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Recreation Advocate

The OutdoorWire family websites feature news and information affecting outdoor recreation opportunities and access to public lands. 

Dissecting a Court Ruling

The news release started with this paragraph.  "A saga over 15 years in the making has ended well for common sense and dune riding access. The U.S. Ninth Circuit Court of Appeals today rejected appeals from the Center for Biological Diversity (CBD), and upheld the Bureau of Land Management’s (BLM) 2013 Imperial Sand Dunes Recreation Area (ISDRA) management plan. The Plan restored motorized dune vehicle access to most of the ISDRA areas closed on an “interim” basis in a 2001 settlement agreement. After nearly a decade of study and planning, BLM determined these areas were appropriate for dune vehicle riding."

Yes, this was good news for OHV enthusiasts who have been fighting for 15 years to ride the lofty sand dunes of Glamis.  And, as I have an innate curiosity as to how something can become a "win" after all the years, I did a little digging into mundane details behind the decision.

Two interesting points became apparent...

1.  The district court held that USFWS is not required to include plant species in incidental take statements, because the ESA does not prohibit incidental “take” of plant species.  CBD appealed this ruling, and the Ninth Circuit affirmed the district court’s analysis, finding that the ESA is clear that the definition of “take” does not apply to plant species and therefore an incidental take statement is not required.

In short, "take" is "kill, injure, harass, etc" of an endangered species.  Within the words of law, "take" applies to animal species, not plant species.

Good point to know for future reference.

2.  CBD also challenged the district court’s grant of summary judgment to BLM on the sufficiency of BLM’s air quality analysis under the National Environmental Policy Act, Clean Air Act, and Administrative Procedure Act.  The Ninth Circuit also affirmed the district court’s ruling that BLM’s analysis complied with all applicable laws, and that a difference of opinion over the methodology is insufficient to defeat an agency’s analysis.

Within this finding, the nugget of information is that "difference of opinion" is not a reason to file a lawsuit.  The methods and steps to conduct the air quality analysis complied under applicable law.  Therefor, the BLM followed a defined process within the letter of the law.  That there was a differing opinion did not matter as the prescribed steps were followed.

The news release can be viewed at: OHV Enjoys Climactic Victory At Glamis 

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