Long Awaited Court Ruling on WEMO Plan

[KTMrad 508]

Northern District Court Issues Long-Awaited Ruling

On WEMO Plan

On September 29, 2009, after more than ten months of deliberation, Judge Susan Illston of the U.S. District Court for the Northern District of California issued her ruling in the case challenging the Western Mojave Desert management plan (“WEMO Plan”) adopted by the Bureau of Land Management (BLM) in 2006. As discussed below, Judge Illston’s Order invalidated the WEMO Plan due to its failure to comply with certain requirements of federal law. However, Judge Illston also gave the BLM and the United States Fish and Wildlife Service (USFWS”) a major (if partial) victory, as she determined that the Biological Opinion (“BiOp”) for the WEMO Plan – a document which discusses the effects of the Plan on the conservation and recovery of the Mojave desert tortoise and the Lane Mountain milk-vetch – met all legal standards under the Endangered Species Act (“ESA”).

The WEMO lawsuit, known as the “Center for Biological Diversity, et al. v. U. S. Bureau of Land Management, et al.”, made three basic allegations against the BLM and USFWS: (1) that the WEMO route network designed by BLM was legally flawed and failed to comply with the Federal Land Policy and Management Act (“FLPMA”), (2) that the Environmental Impact Statement (“EIS”) for the WEMO plan was defective in a number of key respects and therefore not compliant with the National Environmental Policy Act (“NEPA”); and (3) that the BiOp did not provide an adequate assessment of the Plan’s impacts on efforts to conserve and recover the desert tortoise and Lane Mountain milk-vetch, resulting in a violation of the Endangered Species Act (“ESA”).

With respect to the FLPMA claims, Judge Illston ruled that BLM failed to demonstrate that it had applied FLPMA’s “impact minimization” criteria (43 CFR § 8342.1) to the WEMO route network. While recognizing that BLM put a great deal of work into the route network, Judge Illston ultimately could not identify sufficient evidence in the record that BLM had actually used the impact minimization criteria when deciding which OHV routes to include in the Plan and which ones to leave out. The Court also determined that BLM failed to follow, or expressly override, language from the 1980 California Desert Conservation Area Plan (“1980 CDCA Plan”) which prohibited the establishment of OHV routes in excess of those that existed in 1980. As a result, BLM’s effort to develop an OHV route network which included trails established after 1980 was legally unauthorized, and will remain so until BLM formally removes the 1980 cap on OHV routes.

As for the NEPA claims, Judge Illston found the WEMO Plan EIS adequate in most respects. However, the Court faulted the EIS for its failure to consider a sufficiently wide range of alternatives and for not using a consistent “existing conditions” baseline when conducting impact assessments. The Court also determined that the EIS included an inadequate analysis of the Plan’s effects on soils, cultural resources, unusual plant assemblages, and the Mojave fringe-toed lizard. These defects will have to be re-addressed in a revised EIS. The remainder of the EIS was deemed sufficient as a matter of law.

With regard to the ESA claims, all of which challenged the BiOp concerning impacts on the desert tortoise and Lane Mountain milk-vetch, Judge Illston determined that they were without merit. In dismissing these claims, the Court concluded that USFWS had conducted a sufficient analysis of the Plan’s effects on the conservation and recovery of the desert tortoise and the Lane Mountain milk-vetch. In addition, the Court found sufficient technical support for the BiOp’s determination that OHV use in the WEMO (and in portions of the Northern and Eastern Colorado Desert and Northeastern Mojave Desert) would create “No Jeopardy” to either the tortoise or the milk-vetch.

Judge Illston has scheduled a Case Management Conference for October 30, 2009, to discuss how the specific defects in the WEMO Plan and the EIS can be remedied and what document shall govern activities in the WEMO while BLM reformulates the route network and redrafts the Plan and EIS.