California Dunes Plan Largely Ducks Challenge


     SAN FRANCISCO (CN) - Environmentalists largely failed to persuade a federal judge that rare plants and animals in California are at risk under the government's administration of the Imperial Sand Dunes.
     Brendan Cummings, senior counsel for Center for Biological Diversity, said in an interview that the U.S. Bureau of Land Management's plan "rolls back Clinton-era protections, harms imperiled species, diminishes air quality and destroys wilderness values."
     We are disappointed that the court upheld an ill-advised and unworkable management plan for one of the most ecologically sensitive areas of California," Cummings said.
     Given that the environmental rollbacks will not take effect until this fall, the Thrusday ruling from U.S. District Judge Susan Illston "is by no means the last word on this issue," Cummings added.
     "We are still evaluating an appeal and other legal options," he said.
     Located east of the Imperial Valley in the southeastern corner of California near the border with Arizona, the Imperial Sand Dunes begin about 11 miles east of Calipatria, Calif., and stretch approximately 40 miles south toward the Mexican state of Baja California.
     The dunes were formed by the windblown beach sands of Lake Cahuila, an ancient body of water that once covered most of the region. Federal officials note that the prevailing westerly and northwesterly winds bring the dunes east at about 1 foot per year.
     Popularly known as Glamis, the dunes attract off-road vehicle enthusiasts, horseback riders and hikers.
     The dispute sprang from a 2005 biological opinion that the U.S. Fish and Wildlife Service prepared for a 2003 management plan of the recreation area.
     A court's finding about the endangered desert tortoise and Peirson's milk-vetch, a broom-like perennial with small purple flowers, force the Bureau of Land Management to revise its management plan in 2013.
     The new plan closed the Algodones Dunes Wilderness to off-highway vehicle use and established more than 9,000 acres of habitat for the Peirson's milk-vetch.
     The service in turn issued a new biological opinion concluding that there was no threat to the desert tortoise or Peirson's milk-vetch.
     Environmentalists claimed, however, that the biological opinion did not include an incidental take statement for the Peirson's milk-vetch. They also accused the service of illegally postponing the preparation of a recovery plan for the plant.
     Finding that take, or harm, as defined in the Endangered Species Act applies only to fish and wildlife, Illston upheld the decision not to prepare an incidental take statement for Peirson's milk-vetch.
     The government argued that no court has ever interpreted section 7 of that law to apply to plants as well as fish and wildlife, and it said that the protections afforded by section 9 are from malicious intent rather than incidental action.
     Illston did side with the environmentalists, however, as to its claim that the service delayed preparations of a recovery plan for the Peirson's milk-vetch, which it listed as endangered in 1998.
     "The court is very concerned about the FWS's [Fish and Wildlife Service] failure to issue a recovery plan for the PMV [Peirson's milk-vetch]," Illston wrote. "However, the delay does not involve human health and welfare, and in recent years the FWS has devoted resources to recovery work for the PMV, such as responding to two delisting petitions, preparing two status reviews, and preparing the seed bank sampling protocol."
     Illston declined to order a recovery plan for Peirson's milk-vetch within two years, however, since such a requirement could interfere with the agency's efforts to conserve and protect species at more direct risk of harm.
     Instead, she ordered it to produce a plan by July 31, 2019, unless it finds that a plan will not promote the plant's conservation.
     The ruling also sidelines claims that the bureau's environmental impact statement did not meaningfully analyze the effects of OHV use in wilderness areas.
     In addition to assessing how the revisions would affect areas of wilderness, the bureau included a list of measures to reduce OHV disturbance of wilderness regions and found that road closures could help protect special status species, Illston found.
     There is also no indication the impact statement relied on a flawed air quality analysis, according to the ruling.
     Illston found no reason to apply Imperial County Air Pollution Control District Rule 800, which sets forth methods to analyze silt content in unpaved areas.
     She also slammed the environmentalists for not citing any data to show that opening more acres of land to OHV could increase the number of OHV visitors.
     "Indeed, earlier in this litigation plaintiffs successfully challenged 2004 final rule [sic] designating critical habitat for the PMV by arguing that the economic analysis underlying that rule incorrectly assumed that the interim OHV closures had resulted in 15 % decline per year in visitation," the opinion states. "The court agreed with plaintiffs and found that there was 'no data in the record linking the interim closures to any reduced OHV visitation levels at the dunes. ... Plaintiffs argue that this portion of the 2006 summary judgment decision was focused on an entirely different issue and an entirely different record. While plaintiffs are correct that precise issue before the court in 2006 was different, it is nevertheless true that the facts before the court in 2006 and today are the same: there is no data in the record showing that interim closures led to a decrease in OHV visitation, nor is there any data conversely showing that opening up acres to OHV use will increase OHV visitation."
     As the bureau noted, the number of visitors to the area naturally fluctuates and is not correlated with closing OHV areas. As such the conclusion that visitors will not increase pollution emissions is neither arbitrary nor capricious, the court found.
     Justice Department attorney Michael Richard Eitel did not return a request for comment.
     Center for Biological Diversity filed the suit alongside Desert Survivors, Public Employees for Environmental Responsibility, and the Sierra Club.
     The American Sand Association, BlueRibbon Coalition, California Association of 4 Wheel Drive Clubs, Desert Vipers Motorcycle Club, San Diego Off Road Coalition, American Motorcycle Association District 37, California Off-Road Vehicle Association, High Desert Multiple Use Coalition and Off-Road Business Association all intervened as defendants.