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Off-Road Business Ass'n v. U.S. Dep't of Interior

December 15, 2006

OFF-ROAD BUSINESS ASS'N.;SAN DIEGO OFF-ROAD COAL.; CALIFORNIA OFF ROAD VEHICLE ASS'N.; AM. MOTORCYCLE ASS'N.; DESERT VIPERS; ET AL., PLAINTIFFS,
v.
U.S. DEPT. OF INTERIOR; GALE NORTON; BUREAU OF LAND MGMT.; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Judge

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Plaintiffs Off-Road Business Association, San Diego Off-Road Coalition, California Off-Road Vehicle Association, American Motorcycle Association District 37 and Desert Vipers (collectively "Plaintiffs") and Defendants Bureau of Land Management ("BLM"), Gale Norton (in her official capacity as the Secretary of the Interior) and U.S. Department of the Interior (collectively, "Defendants") brought the instant cross-motions for summary judgment pertaining to the sufficiency of the Environment Impact Statement ("EIS") for the Northern and Eastern Colorado Desert Resource Management Plan (the "NECO Plan"). For the reasons herein, the Court DENIES Plaintiffs' motion and GRANTS Defendants' motion.

I. FACTUAL BACKGROUND

At issue here is a challenge to the sufficiency of an EIS that was prepared for a region within the California Desert Conservation Area, known as the Northern and Eastern Colorado Desert area. The California Desert Conservation Area is 25-million acres of land set aside in 1976 when Congress enacted the Federal Land Policy and Management Act. The management of the California Desert Conservation Area falls to the BLM, which at the direction of Congress completed a multi-use plan to cover this area in 1980 (the "CDCA Plan").

In particular, Plaintiffs challenge whether the EIS sufficiently addressed impacts on the spread of disease among the desert tortoise, a resident species in the California Desert Conservation Area. The desert tortoise (scientific name Gopherus agassizii) lives in the Mojave and Sonoran deserts in the Southwest United States. Its habitat consists of flats, bajadas (slopes at the base of rocky hills) and rocky terrain containing scattered shrubs and herbaceous plants. The population size of the desert tortoise has been decreasing since the 1980's.

In 1990, the U.S. Fish and Wildlife Service listed the Mojave population of desert tortoise*fn1 as a threatened species. AR 16851. The listing detailed five factors that contributed to the tortoise's threatened status: destruction and modification of habitat due to vehicle traffic and human uses of the land, collecting and shooting of tortoises, predation by ravens and other animals, disease including respiratory diseases, and inadequate existing regulatory mechanisms to protect the tortoise. AR 16851-16864. The U.S. Fish and Wildlife Service released a Desert Tortoise Recovery Plan in 1994, outlining steps for the recovery of the desert tortoise population: (1) the designation of six geographic "recovery units"; (2) the establishment within each recovery unit of an area of 1,000 square miles as a desert wildlife management area to conserve unique biological characteristics of the tortoises in each recovery unit; and (3) a recommendation to draft a management plan for each recovery unit. AR 14747-15114.

Pursuant to these steps, BLM undertook the planning for two of these recovery units, Northern and Eastern Colorado, in a joint plan entitled the Northern and Eastern Colorado Coordinated Management Plan (the "NECO Plan"), as an amendment to the CDCA Plan, beginning in 1993. The planning process included involvement of private interests, federal, state, and local agencies, and public comment. In February 2001, BLM issued a draft EIS under the strictures of the National Environmental Policy Act ("NEPA") and a public comment period of eight months followed. In July 2002, the final EIS was released and a 30-day protest period was initiated. Finally, on December 19, 2002, BLM issued a Record of Decision for the approved NECO Plan. The approved NECO Plan includes two desert wildlife management areas encompassing 1.7 million acres, and more than 15 wildlife habitat management areas for bighorn sheep and other species.

Plaintiffs initiated the instant action on June 17, 2003, alleging that the preparation of the EIS for the NECO Plan violated NEPA*fn2 . Specifically, with references to the allegations at issue here, Plaintiffs allege:

(1) BLM failed to analyze the impact of the NECO Plan on disease transmission on desert tortoises;

(2) in the preparation of the EIS, BLM failed to consider all of the available scientific articles and reports pertaining to tortoise disease and its spread;

(3) the EIS failed to analyze or disclose the on-going scientific debate regarding methods of managing tortoise disease.

Plaintiffs and Defendants filed cross--motions for summary judgment on these issues in August 2004 and September 2004, respectively. The hearing on these motions was postponed pursuant to a joint stipulation of the parties to enable them to pursue settlement discussions. After these discussions proved unsatisfactory, the hearings were rescheduled. The parties provided supplementary briefing to summarize their positions and update the Court on any new relevant law. The matter was heard on December 4, 2006.

II. DISCUSSION

A. LEGAL ...


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