UNITED STATES DISTRICT COURT

0 0 KEVIN V. RYAN, United States Attorney (SBN JAMES CODA, Assistant United States Attorney (SBN 0 (WI Northern District of California 0 Golden Gate Ave., Box 0 San Francisco, CA 0 THOMAS SANSONETTI, Assistant Attorney General JEAN E. WILLIAMS, Section Chief JASON T. COHEN, Trial Attorney (SBN Environment & Natural Resources Division U.S. Department of Justice Benjamin Franklin Station, P.O. Box Washington, D.C. 00- (0 0-00 / FAX: (0 0-0 Attorneys for the Federal Defendants CENTER FOR BIOLOGICAL DIVERSITY, et al., v. Plaintiffs, BUREAU OF LAND MANAGEMENT, et al., Defendants. DESERT VIPERS MOTORCYCLE CLUB, et al., Defendant-Intervenor/Amici Curiae. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No.: CV 0-0-SI Related Case No.: CV 0-00 SI DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR INJUNCTIVE RELIEF Hearing Date: November, 00 Courtroom: 0 Time: :00 a.m. Case No. CV 0-0-SI

0 0 INTRODUCTION Defendants Bureau of Land Management and U.S. Fish and Wildlife Service (collectively Defendants respectfully submit the following Response in Opposition to Plaintiffs September, 00, Motion for Injunctive Relief. Over seven weeks after the Court s August, 00, Order Re: Cross-Motions for Partial Summary Judgment, Plaintiffs have moved for sweeping additional relief. Plaintiffs seek the following three types of injunctive and additional relief: ( an injunctive order requiring the Bureau of Land Management ( BLM or the Bureau to immediately prohibit all grazing within the Desert Wildlife Management Areas ( DWMAs, prohibit all vehicular traffic in any washes in the two DWMAs designated within the Northern and Eastern Colorado Desert ( NECO planning area, and prohibit all use of vehicles beyond feet from the center-line of designated routes in the DWMAs; ( to have the Court vacate the portions of the California Desert Conservation Area ( CDCA Plan and the Northern and Eastern Mojave Desert ( NEMO and NECO plan amendments authorizing grazing in DWMAs, vehicle traffic in washes in the DWMAs designated with the NECO planning area, and vehicle traffic more than feet from the centerline of designated routes; and ( to have the Court clarify that its August, 00, Order vacates the U.S. Fish and Wildlife Service s ( FWS or the Service incidental take statement. In addition to being procedurally improper, Plaintiffs motion is legally and factually without merit. Procedurally, Plaintiffs motion fails because it is more appropriately brought as a Rule motion to alter or amend judgment, in which case it is untimely. Even if Plaintiffs motion is considered a motion for reconsideration of the Court s August, 00, Order, Plaintiffs have failed to satisfy the requirements of N.D. Cal. L.R. -. Plaintiffs request for injunctive relief also fails on its merits, because, as the Declaration of Linda Hansen and the attached section (d determination demonstrate, Plaintiffs have not, and cannot, meet their burden of showing a reasonable likelihood of future harm to the desert tortoise. Plaintiffs additional request to vacate portions of the CDCA Plan and plan amendments is improper, as those documents were not before the Court on summary judgment and were not part of the Court s August, 00, Order, and their request for clarification does not reflect the severability of the Service s findings in the biological - - Case No. CV 0-0-SI

0 0 opinion. Accordingly, the Court should deny Plaintiffs motion. ARGUMENT A. Plaintiffs Request Is Procedurally Improper. Plaintiffs motion is procedurally improper. The motion was filed over seven weeks after the Court s August, 00, Order, well beyond the ten-day deadline for filing a Fed. R. Civ. P. (e motion. See Northern Cheyenne Tribe v. Hodel, F.d, (th Cir. (ten-day time period provided for in Rule (e is strictly construed. In essence, Plaintiffs seek to alter or amend the Court s judgment so as to vacate parts of BLM s CDCA Plan and NECO and NEMO plan amendments, provide for injunctive relief against BLM, and clarify that parts of the Service s Mojave desert tortoise biological opinion were vacated. Because Plaintiffs motion is appropriately brought as a Rule motion, the current motion is untimely and must be denied. Even if the Court were to treat Plaintiffs motion as a motion for reconsideration, Plaintiffs still have failed to meet the requirements of N.D. Cal. L.R. -. Civil L.R. - requires that a party moving for revision of an order or other form of decision under Fed. R. Civ. P. (b first obtain leave of Court to file the motion. Plaintiffs failed to do so here. Furthermore, in order to be granted leave to file such a motion, Plaintiffs must specifically show either: ( a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought, that in the exercise of reasonable diligence the [moving party]... did not know... at the time of the interlocutory order; or ( the emergence of new material facts or a change of law occurring after the time of such order; or ( a manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. N.D. Cal. L.R. -(a, (b. In this case, Plaintiffs have not, and cannot, show a material difference in fact or law, or a manifest failure by the Court to consider material facts or dispositive legal arguments with regard to their requests to vacate parts of the CDCA Plan and plan amendments, impose additional injunctive relief on Defendants, and clarify that the Incidental Take Statement is vacated. B. The Court Is Not Required To Issue An Injunction. Plaintiffs improperly characterize the Court s August, 00, Order, and, in so doing, - - Case No. CV 0-0-SI

0 0 incorrectly argue that the Court must issue an injunction here. The Court held that the June, 00, Mojave desert tortoise biological opinion was arbitrary and capricious on the ground that the Service relied on an invalid regulation. August, 00, Order at. Thus, the Court found a violation of the Administrative Procedure Act ( APA, and appropriately remanded / the biological opinion to FWS for further consideration and a new opinion. See U.S.C. 0 ( The reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. ; Asarco, Inc. v. EPA, F.d, 0 (th Cir. 0 ( If the court determines that the agency s course of inquiry was insufficient or inadequate, it should remand the matter to the agency for further consideration. ; Federal Power Comm n v. Idaho Power Co., U.S., 0 ( ( [T]he function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the [agency] for reconsideration.. Plaintiffs incorrectly characterize the Court s decision as finding a procedural violation of the Endangered Species Act ( ESA. Plfs motion at. To be sure, several courts have stated that, where the Court finds a substantial procedural violation of the ESA in connection with a federal project, the proper remedy may be to enjoin the project pending compliance with the ESA. See, e.g., Thomas v. Peterson, F.d, (th Cir. ; Sierra Club v. Marsh, F.d, (th Cir.. However, that was not the finding here, and those cases are distinguishable. In cases involving substantial procedural violations, courts may presume that the failure to evaluate environmental impacts, at all, is likely to lead to irreparable harm, and therefore enjoin federal actions from going forward until the procedural violations are corrected. Here, the parties completed consultation and, based on the Court s Order and remand of the biological opinion to FWS, BLM has reinitiated consultation on the CDCA Plan and plan amendments. Not only did the Court s Order not find fault with the biological opinion s finding that the Plan would not jeopardize listed / Defendants, as explained in the motion to alter or amend judgment, believe that the Court committed errors by constraining the Service s discretion to reconsider the regulation on remand and by vacating the entire biological opinion, when only part of the biological opinion was the subject of the Court s order. The Court, however, acted properly by simply remanding the action to the Service, without imposing injunctive conditions on the Service or the Bureau. - - Case No. CV 0-0-SI

0 0 species and Incidental Take Statement, but BLM has actively met its obligation to assure that ongoing operations in the CDCA are not likely to violate the ESA by doing a section (d analysis. See Hanson Declaration ( Decl., Ex.. Accordingly, Plaintiffs argument that the Court must issue an injunction here is inapplicable to this case and should be disregarded. C. Plaintiffs Have Not Made a Showing Sufficient to Support Injunctive Relief. Even if the Court considers Plaintiffs request for injunctive relief, the request should be denied, because Plaintiffs have not, and cannot, demonstrate the likelihood of future harm from continued grazing, off-highway vehicle ( OHV use, and designated route restrictions. Although the balance of hardships and the public interest weighs in favor of protected species in cases involving the ESA, courts must still look at the likelihood of future harm before deciding whether to grant an injunction. National Wildlife Fed n v. Burlington N. R.R., F.d 0, (th Cir.. Here, in order to support an injunction, Plaintiffs must prove that there is a reasonable likelihood of future violations of the ESA; namely, of future harm to the desert tortoise and/or destruction or adverse modification of its critical habitat from grazing and OHV use. After the Court s August, 00, Order, BLM reinitiated consultation with FWS and prepared an ESA section (d analysis pertaining to adverse modification of critical habitat pending the completion of consultation. Hanson Decl. ; Ex. to Hanson Decl. While consultation is ongoing, section (d prohibits action agencies from making an irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative to the agency action. See U.S.C. (d. As is clear from the language of the provision, section (d is not a blanket prohibition on the continuation of activity during consultation. In this case, BLM s section (d analysis concludes that there exists no irreversible or irretrievable commitment of resources, pending receipt of a new biological opinion, that would foreclose the development or implementation of a reasonable and prudent alternative pursuant to ESA section (a(, and that ongoing actions are not likely to result in adverse modification of tortoise critical habitat. Hansen Decl., Ex.. Thus, the Declaration of Linda Hansen, BLM s District Manager for the California Desert District, demonstrates that Plaintiffs cannot meet their burden. - - Case No. CV 0-0-SI

0 0 With respect to livestock grazing, Plaintiffs argue that the Court should prohibit grazing in all DWMAs located in the NEMO and NECO planning areas. To support this request, Plaintiffs cite descriptions of the harmful effects of grazing in the Recovery Plan and urge the Court to adopt the recommendations of the Recovery Plan and prohibit grazing absolutely. Plfs motion at -. These arguments ignore the actual evidence of what is happening on the ground in the CDCA. There is only one currently active grazing allotment within the NEMO and NECO DWMAs. / Hanson Decl.. That allotment, Lazy Daisy, contains, acres, with, acres within the Chemehuevi DWMA (, acres. Id. The Lazy Daisy allotment is lightly stocked, with 0 cows. Id. During the warm summer months, livestock use patterns favor higher elevations, and at times the livestock are entirely outside the DWMA. Id. Livestock use is further restricted by a seasonal forage production threshold of 0 pounds per acre from March to June to ensure that forage for both livestock and wildlife is available. Id. Based on these facts, BLM reasonably concluded that [t]he site-level constituent elements of critical habitat for nesting, foraging, sheltering and dispersal will be maintained within the short-term, pending completion of consultation. Id.. With respect to OHV use, Plaintiffs request that the Court order BLM to prohibit all vehicle use in any washes within the NECO DWMAs, because the NECO plan does not strictly follow the Recovery Plan and limit OHV use to designated roads only. Plfs motion at. To support their request, Plaintiffs cite the Recovery Plan s description of harms caused by OHV use. Id. Again, Plaintiffs argument fails to consider the actual situation on the ground, this time in the NECO planning area. Under the NECO plan amendment, desert wash vehicle travel is allowed within % of the, acres within the Chemehuevi DWMA, and % of the 0,0 acres within the Chuckwalla DWMA a substantial reduction from the amount of desert wash historically open to vehicle travel. Hansen Decl.. Generally, vehicle use is low in this remote region, and / There will not be additional active grazing allotments within the NEMO or NECO DWMAs during the pending re-consultation on the CDCA Plan, since, of the six inactive allotments, one is in the process of cancellation, voluntary relinquishment requests have been filed in four, and one with a pending application for renewal is being held by BLM. Hansen Decl.. - - Case No. CV 0-0-SI

0 0 will not appreciably degrade the value of the habitat for nesting, foraging, sheltering, or dispersal. Id. Seasons of highest vehicular use (although still considered very low overall are associated with hunting, primarily in fall, and with camping, primarily in winter, both periods which are outside the above-ground portion of the desert tortoise life cycle. Id. at a. These periods also do not coincide with periods of forage growth, and the use will thus not appreciably affect forage supply. Id. Moreover, burrow habitat is less than optimal in the dynamic substrate offered in desert washes. Id. at. Accordingly, it was reasonable here for BLM to conclude that the effects of desert wash vehicle travel on the constituent elements of critical habitat... are minimal from a habitat perspective. Id. And lastly, with respect to travel off of designated routes, Plaintiffs request an injunction to prohibit any vehicle use more than feet from the center-line of designated routes within the NEMO and NECO DWMAs. Stopping or parking off designated routes is allowed under the NEMO and NECO plans within 00 feet of the center-line in DWMAs. Plaintiffs provide no evidence of future harm to support their request, instead stating categorically that they find the Conservation Recommendation to be reasonable and that the current plans create virtual highways within the DWMAs. Plfs motion at. Vehicle use is, in fact, generally low in this remote region, and the 00-feet provision helps provide a cap on the extent of habitat degradation that can occur in the short-term. Hansen Decl.. The plan amendments have reduced the maximum distance in which stopping and parking are allowed from 00 feet to 00 feet from the center-line in previously disturbed areas, thereby benefitting the tortoise by substantially reducing the extent to which nesting, foraging, sheltering, or dispersal of desert tortoise habitat could be affected. Id. and Ex. at. Given these facts, the Court should defer to the agency and should not adopt Plaintiffs requested route use limitation. Denial of Plaintiffs requested injunctive relief is necessary for two additional reasons that warrant discussion in this brief. First, the Court should reject Plaintiffs attempt to consider grazing and OHV use in a vacuum. Both the NEMO and NECO plan amendments were developed with the recovery of the desert tortoise as an expressed purpose. Hansen Decl.. In addition to the designation of five DWMAs within three recovery units, the NEMO and NECO amendments - - Case No. CV 0-0-SI

0 0 provide for: voluntary relinquishment and cancellation of grazing permits; the establishment of strict rangeland health standards; land tenure to retain critical habitat in federal ownership; a requirement that any exchange of private for public land has to result in a net benefit to the desert tortoise; the designation of six Areas of Critical Environmental Concern, four of which are established for the purpose of desert tortoise conservation; removal of feral burros from DWMAs; a requirement that for each acre disturbed, five replacement acres are required; and a % maximum habitat disturbance limit in DWMAs. Id. These additional provisions provide support for Defendants section (d determinations, and further erode Plaintiffs attempts to prove future harm to the desert tortoise. Second, the overriding impression one gets after reviewing Plaintiffs requested injunction provisions is that Plaintiffs are attempting to impose, via a backdoor procedure, the Recovery Plan s recommendations on BLM. Plaintiffs already made a similar attempt in their summary judgment briefs, see Plfs motion for partial summary judgment at 0-, arguing that the Recovery Plan s recommendations must be implemented, and, although the Court chose not to reach this issue in its Order, the Court indicated at oral argument that it agreed with Defendants that the Recovery Plan s recommendations are not mandatory. See also U.S.C. (f((b (stating that sitespecific management actions, to the extent they are incorporated into a recovery plan by drafting biologists, are actions that may be necessary, i.e., they are recommendations and are not required, to achieve the goals of the recovery plan; Desert Tortoise (Mojave Population Recovery Plan at & AR (indicating that the Recovery Plan sets forth recommendations and is not selfimplementing; Fund for Animals, Inc. v. Rice, F.d, (th Cir. (stating that recovery plans are for guidance purposes only. The Court should not substitute the recommendations of the Recovery Plan for the management actions developed and approved by BLM in the CDCA plan and the NECO and NEMO plan amendments. See Hansen Decl.. D. It Would Be Improper For the Court to Vacate Portions of the CDCA Plan and the Plan Amendments. Next, Plaintiffs request that the Court vacate all portions of the CDCA Plan and the NEMO and NECO plan amendments that authorize grazing in DWMAs, authorize OHV use in nondesignated routes in the NECO DWMAs, and authorize OHV use more than feet from the center- - - Case No. CV 0-0-SI

0 0 line of designated routes in DWMAs. Plfs motion at. Virtually the only support provided by Plaintiffs for this request is a reference to footnote on page of the Court s August, 00, Order, in which the Court made the general comment that [f]ailing to vacate the biological opinion, thus allowing the CDCA Plan to go forward pendente lite, might have irreversible consequences for the desert tortoise. Even if the Court considers Plaintiffs request, which it should not do for the reasons set forth in Section A, above, this comment by the Court is not sufficient to justify vacating significant portions of the CDCA Plan and plan amendments, or enjoining BLM activities, in this case. The Court did not make any specific findings with respect to the CDCA Plan and NEMO and NECO plan amendments, and these documents were not directly challenged in Plaintiffs summary judgment motion. Nor did Plaintiffs request vacatur of these documents, as they have here, in their Complaint or summary judgment briefs. There is a statutory process in place to assure that harm to the species does not occur during the consultation process, and it has been followed in this case. BLM developed the NEMO and NECO plan amendments in accordance with the requirements found in the Federal Land Policy and Management Act ( FLPMA, U.S.C. and U.S.C., and in compliance with the National Environmental Policy Act ( NEPA, U.S.C., and neither of those processes has been challenged. Hansen Decl.. The plan amendments were developed with recovery of the desert tortoise as one of their stated purposes. Furthermore, during the current reinitiation of consultation with FWS on the CDCA Plan, including the NEMO and NECO plan amendments, BLM made a reasonable determination that permitting limited grazing and OHV use will not result in an irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. Thus, it would be improper at this point for the Court to vacate portions of the CDCA Plan and plan amendments or to enjoin BLM s specific activities, simply because Plaintiffs prefer the Recovery Plan and the biological opinion s Conservation Recommendations to certain provisions of the CDCA Plan and its amendments. - - Case No. CV 0-0-SI

0 0 E. It Would Be Improper For the Court to Vacate the Incidental Take Statement. Finally, Plaintiffs request clarification that the Court vacated the June, 00, biological opinion s Incidental Take Statement ( ITS in its August, 00, Order. Plaintiffs request is in error because, as explained here and in Defendants Rule (e motion to alter or amend judgment, the ITS is severable and should remain in effect. The ITS is a written statement specifying the terms and conditions under which an agency may be exempted from the prohibition on takings found in section of the ESA. U.S.C. (b(. The ESA defines taking as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. U.S.C. (. The implementing regulations further define the terms harass and harm. Harass... means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. 0 C.F.R... Harm is an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. Id. For habitat degradation to be regulated, there must be proof of significant impairment of the species breeding or feeding habits and [proof] that the habitat degradation prevents, or possibly, retards, recovery of the species. National Wildlife Fed n v. Burlington N. R.R., F.d 0, - (th Cir. ; see also Arizona Cattle Growers Ass n v. United States Fish and Wildlife Serv., F.d, (th Cir. 00. As these regulations demonstrate, the destruction or adverse modification of critical habitat analysis that was litigated in this case, and which the Court found improper and remanded to the Service, is fundamentally different than the taking analysis under the ESA and its implementing regulations. Habitat modification must meet a significantly higher threshold under section to constitute a take. It must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species. Arizona Cattle Growers, F.d at (quoting Fed. Reg., (Nov.,. Due to this difference in the standards and the analysis for the adverse modification determination and the incidental take statement, the use of - 0 - Case No. CV 0-0-SI

0 0 an improper definition for adverse modification has no effect on the incidental take statement s terms and conditions. The determinations are severable, and a finding that the FWS used an improper definition for adverse modification should not lead to vacatur of the ITS. See, e.g., Gifford Pinchot Task Force v. United States Fish and Wildlife Serv., F.d 0, 0 (th Cir. 00 (analyzing a biological opinion s no jeopardy and destruction or adverse modification determinations separately, and holding the no jeopardy finding proper, despite the use of an improper definition when making the destruction or adverse modification finding. Plaintiffs do not discuss these legal distinctions, preferring instead to argue that the ITS may be issued only after consultation, and therefore must be vacated, because part of the consultation has been deemed invalid. However, the parties have undergone consultation here, and the ITS is separable and distinct, and unaffected by, the part of the consultation that was deemed invalid by the Court. BLM has completed an ESA section (d analysis and concluded that continued grazing, off-highway vehicle use, and enforcement of current off-route travel limitations under the CDCA Plan and plan amendments will not result in the irreversible or irretrievable commitment of resources, and these activities should be permitted to go forward in compliance with the ITS. Accordingly, vacatur of the ITS is improper, and Plaintiffs motion should be denied. CONCLUSION For the reasons set forth above, Plaintiffs motion for injunctive relief should be denied. Dated: October, 00 Respectfully submitted, Thomas L. Sansonetti, Assistant Attorney General Jean E. Williams, Section Chief s/ Jason T. Cohen, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box Washington, DC 00- Tel: (0 0-00; Fax: (0 0-0 Attorneys for Federal Defendants - - Case No. CV 0-0-SI