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AMERICAN SAND ASSOCIATION v. U.S. DEPT. OF THE INTERIOR

June 18, 2003

AMERICAN SAND ASSOCIATION, A NONPROFIT CORPORATION; OFF-ROAD BUSINESS ASSOCIATION, A NONPROFIT CORPORATION; SAN DIEGO OFF-ROAD VEHICLE ASSOCIATION, A NONPROFIT ORGANIZATION; CALIFORNIA OFF-ROAD VEHICLE ASSOCIATION, A NONPROFIT ORGANIZATION; AND AMERICAN MOTORCYCLE ASSOCIATION, DISTRICT 37 DUAL SPORT, A NONPROFIT ORGANIZATION, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; GALE NORTON, SECRETARY OF THE INTERIOR; AND BUREAU OF LAND MANAGEMENT, DEFENDANTS, CENTER FOR BIOLOGICAL DIVERSITY, A NONPROFIT ORGANIZATION; AND PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, A NONPROFIT ORGANIZATION, DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: Rudi Brewster, Senior District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS AND DEFENDANT-INTERVENORS' CROSS-MOTIONS FOR SUMMARY JUDGMENT
I. Introduction

Plaintiffs American Sand Association, et al., have sued the United States Department of the Interior, Gale Norton, Secretary of the Interior, and the Bureau of Land Management ("BLM") seeking to set aside a temporary closure of portions of the Algodones Dunes to off-highway vehicle use. Plaintiffs contend that the closures fail to comply with the procedures of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq., and the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq.

The closures at issue are the result of a consent decree entered in another lawsuit between environmental organizations and the BLM in the Northern District of California. Pursuant to the terms of the settlement, the BLM agreed to temporarily close portions of the Algodones Dunes, located in Imperial County, to off-highway vehicle use until a new Recreational Area Management Plan could be implemented. Two of the environmental organizations involved in the Northern California action, the Center for Biological Diversity and Public Employees for Environmental Responsibility, have intervened as defendants in the present action.

The parties have brought cross-motions for summary judgment. For the reasons described below, the Court denies Plaintiffs' motion for summary judgment and grants Defendants and Defendant-Intervenors' motions for summary judgment.

II. Background

In 1978, Congress designated 25 million acres of California as the California Desert Conservation Area ("CDCA"). FLPMA, 43 U.S.C. § 1781. The CDCA stretches from the Mexican border north to Death Valley and the eastern Sierra Nevada Mountains.

The FLPMA directed the Secretary of the Interior to develop a "comprehensive, long-range plan for the management, use, development, and protection of the public lands within the [CDCA]." 43 U.S.C. § 1781(d). In 1980, BLM, as the Secretary of Interior's designee, published and implemented a land management plan for the CDCA, called the California Desert Conservation Area Plan. The CDCA Plan permits a variety of activities, including livestock grazing, road-building, off-highway vehicle use, recreational use, water diversions, energy production, utility corridors, special use permits, land exchanges, mining, and other projects.

In 1987 the BLM amended the CDCA by adopting a Recreational Area Management Plan ("RAMP") for the Imperial Sand Dunes, also known as the Algodones Dunes. Under the 1987 RAMP, the Dunes have been managed as an area open to intensive OHV use. BLM estimates that over 600,000 visitors come to these sand dunes each winter season to ride in the dunes.

While the dunes are a popular recreational spot for OHV users, they are also the home to several endangered and threatened species, among them the Pierson's milk-vetch. In 1998, the Fish and Wildlife Service listed the Peirson's milk-vetch as a threatened species. In its listing decision, the U.S. Fish and Wildlife Service stated that the "primary threat" to the species is "destruction of individuals and dune habitat from OHV use and the recreational development associated with it."

Section 7(a)(2) of the Endangered Species Act requires that federal agencies engage in a consultation process to ensure that their actions are not likely to jeopardize a listed species or destroy or adversely modify its critical habitat. 16 U.S.C. § 1536(a)(2). By March 2000 BLM had not carried out the Section 7 consultation on the Peirson's milk-vetch. On March 16, 2000, the Sierra Club and Defendant-Intervenors in this action, Public Employees for Environmental Responsibility and the Center for Biological Diversity, brought suit against BLM in United States District Court for the Northern District of California seeking to force the agency to comply with the ESA. On August 7, 2000 the court granted OHV organizations High Desert Multiple-Use Coalition, Desert Vipers, San Diego Off-Road Coalition, Association of California 4-Wheel Drive Clubs and Blue-Ribbon Coalition leave to intervene as defendants. Other OHV organizations, including plaintiffs in this action, American Motorcycle Association, and California Off-Road Vehicle Association, later sought to intervene as well. Their request to intervene was denied as untimely and prejudicial to the parties. The court, however, invited all of those intervenor-applicants to file amicus briefs and to appear at the hearings and ordered that they be served with all papers filed in this action.

During the course of the litigation in the Northern District of California, the BLM and OHV defendant-intervenors entered into a settlement with the plaintiffs whereby the BLM would close portions of the sand dunes to OHVs pending Section 7 consultation. After closing those portions of the dunes in November 2000, BLM initiated a review under NEPA. This entailed an environmental assessment, public comment, a finding of no significant impact and decision record. Following this review process, BLM issued a new partial closure notice in September 2001 which superceded the earlier closure. This closure is to remain in effect until the Section 7 consultation has been completed and the BLM has issued a new RAMP. BLM expects to have the new RAMP completed this summer.

Plaintiffs in the present action have brought suit against BLM, alleging that it failed to follow the dictates of NEPA in closing portions of the dunes without first conducting NEPA review. Plaintiffs also allege that the closures were not authorized under FLPMA. Plaintiffs seek to have the interim closure now in place lifted.

III. ...


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