Open to read about a recent Ninth Circuit victory and more
Open to read about a recent Ninth Circuit victory and more
RISING ISSUES
At Earthrise, we are passionate about using the law to protect and
restore the environment and the planet's natural resources, and about
training law students to become skilled environmental advocates.
Breaking News: Earthrise scores a win for condors in the Ninth Circuit!
Last Thursday, in a case brought by the Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council, the Ninth Circuit once again reversed the district court decision dismissing our case. Now our case to protect California condors and other scavengers on the Kaibab National Forest from poisoning from lead ammunition can move forward. 
“Today’s win in the Ninth Circuit pushes this important case forward, and once again rejects meritless arguments advanced by the federal government,” said Allison LaPlante, co-director of Earthrise Law Center, who argued the case before the Ninth Circuit. “The law is clear. The Kaibab can, and must, take action to protect endangered California condors from toxic lead ammunition.”
Click here to read the press release from the Center for Biological Diversity, or here, or here, to read more press coverage.

Earthrise Files Suit to Protect Recreation Near Mount St. Helens from Drilling by Canadian Mining Company

The proposed project area (Goat Mountain to the right) in the Green River Valley.
Earthrise, on behalf of the Cascade Forest Conservancy (“CFC”) filed a lawsuit against the Forest Service and Bureau of Land Management decisions to allow exploratory drilling in the Green River valley, just outside the Mount St. Helens National Volcanic Monument, a part of the Gifford Pinchot National Forest. Earthrise successfully represented CFC in a previous challenge to the same project, with a federal court vacating the agencies' prior approval decisions in 2014. CFC is opposed to the drilling due to impacts on recreation in the Green River valley, the pristine Green River, wild steelhead populations, and the water supply of downstream communities. 

The lawsuit challenges the Bureau of Land Management decision to grant permits on December 3, 2018, and a similar decision issued by the Forest Service in February 2018. The drilling permits allow Ascot Resources Ltd., a Canadian mining company, to drill up to 63 drill holes from 23 drill sites to locate deposits of copper, gold, and molybdenum. The project would include extensive industrial mining operations 24 hours a day throughout the summer months on roughly 900 acres of public lands in the Green River valley. The prospecting permits allow for constant drilling operations, the installation of drilling-related structures and facilities, the reconstruction of 1.69 miles of decommissioned roads, and pumping up to 5,000 gallons of groundwater per day.

The proposed drilling sites are located on the slopes of Goat Mountain above the Green River and just outside the boundaries of the Mount St. Helens Volcanic National Monument. Forest openings created by the 1980 eruption draw visitors to the area to view abundant elk herds and wildflowers. The Green River trail, Goat Mountain Trail, and other trails in the Green River valley have become increasingly popular with hikers and mountain bikers for their remoteness and mountain views.

Some parcels of the national forest land in question were acquired to promote recreation and conservation under the Land and Water Conservation Fund Act (LWCFA). In the previous lawsuit filed by CFC (then the Gifford Pinchot Task Force), a federal judge invalidated Ascot’s drilling permits and held that the agencies violated the LWCFA by failing to recognize that mining development cannot interfere with the outdoor recreational purposes for which the land was acquired.

Wrapping Up Another Clinic Year

This year’s Earthrise Clinic wrapped up another great year. Students enrolled in the clinic worked 10-12 hours per week on environmental cases under the supervision of an Earthrise staff attorney, in addition to participating in a two-hour class every week.

Students worked and presented on a variety of matters this year including our case addressing nonpoint source pollution in Washington under the Coastal Zone Act Reauthorization Amendments (CZARA), several cases involving government violations of the Freedom of Information Act, our Resolution Copper and Cooke Aquaculture cases, and many of our other matters. This year, we included a session on working with expert witnesses. Thanks again to Rick Hafele for participating in this class.

Rising third year law student Jesse Caldwell had this to say about her experiences working in the clinic. "Earthrise has provided me with the opportunity to dive into real litigation. This year, I was able to work on multiple aspects of a case from initial development to the drafting of various motions, all under the supervision of attorneys who are experts in the field. The clinic allowed me to obtain a more holistic view of environmental law. I truly feel that I was able to put what I've learned in the classroom during my two years of law school to practical use. I am excited to continue to work with the Earthrise team this summer as a law clerk!"

Ben Kirsch, who worked on litigation regarding clean air compliance with staff attorney Jamie Saul, cited case development as a highlight of the class. "The past year I spent with Earthrise was an amazing experience. I was lucky enough to spend my time on one project and watch it and work to develop over the year - from the background scientific and legal research to drafting the notice letter, negotiating with opposing counsel, and being a part of all the strategizing. In addition to my substantive work, our weekly classes exposed me to a wide range of topics, legal issues, approaches, and strategies. Hearing and learning how some of the best public interest environmental attorneys approach those issues while also contributing to the conversation myself built my legal skills, gave me confidence in my abilities, and prepared me extremely well for a career the field."

The clinic wrapped up with our year-end event at Lucky Labrador Brewing Company. We hope that everyone has a great summer. Best of luck to all those graduating who are studying for the bar exam.
Earthrise Secures Agreement to Extend Ban on Target Shooting in National Forest
On behalf of our client Los Padres ForestWatch (“ForestWatch”), and alongside our local counsel and Earthrise alum Maggie Hall of the Environmental Defense Center, Earthrise attorneys Tom Buchele and Kathryn Roberts successfully settled a lawsuit challenging the Forest Service’s failure to manage recreational target shooting in the Los Padres National Forest in California.

Earthrise filed suit in August 2018 in federal court in the Central District of California, alleging that the Forest Service has long ignored its own Forest Plan for the Los Padres National Forest, which calls for a ban on unmanaged target shooting, and failed to address the proliferation of litter, soil and water contamination, wildfires, vandalism, harm to endangered wildlife, and other environmental and public safety hazards caused by unmanaged target shooting.

Prior to this suit, the Forest Plan for the Los Padres National Forest adopted a standard to prohibit unmanaged target shooting in 2005, aligning the Forest with the other National Forests in southern California, which have long had such bans. However, the Forest Service never implemented the standard. ForestWatch conducted a study in 2016 and found nearly 100 such sites throughout the Forest, with damage ranging from discarded televisions, refrigerators, and other appliances that are frequently used as targets, to trees left dead or dying from repeated shooting, and shooting sites next to known nesting sites for the critically endangered California condor.

Under the terms of the agreement, the Forest Service will re-initiate formal consultation with the U.S. Fish & Wildlife Service to evaluate and reduce the impact of unmanaged target shooting on endangered species and their designated habitat throughout the Forest. Additionally, the agreement requires the Forest Service to maintain, publicize, and enforce a temporary ban on unmanaged target shooting in the Forest while the consultation is ongoing.
Earthrise Achieves Interim Settlement in Clean Water Act Suit Against the City of Medford
On behalf of our client Northwest Environmental Advocates (NWEA), Earthrise has recently secured an important interim settlement in our Clean Water Act citizen suit against the City of Medford, resolving certain claims and defenses while deferring others for future negotiations.

NWEA filed suit against the City in May 2018, alleging that effluent discharges from Medford’s Regional Water Reclamation Facility cause or contribute to violations of Oregon’s water quality standards in the Rogue River—home to one of the region’s most celebrated steelhead runs. One of those water quality standards is the “biocriteria,” which provides that “[w]aters of the State must be of sufficient quality to support aquatic species without detrimental changes in the resident biological communities.” The suit has its origins in a series of studies and reports issued between 2013-2018, which found that Medford’s pollutant discharges have contributed to detrimental ecological changes in the Rogue River such as increased nuisance algae growth and loss of macroinvertebrate abundance and diversity. In December 2018, the EPA finalized a decision to add the Middle Rogue River to Oregon’s list of “impaired waters” because of the well-documented biocriteria exceedances downstream of Medford’s outfall.

Following extensive discovery, the exchange of expert reports, and productive settlement discussions in late 2018 and early 2019, NWEA and Medford reached an agreement in May to stay the litigation so that the parties can work cooperatively on the water quality monitoring, data analysis, and technological assessments necessary to achieve a complete resolution of all of NWEA’s claims. The substantive terms of the interim settlement will remain confidential through April 2020, but Earthrise expects to focus its efforts during the coming months on developing one or more remedy proposals that will ensure Medford’s compliance with the biocriteria and the Clean Water Act going forward.

Earthrise attorneys Jamie Saul and Lia Comerford represent NWEA in the case.

In This Issue

  • Protecting the Gifford Pinchot National Forest from mining
  • Clean Water settlement with the City of Medford
  • Earthrise extends National Forest shooting ban
  • An administrative record dspute win
  • Navy FOIA
  • Another clinic year wraps up
Donate Now!
Please become a monthly donor of Earthrise to help sustain our important work!
Earithrise Files FOIA Lawsuit Over Navy Withholdings
On May 2nd Earthrise, on behalf of the National Parks Conservation Association (NPCA), filed a lawsuit against the U.S. Department of the Navy for repeatedly withholding information regarding its “Growler” jet training activities over Olympic National Park. This action is a result of the Navy’s failure to fully respond to numerous public information requests from NPCA under the Freedom of Information Act (FOIA). NPCA initially submitted a FOIA request back in 2016 to determine the impacts of the Navy’s training exercises over one of the quietest places in the lower 48 states. The lawsuit was filed in the U.S. District Court for the Western District of Washington in Seattle.

One reason NPCA initially sought documents under FOIA was to help it prepare comments on proposals like the Navy ‘s release of a Draft Supplemental Environmental Impact Statement in late March that supposedly analyzes the impacts of the Navy’s training operations over the Olympics to 2025 and possible increases in the frequency of those flights.

Olympic National Park is the most popular national park in the Northwest, attracting over 3.1 million visitors in 2018, and is consistently regarded as the “least noise-polluted” place in the lower 48 states. The significance of this park has not gone unrecognized, leading to a World Heritage Site designation for its unique landscape and environment of international significance. In addition to the exceptional quiet of this site, the park is full of natural sounds, such as the whistles of the Olympic Marmot and bugling call of the Roosevelt Elk. However, the tranquility of the park has already been disrupted by the periodic roar of Navy Growler jets, one of the loudest aircraft in the skies. The latest proposal from the Navy could intensify this deafening roar by increasing the number of flights over the Olympics to 5000 per year. NPCA has long fought to protect the soundscape for the wildlife and park visitors who come here to enjoy the peace and solitude.  

In addition to Earthrise attorneys Tom Buchele, Kevin Cassidy, and Morgan Staric, NPCA is represented by Earthrise alum Claire Tonry of Smith & Lowney PLLC in Seattle. 

The Hoh Rainforest in Olympic National Park is considered one of the quietest places in the lower 48 states.

Earthrise Prevails in Administrative Record Dispute with EPA and U.S. Army Corps of Engineers

Earthrise, on behalf of the Waterkeeper Alliance, Center for Biological Diversity, Center for Food Safety, and several other environmental NGOs, recently prevailed in a motion to complete the administrative record in our ongoing litigation over the 2015 Clean Water Rule and 2018 Applicability Date Rule. Those rules relate to controversial efforts by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to re-defined the phrase “waters of the United States” as used in the Clean Water Act, thereby curtailing which waters are subject to the statute’s protections.

In our motion, Earthrise disputed the sufficiency of the administrative record prepared by the agencies, and in particular sought to have eight specific, long-published Army Corps memoranda added to the record. At issue in the motion was the scope and application of the “deliberative process” privilege, a strain of executive privilege that has been invoked with increasingly frequency during the Trump Administration to shield agency documents from public or judicial scrutiny.

The agencies argued that the Army Corps memoranda reflected internal agency deliberations and were therefore properly excluded from the administrative record—even though the agencies had never invoked the deliberative process privilege or attempted to justify it on a document-by-document basis, as is their obligation under Ninth Circuit law. Earthrise successfully argued that, even if the deliberative process privilege had been properly invoked by the agencies, the Army Corps memoranda should nonetheless be added to the administrative record for this case because they are highly relevant to the litigation; contain information not found anywhere else in the record; and because disclosure would not chill future agency deliberations. In her order granting our motion in full, U.S. Magistrate Judge Sallie Kim recognized that the Army Corps memoranda were of central importance to our case and, since they were “polished memoranda . . . by senior Corps officials,” their disclosure would not “hinder frank discussion” within the agency.

The Court’s order requiring the agencies to include the Army Corps memoranda to the administrative record is an important early victory in the case, and provides a further rebuke to the federal government’s mis-use and abuse of the deliberative process privilege.

Earthrise attorney Jamie Saul represents the plaintiffs in the case, along with local counsel Adam Keats of the Center for Food Safety.


Earthrise Law Center at Lewis & Clark Law School 10015 S.W. Terwilliger Blvd. | Portland, OR 97219 US
powered by emma
Subscribe to our email list.