Court rejects challenge to dunes management plan
IMPERIAL SAND DUNES — Offroad enthusiasts are celebrating a recent decision by a federal appellate court to reject an environmentalist group’s appeal of the opening of 48,000 acres of previously closed plant habitat at the Imperial Sand Dunes.
The U.S. 9th Circuit Court of Appeals’ decision on Aug. 15 was in response to an appeal filed by the Center for Biological Diversity that had argued the dune closures were needed to protect the Peirson’s milk vetch, a federally designated endangered plant species found primarily in the Imperial Sand Dunes Recreation Area.
The court’s decision caps a 15-year legal battle that cost a coalition of off-road organizations about $2 million to wage, said Nicole Nicholas Gilles, executive director of the American Sand Association.
“It just seems like our hard work has finally paid off,” she said.
In its decision, the appellate court’s three-member panel upheld an April 2014 ruling by the U.S. Northern District Court of California allowing the Bureau of Land Management to implement its 2013 ISDRA Recreation Area Management Plan.
The RAMP had called for the reopening of 48,000 acres of dunes that had been closed in 2000 as a result of a court settlement initiated by the CBD. The RAMP had determined that the reopening of the previously closed dunes was not likely to jeopardize the Peirson’s milk vetch’s existence.
The appellate court’s recent decision also came as a welcome relief for Ed Stovin, regional director of the California Off-Road Vehicle Association.
Stovin has also been closely following the 15-year legal battle surrounding the Peirson’s milk vetch habitat at ISDRA, and said that the most recent legal ruling may not necessarily be its last, considering the lengths the CBD has gone to in the past to restrict off-highway vehicle activity in the name of wildlife and resource conservation.
“They should give up,” he said, “but they’re kind of tenacious.”
Indeed, the CBD is currently weighing its next step, including the possibility that it may request having all the judges that make up the U.S. 9th Circuit Court of Appeals hear its appeal, said Ileene Anderson, a biologist with CBD.
The CBD has until Sept. 19 to decide whether it will seek such an option.
“We haven’t made a decision on that yet,” Anderson said on Tuesday.
Much of CBD’s appeal hinged on the argument that endangered plant species deserve as much protection as endangered fish and wildlife species under the federal Endangered Species Act.
Unfortunately, Anderson said, the Endangered Species Act treats animal and plant species differently and does not extend endangered plant species the same level of protection as endangered wildlife.
Specifically, the CBD’s appeal had attempted to argue that the U.S. Fish and Wildlife Service wrongly determined in November 2012 that the RAMP was not likely to harm the existence of the Peirson’s milk vetch at the dunes.
“The FWS determination does not appear to take into account the impact from off-roading and impose any safeguards that are similar to the protection of animal species,” she said. “Instead, it has set a threshold that offers inadequate mitigation protections in comparison to animal species.”
The RAMP has set aside 9,617 acres of ISDRA’s total 164,000 acres as critical habitat for the Peirson’s milk vetch where OHV activity is prohibited.
Off-road enthusiasts should take extra precaution to ensure they stay out of the closed areas and adhere to the rules that are in place regarding the closures, Gilles said.
The closure of a total of 49,000 acres that resulted from the 2000 court settlement also could have been larger, Gilles said, were it not for an ASA study that determined the surrounding desert communities would have taken a significant economic impact.
The appellate court’s ruling also brought a sense of validation to the BLM, which had faced heavy criticism from environmental groups upon the release of the ISDRA RAMP in 2012.
“The RAMP was developed to provide a world-class recreational experience while aiding in the recovery of listed species,” said BLM spokesman Steve Razo in a written statement.
The appellate court also rejected the CBD’s argument that the RAMP had failed to fully take into account the impact the reopened dunes would have on air quality.
In its opinion, the appellate court stated that the BLM “did not act arbitrarily or capriciously when it relied on air quality analysis demonstrating that emissions resulting from visitors to the Dunes would not be increased impermissibly by the land openings.”