The Alaska Litigation - SCI vs. Norton
Case Description

SCI, together with two of its Alaska Chapters, other Alaska hunting and wildlife organizations and several individuals, sued the Secretaries of Interior and Agriculture and the Chairman of the Federal Subsistence Board (FSB) to challenge the federal government's administration of subsistence hunting priorities in Alaska under the Alaska National Interest Lands Conservation Act (ANILCA). The case was filed in the federal district court for the District of Alaska in Anchorage. The lawsuit attacks the process by which the federal government, through the Federal Subsistence Board, makes subsistence hunting priority determinations. The lawsuit also challenges the illegal manner in which the FSB has relied on a system of Regional Advisory Councils (RAC) as well as the unfair and illegal manner in which the federal government has excluded non-subsistence hunting interests from representation on these councils. Finally, the suit attacks several individual decisions in which the FSB excluded or restricted non-subsistence hunters hunting in certain areas of Alaska public lands.

Recent Developments

During the summer of 2002, SCI entered into settlement negotiations with the federal government, in an attempt to resolve the matter without further litigation. Although discussions continued over several months, no settlement was reached due to the government's intransigence. Nonetheless, the government has been instituting incremental changes that essentially capitulate to SCI's litigation attacks. For example, the federal government amended their regulations so that they agree with SCI's contentions with respect to the amount of evidence required for the Regional Advisory Councils to recommend subsistence priority determinations to the Federal Subsistence Board. Second, the federal government modified the selection process for RAC members, requiring the participation of non-subsistence hunting and fishing interests on each council. Most recently, the FSB has modified its meeting procedures in a way that further corrects errors pointed out by SCI's litigation challenges.

On October 21, 2002, SCI filed its Motion for Summary Judgment, presenting its factual and legal arguments to the Court. Shortly, thereafter, the Court allowed a group of Native Alaskan organizations to intervene in the suit, both to challenge SCI's claims and to wage their own battle against the federal government's decision to include non-subsistence hunting and fishing interests on the Regional Advisory Councils. On April 14, 2003, the native organizations filed their brief and the government's response to SCI's arguments and to the native organizations' arguments was filed in mid-May. On June 4, 2003, we filed our Reply brief. The case is likely to be decided some time before the end of this year.

Argali Litigation - Fund for Animals vs. Norton
Case Description

The Fund for Animals, together with several other environmental organizations, two Mongolian scientists, and a former U.S. Fish and Wildlife Service (FWS) employee, filed suit to challenge the FWS' failure to issue a final rule concerning the endangered species listing of argali from Mongolia, Tajikistan and Kyrgyzstan. The suit also challenged the FWS' policy and practice of issuing permits for the importation of argali trophies from these three countries. SCI, in a joint effort with the U.S. Sportsmen's Alliance Foundation (USSAF), was permitted to intervene in the action on behalf of the FWS. Separately, another group of wildlife organizations and hunters were also allowed to intervene. The government of Mongolia was recently allowed to join this separate group of intervenors. The suit is filed in the U.S. District Court for the District of Columbia.

After the suit was filed, the FWS issued a final rule, withdrawing the proposed listing of the argali as endangered, and reaffirming its decision to list the argali of these three countries as threatened. The Fund for Animals responded by amending its lawsuit to challenge the manner in which the FWS chooses to treat the argali of these three countries differently from the argali of the rest of the world, in which the animals are listed as endangered.

Recent Developments

During late 2002 and early 2003, together with USSAF, we reviewed the Administrative Record submitted by the FWS and submitted a Summary Judgment brief, defending the legality of the FWS' listing of argali as well as its practice and policy of allowing for importation of these animals. Our brief also attacked the Fund for Animals' "standing" or right to challenge the actions of the government. SCI and USSAF argued, among other things, that the Fund for Animals' interest in the argali of the three countries is not sufficient to allow them to ask the court to act on its behalf.

On July 31. 2003, Judge Kessler of the U.S. District Court for the District of Columbia issued her final opinion in this case. She denied the Plaintiffs' Motion for Summary Judgment and granted the Summary Judgment Motions of the Safari Club International intervention group as well as the FNAWS' intervention group. She also denied as moot the Motion for Summary Judgment of the government.

Judge Kessler agreed with SCI that the Plaintiffs in this action could not fulfill the redressability requirement for standing to sue in federal court. In order to successfully pursue litigation, a party must show that the remedies it seeks will "redress" its injuries. In this case, the Fund for Animals et al., claimed that they were being injured by the hunting of argali sheep. They asked the court to remedy their injury by requiring the FWS to stop allowing the importation of argali from Mongolia, Tajikistan and Kyrgyzstan. SCI argued, and the Court agreed, that whether the FWS allowed for this importation or not, the hunting of argali would continue. The Court acknowledged SCI's arguments that the countries of Mongolia, Tajikistan and Kyrgyzstan had the ability to and would continue to allow argali hunting in their countries, regardless of what the U.S. government allows U.S. citizens to import.

Although each of the intervenors in this action deserve to share in the success of this win as they all contributed to the standing arguments that eventually persuaded the court, it should be noted that in her opinion, Judge Kessler specifically cited SCI's brief and quoted from the affidavits provided by SCI.

The Fund for Animals is not yet ready to surrender and have already filed a Motion requesting that the Judge reconsider her decision. SCI's attorneys have responded. It is unlikely that the judge will change her decision. It is then up to Fund for Animals to decide whether they wish to appeal the decision.

Cape Cod Pheasants -- Fund for Animals vs. Mainella
Case Description

In the U.S. District Court in Massachusetts, Fund for Animals and a group of individuals challenged the National Park Service's (NPS) actions in permitting a pheasant release program on Cape Cod Seashore lands. After the Court refused the Funds' demand that the NPS be forced to stop its fall 2002 pheasant release program, the Fund regrouped and amended its suit to challenge all hunting on the Cape Cod seashore lands under NPS authority.

Recent Developments

SCI requested the Court's permission to participate in the case and has been granted leave to act as an "amicus" or friend of the Court. In this role, SCI will be permitted to submit a brief to explain legal and possibly scientific issues to the Court that will assist the Court in understanding the legality of the National Parks Service's actions in allowing hunting.

The case is now in the final briefing stages. On June 20, 2003, SCI filed its Amicus Brief. Oral argument was held on July 15, 2003. A decision is likely in late summer or early fall.

National Wildlife Refuge Hunting - Fund for Animals v. Steven Williams
Case Description

On the eve of the Centennial Celebration of the National Wildlife Refuge System, the

Fund for Animals and 20 individuals filed suit against the U.S. Fish and Wildlife Service (FWS) to challenge the Service's opening or expansion of hunting opportunities on 39 National Wildlife Refuges since 1996. Although the Fund for Animals frames its lawsuit as a National Environmental Policy Act (NEPA) procedural challenge, the case is clearly aimed at forcing the FWS to reduce or terminate hunting on the national refuges.

Recent Developments

SCI and the U.S. Sportsmen's Alliance Foundation (USSAF) moved to intervene in the case on behalf of the FWS and have agreed to coordinate their efforts and to participate as a single intervening party. On April 17, 2003, the Court granted our Motion to Intervene.

SCI hosted a meeting of hunting and wildlife organizations to discuss the lawsuit and to invite the participation of others in the joint intervention. Several organizations have expressed interest and will decide on whether they would like to participate by the end of April 2003. In May of 2003, SCI and USSAF filed a joint motion to add the Izaak Walton League, Ducks Unlimited, the California Waterfowl Association and Delta Waterfowl to our joint intervention. The judge recently approved the participation of these four additional groups. The case will now proceed and we are waiting for the Court to set a briefing schedule.

Arizona Mountain Lion Litigation

On April 16, 2003, Fund for Animals, HSUS and several other groups filed suit in the U.S. District Court in the District of Columbia to challenge a study being conducted by the Arizona Department of Game and Fish about a reintroduced population of native desert bighorn sheep. The study is funded with Pittman Robertson dollars and intends to assess the impact of the removal of 75% of the area mountain lion population on the desert bighorn sheep population. The study also involves the capture of sheep with the use of helicopters. The captured sheep are tested for immunity to illnesses and are then set free.

The Fund raises three challenges in their suit. First, they claim that the study, because it is funded with federal dollars, constitutes major federal action and thereby qualifies for National Environmental Policy Act procedures. The Fund argues that the FWS and FS failed to fulfill their NEPA requirements by not preparing an Environmental Impact Statement before conducting the study. The Fund also challenges that the Environmental Assessments that were completed for the study were insufficient.

The complaint also claims that because the study is being conducted, at least in part in a Wilderness Area, the use of helicopters violates the aircraft prohibitions included in the Wilderness Act.

Finally, the suit claims that the study does not comply with the requirements of the Wildlife Restoration Act and therefore should not have received Pittman Robertson dollars.

The suit is the likely result of a victory earned last October by Sierra Club in a case involving an elk/cougar study in Oregon. The U.S. District Court in Oregon issued a horrendous opinion, in which it decided that the use of Pittman Robertson dollars and the federal oversight required by the Wildlife Restoration Act automatically cause a state action to constitute "major federal activity." In short, the Oregon court made virtually all state action funded with Pittman Robertson dollars subject to onerous and unnecessary NEPA requirements. The federal government decided not to pursue an appeal in the Oregon case. It was decided that it was not worth the risk to place the case before the 9th Circuit Court of Appeals. The decision in the Oregon District Court would stand, but it would have no precedential value outside of Oregon.

The Fund has now brought a similar case in the U.S. District Court for the District of Columbia. The stakes here are much higher. If the Fund is successful and a precedent in D.C. set, all environmental groups could bring their Pittman Robertson cases, from any where in the country here to be litigated. It is very important that the Fund not succeed here in D.C.

One interesting note about the case is that in the Arizona study, none of the mountain lions were taken by Arizona state personnel. All the lions were taken by sport hunters as a result of a relaxation of sport hunting regulations. This is different than the study in Oregon, where all the cougar were taken by state personnel. This difference could have some significance in the court's consideration of whether the challenged part of the study constitutes "major federal action." If the challenged portion of the study was not conducted with federal funding, this could help to persuade the court to determine that federal NEPA requirements are inapplicable. The case may shed some interesting light on the interrelationships between state management and sport hunting as a management tool.

We are have collaborated with the Foundation for North American Wild Sheep and have filed our Motion to Intervene.

We have recently learned that the Fund for Animals and the government have entered into settlement negotiations to resolve this case. We await word on our Motion to Intervene and/or on the outcome of these settlement discussions.