SONORAN DESERT, CA -- In a big win for desert tortoise and other endangered species in the California Desert Conservation Area (CDCA), a federal court in San Francisco yesterday agreed with conservationists and issued an injunction ordering the Bush administration to stop off-road vehicle damage on over half-a-million acres of desert washes and critical habitat in Riverside, Imperial and San Bernardino Counties.
Desert washes (dry streams) on U.S. Bureau of Land Management (BLM) public lands in the Northern and Eastern Colorado Desert (NECO) planning area, which are critical for tortoise survival and recovery, are now off-limits to off-road vehicles until the U.S. Fish and Wildlife Service (FWS) completes new biological opinions that protect critical habitat and promote tortoise recovery. There are thousands of desert washes weaving across the landscape in this part of the CDCA, and BLM's 'washes open' policy allowed driving in all of them, creating off-road sacrifice zones.
Off-road vehicles crush desert tortoises and their burrows, spew unhealthy pollution & dust, and damage & kill desert vegetation tortoises and other wildlife must eat to survive, reproduce, and recover. Vehicle damage to desert habitat can take decades to recover.
"The Court is most concerned with the 'actual situation on the ground,'... and finds that OHV use must be enjoined in the NECO planning area..." wrote U.S. Judge Susan Illston.
"Biology 101 teaches that desert wildlife and tortoises need healthy wash habitat," said Elden Hughes, Chair of the Sierra Club Desert Committee. "Off-roaders want to ignore that, but even the anti-conservation Bush Fish & Wildlife Service should know better. Thankfully, the court got it right."
"The court's ruling checks the abuses of the executive branch, and upholds the recovery intent of the Endangered Species Act, America's most important wildlife law," said Daniel R. Patterson, Ecologist & Desert Program Director with the Center for Biological Diversity, who formerly worked with BLM in the CDCA. "Critical habitat works, and the Bush administration must follow the law and the public-interest to protect critical habitat for endangered species recovery, not just survival. BLM better get serious now about keeping off-roaders out, or they'll be in contempt of court."
On August 3 the court struck down biological opinions (permits) issued by FWS that authorized off-road vehicle use on critical desert tortoise habitat. Despite this ruling, the Bush administration refused to make any on-the-ground management changes to protect the tortoise, forcing conservation groups to return to court for relief. FWS had issued its faulty opinion in response to BLM management plans for the Congressionally-designated, Virginia-sized Conservation Area. The BLM plans have been highly controversial and have been sharply criticized by biologists over their failure to protect endangered species' critical habitat and implement endangered species recovery plans already approved by FWS.
The Court found in August that the Bush FWS illegally failed to consider the negative affects of the BLM plans on endangered species' recovery, instead looking only at survival. Recovery means increasing the size of key desert tortoise populations to the point that the species can eventually be removed from the endangered and threatened species list. In contrast, survival does not necessarily include any improvement to the health of an endangered species.
"[T]he Court finds that congressional intent in enacting the ESA was clear: critical habitat exists to promote the recovery and survival of listed species…," wrote Judge Illston in her August opinion and order. "Conservation means more than survival; it means recovery," she said.
"The Bush administration has been actively ignoring the public interest and Congress' command that they take all necessary actions to recover endangered and threatened species," said Center Attorney Julie Teel. "The court's ruling restores Congress' intent that critical habitat, including desert tortoise critical habitat in the CDCA, be managed for recovery, not to serve as off-road sacrifice areas."
"We welcome any action that helps tortoise recovery, and keeping off-road vehicles out of critical habitat is vital," said Karen Schambach, California Director of Public Employees for Environmental Responsibility. "We will communicate with BLM and watch to see how well they enforce the court's order."
The Bush administration's critical habitat policy is a self-fulfilling prophecy: refuse to protect critical habitat, then claim critical habitat is not protective. In striking down this illegal and illogical policy, and ordering on-the-ground conservation action, the Court is requiring FWS and BLM to protect critical habitat at the highest level possible to ensure that it is managed to recover endangered species, not simply keep them alive.
Over 500,000 acres of the CDCA remain open to unlimited off-roading, as well as over 10,000 miles of roads and trails.
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