small victories

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of course..they are still trying to gut the endangered species act...

 

Algodones Dunes Will Stay Protected From Off-Road Excess

 

March 15, 2006 — By the Center for Biological Diversity

 

SAN FRANCICSO, Calif. — A giant environmental and public lands ruling was

issued in federal court yesterday upholding protections of the Algodones Sand

Dunes in southern California's Sonoran Desert. The court strongly sided with the

Center for Biological Diversity and other plaintiffs, and rejected the

anti-conservation arguments of the off-road lobby and Bush Interior Department.

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 milk-vetch, 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 Karen Schambach, Public Employees for Environmental

Responsibility's California Director. " 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 to exclude almost 60 percent 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 percent 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. As the Court put it:

" {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.

 

Contact Daniel R. Patterson for a copy of the ruling.

 

The Center for Biological Diversity is a nonprofit conservation organization

with more than 18,000 members dedicated to protecting endangered species and

wild places through science, policy, education, and environmental law.

 

Contact Info:

 

Daniel R. Patterson, Desert Ecologist

Tel : 520.623.5252 x306

E-mail : dpatterson

 

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