The language is found in the court's order amending a previous order, done upon request of the off-road groups seeking clarification of their understanding of the earlier ruling. That is, that BLM could not take any action, including the closures, without following specific procedures.
The earlier agreement is part of five so-called stipulations resulting from an agreement between the BLM, several environmental groups that had filed a lawsuit against BLM alleging it failed to consult with the U.S. Fish & Wildlife Service regarding potential impacts to endangered species from off-highway vehicle use in the sand dunes, and several off-highway vehicle groups. A decision to not litigate the issue by the federal government led to the settlement.
Alsup's language serves as a modification to an earlier stipulation widely known as all further injunctive relief, dated March 20. In that order, the judge protected third-party rights by specifying BLM is subject to all applicable federal statutes or regulations, "and nothing in this agreement shall be construed to require BLM to take any actions in contravention of any such applicable statutes or regulations."
"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 Policy Act). 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's final order states. "The court make 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 law."
CORVA attorney Carrigan says that is exactly what BLM has done by using the threat of lawsuit by environmentalists and the consent decree as the basis for closing the local dunes.
The BLM disagrees with the off-road group.
Interior Department spokesman John Dearing said the parties reached a negotiated settlement approved by the judge. He emphasized the closures are temporary pending the consultations.
Dearing said the letter from CORVA is being reviewed, as is the judge's amending order.
"We're looking at the order to see where it places us," he said.
Meanwhile, Carrigan said BLM should not have closed any areas unless the consultation showed they should take place. Carrigan said with the latest plant count showing the six species of interest are more numerous and concentrated than 20 years ago, there is no reason to close any area.
"We don't think the evidence warrants that," Carrigan said.
CORVA representatives could not be reached for comment.
Leading the legal effort against BLM for not consulting with Fish & Wildlife over the potential damage to the desert areas is Tucson-based Center for Biological Diversity.
CBD desert ecologist Daniel Patterson said CORVA's letter and demand that the areas be reopened should not have any real effect, as BLM has the authority to close the areas to protect the various species.
Patterson said despite a good year for the plants of concern, any move to force BLM to reopen the desert areas would be opposed by CBD and could cause CBD to seek a total desert closure.
CORVA's Carrigan said whether BLM is actually taken to court, and when, on contempt charges remains undecided.
Staff Writer Rudy Yniguez can be reached at 337-3440.