In a 111 page decision handed down today, U.S. Dept. of the Interior Administrative Law Judge Harvey C. Sweitzer, decided in favor of the legal and scientific arguments advanced by the Center for Biological Diversity and the U.S. Bureau of Land Management during grazing hearings held in Barstow July 24-August 7.
The BLM and conservationist interveners represented by Earthjustice (the Center for Biological Diversity, Public Employees for Environmental Responsibility (PEER) and Sierra Club) won on every legal and scientific issue. The decision firmly upholds that cattle grazing harms the desert tortoise and its critical habitat. The judge also found that BLM could have consulted more with the grazing permittees notwithstanding court testimony showed the ranchers were uncooperative and would not talk with BLM.
The judge threw the decision back to BLM for further action. The environmentalists' view is BLM must do whatever consultation with permittees is needed within the next two weeks. Failure to have the grazing settlement implemented by September 7 will mean BLM is in contempt of the court order.
"September 7 is fast approaching and tortoises will need good plant nutrition and protection from livestock grazing," said Daniel Patterson, Desert Ecologist with the Center. "BLM should immediately begin vigorous work with conservationists and the livestock industry to get cattle moved to other parts of these allotments on time, and ensure the tortoise does not suffer through another key season without proper food."
The actual holding is as follows:
"(1) The EA and Decision Record are legally sufficient under NEPA; (2) The final grazing decisions are not arbitrary and capricious, are not an abuse of discretion, are supported upon a rational basis, and are otherwise in accordance with the law, except as provided in conclusion (4) below; (3) The final grazing decisions are consistent with section 7 of the ESA; and (4) BLM complied with the grazing regulations when it issued the final grazing decisions, except that BLM failed to comply with the requirements of consultation, cooperation, and coordination with the affected permittees and therefore the final grazing decisions are hereby set aside and the matter remanded to BLM for further action consistent with this Decision."
The ranchers lost on every legal and factual argument they raised save one -- the "CCC" argument. The argument complained that BLM failed to (C)onsult, (C)ooperate, and (C)oordinate with uncooperative people. The Ranchers told BLM not to call or visit and that they didn't want to have anything to do with the BLM and then turned around in Court and complained that BLM didn't call often enough.
Nonetheless, because that is only a simple procedural violation of BLM's regulations and because the grazing decisions are otherwise completely legal and scientifically justified -- the Center expects BLM to fix the procedural violation and implement the decisions by September 7th -- or in our view they are in contempt of court. The Federal Court in SF said do whatever you need to do and get it done by September 7th -- BLM failed to make a few more calls to the affected ranchers (who essentially evaded cooperation with BLM).
"We expect BLM to be more zealous in tracking these ranchers down and to do it before September 7th, and immediately start protecting the Tortoise." said Jay Tutchton, an attorney with Earthjustice who represented the conservation groups. "Otherwise, BLM's behavior is contemptuous of the federal court order."
The carefully negotiated CDCA grazing settlement compels BLM partially implement the U.S. Fish & Wildlife Service's 1994 Desert Tortoise Recovery Plan recommendations for livestock reduction and removal from critical habitat. Cattle and sheep mow down spring annual plants essential to tortoise health and reproduction. The hoofed livestock also trample burrows, killing tortoises inside or wrecking their homes. The CDCA settlement was negotiated to aid desert tortoise recovery by preventing grazing on 285,381 acres of critical and 213,281 acres of essential tortoise habitat during the biologically critical spring and fall seasons. The agency further agreed to prohibit grazing year-round on an additional 11,079 acres of active allotments.
BLM California Desert District Manager Tim Salt may be reached for comment at 909.697.5206 or 5207.
More info on CBD California Desert work
Daniel Patterson, Desert Ecologist, Center for Biological Diversity 520.906.2159 cel
Jay Tutchton, Attorney, Earthjustice, 303.916.8949 cell
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