongs to all of us, in recognition of our collective work to use the law today to make our planet better tomorrow. Thank you for continuing to work with and support our firm!

Park Advocates Urge EPA to Protect Big Cypress National Preserve from Oil and Gas Damage

On behalf of National Parks Conservation Association, we recently requested that the Environmental Protection Agency (“EPA”) exercise its authority under Section 404(c) of the Clean Water Act to restrict dredge and fill permits for future oil and gas exploration and extration activities in the fragile ecosystem of Florida’s Big Cypress National Preserve. If EPA agrees to do so, it would mark the first time EPA has exercised this authority within the borders of a national park. The letter contends that action by EPA is imperative to avoid unnecessary adverse effects to wetlands, hydrologic functions, many protected and other species, and wildlife habitat that are vital to the Greater Everglades Ecosystem. More information about the request, as well as a link to the letter itself, can be found here.

Photo Courtesy of National Park Service, https://www.nps.gov/bicy/planyourvisit/things2do.htm

DC Circuit Brief Filed to Force Analysis of Risks of Oil Train Derailment, Wildfires, and I-70 Closures in Colorado

On behalf of a coalition of Colorado cities, towns, and counties, our firm prepared an amicus brief in support of a challenge to the Surface Transportation Board's authorization for the construction of a new railroad line in Utah that is designed to support new crude oil wells in the Uinta Basin. Although the railroad would be constructed in Utah, 90% of the new rail traffic would pass through Colorado's otherwise quiet, yet treacherous, Central Corridor on heavy, mile-long tanker-trains that, in the Board's own estimate, will result in at least one accident per year. Despite this, the Board failed to meaningfully analyze whether its decision will create a higher risk of wildfires in the demonstrably fire-prone Central Corridor. The Colorado communities that will be most impacted by the Board's decision are understandably concerned and have asked the Board to take a "hard look" at the decision before it leaves the station. Additional details about the project can be found in the brief, a copy of which is available here.

Photo credit: Debris Flow Covering Eastbound Lanes of I-70 in Glenwood Canyon, July 3, 2021: Grizzly Creek Flooding and Debris Flows, U.S. GEOLOGICAL SURV. (Aug. 24, 2021), https://bit.ly/3yTRqdA

Challenge Filed to EPA Permit for Nation's First Offshore Aquaculture Project (Fish Farm)

Last week, on behalf of our clients Food and Water Watch, Recirculating Farms Coalition, Center for Food Safety, Sierra Club, Healthy Gulf, Suncoast Waterkeeper, and Tampa Bay Waterkeeper, we filed a lawsuit challenging the Environmental Protection Agency’s (“EPA”) issuance of a National Pollutant Discharge Elimination System (“NPDES”) Permit to Ocean Era, Inc., for the Velella Epsilon offshore aquaculture facility to be constructed and operated in federal waters of the Gulf of Mexico. Specifically, this lawsuit alleges that the EPA failed to comply with the National Environmental Policy Act (“NEPA”) when issuing the NPDES Permit. The Velella Epsilon is the first fish farm in federal waters off the contiguous United States, and is a pilot project expressly intended to demonstrate the feasibility of commercial offshore aquaculture and spur its further development in federal waters. Yet, in issuing this precedent-setting permit, the EPA failed to conduct a rigorous review of the environmental impacts associated with the construction and operation of an offshore aquaculture facility. Nor did the agency meaningfully examine the impacts of expanding offshore aquaculture in federal waters. EPA thus failed to take the hard look at environmental impacts that NEPA requires. A copy of the Petition can be found here.  

Photo Credit: NOAA Fisheries

 

Major Tenth Circuit Win Clarifies Judicial Review of Clean Water Act Section 404 Permits

On behalf of six conservation organizations — Save The Colorado, Living Rivers, Waterkeeper Alliance, The Environmental Group, WildEarth Guardians, and Sierra Club — our firm obtained a major victory from the U.S. Court of Appeals for the Tenth Circuit, which has nationwide precedential implications. At issue in the case is the question of where litigants must bring challenges to Section 404 permits issued by the U.S. Army Corps of Engineers pursuant to the Clean Water Act (“CWA”), where the permit applicant must also separately secure a license from FERC under the Federal Power Act. Applying the applicable statutory terms and controlling authority, the Tenth Circuit held that challenges to CWA Section 404 permits must be pursued in federal district court (rather than federal courts of appeal). The court did not set forth a new test, but rather firmly cemented in a clear and direct way what is already unambiguous in the Federal Power Act’s own text and cases construing that statute. Indeed, the Tenth Circuit’s ruling is the only outcome that can be squared with Congressional intent and controlling precedent. The opinion can be found here.

Photo Credit: Colorado River Connected

Another Lawsuit Filed to Protect the Mount Graham Red Squirrel—United States’ Most Endangered Mammal

On behalf of our clients, the Center for Biological Diversity, Maricopa Audubon Society, and Mount Graham Coalition, we recently filed a lawsuit challenging the U.S. Forest Service and U.S. Fish and Wildlife Service’s chronic failure to protect and ensure the recovery of the Mount Graham Red Squirrel in violation of the Endangered Species Act (“ESA”). This suit represents another in a series efforts by our firm on behalf of these conservation organizations to obtain meaningful protections for the squirrel, which is now considered “the United States’ most endangered breeding population of terrestrial mammal.” Merrick et al., Endemic Population Response to Increasingly Severe Fire: A Cascade of Endangerment for the Mt. Graham Red Squirrel, 71 BioScience 161, 162 (2021). The lawsuit alleges numerous violations of the ESA that arise from the federal government’s authorizations for vacation homes and a summer camp which are located in the scant remaining habitat for this critically imperiled species. For example, despite previously acknowledging the necessity of stringent setbacks around the squirrels’ middens (i.e., the focal points of the squirrels’ territories), the Defendant agencies have now decided—without explanation—to allow the species to be harassed within these important zones. The government’s disregard for the species is further evident in the terms of the Biological Opinions, which have been structured to wash the government's hands of any meaningful or transparent oversight in the future. More details about the plight of this species and the scope of the lawsuit can be found in the copy of the complaint—available here.

Objections Filed Against Major Logging Proposal in Monongahela National Forest

On behalf of our clients Save the Blackwater and the Center for Biological Diversity, we submitted objections to the U.S. Forest Service’s proposed Upper Cheat River Project, which would authorize timber harvesting and proscribed burning on over 4,300 acres of the Monongahela National Forest. The Monongahela encompasses one of the most ecologically diverse areas in the United States and provides habitat for several federally-listed endangered and threatened species, including the threatened Northern long-eared bat (which has been recently proposed for uplisting from threatened to endangered under the Endangered Species Act (ESA)) and the endangered Indiana bat. The Forest Service plans to conduct logging and burning in the watershed of Upper Cheat River. However, the Forest Service's Final Environmental Assessment (EA) for the proposed project fails to seriously consider how the agency's actions may harm the environment, including by contributing to greenhouse gas emissions, contributing to erosion and slope instability, and degrading or destroying the habitat of vulnerable species. Most glaringly, the Forest Service failed to consider any alternatives to the proposed project and in fact, refused to consider the no action alternative, which is required in any environmental analysis under the National Environmental Policy Act (NEPA). As a result, the Final EA effectively considers the environmental impacts of the project in a vacuum, depriving the agency and the public of the context necessary to meaningfully evaluate whether the purported benefits of the project outweigh the adverse environmental effects. The objections also explain that a full Environmental Impact Statement is required to analyze the Upper Cheat River Project's significant impacts on the Northern long-eared bat. The Forest Service must delay a final decision on the proposed project until it conducts a legally-compliant NEPA process that takes the required hard look at the impacts of the project and its alternatives. A copy of the objections can be found here.

Photo Credit: Kelly Bridges, U.S. Forest Service

Major Victory to Remove Trespass Cattle from the San Pedro River National Conservation Area

In response to an Endangered Species Act lawsuit our firm filed in 2021 on behalf of the Center for Biological Diversity and Maricopa Audubon Society, the Bureau of Land Management recently agreed to settle the case by providing significant protections for the highly endangered plant species known as the Huachuca water umbel. This major environmental victory will also conserve other imperiled wildlife and plant species in the San Pedro Riparian National Conservation Area. A press release and link to the settlement can be found here.

E&A argues at the 10th Circuit to Preserve Judicial Review of Section 404 Permits

Earlier this week, Bill Eubanks of Eubanks & Associates, PLLC represented six conservation groups in a Tenth Circuit oral argument seeking to ensure that federal district courts may review the legality of Clean Water Act permits issued by the U.S. Army Corps of Engineers under Section 404. The district court held that it lacked jurisdiction to hear this challenge, due to the intersection of the Corps’ Section 404 permit with a separate license issued by FERC under the Federal Power Act (which vests judicial review in federal courts of appeal). The outcome of this appeal will have far-reaching implications for judicial review of Section 404 permits in other contexts. The link to the oral argument can be found here.

NEPA Suit Filed Against the Postal Service on Behalf of UAW

On behalf of our client, the International Union, Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), and in cooperation with the Natural Resources Defense Council, we recently filed a lawsuit challenging the United States Postal Service’s failure to comply with the National Environmental Policy Act (“NEPA”) when considering its plan to acquire a fleet of new vehicles. The lawsuit alleges that the Postal Service failed to take the hard look that NEPA requires at obvious environmental impacts and alternatives to reduce those impacts. For example, despite knowing that these vehicles would be produced at a new—and likely non-unionized—facility in South Carolina, USPS never analyzed any environmental or socioeconomic impacts associated with where or how its new vehicles would be built. Likewise, the Postal Service refused to consider any alternatives proposed by the public that would be better for the environment and workers. A copy of the complaint can be found here.

Court Invalidates Forest Service Logging and Burning Plan

In a victory for our clients—the Monroe County Board of Commissioners, Indiana Forest Alliance, Hoosier Environmental Council, and Doctor Paul David Simcox—the U.S. District Court for the Southern District of Indiana invalidated a plan by the United States Forest service (“USFS”) to log and burn thousands of acres in the Hoosier National Forest. The court found that USFS violated the National Environmental Policy Act by failing to consider the impacts from its actions on Lake Monroe, which is a unique and irreplaceable resource that serves as the only source of drinking water for over 120,000 people. A copy of the court’s ruling can be found here.