PUBLIC LANDS: Appeals court sides with BLM in Calif. off-highway vehicle case
Amanda Reilly, E&E reporter
Greenwire: Monday, August 15, 2016
The Bureau of Land Management's plan to expand access for off-highway vehicles in a popular California sand dunes area complies with the Endangered Species Act, a federal court today ruled.
A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected all of environmentalists' challenges to the plan for the Imperial Sand Dunes Special Recreation Management Area just north of the Mexican border. The opinion affirms a lower court ruling.
Judge Diarmuid O'Scannlain, a Republican appointee, wrote in today's opinion that BLM properly considered the plan's effects on Peirson's milkvetch, a purple-flowered plant species that is protected under the Endangered Species Act. The court also held that the plan is consistent with the Clean Air Act and several other environmental laws.
Judges Richard Clifton and N. Randy Smith, also Republican appointees, heard the case with O'Scannlain.
Litigation over off-highway vehicle use at Imperial Sand Dunes stretches back more than a decade.
At issue in the current case is a 2013 plan in which BLM stipulated that 9,261 acres of milkvetch critical habitat located in the dunes and the 26,098-acre North Algodones Dunes Wilderness tract would be off-limits to off-highway vehicles. The plan opened up the rest of the recreation area, or more than 127,000 acres, to off-highway vehicle use.
In consultation with BLM, the Fish and Wildlife Service issued a biological opinion under the Endangered Species Act that found the plan was not likely to jeopardize the existence of the threatened milkvetch or the Mojave desert turtle (Greenwire, June 18, 2013).
Led by the Center for Biological Diversity, environmentalists challenged the plan on the grounds that it contained deficiencies under the Endangered Species Act and failed to comply with other environmental laws.
Among the alleged ESA violations, the center said that the Fish and Wildlife Service's biological opinion failed to include an incidental take statement for the milkvetch detailing how plants might be accidentally harmed or killed under the plan.
BLM argued that such statements are not required for threatened plants.
The court today sided with the Obama administration, finding that BLM and FWS properly interpreted the word "take" in the Endangered Species Act as referring only to animals and fish — not plants. O'Scannlain wrote that the words in the definition of "take" describe actions that "most naturally describe actions that cannot be directed against plants."
"For example, one does not pursue a tree; one does not typically shoot a shrub," O'Scannlain wrote, adding, "Read in context, the text of the statute is clear: the Endangered Species Act does not require Biological Opinions to contain Incidental Take Statements for threatened plants."
The court also rejected environmentalists' arguments that the BLM plan would violate the Clean Air Act, Federal Land Policy and Management Act, National Environmental Policy Act and Administrative Procedure Act.
BLM also acted appropriately when it found that visitors' air emissions would not increase "impermissibly" with the opening of lands in the dunes area to off-highway vehicles, the court ruled.
