San Francisco — A major environmental and public lands ruling was issued in federal court today upholding protections of the Algodones Sand Dunes in southern California’s Sonoran Desert. The U.S. Federal District Court in San Francisco strongly sided with Public Employees for Environmental Responsibility (PEER), the Center for Biological Diversity and other plaintiffs, and rejected the arguments of the off-road lobby and Bush Interior Department. As a result, large sensitive habitat areas of the dunes will remain protected from off-road vehicle damage.
“This is a huge win for wildlife and people who care about the desert,” said Daniel R. Patterson, Desert Ecologist with the Center for Biological Diversity. “The court wisely told BLM to wake up, follow the law, and treat the dunes with some respect.”
For years the dunes have been the scene of many controversies involving off-road vehicles and harm to endangered wildlife.
In 2000, 50,000 acres of the 180,000 acre dune area were protected for wildlife and recreation by keeping off-road vehicles in other areas. This multiple-use management has worked fairly well on-the-ground, helping the endangered Peirson’s milkvetch, desert tortoise, flat-tailed horned lizard, and other wildlife on the dunes. The off-road lobby and US Bureau of Land Management (BLM) pushed to end protection of these refuge areas, and we fought back.
“Once again BLM has been chastised for its criminal negligence of a national landmark,” said California PEER Director Karen Schambach. “We are overjoyed that the rich diversity of plants and animals will be spared.”
The Court invalidated BLM’s adoption of the Algodones Dunes plan (RAMP) because the agency failed to comply with the Endangered Species Act, National Environmental Policy Act, and Federal Lands Policy and Management Act, all key national environmental laws.
The Court found that BLM could not rely on the 2005 biological opinion permit (BO) issued by the Fish and Wildlife Service because the 2005 BO was fundamentally flawed. The Court found that the BO’s conclusions that the RAMP would not jeopardize or adversely modify habitat for the Peirson’s milk-vetch were unreasonable in light of the FWS’s own acknowledgement that the RAMP would cause significant declines in the population of the milk-vetch and continue to degrade almost half of the designated critical habitat. The BO failed to adequately address the threats to the milk-vetch to insure against jeopardy and impermissibly ignored the recovery goal of critical habitat. Importantly, the FWS could not properly rely on mitigation measures that were deferred until after significant population declines and degradation of the critical habitat had occurred in reaching its “no jeopardy” and “no adverse modification” conclusions. The BO also ran afoul of the Endangered Species Act because the incidental take statement issued for the desert tortoise failed to provide a number or other meaningful measure of the allowed take of the species and failed to included terms and conditions to minimize the impact of ORV use on desert tortoises.
The Court also found that FWS had violated the ESA in designating critical habitat for the Peirson’s milk-vetch because FWS ignored the recovery goal of critical habitat and the regulatory benefit to the species provided by the expanded scope and nature of section 7 consultations for actions that may destroy or adversely modify critical habitat. In addition, FWS improperly relied on a flawed economic analysis on to exclude almost 60% of the Peirson’s milk-vetch habitat from designation as critical habitat because the economic analysis: (1) was based on an unfounded assumption that designation would result in a 15% decline in ORV use at the Dunes; (2) included “coextensive” costs that would be incurred due to the species status as a listed species and that were not attributable to designation of critical habitat; and (3) failed to analyze and quantify public cost savings that could flow from ORV closures or reduced use of the Dunes such as reduced costs of infrastructure, enforcement, and emergency services.
The Court found that BLM had failed to comply with NEPA’s mandate that agencies take a “hard look” at the environmental impacts of any project before it is approved. BLM’s refusal to analyze any alternative that reflected the current management of the dunes – one that included the interim closures intended to protect listed species— violated NEPA because the EIS failed to provide the range of alternatives necessary for BLM or the public to make an informed, objective comparison of the alternatives. In addition, the EIS refusal to examine current management obfuscated the fact that the proposed RAMP would increase adverse impacts to the environment including special status species. The Court found that BLM also violated NEPA by failing to address the impacts of the RAMP on endemic invertebrates found only in the Dunes:
“[T]here is simply nothing in the EIS to demonstrate that the BLM even considered the existence of numerous species of endemic invertebrates, much less took a ‘hard look’ at the environmental impact of the RAMP on any of the species of endemic invertebrates.” (Slip Op. at 63).
The Court found that adoption of the RAMP violated FLPMA because it was arbitrary and capricious for BLM to approve the RAMP based on outdated and inadequate inventories of the resources of the Dunes, particularly of the endemic invertebrates. Also, BLM could not properly approve re-opening areas temporarily closed to ORV’s because it could not rely on the flawed 2005 BO to establish that the adverse effects of ORV use on the environment that initially led to the closures had been eliminated or that measures had been implemented to prevent recurrence.
“The BLM and Fish and Wildlife Service have sought to ignore the Endangered Species Act or give it a very low priority. Fortunately the court has ruled that the Endangered Species Act is the first priority,” said Elden Hughes, Co-Chair of the Sierra Club Desert Committee.