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| Recreational Access and Conservation - Conservation and Public Service Activities | Short Cuts | ||||
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Dedicated to conservation and multiple use of public lands for recreation opportunities. Edited by: John Stewart |
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An Open Letter to Multiple-Use Interests Regarding the CDCA Lawsuit Settlement Agreement
As many recreationists have questions regarding the recent settlement decision in the CDCA lawsuit, I want to give you a brief general overview of the BRC legal effort and a specific explanation of the CDCA settlement agreement.
Almost 5 years ago, the BRC voted to establish and BRC Legal Defense Team. It was formed to counter unreasonable attempts by preservationist groups and the federal land agencies to close public lands to multiple-use recreation.
In those 5 years, we have won some important cases such as preventing an immediate closure of snowmobiles in Yellowstone National Park in 1998, keeping continued OHV access to Wilderness Study Areas in Montana since the filing of a suit in 1996 by the Montana Wilderness Association, and repelling the Sierra Club and the Southern Utah Wilderness Alliance from closing millions of acres in Utah to ATVs, Jeeps, and OHVs in 2000.
I believe our attorneys and the BRC Legal Review Committee understand that the fight for recreation access to public lands is a long term effort and must be supported by a strategy that considers a variety of factors in this long-range view, such: fiscal resources, agency/administration direction and policy that can change at every election, legal strength of anti-access advocates, political and legal realities, best management practices, and user support.
While it is often easier to take the position of "I'd rather fall on my sword" or "preach from my soapbox" or "let em close it all down" (heck, sometimes I even feel like that myself), the harder position is one of pragmatism salted with a healthy dose of reality. We have certainly developed a taste for a good fight over time, but would prefer to fight winnable battles instead of fighting for the sake of the fight.
Although the new administration may be more supportive of access to public lands, the CDCA lawsuit occurred in a less favorable setting. When the suit was filed in March 2000, I received phone calls from some of our members in Southern California asking the BRC to take a look at the case.
Seeing how no club or organization was stepping forward to fight this closure in April, the BRC legal review committee voted to become involved in the battle if there was a commitment by local interests to support the legal effort.
After communicating with most organized multiple-use recreation groups in Southern California between April and June, four organizations came forward to join the effort: the San Diego Off-Road Coalition, the California Association of 4WD Clubs, the Desert Vipers, and the High Desert Multiple Use Coalition. Along with these four groups, BRC moved to intervene on June 20, 2000, and we obtained intervention in the remedy phase of the lawsuit on August 7, 2000. Since that time, four other groups, including grazing, mining, and other recreational interests, have unsuccessfully tried to attain intervenor status.
While our intervention was being approved by the Court the BLM was signing a document admitting that they had failed to adequately consult under the Endangered Species Act on the ongoing programmatic effects of the CDCA Plan on listed species and their critical habitat. Some cases provide more legal options than others, but the ESA provides limited options when the agency has admitted it violated the law. Regardless of BLM's motives or honorable intentions in stipulating to liability, we were in a difficult position of trying to defend BLM's actions when BLM itself was not willing to do so.
At this stage in the game, we had to decide whether to participate in settlement discussions or remain on the outside of these discussions and object to the settlement achieved between BLM and the Center for Biodiversity. Important to this analysis was the fact that past BLM OHV management in the CDCA probably does not embody a standard of excellence and the legal reality that courts have very limited review of settlement agreements and will fail to adopt agreements only when they are illegal or blatantly unbalanced. We had determined that the "legal ship" (i.e. Center for Biodiversity v. BLM) was coming into port and that it would be beneficial for access interests to up on the Bridge helping to steer the ship from crashing into the dock.
Sure, it would have been easier for us to speed around the ship in rubber rafts hurling insults and objections at the captain (BLM) in a vain effort to help avoid a crash. However, we chose to try and help the captain steer the ship and avoid a direct impact with the dock. As a result, a series of stipulations were ultimately achieved, some of which affect OHV interests in the CDCA. Our group participated in the negotiations and ultimately signed the final stipulations addressing OHV issues in the Alogodones Dunes and other areas in the CDCA.
The legal issues and practical dynamics of this situation are extremely complex. Like many complex issues, it is far easier to express outrage about the result than it is to understand it. Regardless of the spin some folks are receiving, I feel that the facts of the case show the following:
1) The BLM would have agreed to many more closures than if we had not intervened - period.
2) Had we somehow convinced BLM to "walk away" from the bargaining table, Center would have likely filed an injunction targeting activities, including OHV use, which, according to U.S Fish and Wildlife Service, "may affect" listed species or their critical habitat. A likely first candidate on their list would have been all OHV "open" areas, as well as dirt road motorized access in desert tortoise critical habitat throughout the West Mojave bio-region. Similar motions have been routinely granted in ESA cases in the 9th Circuit.
3) "ESA" type suits filed against resource interests are often not able to be mitigated at all.
4) While the agreement does close a number of areas that were going to suffer an immediate closure anyway, it keeps open a larger or equal number of areas that would have been closed without our legal presence.
5) Much of what the Center is spinning as "closures" in the agreement are not closures at all, but restate existing law (i.e. can't ride in Wilderness) or recognize existing processes that have been moving to completion. For instance, West Mojave route designation has been coming for a long time, and while the agreement accelerates the process for 5 of 22 subregion "polygons", each will be available for 90 days of public comment prior to any "closure" decision. The agreement acknowledges and provides for public input on most OHV-related issues.
6) The agreement contains interim relief, to be superceded by decisions in broader BLM decision making processes. These decisions will include public participation and will be subject to administrative protest and judicial review opportunities.
7) The agreement contains substantial "wiggle room" for all parties. For instance, the agreement specifically notes that the intervenors do not acknowledge a factual basis for any emergency closure and reserve the right to file challenges to future BLM decisions, including those flowing from the agreement, under existing law.
8) We did not agree to, and took no position on, controversial provisions addressing interests other than OHV use because we are not allowed under the Court's ruling on our intervention to do so. We did not support restrictions on grazing, mining, maintenance of pipeline/utility rights-of-way, and private water rights. In fact, our legal counsel provided testimony to the grazing interests in their appeal to the Court's order denying their intervention explaining we were only authorized to represent OHV/access concerns and are not authorized to speak on behalf of the numerous other interests affected by this suit.
9) We were much better off to have been part of the suit, then to try and file objections or a separate suit (post facto) against the closures once the court had made a decision -- post decision suits against ESA decisions do not have a good track record.
Although some access interests have and will continue to object to the way in which this case was handled -- and I respect those objections -- I contend that the access community is better served, in the long-term, by our decision to settle under the final terms negotiated in this case. If, in the next several years, you ride anywhere on a dirt road in the West Mojave bio-region or participate in a competitive OHV event anywhere in the CDCA, it may be as a result of our participation in this case.
While some access advocates will stand and protest our decision, I believe that we made the right call based on all of the legal and political variables of this case. Most importantly, recognize that this process-oriented agreement gives us all a chance to "step to the plate" to influence a new series of BLM management decisions. The louder and more unified our voice in these processes the more desirable their outcomes from our perspective.
Thanks for your time and attention to this important matter as we all work to preserve and protect responsible multiple-use recreation on public lands.
Best regards,
Don Amador
Western Representative
Blue Ribbon Coalition, Inc.
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