SAN FRANCISCO -- In a major victory for desert tortoise and other endangered species recovery in the California desert, federal judge Susan Illston yesterday struck down biological opinions (permits) issued by the Bush administration's Fish & Wildlife Service (FWS) that authorized extensive cattle grazing and off-road vehicle use within the 4.1 million acres of critical desert tortoise habitat located in the California Desert Conservation Area. FWS had issued its faulty opinion in response to management plans issued by the Bureau of Land Management (BLM) for the Virginia-sized Conservation Area. The BLM plans have been highly controversial and have been sharply criticized by biologists over their failure to protect endangered species' critical habitat and implement recovery plans already approved by FWS.
The Court found it illegal that the Bush FWS failed to consider the negative affects of the BLM plans on endangered species' recovery, instead looking only at survival. Recovery means increasing the size of key desert tortoise populations to the point that the species can eventually be removed from the endangered and threatened species list. In contrast, survival does not necessarily include any improvement to the health of an endangered species. "[T]he Court finds that congressional intent in enacting the ESA was clear: critical habitat exists to promote the recovery and survival of listed species…," wrote Judge Illston in her 16 page opinion and order. "Conservation means more than survival; it means recovery. The Court finds that formulating a biological opinion of "no adverse modification" "only where an action affects the value of critical habitat to both the recovery and survival of a species imposes a higher threshold than the statutory language permits." She adds, "…the biological opinion itself suggests, and the administrative record confirms, that had the Service considered the impact of the CDCA Plan on recovery alone, it might have made a different finding regarding adverse modification."
"Since the passage of the Endangered Species Act, FWS and other agencies like BLM have been actively avoiding complying with Congress' command that they take all necessary actions to recover endangered and threatened species," said Earthjustice attorney Michael Lozeau. "The federal court's ruling restores Congress' intent that critical habitat, including the desert tortoise critical habitat located in the CDCA, be managed to restore tortoises, not to subsidize grazing cows in the desert or serve as off-road vehicle highways."
"This is a very important ruling which upholds the recovery intent of the Endangered Species Act, America's most important wildlife conservation law," said Daniel R. Patterson, ecologist with the Center, who formerly worked with BLM in the CDCA. "Critical habitat works, and now FWS and BLM will have to follow the law and the public-interest in protecting critical habitat for endangered species recovery, not just survival."
"The Court's decision is a critical step in stopping habitat degradation and the killing and crushing of tortoises and their dens by cattle and off-road vehicles," explained Center attorney Brendan Cummings. "It's unfortunate it took a federal lawsuit to force FWS and BLM to read the statute and implement FWS' own recovery plan for the tortoise."
"This decision is not only an affirmation of Congressional intent for species recovery under ESA; it is a poster-child for the value ofan independent judiciary," said Karen Schambach, California Director of Public Employees for Environmental Responsibility.
By invalidating the biological opinion issued for the CDCA management plans, the remaining question in the lawsuit is what activities within desert tortoise critical habitat must be stopped or drastically curtailed.
"In order for the desert tortoise to recover from the brink of extinction, the recovery plan for the tortoise prepared by FWS must be fully implemented immediately, including its call for the complete elimination of livestock grazing and drastic reduction of off-road vehicle use on essential tortoise habitat," said ecologist Patterson.
"Recovering the desert tortoise will take a maximum effort," said Elden Hughes of the Sierra Club. "Unfortunately, the Bush Administration seems determined to do something less than minimum, but this important ruling will force them to change and follow the law."
The Bush administration's critical habitat policy is a self-fulfilling prophecy: refuse to protect critical habitat, then claim critical habitat is not protective. In striking down this illegal and illogical policy, the Court has ordered FWS to protect critical habitat at the highest level possible to ensure that it is managed to recover endangered species, not simply keep them alive.