Center for Biological Diversity v. Bureau of Land

• Decision Date: 14 March 2006
• Docket Number: No. C 03-02509 SI.,C 03-02509 SI.
• Citation: 422 F.Supp.2d 1115
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, American Sand Association, et al, Defendant-Intervenors.
• Court: U.S. District Court — Northern District of California

Page 1115

422 F.Supp.2d 1115

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants American Sand Association, et al, Defendant-Intervenors.

No. C 03-02509 SI.

United States District Court, N.D. California.

March 14, 2006.

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Brendan R. Cummings, Joshua Tree, CA, Deborah A. Sivas, Stanford Law School, Stanford, CA, for Plaintiffs.

Kevin William McArdle, U.S. Department of Justice, Lisa Lynne Russell, Wildlife & Marine Resources Section, Washington, DC, Paul Andrew Turcke, Moore Smith Buxton & Turcke, Boise, ID, David P. Hubbard, Esq., Lounsbery Ferguson Altona & Peak, LLP, Escondido, CA, for Defendants.

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

ILLSTON, District Judge.

INTRODUCTION

Plaintiffs are several environmental organizations who filed an eight count Second Amended Complaint on June 3, 2005, against the Bureau of Land Management and the U.S. Fish and Wildlife Service, alleging violations of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, and the Administrative Procedure Act, 5 U.S.C. § 706 et seq.

Plaintiffs generally allege that defendants have failed adequately to protect two species listed under the Endangered Species Act, the Peirson's milk-vetch and the desert tortoise. Plaintiffs allege that both species are particularly threatened by off-highway vehicle recreational use in the Imperial Sand Dunes Recreation Area, and that the proposed management plan for the Dunes does not contain adequate safeguards to ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land Management ("BLM"), which manages the Dunes, and the U.S. Fish and Wildlife Service ("Service"), which consults with the BLM and is required to evaluate BLM actions that affect the Peirson's milk-vetch and the desert tortoise. Defendant-intervenors are a number of organizations representing off-highway vehicle recreationists.¹

All parties have filed cross-motions for summary judgment which address claims four through eight of the Second Amended Complaint.² The parties' motions concern (1) Service's final Biological Opinion on January 25, 2005, regarding management of the Dunes pursuant to the Dunes' 2003 Recreation Area Management Plan ("RAMP"); (2) the BLM's Environmental Impact Statement for the RAMP; (3) the BLM's issuance of the Record of Decision giving final approval to the RAMP on March 24, 2005; and (4) the Service's final rule designating critical habitat for the Peirson's milk-vetch on August 4, 2004. The Court now decides these motions.

The Court recognizes the complexity of the issues presented in this case, and that defendants have been given the difficult task of addressing the interests and needs of off-highway vehicle recreationists while at the same time protecting listed species as required by law. In deciding the pending summary judgment motions, the Court has been mindful that its review is "narrow" but "searching and careful," Marsh v. Oregon Natural Res. Council 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). As the United States Supreme Court has instructed, in enacting the Endangered Species Act, "Congress[ intend[ed] to provide comprehensive protection for endangered and threatened species." Babbitt v. Sweet Home Chapter, 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); see also Tennessee Valley Authority v. Hill 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ("[E]xamination of the language, history and structure of the [Endangered Species Act] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.").

In summary, after careful consideration of the parties' papers and the arguments of counsel, as well as of the voluminous administrative record, the Court concludes that defendants have failed to comply with federal environmental statutes in a number of important respects. As explained more fully below, the Court concludes that the 2005 Biological Opinion is flawed because, inter alia, it would permit significant declines in the population of the already-threatened Peirson's milk-vetch before instituting any mitigating measures. The Court concludes that allowing such a significant reduction of reproduction, numbers or distribution of the milk-vetch runs afoul of the requirement under the Endangered Species Act to "insure" that the RAMP is "not likely to jeopardize the continued existence of any . . . threatened species." 16 U.S.C. § 1536(a)(2). Relatedly, the Court concludes that the Biological Opinion is flawed because it fails to explain how continued and expanded habitat degradation of almost half of the designated critical habitat for the Peirson's milk-vetch does not result in "adverse modification" to milk-vetch critical habitat. The Court also concludes that the Incidental Take Statement for the desert tortoise contained in the Biological Opinion must be set aside because it does not contain a meaningful standard by which incidental take can be measured, and because it fails to include required "terms and conditions" regarding how to minimize the potential for incidental take of desert tortoises as a result of recreational use.

With regard to the designation of critical habitat for the Peirson's milk-vetch, the Court rejects plaintiffs' procedural challenges to the final rule. However, the Court concludes that the final rule is arbitrary and capricious because it suffers from a number of substantive deficiencies. The Court concludes that by finding that there were no additional regulatory benefits to be gained by designating critical habitat in areas that were ultimately excluded, the Service improperly ignored the recovery goal of critical habitat. In addition, in excluding significant areas from the final critical habitat designation, the Service relied on assumptions that had no factual support in the record, improperly considered economic impacts of critical habitat designation that are coextensive with restrictions resulting from the listing of the milk-vetch, and failed to evaluate the economic benefits associated with reduced visitation.

The Court also concludes that the Environment Impact Statement is legally inadequate. By eliminating the interim closures that have been in place since November 2000 from the reasonable range of alternatives, the BLM failed to "present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives contained in the EIS." Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813 (9th Cir.2005). Finally, the Court also concludes that the BLM did not take a "hard look" at the impact of the RAMP on endemic invertebrates.

BACKGROUND

1. Management of the Dunes

The Algodones Dunes are located in Imperial County in southeastern California. The Dunes are the largest mass of sand dunes in California. See ROD AR Sec.1 at 4125. The Dunes and immediately adjacent areas are managed by the BLM as the Imperial Sand Dunes Recreation Area ("ISDRA"). The ISDRA is located within the California Desert Conservation Area ("CDCA") in Imperial County in southeastern California, approximately 25 miles west of the Colorado River and immediately north of the border between the United States and Mexico. See ROD AR Sec. 2 at 9596.³ In establishing the CDCA, Congress declared that the California desert is a "total ecosystem that is extremely fragile, easily scarred, and slowly healed," and that it is a rich and unique environment with "historical, scenic, archaeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources." 43 U.S.C. § 1781(a)(1)-(2). Congress also stated that "the use of all California desert resources can and should be provided for in a multiple use and sustained yield management plan to conserve these resources for future generations, and to provide present and future use and enjoyment, particularly outdoor recreation uses, including the use, where appropriate, of off-road recreational vehicles." Id. at § 1781(a)(4).

The ISDRA comprises approximately 167,000 acres of land in California, covering an area more than 40 miles long and averaging 5 miles in width. Of the total acreage of the ISDRA, approximately 159,000 acres are managed by BLM, 7,000 acres are privately owned, and 900 acres are owned by the State of California. In addition, the one-mile wide area around the ISDRA boundary within the planning area for the RAMP includes approximately 48,300 acres of BLM managed land, approximately 1,800 acres of military managed land, and approximately 9,100 acres of privately owned land. See BO AR Doc. # 482 at 8844-45. In 1994, Congress formally established 26,202 acres in the ISDRA as the North Algodones Dunes Wilderness Area through the enactment of the California Desert Protection Act ("CDPA") of 1994, Pub.L. 103-433. ROD AR Sec.2 at 9150-51. This wilderness area is permanently closed to OHV use.

There are several management plans applicable to the Dunes. The first management plan for the Dunes was completed in 1972. See ROD AR Sec.1 at 4125-28. Only a portion of this plan was implemented, including the establishment of the Algodones Natural Area, a camping area, and the construction of a ranger station. Id. at 4128.

The California Desert Conservation Area Plan, completed in 1980, is a comprehensive general management plan for the California desert, and included a number of decisions specific to the ISDRA. See id. at 4128. The 1980 plan designated most areas of the ISDRA as open to unlimited off-highway vehicle ("OHV") use. See id. at 4131. According to the 2005 BO, the California Desert Plan "provides a general prescription...