Earthrise Alum Jesse Buss Makes Our Arguments to Save Walton Lake’s Old Growth Forest Before the Ninth Circuit
| |
| Jesse Buss snaps a selfie of himself with co-counsel Tom Buchele and Bridgett Chevallier outside of Nakamura Courthouse in Seattle.
| |
|
On March 30th Jesse Buss (2012 Earthrise alum) presented oral argument before the Ninth Circuit in Seattle, urging the court to leave in place an injunction preventing the Forest Service from logging hundreds of old-growth firs surrounding the popular Walton Lake area in Oregon's Ochoco National Forest. Jesse’s co-counsel Earthrise Clinical Professor Tom Buchele and Bridgett Chevallier (2020 Earthrise alum and former legal fellow) were at counsel’s table for the argument.
Earthrise and Jesse Buss, representing the Blue Mountains Biodiversity Project, have been working to save the Walton Lake old growth firs since 2015. We successfully obtained preliminary injunctions against the proposed logging in 2016 and 2020. However, quite unexpectedly, in September of 2022, the district court judge abruptly reversed himself, denied all but one of our claims when ruling on the parties’ summary judgment motion, and then initially indicated he would dissolve the 2020 injunction that barred any logging of large trees. We were able to convince the district court to leave the existing injunction in place long enough for us to seek emergency relief from the Ninth Circuit. In October, the appellate court granted us a stay of the district court’s order dissolving the injunction until it could fully consider the merits of our claims. We hope for a ruling this year.
| |
| Saving Southern Sea Otters
| |
|
Earthrise recently assisted Environment America, Environment Oregon, and Environment California in drafting and submitting comments to U.S. Fish and Wildlife Service asking the Service to make a negative determination on a petition to delist the Southern sea otter from the Endangered Species Act. Southern sea otters, one of three subspecies of sea otters, historically ranged from present-day Punta Abreojos, Baja California, Mexico, to as far north as southern Oregon. An estimated 16,000 to 20,000 sea otters are believed to have resided in the area that is now California, but as a result of the fur trade in the 18th and 19th centuries, the species was extirpated throughout most of its range. Approximately fifty individuals survived near Brixby Creek in Monterey County, California.
Sea otters’ conservation status has only marginally improved since their original ESA listing in 1977. After forty-six years of federal protection under the ESA, the subspecies’ range has only expanded a mere three percent, from about 10 to 13 percent of its historic range. The estimated population today is 2,962 animals range-wide.
The current threats to southern sea otters’ habitat and range are largely byproducts of climate change, specifically warming ocean temperatures. These threats include an increase in shark-bite mortality (the seasonal period in which white sharks interacted with otters quadrupled between 1997 and 2017, from two to eight months) and a decrease in kelp forests due to warming ocean temperatures (otters use areas with kelp canopies for foraging, resting, and protection from predators). Other threats include human disturbance (e.g., kayakers), infectious disease, pollution (including from oil spills), and vessel strikes.
Read more about the threats to the Southern sea otter and why USFWS should not remove them from the ESA by reading the comments here (see "Comment from Environment America Research & Policy Center"). Thanks to Professor Dan Rohlf (Of Counsel at Earthrise) and Earthrise students Caitlin Dols (3L) and Sowmiya Raju (2L) for their excellent work on this matter.
| |
Continuing our Campaign to Protect Māui Dolphins
| |
| Photo courtesy of Sea Shepherd
| |
|
At the end of November 2022, Earthrise had a big win when we obtained a preliminary injunction in our lawsuit on behalf of Sea Shepherd New Zealand and Sea Shepherd Conservation Society seeking to protect the Māui dolphin, a critically endangered dolphin found only in waters around New Zealand's North Island. We brought suit against the United States under the Marine Mammal Protection Act because commercial set net and trawl fisheries that overlap with Māui dolphin habitat result in injury and death to dolphins in excess of United States standards. Most recent estimates suggest only 48 to 64 individual dolphins over the age of one year remain, and the biggest threat to the species' survival is bycatch in these fisheries.
Judge Gary Katzmann of the United States Court of International Trade found that Sea Shepherd is likely to succeed on two of its claims and entered an injunction immediately banning the import of nine fish species caught in Māui habitat off the west coast of New Zealand’s North Island that are caught in the set net and trawl fisheries. The preliminary import ban will remain in place until the United States makes a valid finding that New Zealand’s regulatory program for fisheries is comparable in effectiveness to the U.S. regulatory program or until the court case is resolved. Judge Katzmann also denied a subsequent motion from New Zealand to delay the implementation of the import ban until February 2023. The case is ongoing.
As always, Earthrise clinical students and fellows were instrumental to this success, including students Jenny Davies, Claire Deuter, Kassie Kometani, Amy Kraitchman, Sadie Normoyle, Jocelyn Phares, Colin Reynolds, and Caitlin Stiltner, and former Legal Fellow Danielle Replogle, who argued for the preliminary injunction before the Court of International Trade. Earthrise attorneys Allison LaPlante, Kevin Cassidy, and Lia Comerford, and Earthrise Legal Fellow Alex Houston, represent Sea Shepherd in this matter.
| |
Glen Canyon Litigation Moves on to the Ninth Circuit
| |
|
Earthrise’s legal challenge to the Long Term Management Plan for the Glen Canyon Dam is now before the Ninth Circuit Court of Appeals. Earthrise clinical professors Jamie Saul and Tom Buchele filed this National Environmental Policy Act (NEPA) case in the District of Arizona in 2019, alleging that the Bureau of Reclamation’s Environmental Impact Statement (EIS) failed to account for the most likely and severe consequences of climate change. Our clients are Save the Colorado River, Living Rivers, and the Center for Biological Diversity. In 2016 when the EIS and management plan were finalized multiple, published scientific articles projected significant decreases in river flows for the Colorado River because of the “hot drought” caused by climate change. Although our clients pointed out this science in their comments on the EIS, the final document continued to rely only on river flow projections based on historical data, which significantly understated the likely, much harsher impacts of the higher temperatures and increased evaporation caused by climate change.
Unfortunately, in late December the district court ruled for the federal agency defendants on the parties’ cross-motions for summary judgment. We appealed in February, and we are currently working on our opening brief, which is due in June. The harsh realities of climate change and the Bureau of Reclamation’s recent emergency actions have underscored just how right our clients were in 2016 and 2019 when they urged the agency to redo its NEPA analysis in light of the most recent, scientific projections regarding climate change impacts on the Colorado River and Lake Powell. In 2022 the reservoir behind the Glen Canyon Dam was only about 25% full, dangerously close to “dead pool,” and the Bureau issued multiple emergency orders decreasing water releases and beginning analysis regarding measures to address the entirely predictable water shortages. We have always assumed that this case would have to be resolved by the Ninth Circuit, and now that is where we continue this important fight.
| |
|
|
In this Issue- Two arguments before the Ninth Circuit
- California Condors
- Sea Otters
- Māui dolphin
- An update on Yosemite Logging
| |
|
Thank you to everyone who donated to Earthrise on Lewis & Clarks Day of Giving. We received enough gifts to unlock a $5,000 match from the Law Office of Karl G Anuta '86. Thank you, Karl!
If you missed the Day of Giving you can still donate by clicking the button above.
| |
Earthrise Travels to San Francisco in May to Argue the Yosemite Logging case before the Ninth Circuit
| |
|
Earthrise Clinical Professor Tom Buchele, representing the Earth Island Institute, will argue before the Ninth Circuit in San Francisco on May 9th, urging them to impose a preliminary injunction on the National Park Service’s decision to log extensively within Yosemite National Park as part of its misguided effort to reduce the severity of future wildfires by logging large trees. Tom will be joined by Earthrise Legal Fellow Haley Nicholson and recent Earthrise alum and previous Legal Fellow, Bridgett Chevallier, who worked on the case during her Earthrise fellowship.
Earthrise was first approached about the Park Service’s logging in May of 2022 when our client saw logging trucks in the Yosemite Valley. Although the Park Service was not forthcoming about the specifics of its logging, Earthrise summer interns Lydia Dexter, Casey Bage, Devon Guyer, and Greg Allen were able to learn enough details for us to determine that the Park Service’s actions violated NEPA and the Organic Act. They are using a categorical exclusion to approve site-specific actions, with no publicly available analysis of the logging’s impacts. Moreover, the most recent science indicates that logging large trees to reduce the severity of future wildfires does not work, can actually make such fires worse, and causes unnecessary harm to important wildlife habitat. Such ineffective efforts distract from the actions the Forest Service could be taking to harden the areas around structures and to modify those structures to reduce their flammability.
Despite this science and some favorable, recent Ninth Circuit case law, the district court denied our motion for a preliminary injunction in September. We immediately appealed. While that appeal has been pending, record snowfall in the Sierra Nevada Mountains has halted the Park Service’s logging.
| |
| | Conserving California Condors
| |
|
In February, Earthrise Legal Fellow, Alex Houston traveled to San Francisco for oral argument before the Ninth Circuit in the third appeal of our long-running RCRA case against the Forest Service. This case aims to protect the critically endangered California condor and other wildlife in the Kaibab National Forest from the ongoing problem of lead poisoning due to spent ammunition left in the environment. Alex has been involved in this case since the beginning of his fellowship and took the lead role in authoring the recent round of briefing to the Ninth Circuit. Alex did a great job addressing the panel's questions and addressing not only the arguments of the Forest Service but also those of the intervening gun organizations the NRA, NSSF, and the Safari Club. We appreciate our clients Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council for giving him the opportunity to get his first appellate argument under his belt. We are hopeful for a positive decision that will allow this long-delayed case to finally move forward!
| |
|
