GLAMIS DUNE CLOSURE

May 17, 2001
- PRESS RELEASE -

AMERICAN SAND ASSOCIATION, CALIFORNIA OFF-ROAD VEHICLE ASSOCIATION, AND AMERICAN MOTORCYCLE

ASSOCIATION FILE SUIT AGAINST BLM DEMANDING THAT

IMPERIAL SAND DUNE CLOSURES BE LIFTED

San Diego - On May 17, 2001, the American Sand Association (“ASA”), the California Off-Road Vehicle Association (“CORVA”), and the American Motorcycle Association District 37 (“AMA”), filed suit against the Department of the Interior (“DOI”), Secretary of the Interior Gale Norton, and the Bureau of Land Management (“BLM”), seeking a court order to reopen the Imperial Sand Dunes to off-highway vehicle (“OHV”) use.

In November 2000, BLM settled a lawsuit that had been brought against it by the Center for Biological Diversity for alleged violations of the Endangered Species Act. As part of that settlement, BLM agreed to close large areas of the Imperial Sand Dunes to the OHVs - even though the current California Desert Conservation Plan and the Imperial Sand Dunes Recreation Management Plan designate these areas as “open” for OHV activities.

In their lawsuit, ASA, CORVA, and AMA challenge the dunes closures, alleging that BLM implemented the closures without conducting the environmental review and “public participation” processes required by the National Environmental Policy Act (“NEPA”) and the Federal Land Policy and Management Act (“FLPMA”). According to the complaint filed in the United States District Court, Southern District of California, BLM was not authorized to close the dunes without first evaluating the environmental impacts of the closure and without seeking input from public as to whether the closures were (1) necessary to protect threatened and endangered species, and (2) consistent with the “multiple use” mandates of the FLPMA. The suit further alleges that BLM, by implementing the dune closures without conducting the necessary environmental review and public participation processes, illegally stripped the public of its legal right to help shape land use policy in the California Desert.

In their prayer for relief, ASA, CORVA, and AMA have asked the Court for an order lifting the dune closures and removal of all closure signage until such time as BLM complies with the procedural and substantive requirements of NEPA and the FLPMA.

Judge Issues Final Judgement on Desert Lawsuit

BLM Desert Lawsuit update

March 22, 2001

By Rick Fisher

(Tuesday, March 20, 2001) Judge William Alsup, U.S. District Judge for

the Northern District of California approved both proposed consent

decrees recently agreed upon between the BLM and plaintiffs in the

desert lawsuit.

The Bureau of Land Management had been sued by the Center for

Biological Diversity, the Sierra Club and others for failure to consult

with the Department of Fish and Wildlife under Section Seven of the

Endangered Species Act whenever new species were listed.

The BLM readily admitted they had failed to do so in over one hundred

instances. This is another case where our government agencies are

jeopardizing our access to public land through inability to follow the

law of the land. Unfortunately when this happens, we pay for it.

Due to confusion in the early stages of the case, CORVA was unable to

get intervenor status and had no say in the settlement agreements signed

by the BLM and the Center for Biological Diversity. However, our

attorneys Art Coon and Chris Carrigan of Miller, Starr, and Regalia were

granted amicus curiae (friend of the court) status that allowed them to

comment on the agreements.

By this time the Imperial Sand Dunes (Glamis) were partially closed

due to the presence of a threatened plant, the Peirson’s Milk Vetch.

Unlike the first agreements, Judge Alsup took over one month to

understand the ramifications of these settlements. The turning point

was the February 14 hearing when, after reading our briefs, the judge

stated that no third party’s rights would be “diminished one iota”.

During discussions with our attorney Christian Carrigan, he then went on

to state, “under no circumstances could the government cite my approval

as a basis for any emergency [closure]”.

This was a major victory for access advocates. All further closures

will have to follow legal process and cannot use the settlement as

justification. These statements have prevented the BLM from

peremptorily closing Surprise Canyon. This closure would have been the

most egregious and arrogant, because there are no listed species there.

In the agreement, they state no reason for such a closure.

In affirming all settlement agreements, the temporary closure of

Glamis Dunes remains in effect. CORVA, its allies AMA D-37, the ASA,

and others are continuing to investigate all possible legal avenues to

continue our fight.

CORVA and its allies have spent over $100,000 on this lawsuit. We

believe that it was our arguments as “Friends of the Court” that caused

Judge Alsup to stop the BLM from further closures without process and

weakened their Glamis closure.

Our attorneys will monitor that the stipulations will not replace any

normal administrative process as outlined by the judge. Our law firm

has put Mr. Mike Pool, BLM State Director, and Mr. Tim Salt, BLM

California Desert District Manager, on notice that all administrative

processes (i.e., NEPA & SEQA) must be followed and we must be notified

of any BLM actions.

We all must keep close tabs on the BLM as they complete the process,

because they admit that the locations on the settlements are now on

their “hit list” for possible closure action. Documents must be

commented upon and meetings attended. The BLM’s own excellent website

is the best source of information. See WWW.CA.BLM.GOV. The BLM also

publishes by e-mail “CA.News.Bytes”. To receive this notification,

e-mail them at “CA_News.bytes@ca.blm.gov”.

Below is the text of the BLM News Release:

Judge issues final judgement on desert lawsuit

Tuesday, March 20 Judge William Alsop, U.S. District Judge for the

Northern District of California approved both proposed consent decrees

recently agreed upon between the BLM and plaintiffs in the desert lawsuit.

The judge also issued final judgement on all five stipulated consent

decrees

"Final judgement is entered in favor of plaintiffs and against defendants

pursuant to the stipulated consent decrees, each previously approved by the

Court, dated August 25, 2000, November 6, 2000, and March 20, 2000. The

court will retain jurisdiction to enforce said decrees."

In a March 16 news release, BLM State Director Mike Pool said that "....BLM

will fully comply with its administrative procedures while implementing

these agreements, and all those affected will be afforded due process as

required by law."

He also said that, "We recognize that these interim restrictions are

difficult for public land users. BLM strongly believes the long-term

collaborative planning process with full public involvement is a much

better approach to addressing management challenges in the California

>>Desert and will work closely with public land interests in that important

process."

Links to the March 20 court order (16 pages in PDF format) and to earlier

related documents are available at

http//www.ca.blm.gov/cdd/lawsuit.html .

Please note We apologize for the quality of this copy of the Judge's order

dated March 20. We do not yet have a clear copy or electronic version of

this document, but will post that on the Web as soon as it is available.

See press release of March 16

Lawsuit setttlement revisions announced (BLM California news release,

3/16/01)

http//www.ca.blm.gov/news/lawsuit_revisions_3-01.html

To address concerns raised by various publics, the BLM and plaintiffs

in a lawsuit agreed to modify several terms of their settlement agreement.

More on the lawsuit and other desert-related items

Road use opinions sought (Bakersfield Californian, 3/18/01)

http//www.bakersfield.com/local/Story/408258p-406440c.html

BLM asks for comments (Ridgecrest Daily Independent, 3/15/01)

Public input on the West Mojave Plan, involving a route network to

provide recreational access while protecting wildlife.

http//www.ridgecrestca.com/news/NBLasfo40425.html

BLM Asks Public to Help Develop OHV Route Network - Open House

Scheduled (BLM California news release)

http//www.ca.blm.gov/news/newberry_rodman_ohv_open_house.html

West Mojave Plan (BLM California Web pages)

http//www.ca.blm.gov/cdd/wemo.html

Desert coalition County must be proactive on dunes closures (Imperial

Valley Press, 3/17/01)

http//ivpressonline.com/archives/index.inn?loc=detaildoc=/2001/March/17-23

4-news10.txt

Wilderness Coalition study blasts off-roaders (Tahoe.com, 3/15/01)

http//www.tahoe.com/bonanza/stories.3.16.01/REGION/offr15Mar5012.html

Judge To Allow CORVA, AMA D-37 & PLP

to Present Evidence to Thwart Desert Lawsuit

NEWS RELEASE

FOR IMMEDIATE RELEASE

CONTACT: ED WALDHEIM

1-800-42-CORVA EXT. 215

ed@corva.org

www.corva.org

By Erin Dyer, CORVA Editor

(January 18, 2000)-On January 4, Judge Alsop presiding over the Center for Biological Diversity (The Center), et al v. BLM case in his San Francisco courtroom invited California Off Road Vehicle Association (CORVA), Sports Committee District 37 AMA (AMA D-37) and Public Lands for the People (PLP) to apply for status as amicus curiae, or Friend of the Court. With this status, which the judge indicated he would likely grant if applied for by January 8th, the three organizations are allowed to provide legal briefs, opposition to settlements, and appear and participate in the January 25, 2001 hearing. CORVA, AMA D-37 and PLP have already filed an amicus application, brief and proposed order with the court as of January 8, and fully expect the application to be granted given the judge's remarks.

"This is a great accomplishment for us," said Ed Waldheim, CORVA president, former District 37 AMA board member and former desert racer. "Before now, we weren't allowed to even view the case documentation and the BLM was selling us down the river by settling the case behind our backs. No public involvement was allowed."

Prior to this time, the case has been in a downward spin and the losses to the OHV community were mounting. Already lost to temporary closure was a large section of Glamis Dunes. 49,305 acres were closed Thanksgiving week due to the Peirson's Milkvetch plant, which The Center claims was not adequately studied by the U.S. Fish & Wildlife under the Endangered Species Act (ESA).

Additionally, on January 18, 2001, the BLM and the intervenors in the case negotiated a settlement with the Center on the entire desert lawsuit. According to Waldheim, "The settlement is a travesty to our American rights."

The good news is that the settlement requires court approval prior to taking effect, and HAS NOT YET BEEN SIGNED by the judge. "We are hopeful the court will see the validity of our briefs and act accordingly," states Waldheim.

"The judge is very interested in our legal briefs," said Waldheim. "We attempted to intervene earlier, but were denied as 'untimely' and 'already represented' by the other intervenors - a claim we deny."

Another "recreational group" which includes the High-Desert Multiple-Use Coalition, San Diego Off-Road Coalition, California Assoc. of Four Wheel Drive Clubs, Desert Vipers Motorcycle Club and the Blue Ribbon Coalition were accepted by the courts as intervenors in the settlement phase prior to the Glamis temporary closure. While they were unsuccessful in eliminating the closure, they were successful in changing the closure boundaries. This change moved the closed area to a less used portion of the dunes, therefore keeping the most popular areas of the dunes open to the OHV public.

While the "recreational group" mentioned above has worked diligently and honorably within their means, CORVA, AMA D-37 and PLP (a mining rights organization) have further reaching ideals which needed to be presented to the courts.

In the on-going efforts of CORVA, AMA D-37 and PLP to intervene in the case, the leadership of the three organizations hired attorney Arthur Coon from the firm Miller Starr & Regalia. Mr. Coon specializes in land use and environmental litigation.

Mr. Coon in a recent letter stated, "The judge expressly acknowledged that some of the interests we represented were different than the current parties/intervenors."

"The judge went on to say some most interesting and encouraging things at the hearing!" stated Mr. Coon.

"In sum, the judge's denial of intervention on timeliness grounds was not unexpected, and we will calendar a 60-day appeal deadline for that order, reserving our options. The judge's comments on our amicus participation and his desire to be educated on his legal role in reviewing proposed settlements can only be viewed as positive developments resulting directly from arguments made in our briefs. We will elaborate on these arguments in an amicus application and proposed brief containing our legal and factual objections to the settlements entered and proposed, and supporting authorities." As noted, the amicus application and brief were filed with the court on January 8.

Waldheim elaborated by saying, "While we did receive direction to apply for status as amicus curiae, we were denied status as an intervenor. This move was consistent with the judge's ruling of the untimeliness of the other three intervenor applicants including the California Mining Association, the American Sand Association and another mining association."

"CORVA, AMA D-37 & PLP were invited to participate as amicus curiae, because we demonstrated in our legal briefs that we had vital information and documentation which was important to this case. The other groups didn't have such information," said Waldheim.

"This case is more than just about Glamis Dunes," continued Waldheim. "It is about the entire California Desert, and CORVA, AMA D-37 and PLP are ready to fight to the end while the American Sand Association (ASA) has to focus its resources on the Glamis issue. The ASA has, however, taken the lead in hiring a biologist and we support their efforts."

Glamis was only the first of approximately 27 counts The Center is suing on. The counts range from endangered species protection to mining, grazing, road building, etc.

CORVA, while mounting its own legal bills, is also sending donations to the ASA to help fund the ASA's efforts to hire a biologist. The biologist will review the work of the U.S. Fish & Wildlife biologists providing studies of the endangered animal and plant species effected. Furthermore, CORVA has sent donations to the Blue Ribbon Coalition to support their legal efforts as well.

CORVA, AMA D-37 & PLP have 30 years experience and documentation on the California Desert Conservation Area and are adequately prepared to defend every count in this case. Please join the fight by sending your donations today!

A Legal Defense Fund has been started in a joint effort by the three organizations. Send your donations to "CLORV-LDF" and mail to: The California League of Off-Road Voters/LDF, 1014 Eleventh Street, Suite 140, Sacramento, CA 95814. CLORV-LDF is a 501(c)3 organization and donations sent to CLORV-LDF may be tax deductible. Please consult your tax advisor. Please be sure to state your membership in CORVA, AMA and/or your individual club for record keeping purposes. Do it TODAY, tomorrow may be too late!

For more information on these organizations visit their websites at:

www.corva.org

www.district37ama.org

www.clorv.org

CORVA Provides Evidence to Thwart Desert Lawsuit

CORVA, AMA D-37 & PLP Have Spent $25,000 on Legal Fees To Date on the Lawsuit. We Need Your Donations to Win This Battle!

By Erin Dyer, CORVA Editor

(December 16, 2000) - Last month, we announced the details of the Desert Lawsuit. It effectively closed 49,305 acres in Glamis Dunes to the off-road community. This was the first count of approximately 27 counts in a lawsuit filed by the Center for Biological Diversity (The Center), et al v. the Bureau of Land Management.

The Center claims the BLM failed to programmatic consult under the Endangered Species Act (ESA) Section 7 with the U.S. Fish & Wildlife Service on the California Desert Conservation Area Plan since its adoption in 1980.

The recent Glamis closure is temporary until the BLM consults with the U.S. Fish & Wildlife Service (USFWS). In truth, the BLM has been consulting with the USFWS on an ongoing basis, however the study is not yet complete. Since the Peirson's Milkvetch species was only recently listed as an Endangered Species in 1998, the BLM was still within their legal obligation and had not missed the deadline to complete their studies. The Center has, however, jumped the gun and forced the management of this species by lawsuit instead of by existing law. This is an issue CORVA intends to bring to the court's attention in our legal arguments. Furthermore, we are now forced to hire a biologist to defend the BLM's studies. The American Sand Association (ASA) has taken the lead on hiring the biologist.

Glamis Dunes is only the first area to be effected. The remaining 26 counts still need to be heard by the judge and more closures are eminent. Depending on the outcome, they may not be temporary closures, either.

Obviously, the Bureau of Land Management (BLM) is not interested in defending themselves and is caving in to the Center's claims. This is a tragedy. It is brought to you from the Honorable President Bill Clinton and his Administration. Their heavy environmental agenda is biased towards closures and is not interested in protecting the American public that recreates on these federally administered public lands.

The history of the case is long, but here is a brief summary for our new readers.

The case was filed on March 16, 2000. Individual members of CORVA, the American Motorcyclist Association District 37 (AMA D-37) and Public Lands for the People (PLP) filed with the court for intervenor status as Pro Se applicants (meaning applicants without legal counsel), but were denied on the grounds that we are already represented.

Another "recreational group" of OHV organizations which include the High Desert Multiple Use Coalition, San Diego Off-Road Coalition, California Assoc. of Four Wheel Drive Clubs, Desert Vipers Motorcycle Club, and the Blue Ribbon Coalition were accepted by the courts as intervenors in the settlement phase.

The Pro Se applicants of CORVA, AMA D-37 and PLP, are currently appealing the denial of intervenor status. We believe our members are not adequately represented by the "recreational group". Furthermore, we are prepared to submit evidence to the court to support our claim for dismissal. Unlike the "recreational groups", we are not interested in settling or negotiating with The Center, we want the case dismissed and are capable of providing evidence to support this rationale. While the "recreational group" has worked diligently and honorably within their means, CORVA, AMA D-37 and PLP have further reaching ideals that need to be presented to

On October 30 & 31, 2000, the "recreational groups" were involved in the settlement talks and while they were unsuccessful in eliminating the closure, they were successful in changing the closure boundaries. This change moved the closed area to a less used portion of the dunes, therefore keeping the most popular areas of the dunes open for the OHV public. This closure took effect prior to the Thanksgiving weekend.

On approximately, October 31, 2000, CORVA, AMA D-37 and PLP retained an attorney to appeal our intervenor status. This appeal is important, because this is only the first of the approximately 27 counts in the case to be settled. CORVA needs to be in court to present our evidence to the judge and defend the California Desert when the BLM won't.

The latest revelations in the case include the following:

CORVA, AMA D-37 and PLP's law firm of Miller, Starr & Regalia have contacted the attorney for the "recreational group" and submitted our evidence. The attorneys from both groups are currently working together. The evidence includes several points all of which are outlined in the accompanying letter form our legal counsel. (Please see next page.)

On Friday December 15, 2000, we received news that the case has been delayed until the first of January. The longer the case is delayed the better. Since this is a federal case, the case is biased by the Clinton/Gore Administration. We have better chances for recovery with President-Elect Bush in office and his Administration.

Currently, we have spent $25,000 on this case, and we have only begun! We need your contributions to keep this going.

CORVA, having 30 years experience and documentation on the California Desert Conservation Area, is adequately prepared to defend every count in this case. While the newly formed American Sand Association (ASA) is honorably defending Glamis by retaining an attorney to appeal the closure and has been successful in raising large sums from the sand/buggy industry, they have admitted they will not fight the battle beyond Glamis. CORVA is willing to defend the desert for the remaining families that recreate in other off-road desert areas, beyond Glamis. Small businesses who manufacture or sell off-road products are the first to see the devastating losses involved. They have a lot to lose. Together all of the off-road groups mentioned above can make a significant difference in this lawsuit, but each one needs money! BIG MONEY!

We need all members to dig deep and find it in your family budget to make contributions. They can be monthly contributions. We need your club to raise funds by having poker runs, garage sales, jamborees, etc. with the proceeds going to the CLORV LDF fund. We need all small business owners, whether you are off-road related or not, to send donations. You can also advertise in the "Off-Roaders In Action" and may be able to write off your donation on your taxes as a business expense. (Please consult your tax advisor.)

Donations made to the California League of Off-Road Voters (CLORV) Legal Defense Fund may be tax deductible (Again, please contact your tax advisor.) With this in mind, isn't it easier to send your donation now?

Please help us help you. Help CORVA defend the California Desert, defend the families who enjoy the Great Outdoors, and defend the small businesses that depend on this industry to put food on the table for their families.

Don't wait! Tomorrow may be too late!

The following is a letter written by CORVA's attorney in regard to our evidence on the California Desert Lawsuit and Glamis closure. It was sent to the following attorneys also working the case.

Paul A. Turcke, Esq.

Moore, Smith, Buxton & Turcke

Dennis L. Porter, Esq.

Lois J. Schiffer, Asst. Atty. General

Jean E, Williams, Chief

Lisa Lynne Russell, Trial Attorney

United States Department of Justice

Environment & Natural Resources Division

Robert S. Mueller, III, U.S. Attorney

James A. Coda, Asst. U.S. Attorney

U.S. Attorney Office

Northern District of California

Re: Center for Biological Diversity v. BLM: U.S. District Court, Northern District of California: Case No. C-00-0927 WHA

We understand from Magistrate Judge Spero's December 7, 2000 Order RE: Joint Letter and Further Settlement Conferences that settlement discussions between the parties are to take place Monday, December 11 through Wednesday, December 13,2000 in the above referenced matter. As you may be aware, this firm represents Public Lands for the People, Inc., Sports Committee, District 37, AMA, Inc., and the California Off-Road Vehicle Association, Inc., ("Applicants for Intervention") which entities currently have a motion for intervention pending in the above-referenced action to be heard by the Court on January 4, 2001.

We would like to take this opportunity to direct your attention, in particular, to the arguments made by this firm on behalf of the Applicants for Intervention in their November 15, 2000 Memorandum of Points and Authorities in Support of Motion for Leave to Intervene ("MPA") and the legal and factual support for the same contained in our subsequent November 29,2000 Declaration of Christian M. Carrigan in Support of Motion to Intervene ("Declaration"). We believe these arguments have substantial importance with regard to negotiating a resolution of this action. In particular, the MPA and Declaration provide a strong legal and factual basis for the dispositive argument that over ninety percent (90%) of the claims made in the Center's Complaint are time barred by the applicable statute of limitations for actions against the federal government contained in 28 U.S.C. section 2401.

We believe the facts set forth in the MPA and Declaration would be helpful in negotiating a settlement with the Center in that they establish that all of the Center's claims with respect to thirteen of the twenty four relevant species listings in the California Desert Conservation Plan Area are time barred, (Dec., 4-5, 12.) With regard to seven of the remaining eleven species, critical habitat has either been designated or proposed. (Decl., 7-9, 12.) With regard to the remaining four species, they have been so recently listed that the ordinary time for a consultation with the United States Fish and Wildlife Service has yet to pass and any claim for a violation based on the listing of these species is not yet ripe. (Decl., 10, 12.) Moreover, recent evidence released in an official publication of the Bureau of Land Management tends to support the view that, at least with regard to the Peirson's Milkvetch, off-highway vehicle use has not negatively impacted this species, which has, in fact, increased in abundance in OHV-open areas. (Decl., 11, Ex. A.) Consequently, there is no basis for an injunction closing areas of the desert to off-highway vehicle use because the Center has failed to meet its burden of demonstrating that without a change in the status quo any species will be irreparably harmed.

Moreover, the Center's Complaint fails to state facts that would entitle it to relief on the grounds that the Bureau of Land Management failed to consult with the United States Fish and Wildlife Service over amendments to the California Desert Conservation Area Plan. All the amendments that occurred within the prior six years and that are not, therefore, barred by the applicable statute of limitations, effectively expanded Areas of Critical Environmental Concern.

In short, the Center has not carried its burden of demonstrating it will be irreparably harmed if the Court's order is not limited to a declaration that the Bureau of Land Management must initiate consultations, where required and not time barred. When viewed in light of the obvious statute of limitations defense and after all the time barred claims are pared away, we believe the Center's Complaint is quite insignificant and simply does not present claims sufficient enough to warrant any closures of the desert to recreational-use.

If you have any questions, comments or concerns, regarding this matter, please do not hesitate to contact me or Art Coon directly.

Miller, Starr & Regalia

Christian M. Carrigan