The closures and restrictions are part of five interim agreements resulting from negotiations between the BLM, three environmental groups — the Tucson-based Center for Biological Diversity, the Sierra Club and the Washington, D.C.-based Public Employees for Environmental Responsibility — that filed a lawsuit against BLM alleging it failed to consult with the U.S. Fish & Wildlife Service on potential impacts to endangered species from a wide range of activities allowed in the sand dunes. Also party to the settlements were off-road vehicle groups.
BLM admitted responsibility and chose to not challenge, or litigate, the matter.
Adena Cook, Blue Ribbon Coalition public lands director, said the Endangered Species Act puts everybody between a rock and a hard place and the BLM has an obligation to follow the law.
"BLM has to follow the law even if it's a weed," she said, referring to the protected milkvetch. "That's where we find ourselves."
The Blue Ribbon Coalition is an umbrella organization for more than 900 off-road groups with about 600,000 members nationwide.
Cook said as intervenors in the matter, BRC and others did their best during the negotiations to minimize the size of closures.
"The hope is that they'll be reopened," she said.
Cook said studies to be conducted by the American Sand Association should show conclusively that the numbers of endangered plants is more dependent on climate than on off-road vehicle usage.
She said the size of the closures is less than what they could have been.
La Verne-based ASA's executive committee chairwoman, Vicki Warren, said it was expected that Alsup would sign the stipulations.
"There was no reason for him to not sign it, but his signature doesn't give (the environmentalists) any extra rights," she said.
ASA has about 23,000 members, including businesses and other off-road vehicle clubs.
Alsup's order says the most serious objection to both proposed consent decrees is that they will alter existing mining, ranching or off-road vehicle permits.
"Contrary to the fears that have been expressed," the order states, "neither consent decree will reduce any rights to administrative notice and/or hearings prior to making such modifications. Both consent decrees contain identical clauses that ensure that BLM cannot violate the law.
"The consent decrees will not and may not be asserted as a legal authority for any agency action over and above the BLM's existing statutory authority or to avoid any duties under (the National Environmental Protection Act)," it says. "Similarly, the resulting consent decrees in no way suspend or supersede any requirement for public notice or opportunity for public comment to which the BLM is subject. The court makes no finding that any ‘emergency' does (or does not) exist. Consequently, the BLM shall not under any circumstances cite this order as authority to take any emergency actions or otherwise circumvent the requirements of the law."
Meanwhile, Daniel Patterson, desert ecologist for the Tucson-based Center for Biological Diversity, said the judge's order supports CBD's position "quite favorably."
Patterson stressed the agreements were reached through negotiations with off-road vehicle groups and the judge found the settlement to be "in the public interest and reasonable," particularly in light of the injunctive relief the three plaintiffs could have sought and obtained.
"We didn't want to go that route," Patterson said, adding the plaintiffs sought to target the areas needing better BLM management.
"This is all interim relief until BLM can come into compliance with the law," he said.
Despite being interim in nature, Patterson said many of the closed areas could remain closed after the biological consultations between BLM and the U.S. Fish & Wildlife Service.
"That's uncertain," Patterson said. "We'll have to wait and see what comes out of the consultation process."