Page updated: 04/19/2002 01:22 AM

Recently the Bureau of Land Management (BLM) has announced the dates of the public hearings (see end of article), required as part of the NEPA process, for comments on the upcoming revised California Desert Conservation Area (CDCA) management plan. Some of you may be aware that the new plan is likely to significantly curtail the use of vehicles on public lands here in the deserts of Southern California. I encourage everyone who is able to attend the meetings, there will be several so that one is likely to be convenient to most SoCal residents, and voice your opposition to the proposed prohibitions on vehicular use in the desert. This is a very serious situation and your involvement now is essential.

Introduction:

The litigation that was the genesis of the new management plan has been ongoing for more than a year. Bits and pieces of disparate information concerning the lawsuit and the subsequent settlement have been floating around on Jeeper bulletin boards and through email. There are several websites that have had articles about the events surrounding the litigation. Still, sometimes it has seemed that there is much only marginally related information available and, each bit on its own, it may not have made much sense. My effort here will be to give a comprehensive overview of the process to date and where it is going. My hope is that this will allow those who attend the meetings to do so with an informed understanding of what is happening. As well, perhaps those people who haven't become involved because the process seemed too obscure will see the seriousness of the current situation and make their voices heard.

The California Desert Conservation Area

The CDCA was created by Act of Congress in 1980. It incorporates much of BLM's desert land holdings in Southern California and, in a sort of patchwork of various areas, extends from the Mexican border to Arizona and north to Kern and Inyo counties in the Death Valley region. The purpose of the creation of the CDCA was to set up more rigorous management schemes with a focus on conservation. The idea was that the southern deserts are largely an inter-related ecosystem and should be managed as such.

The Litigation:

The lawsuit against BLM concerning its management plans for the CDCA was filed by three co-parties as plaintiffs. The parties are the Sierra Club, Public Employees for Environmental Responsibility (PEER), and the Center for Biological Diversity (CBD). While there are three parties on the plaintiff's side the CBD is the prime mover and principal architect of the suit.

The CBD is an environmental advocacy organization based in Tucson, AZ. The group's specialty is attack environmental litigation, primarily using the Endangered Species Act as a basis for an action. Kiernan Suckling is the CBD's founder and director. An Earth First! alumnus, Suckling moved from MA to the southwest in 1993 and is indignant about western environmental issues in the way that only a middle class white guy from the East Coast can be. The CBD was started as a grassroots organization but now claims to have a membership in the neighborhood of 5,000. Most funds come from these members as well as a few large institutional donors, among them Ted Turner's Turner Foundation. Because the ESA has a citizen suit and cost recovery provision the CBD can also recoup legal fees from the defendant (usually a government agency) in an action based on the ESA where CBD prevails. The group is defined by its radical rhetoric and incessantly litigious approach—it has filed literally hundreds of lawsuits.

The ESA is a perfect vehicle for the CBD because, due to the relative boilerplate language of the Act, it is difficult to lose an ESA suit in the sense that there is little wiggle room for an Agency managing lands where a listed endangered species is found. The Act protects endangered species above all else and the words say just that—an Agency must do whatever is necessary, including vehicle closures, to ensure the continued existence of an endangered species on its managed lands.

CBD's tactics essentially distill down to three approaches. First, CBD will allege that the Agency defendant has not adequately applied the legal obligations imposed upon it by the ESA and is not doing what is required to protect a particular endangered species. To make such allegations CBD needs to find more "endangered species". This means getting species "listed". Therefore, the second prong of attack are suits against US Fish and Wildlife Service to force USFWS to list a species. Third, there are, generally, procedural time limits the Agencies must meet in the listing decision (USFWS), adopting management plans (BLM) or revising currently existing management plans (FS). If the Agency fails to meet its legal obligations in a timely fashion suit can be brought to compel it to do so. In all cases, if the CBD prevails (and it usually does), the losing Agency has to pay CBD's "reasonable attorney's fees".

The basis of the CDCA suit was the first, and most common, CBD tactic. Those JA regulars who have read the article about the ESA will remember that Section 7 of the ESA requires the managing Agency to consult with USFWS regarding any endangered species on its lands. CBD's suit alleged that the BLM did not do this consultation when it originally adopted, in 1980, the management plan for the CDCA. Therefore the BLM was in violation of its legal obligations under the ESA and would have to create a new management plan, this time WITH consultation with USFWS.

The defendant in a lawsuit always has two options. One, it can decide to answer the suit and litigate or, two, it can settle with the plaintiff out of court. BLM decided to settle with CBD. In the resulting negotiated settlement BLM caved in to CBD's demands.

The Negotiated Settlement:

The settlement consists of five stipulations (things BLM agreed to do).
1. Consult with USFWS on the CDCA management plans.
2. Restrict vehicle access in the Imperial Dunes Recreation Area
3. Restrictions on hiking trails and mining in San Jacinto and Santa Rosa Mountains
4. Restrictions on sheep and cattle grazing in critical and non-critical desert areas.
5. Interim restrictions on other activities affecting 20 threatened and endangered species in CDCA.

The Result:

Ok, what does this all mean for off road vehicle users? The obvious reality is the CBD wants to see vehicles entirely prohibited within the CDCA. The management plans generated by the settlement, which include the Northern and Eastern Colorado Desert and the Northern and Eastern Mojave Desert plans, will surely seek to limit, if not prohibit outright, the use of vehicles by making permanent a number of existing "interim" and "emergency" closures. In fact, the BLM has said as much. Tim Salt, BLM California Desert District Manager, in commenting on the settlement, said, "many of the interim measures in the settlement are safeguards that BLM has and/or is incorporating into current management actions".

Translation; temporary (settlement driven) closures will become permanent and future additional closures are likely. BLM is preparing evaluation reports for Areas of Critical Environmental Concern (ACEC). An ACEC is an area where endangered or threatened species are present or are potentially present. If the evaluation reports find endangered species, or that BLM is allowing incompatible use activities in these areas, BLM will utilize additional measures to protect the species. That means that if there is an area where there is an endangered or threatened species, vehicle prohibitions will be implemented.

Where are the ACECs? Western Rand Mountains, Great Falls Basin, Amargosa River Natural Area, Grimshaw Lake Natural Area, Jawbone Canyon, Desert Tortoise Natural Area, Harper Dry Lake, Whitewater Canyon, Big Morongo Canyon, Chuckwalla Bench, San Sebastian Marsh/San Felipe Creek, Coachella Valley Fringe-Toed Lizard Natural Area, North Algodones Dunes National Natural Landmark, Dos Palmas, Surprise Canyon, Yuha Basin, West Mesa.

Emergency route closures were implemented at: Windy Point in Coachella Valley, Fremont/Kramer/Red Mountain/Newberry/Superior in West Mojave. Additional emergency route designations were instituted at Edwards Bowl in the Helendale/Silver Lake area and at Furnace Creek in Death Valley. On 2/15/01 an emergency closure took effect in Surprise Canyon.

BLM also prepared studies outlining the difficulties in preventing unauthorized OHV use in: Jacumba Mountains, Soda Mountains Wilderness Study Area, Cady Mountains Wilderness Study Area, Grass Valley Wilderness, Golden Valley Wilderness, Kingston Range Wilderness, Palen-McCoy Wilderness, West Rand ACEC, Orocopia Wilderness, Chuckwalla ACEC, Great Falls ACEC, Butterbread ACEC, Desert Tortoise Natural Area, San Felipe Creek/San Sebastian Wash, Coyote Mountains Wilderness, West Mesa ACEC, West Cronese Lake, Silver Dry Lake, Kingston Wash, Sage Canyon, and Happy Canyon. Once these studies are completed BLM will design a plan to limit all unauthorized vehicle access in these areas.

The closures at ISRDA (Glamis), expressly outlined in stipulation two, encompass 49,300 acres and are intended to protect essential habitat of the Pierson's milk vetch (a plant). The milk vetch was listed as threatened (less serious than endangered) by USFWS in 1998. The American Sand Association (ASA) has hired legal counsel and is fighting the closures in ISDRA but so far has not made much headway.

What next?

Wow, the above is quite a list isn't it? I apologize for the tedious reading but wanted to be sure everyone understood just how far reaching and vast the implications of this settlement are. In a nutshell, vehicle users lost access rights to over 75% of the previously available open routes in the CDCA.

But where is OUR indignation? I have heard some grumbling about Surprise Canyon but not much more than that. It is, admittedly, pretty late in the game. The new management plans will likely codify the emergency and temporary closures. But, the only hope is for four wheelers to get involved. If there is one issue that should coalesce wheeler opinion and create the kind of monolithic cause on our side that the greens have on theirs, it should be land access.

Please attend one of the meetings below. You will have the opportunity to get on the BLM's mailing list while there. Listen to the BLM spokespeople, if you feel inclined to make a statement go ahead and do so. Keep abreast of developments on these issues. There are 60,000 posts on JAs general jeep and technical boards and 643 on the land use board. But what are you going to do when there is no place left to use your jeep?
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5-06-02 Ridgecrest, CA
6-07-02 Bakersfield, CA
5-20-02 Pasadena, CA
5-21-02 San Diego, CA

At the moment the exact locations are to be announced. I will post locations on the land abuse board as soon as they become available.  You will be able to view them by clicking on the "Discuss" link below.