IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 1 Michael W. Graf (CA Bar # ) Law Offices Behrens Street El Cerrito CA 0 Telephone: () - Facsimile: () - (AK Bar # 0) Holly Ave Telephone: (01) - Facsimile: (01) - Pro Hac Vice Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 1 Center for Biological Diversity, and California Native Plant Society, non-profit organizations, v. Plaintiffs, Bureau of Land Management, and Mike Pool, State Director of the Bureau of Land Management for California, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No._ :0-cv--JF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT DATE: June, 0 TIME: :00 a.m. PLACE: th Floor, Courtroom JUDGE: Hon. Jeremy Fogel JUDGMENT - i - (01) -

2 1 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii INTRODUCTION... 1 STANDARD OF REVIEW... BACKGROUND... I. THE CLEAR CREEK MANAGEMENT AREA... II. THE ENDANGERED SPECIES ACT... ARGUMENT... I. The BLM Has and Continues to Violate Section (a)() of the ESA... A. The BLM is Violating the ESA by Failing to Fulfill its Independent Duty to Avoid Jeopardy.... B. The BLM Must Reinitiate Consultation with FWS to Address the Impacts of the BLM s Management of the Clear Creek Management Area on the San Benito Eveningprimrose II. The Center Requests Injunctive Relief to Protect the San Benito Evening-primrose While Until Reinitiated Consultation is Completed.... CONCLUSION... JUDGMENT - ii - (01) -

3 1 1 TABLE OF AUTHORITIES FEDERAL CASES Aluminum Co. of America v. Bonneville Power Administration, F.d 1 (th Cir. )... Anderson v. Liberty Lobby, Inc., U.S. ()... Celotex Corporation v. Catrett, U.S. ()... Conner v. Burford, F.d 1 (th Cir. )..., Environmental Protection Information Center v. Simpson Timber Co., F.d (th Cir. 01)... Forest Guardians v. United States Forest Service, Civ. No TUC-RCC, 0 U.S. Dist. Lexis 0 (D. Az. Oct. 1, 0)... Friends of the Earth v. United States Navy, 1 F.d (th Cir. )... Greenpeace v. NMFS, F. Supp. d (D. Wash. 00)... Hawksbill Sea Turtle v. Federal Emergency Management Agency, 1 F.d 1 (rd Cir. )... Lane County Audubon Society v. Jamison, F.d 0 (th Cir. )... Marbled Murrelet v. Babbitt, F.d 0 ( th Cir. )... Marbled Murrelet v. Pacific Lumber Co., 0 F. Supp. (N.D. Cal. )... National Wildlife Federation v. Burlington Northern R.R., F.d 0 (th Cir. )... National Wildlife Federation v. Coleman, F.d (th Cir. )... Natural Resources Defense Council v. Houston, F.d (th Cir. )... Pacific Rivers Council v.thomas, F. Supp. (D. Idaho )... Pacific Rivers Council v. Robertson, F. Supp. (D. Or. )... Pacific Rivers Council v. Thomas, 0 F.d 0 (th Cir. )...,, JUDGMENT - iii - (01) -

4 1 1 FEDERAL CASES (cont d.) Pacific Rivers Council v. Thomas, F. Supp. (D. Idaho )... Pyramid Lake Paiute Tribe v. United States Department of the Navy, F.d (th Cir. 0)... Sierra Club v. Marsh, 1 F.d (th Cir. )... passim Silver v. Babbitt, F. Supp. (D. Ariz. )... Southwest Center for Biological Diversity v. Klasse, Civ. S-- GEB-JFM (E.D. Cal. April 1, )... Tennessee Valley Authority v. Hill, U.S. ()...,,, Thomas v. Peterson, F.d (th Cir. )..., U.S. v. Glenn-Colusa Irr. District, F. Supp. (E.D. Cal. )... FEDERAL STATUTES 1 U.S.C. 1(b).. 1 U.S.C. (a)()... passim 1 U.S.C. (b)... 1 U.S.C. (d)..., REGULATIONS 0 C.F.R C.F.R C.F.R. 0.(a)... 0 C.F.R. 0.(g)()... 0 C.F.R. 0.(h)()... 0 C.F.R , JUDGMENT - iv - (01) -

5 0 C.F.R. 0.1(b)... 0 C.F.R. 0.1(c)... OTHER AUTHORITIES Fed. Reg Fed. Reg JUDGMENT - v - (01) -

6 1 1 INTRODUCTION Plaintiffs, the Center for Biological Diversity and the California Native Plant Society, (collectively referred to as The Center ) challenge the Bureau of Land Management s ( BLM ) failure to comply with its Endangered Species Act ( ESA ) obligations with respect to the Clear Creek Management Area ( CCMA ), located in San Benito County. Specifically, the Center challenges BLM s failure to insure, in consultation with the United States Fish and Wildlife Service ( FWS ), that its management of the CCMA is not likely to jeopardize the continued existence of the San Benito Evening-primrose, Camissonia benitinsis ( San Benito Eveningprimrose or primrose ) under Section (a)() of the ESA. 1 U.S.C. (a)(). The primary threat to the San Benito Evening-primrose ( primrose ) is unregulated use by Off Highway Vehicles ( OHVs ) that trample plants and destroy habitat through pulverization of soil and erosion-caused sedimentation discharge. As shown by BLM and FWS documents, the BLM has failed to take the necessary action to protect this species, despite its listing under the ESA almost years ago, and despite BLM s completion of a preferred management alternative to protect the species a decade ago. BLM s management plan assumed that in the interim period while BLM finalized and implemented its plan, OHV use would be significantly restricted in the CCMA. Only after BLM had completed its final plan, finished consultation and implemented the plan on the ground would OHV riding be permitted to increase to the levels found to be adequately protective of the species by the FWS in its Biological Opinion. Precisely the opposite result has occurred. Instead of restricting OHV use to ensure that jeopardy to the species is avoided, BLM has followed a path of regulatory neglect, in which OHV activity in the CCMA has increased annually, with hundreds of miles of undesignated JUDGMENT (01) -

7 1 1 routes, routine riding in closed areas and numerous trespasses onto primrose populations and habitat. In the last three years, OHV riding has increased an average of five percent per year, even though BLM s own monitoring shows that BLM is simply unable to control the impacts of this user group on the primrose, the integrity of the CCMA ecosystem, and all other user groups that enjoy the unique CCMA resource. 1 In this motion, the Center seeks a declaration that BLM has violated its Section obligations by failing to insure, in consultation with FWS, that its management of the CCMA is not likely to jeopardize the primrose. The Center seeks an order compelling BLM to comply with the ESA by reinitiating consultation with FWS, and an order enjoining BLM from allowing OHVs within the CCMA until the consultation process has been completed and BLM has ensured that management of the CCMA is not likely jeopardize the species. Summary judgment is appropriate because there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. (c). STANDARD OF REVIEW A court shall render summary judgment when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. (c). When the evidence is so one-sided that one party must prevail as a matter of law, summary judgment is appropriate. Anderson v. Liberty Lobby, U.S., 1- (). Where the moving party has demonstrated that there is no material issue of fact for trial, the adverse party 1 In support of this motion, the Center relies primarily on BLM, FWS and other government agency documents and correspondence, which establish BLM s regulatory failure as a matter of law. Because BLM has claimed that it is now, years later, in the process of fixing the problem, the Center is also submitting factual evidence in support of its claims that BLM is unable to protect the primrose in the absent of a direction by this Court. This evidence is presented in the accompanying declarations of Brian A. Litmans, Dean W. Taylor, Brian LeNeve, Emily Roberson, Mary Ann Matthews, Vernal L. Yadon and supporting exhibits. JUDGMENT - - (01) -

8 1 may not just rest upon the mere allegations or denials of the adverse party s pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. (e). Summary judgment is not treated as a disfavored procedural shortcut but as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. Celotex Corporation v. Catrett, U.S. () (quoting Fed. R. Civ. P. 1). Accordingly, this Court should declare that the BLM is in violation of Section of the ESA for failing to reinitiate and complete consultation regarding the management of Clear Creek Management Area by BLM. BACKGROUND I. THE CLEAR CREEK MANAGEMENT AREA The Bureau of Land Management s Clear Creek Management Area provides habitat for a number of rare and imperiled serpentine endemic species, including the federally listed San Benito Evening-primrose, Camissonia benitinsis. The San Benito Evening-primrose is an annual plant whose population numbers fluctuate depending on climatic conditions. It is thus 1 dependent on the maintenance and protection of sufficient amounts of both occupied and unoccupied suitable habitat to adequately accommodate annual shifts in reproduction, numbers and locations. The serpentine soils and streamside terraces where San Benito Evening-primrose occurs are extremely fragile and easily damaged by OHV use and by deposition of sediment from eroding slopes and barrens. The San Benito Evening-primrose is a highly imperiled species endemic to serpentine- The San Benito evening-primrose is a self-pollinating plant. Germination occurs from February to March. Flowering takes place in mid-spring while seed pods are mature by early summer. For short-lived annuals, maintaining a seedbank is an important mechanism for surviving years of climatic conditions that are poor for seed germination and seedling survival. Litmans Decl., Exhibit A at. JUDGMENT - - (01) -

9 1 1 derived alluvial deposits only found within the vicinity of the CCMA. Due to its imperiled nature, San Benito Evening-primrose was listed as a threatened species in. 0 Fed. Reg. - (Feb. 1, ). Of known occurrences, commonly referred to as sites, are found on public lands within the CCMA. Litmans Decl., Exhibit N at -. The CCMA is also heavily used by OHVs. The CCMA became a focused use area for OHVs because the serpentine habitats offered open slopes for recreation. OHVs drive over occurrences of San Benito Evening-primrose and other species. They damage soil, increase wet and dry sedimentation, and generally degrade habitat quality in the area. See Leneve Decl., at, Exs. 1-,. OHV damage was cited as a primary reason for the listing of San Benito Eveningprimrose under the Federal ESA. FWS listed the species as threatened rather than endangered based on the assumption that the BLM would implement conservation measures to promote species recovery. See 0 Fed. Reg. ; cf. Fed. Reg. 01 (Oct. 1, ) (proposing to list the primrose as endangered). Since, the CCMA has seen widespread OHV use and resultant damage, both directly and indirectly, to the primrose. Litmans Decl., Exs. W, X, Y, Z, AA, and O; see also Leneve Decl., at -, Exs. 1-. In, 0, 0, and 0, enough incidents to require closure of the CCMA were recorded by BLM. Litmans Decl., Exs W, Y, Z, and O. The 0-0 peak season is currently underway. BLM has made no indication that it will impose meaningful restrictions on OHV use in the CCMA to protect San Benito Evening-primrose. As unregulated OHV use and damage to San Benito Evening-primrose habitat continues, the number of suitable acres is decreasing in both occupied and unoccupied sites. As suitable habitat is destroyed, areas where the species can reproduce and begin a path towards recovery are eliminated, threatening the species survival. JUDGMENT - - (01) -

10 II. THE ENDANGERED SPECIES ACT The Endangered Species Act is the most comprehensive legislation for the preservation 1 1 of endangered species ever enacted by any nation. Tennessee Valley Authority ( TVA ) v. Hill, U.S., 0 (). The Supreme Court s review of the Act s language, history, and structure convinced the Court beyond a doubt that Congress intended endangered species to be afforded the highest priorities. Id. at. As the Court found, Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest priorities, thereby adopting a policy which [Congress] described as institutionalized caution. Id. at (quoting H.R. Rep. No. -1, at - ()). [T]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost, Id. at, and this precautionary approach to preserving species is reflected not only in the stated policies of the Act, but in literally every section of the statute. Id. at. The ESA was enacted, in part, to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] a program for the conservation of such endangered species and threatened species. 1 U.S.C. 1(b). In order to fulfill the substantive purposes of the ESA, Federal agencies are required to engage in consultation with NMFS or FWS to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the adverse modification of habitat of such species determined to be critical. 1 U.S.C. (a)() (Section consultation). Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and JUDGMENT - - (01) -

11 1 1 recovery of a listed species in the wild by reducing the reproduction, number, or distribution of that species. Conner v. Burford, F.d 1, (th Cir.) (quoting Interagency Cooperation--Endangered Species Act of, As Amended, 1 Fed.Reg., () (codified at 0 C.F.R. 0.0)). Because the ESA requires the consultation process to insure that agency actions do not jeopardize listed species, Section consultation must be initiated for any action [that] may affect listed species or critical habitat. 0 C.F.R. 0.(a) (emphasis added). time a proposed action may affect a protected species, consultation must occur and be Thus, any completed before the federal action may take place. Pacific Rivers Council v. Thomas, 0 F.d 0, (th Cir. ); Thomas v. Peterson, F.d, - ( th Cir. ). Only if it can be determined that the proposed action will have no effect on a listed species can the consultation process be avoided Pacific Rivers, 0 F.d at n.. During the course of consultation, FWS may suggest modifications to the action to avoid the likelihood of adverse affects to the listed species. 0 C.F.R. 0.. At the completion of consultation FWS issues a Biological Opinion ( BO ) that determines if the agency action is likely to jeopardize the species or adversely modify its critical habitat. See 0 C.F.R If a jeopardy determination is made the agency may not proceed unless the BO specifies reasonable and prudent alternatives ( RPAs ) that will avoid such jeopardy. 1 U.S.C. A may affect determination triggers the action agency s duty to prepare a biological assessment, which determines whether the activity is likely to adversely affect the listed species. If so, formal consultation must be initiated. If the biological assessment concludes that the activity is not likely to adversely affect the listed species, the consultation process is concluded upon concurrence by FWS of the assessment. However, if the FWS does not concur with the not likely to adversely affect determination, formal consultation will be required. 0 C.F.R. 0.0, 0.(a). In order to make this determination, FWS and NMFS must use the best available scientific information and provide a detailed evaluation of the action s effects on the listed species. 1 U.S.C. 1(a)() and (b)()(a); 0 C.F.R. 0. (c) and (g)-(h). The effects determination is based on the direct, indirect, and cumulative effects of the action when added to the environmental baseline and other interrelated and interdependent actions. 0 C.F.R JUDGMENT - - (01) -

12 1 1 (b); 0 C.F.R. 0.(h)(). See also Sierra Club v. Marsh, 1 F.d, - ( th Cir. ) (enjoining highway construction because agency could not meet burden of absolute assurance that mitigation required to avoid jeopardy was possible). FWS must also formulate discretionary conservation recommendations to reduce or minimize the action s impacts on listed species or critical habitat. 0 C.F.R. 0.(g)(). The agency shall reinitiate formal consultation with FWS (b) If new information reveal effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion. 0 C.F.R. 0.1(b) and 0.1(c). Where an action agency fails to fulfill the assumptions relied upon by FWS in developing a no-jeopardy biological opinion, the action agency violates its duty under ESA (a)(). See Sierra Club, 1 F.d at. Section (d) of the ESA provides that the pending completion of formal consultation with the FWS, the action agency shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)() of this section. 1 U.S.C. (d). The intent of Section (d) is to avoid harm to the affected species pending the completion of interagency consultation. If an agency fails to consult on an action that affects listed species, all activities that may affect the species must be enjoined. Pacific Rivers, 0 F.d at - ( [the Forest Service s] conclusion that these activities may affect the protected salmon is sufficient reason to enjoin these projects. Only after the Forest Service complies with (a)() can any activity that may affect the protected salmon go forward. ). An agency s duty to insure that its actions are not JUDGMENT - - (01) -

13 1 1 likely to jeopardize listed species is continuing, and where discretionary Federal involvement or control over the action has been retained or is authorized by law, the agency must in certain circumstances undergo consultation even after the action has been initiated. 0 C.F.R One such circumstance is when a new species is listed that may be affected by the identified action. Id.; see also Pacific Rivers, 0 F.d at (upholding the lower court finding that an ongoing agency action that was initiated before a species listing and therefore did not undergo initial consultation was nonetheless subject to reinitiation of consultation once the species was listed). Although procedural, the consultation requirement is the backbone of the ESA. As the Ninth Circuit recognized, [o]nly by requiring substantial compliance with the act s procedures can we effectuate congressional intent to protect species. Sierra Club, 1 F.d at. And as the Ninth Circuit reasoned in Thomas v. Peterson, the strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions. Thomas, F.d at. The Thomas court concluded that if a project is allowed to proceed without substantial compliance with those procedural requirements, "there can be no assurance that a violation of the ESA's substantive provisions will not result", a consequence which the Ninth Circuit deemed "impermissible". Id. (citing TVA v. Hill) (emphasis added). Furthermore, the Ninth circuit has held that the traditional sliding scale for injunctive relief, weighing harms against the likelihood of success on the merits, is inapplicable for injunctions sought under the ESA. Sierra Club, 1 F.d at. Instead, a plaintiff seeking redress for violations of the ESA is entitled to injunctive relief upon a showing that the agency violated a substantive or procedural provision of the ESA, since Congress established both JUDGMENT - - (01) -

14 1 1 substantive and procedural provisions to assure adequate protection of the listed species. Id. ARGUMENT I. The BLM Has and Continues to Violate Section (a)() of the ESA. Where an action agency fails to fulfill the assumptions relied upon by FWS in developing a no-jeopardy biological opinion, the action agency violates its duty under ESA (a)(), 1 U.S.C. (a)(). In this case, BLM has failed to manage OHV use in a way that would comply with the mandates of the ESA. In 0, the BLM recognized that the San Benito evening-primrose s status was on the decline. Litmans Decl., Ex. B at v. BLM decided to reevaluate and amend its and management plans to allow for continued OHV recreation while also protecting the primrose. Id. In, BLM selected a preferred alternative in its CCMA FEIS that was the subject of a Biological Opinion prepared by FWS. See Litmans Decl., Exs. B and C. The FEIS set out management objectives for the 0,000acre Serpentine Area of Critical Environmental Concern ( ACEC ) within the 0,000-acre CCMA for the next years. The FEIS preferred alternative identified Resource Condition Objectives ( RCOs ) to protect existing populations of San Benito Evening-primrose and attempt to expand its range. The RCOs included reducing erosion and sediment transport in all CCMA watersheds, and managing the CCMA for dispersed OHV use by establishing open and closed areas as conditions and resources may warrant. See Litmans Decl., Ex. B at, Ex. C at and Ex. D at. In order to meet the RCOs, the preferred alternative designated the CCMA a Limited Use Area for management of OHV use, which includes closure of the CCMA to OHVs when appropriate. Litmans Decl., Ex. D at -1. For management of OHV use, BLM s preferred alternative required a reduction of the then estimated miles of designated routes in the CCMA to 0 miles. Litmans Decl., Ex. C at and Ex. D at. Open recreation areas for OHV use were to be reduced from the then existing 000 acres of barrens to acres. Id. JUDGMENT - - (01) -

15 1 1 The FEIS preferred alternative assumed that that during the interim period in which BLM finalized and implemented its management plan open routes for OHVs would be limited to an interim route network of miles. Litmans Decl., Ex. B at viii. Further, the preferred alternative assumed that only acres would be conditionally opened for use as open play areas or barrens with the remainder conditionally closed. Id. Thus, the FEIS acknowledges that until BLM had completed its management plan and accompanying consultation with FWS, OHV use would be reduced so as to insure that the primrose would not be jeopardized. In September of, FWS released the Biological Opinion for the FEIS/RMP Amendment ( BO ). See Litmans Decl., Ex. C. The BO assessed the impacts of the preferred alternative in the EIS on the primrose. The BO noted that potential still existed that continued use of the CCMA by OHVs would result in impacts, including the irreversible and irretrievable commitment of resources, but that these impacts would be minimized by the following management actions specified in the preferred alternative: (1) implementation of a designated route system; () elimination of more than two-thirds of the barren areas from OHV use; and () provisions for a high level of monitoring and immediate protection of occurrences once they are discovered, as well as adaptive management measures. Id. at -. The BO also identified closure of the CCMA as a key measure to ensure that San Benito Evening-primrose is not jeopardized in the event of (i) excessive OHV damage to San Benito Evening-primrose and its habitat or (ii) inadequate protection for San Benito Eveningprimrose sites. The BO set out the following criteria as thresholds for such closure of the CCMA: (1) fifteen incidents of resource damage to known protected Bureau-managed San Benito Evening-primrose occurrences (ten incidents of damage results in posted warnings); () As discussed below, this assumption was part of the FWS subsequent consultation in. JUDGMENT - - (01) -

16 1 1 insufficient funds or personnel leading to ineffective habitat protection, barrier construction (i.e. fences), or area patrol () failure to meet threshold levels of monitoring (levels set by a mutual agreement from FWS and BLM). Id. at.. According to the BO, the area would only be reopened when the problem that caused the closure had been resolved or mitigated to a level mutually deemed adequate by FWS and BLM. Based on mitigation measures promised by BLM in its ROD, and on expectation of compliance with those measures mandated by the BO, FWS found that continued management of the CCMA, as proposed in the Final EIS, was not likely to jeopardize San Benito Evening-primrose. Id. at. In, the BLM released the Record of Decision ( ROD ), concluding a nine year process three years to prepare the draft EIS, three years to issue the final EIS, and another three years to issue the ROD. See Litmans Decl., Ex. D. The ROD approved the preferred alternative from the EIS as modified to address supplemental issues identified in the ROD and to include stipulations required by the FWS Biop. Litmans Decl., Ex. D at 1. The ROD confirmed that the BLM would designate 0 miles of routes for encouraged use and acres of barrens, which both would be shown on a user map. Id. Additionally, the CCMA was to be designated a Limited Use area, permitting OHV use only on existing routes and within identified barrens. Id. However, the ROD modified the preferred alternative, omitting the interim goals and instead allowing use on all existing routes in the BLM database at time of approval of the ROD. Id. at and 1-. BLM has never reinitiated consultation with FWS on this significant change to allow for substantial interim OHV use in the CCMA, which, as discussed below, has increased annually since the ROD was issued. Frustrated with BLM s inability to follow the BO, CNPS and the Center sent BLM California State Director Mike Pool a 0-day Notice of Intent to File Suit for violations of the Federal Land Policy and JUDGMENT - - (01) -

17 Management Act, the National Environmental Policy Act, and the ESA on March, 0. Litmans Decl., Exhibit M. OHV Use Exceeds That Anticipated in the EIS and Assessed in the BO. First, management of the CCMA has failed to follow the management direction See 1 established in the EIS preferred alternative, which in turn was the subject of the BO. For example, BLM s authorized use of the serpentine barrens is significantly larger than that considered in the EIS and BO. The preferred alternative assumed that only acres of open play areas or barrens would be conditionally opened for use, with the remainder conditionally closed, pending a thorough review of all barren areas. Litmans Decl., Ex. B at viii; LeNeve Decl. at. Currently there area at least 00 acres of open barrens. Ex. D at, cf. Ex. N at - (no action alternative estimating at least 00 acres of current open barrens); see also LeNeve Decl. 1. This open access area for OHV use is having a far greater impact than predicted by the BO because the BO anticipated that the BLM would reduce the acreage of open play to about 0 acres initially and then expand to a maximum of about 00 acres. Litmans Decl., Ex. 1 C at and -; see also LeNeve Decl. at -. The BO noted that OHV use over barrens results in increased erosion. Litmans Decl., Ex. C at. Sediment management is critical to the long-term conservation of the primrose and its habitat. Id. at. OHV use displaces significant amounts of soil. Id.; see also Litmans Decl., Ex. N at - (photo documenting sedimentation on a trail) and - to - (photo at - also documents erosion along a OHV route); LeNeve Decl. at and 1 and accompanying photo On June, 0, the BLM responded to Plaintiffs 0-day Notice of Intent to File Suit for violations of the Federal Land Policy and Management Act, the ESA, and the National Environmental Policy Act. See Litmans Decl., Exhibit R. Use has also substantially differed from that assessed in the BO regarding locations for barrens. The BO noted that unrestricted motorcycle and off-road use would only occur in Clear Creek Canyon under the proposed alterative. Litmans Decl., Ex. C at. Consequently, all barren use in Larious Canyon, the bowl and other areas is inconsistent with the anticipated action assessed in the BO. JUDGMENT (01) -

18 1 1 exhibits; and Roberson Decl. and accompanying photo exhibits. Under natural conditions, sediment yield within the CCMA is estimated at. tons per acre per year. The sediment yield from areas that have been disturbed by hillclimbs is estimated at between. to 1 tons per acre per year. Litmans Decl., Ex. C at. However, increased use of barrens beyond the total acreage designated in the EIS and ROD, as well as assumed in the BO, results in increased sediment loads, adversely impacting CABE and its habitat beyond that anticipated in the BO. See Id. at - (where FWS notes that sedimentation impacts should be reduced because play areas will be designated according to criteria designed to avoid or reduce impacts to the primrose by siting them away from slopes that drain into Clear Creek Canyon). FWS noted that [r]estoration of sediment transport processes that are similar to those that occurred under natural conditions may be the only reasonable means of ensuring the survival and recovery of the species. Id. (emphasis added). Additionally, OHV activities lead to the loss of seed-bearing substrate, increase in soil deposition on terraces, and soil compaction. Id. at ; see also Litmans Decl., Ex. A at and Ex. N at -. Route use also exceeds that reviewed by FWS in the BO. BLM has failed to follow the original interim route network set out in the preferred alternative, which reduced the routes to miles while BLM designated the 0 miles. Litmans Decl., Ex. B at viii. Not only has BLM failed to follow the interim route network plan, but it has also failed to reduce routes to the 0 mile target identified in the ROD. See Litmans Decl., Ex. D at. The overall reduction in routes from miles to 0 miles was part of the basis for the no jeopardy CABE is limited to serpentine-derived alluvial (stream deposited) terraces and deposits near San Benito Mountain. Currently the principle threat to CABE is erosion resulting from the use of OHVs. Litmans Decl., Ex. A at ii. The terraces are the only habitat for CABE. Soil surfaces are pulverized by OHV tires. This pulverization removes the vegetation, soil crust and other natural soil stabilization mechanisms, leading to accelerated erosion and sedimentation. Sedimentation into streams and streamside terraces can bury CABE populations and destroy suitable CABE habitat. See LeNeve Decl. and attached photo exhibits. JUDGMENT - - (01) -

19 1 1 opinion in the BO. Litmans Decl., Ex. C at. Yet, the 0 DEIS states that there are more than miles of primitive roads and trails currently available for OHV use and that there are an additional % of uninventoried routes documented through aerial photos. Litmans Decl., Ex. N at 1- and -. Furthermore, BLM, itself, acknowledges that it has allowed use on the complete inventory ( miles of routes.). Litmans Decl., Ex. R at ; LeNeve Decl. at -. This total vehicle route mileage conflicts with the intentions set out in the EIS to immediately reduce routes to miles. It also is inconsistent with what BLM set out in the ROD. This deviation from the EIS, BO and ROD for both open routes and play areas constitutes new information and a substantial modification of the reviewed action. BLM Has Failed to Follow the Warnings Policy Set Out in the BO. The BO requires the BLM to issue warnings where ten incidents of damage to known primrose occurrences are found. Incidents (i.e. tracks through primrose sites or removal of fences) indicate direct adverse impact to the species. Although there have been more than instances of damage of San Benito Evening-primrose every year since, BLM has issued only two warning letters, both following requests for such warnings from CNPS. See Litmans Decl., Ex. T at and Exs. E, F, and G. BLM s own monitoring data indicate that there were at least incidents from to 0. See Litmans Decl., Exs. W (1 incidents in ), AA ( incidents in 00), X ( incidents in 01), Y ( incidents in 0), Z ( incidents in 0), and O ( incidents in 0). Concerned about the lack of warnings being issues despite the amount of recorded incidents, CNPS engaged in written correspondence with BLM. See Litmans Decl., Exhibit E, F, and G. For example, on November 1, 0, CNPS sent a letter to Robert Beehler, BLM Hollister Office Manager, referring BLM to an October 0 San Benito Evening-primrose BLM tallies incidents in a misleading way. For example, while only recognized as one incident, the incident may involve numerous OHVs trespassing in the area. See LeNeve Decl. at - and accompanying photo Exhibit. JUDGMENT - - (01) -

20 1 1 monitoring report prepared by BLM documenting at least ten incidents of damage to San Benito Evening-primrose occupied sites and eleven or more incidents of damage to potential sites. See Litmans Decl., Exhibit G. With only one exception, BLM recorded three or more sets of tracks within four San Benito Evening-primrose sites (Larious Tributary, Picacho Meadow, Upper Clear Creek Canyon 1, and Upper Clear Creek Canyon ). Id. at. Also two fences that had been erected to protect the Larious Tributary and Picacho Meadow San Benito Eveningprimrose sites had been compacted or was completely down (run over by a -wheeled vehicle), with high to moderate motorcycle use documented throughout the occupied and potential primrose sites. Id. As the BLM noted in a March, 0 letter to stakeholders, over a two-week period several instances of trespass had been recorded in Larious Canyon, Lower Clear Creek, Indian Hill, the mouth of Upper Clear Creek, and Upper Clear Creek Canyon. Litmans Decl., Ex. T at 1. BLM further stated that OHV damage in sensitive species habitat continues to exceed thresholds as identified by the BLM and [FWS]. Id. Due to the trespass, BLM released its second warning. Id. at. However, two warnings for the 0-0 peak season are insufficient to adequately protect the primrose and inconsistent with what FWS expected of BLM when issuing its no jeopardy determination, given the fact that warnings should have been issued every year since. BLM Has Failed to Follow the BO Closure Policy. The BO specifically found that the CCMA must be closed to OHV use when incidents of damage to known protected occurrences are recorded in order to protect the primrose and prevent jeopardy. Litmans Decl. Ex. C at. The BO states that the area can only be On November, 0 CNPS sent a letter to Connie Rutherford of the U.S. FWS concerning San Benito Evening-primrose protection issues at the CCMA and seeking verification of incident reports. See Litmans Decl., Exhibit H. CNPS and FWS also discussed the letter by telephone and the incident reports were verified. JUDGMENT - - (01) -

21 1 1 reopened once the likelihood of further damage is reduced to a level mutually agreeable to FWS and the BLM. Id. The FWS foresaw that OHV use may have to be curtailed within the CCMA as the BLM implemented the proposed protective measures for the primrose. However, the BLM has consistently failed to follow this requirement, most recently in 0. See Litmans Decl., Exs. W (1 incidents in ), AA ( incidents in 00), X ( incidents in 01), Y ( incidents in 0), Z ( incidents in 0), and O ( incidents in 0). Although the threshold for closure of the CCMA is incidents, BLM has yet to close the area and further denied plaintiffs petition in its May, 0 letter to Mike Pool to close the area pursuant to the BO. See Litmans Decl., Exs. P and Q. The BLM did not rebut any of CNPS s contentions regarding BLM s failure to protect San Benito Evening-primrose or that San Benito Evening-primrose is being jeopardized by OHV use. Litmans Decl., Ex. Q. Rather, BLM s primary reason for not closing the CCMA was that the 0-0 OHV season was essentially over and, thus, closure would at the time accomplish little in terms of achieving better protection of San Benito Evening-primrose and its habitat. Id. BLM did note that for the 0-0 season, it intended to step up enforcement efforts and to continue aggressive implementation of the Interim Protection Strategy. Id. BLM did not consult with FWS before deciding to refuse CNPS s request to close the CCMA. BLM s repeated failure to close the CCMA or post warnings means key protections for the San Benito Evening-primrose, which the In December of 0, BLM released the Interim Protection Strategy for San Benito Evening-primrose ( IPS ). See Litmans Decl., Exhibit J. The BLM referred CNPS to its Interim Protection Strategy as the primary means by which BLM proposed to prevent jeopardy to San Benito Evening-primrose pending finalization of the new RMP in a letter sent to Emily Roberson in December of 0. Litmans Decl., Exhibit S at 1. Among other things, the IPS incorporates the BO criteria that would result in closure of the CCMA under the IPS protection measures. Id. at -. However, according to BLM, no IPS work has been done, with the exception of monitoring, since April of 0 due to high and possibly dangerous asbestos dust levels within the CCMA. For example, the IPS calls for fencing of all known sites (Litmans Decl., Ex. J at ) however BLM has yet to complete fencing for the Jade Mill site, R0, R0, R00, and T (see LeNeve Decl. at and Litmans Decl., Ex. J at. JUDGMENT (01) -

22 1 1 BO relied upon to limit continued damage from OHVs, are not being implemented. BLM Has Failed to Implement Other Protective Measures. The FWS stated in its final rule listing San Benito Evening-primrose as threatened rather than endangered under the ESA, that the designation was based on implementation of protective measures by BLM. 0 Fed. Reg. (emphasis added). These protective measures have not been implemented, as documented above and in the FWS Draft Recovery Plan, placing the plant at risk of uplisting to endangered status under the ESA. Litmans Decl., Ex. A at 1. Beyond not following the explicit provision of the BO to close the CCMA after incidents of damage have been found, or to post warnings after incidents have been found, the BLM has also failed to adequately protect the primrose on other fronts, such as through the use of fencing and reducing sediment runoff. A memo from BLM to FWS stated that its highest priority was to [f]ence all known occurrences of CABE by November. Any new occurrence or suboccurrences found on public land will be signed for protection within weeks and protected with fence within 1 weeks. Litmans Decl., Ex. I at and Ex. J at ; LeNeve Decl. at 1. The ROD states that any new primrose occurrence will be protected within one year. Litmans Decl., Ex. D at. After a San Benito Evening-primrose population was discovered in Larious Canyon in, it took BLM five years to complete fencing. See LeNeve Decl. at 1. Unfortunately, other primrose sites have also not been fully protected. For example, Upper Larious Canyon, a source of sediment damaging to the Larious San Benito Evening-primrose habitat, has not yet been closed or fenced, although BLM has long stated that such fencing was needed. See Litmans Decl., Ex. J at ( fence all high-priority habitat areas adjacent to main routes (i.e. Upper Clear Creek Canyon, R00 above Larious Tributary). ). Further, an enduro motorcycle race was allowed through the area in 0 despite raised concern from CNPS. See Litmans Decl., Ex. L. In addition, other sites have been and continue to be exposed to damage from OHVs. JUDGMENT - - (01) -

23 1 Most monitoring visits by BLM to primrose sites in Upper Clear Creek, Indian Hill complex and Larious Canyon have shown OHV trespass. See LeNeve Decl.. Almost half of all primrose sites are found in Clear Creek, a primary OHV access point to the CCMA. Litmans Decl., Ex. N at -. Clear Creek Canyon is considered the principle recovery area. Litmans Decl., Ex. C at. The history of one primrose site in Upper Clear Creek Canyon epitomizes the ongoing impacts associate with OHVs. In one OHV use season, 00 to 01, the population was reduced from plants to only plants. See Litmans Decl., Ex. BB at. Incidents of damage to this site increased from in 00 to in 01. Id. In 0, the population site was reduced to plants with incidents of damage occurring. Id. In 0 there were zero plants left and incidents of damage were recorded. 1 Id. BLM did not fence this site until 0. Trespass into closed areas is an obvious ongoing problem for BLM. The monitoring reports consistently find OHV tracks in closed areas, fenced or non-fenced. BLM s efforts to curtail such unauthorized use have been significantly minimized due to a lacking enforcement program. The CCMA is a large area for only one enforcement officer to patrol. See Litmans 1 Decl., Ex. CC at1-. The FWS concurs, noting in the Draft Recovery Plan that current levels of staffing in law enforcement are insufficient, given the size of the CCMA and the level of use it receives. Additional staff are needed to ensure that closures are enforced and that compliance monitoring is carried out. Litmans Decl., Ex. A at. The FWS also note that if the BLM does not achieve public compliance with route and hillclimb closures (which to this date BLM has not), the access routes to those areas should be closed until an effective management program can be developed and implemented. Id. BLM s lack of a real enforcement presence continues 1 While it may appear odd to have an incident where there are no CABE plants, an incident is tracks on the site. Motorcycles can damage the habitat even if plants are not present (i.e., they change the soil consistency). As an annual, plants may not germinate in one year but that does not mean that there will be plants at the same site in future years. While the FEIS states that the CCMA is approximately 0,000 acres, the 0 DEIS states that the CCMA is, acres, due to new mapping technology. See Litmans Decl., Exs. B at v and N at ES-1. This is a significant increase and means that the one agent must now enforce OHV protective measures throughout the entire CCMA. JUDGMENT - - (01) -

24 1 1 to lead to ongoing unauthorized use. See LeNeve Decl. at,, - and accompanying photos documenting trespass; see also Roberson Decl. at and accompanying photos. While the BLM has taken certain measures to reduce OHV impact to the primrose, it has failed to follow the BO or the ROD. OHV use continues to significantly threaten the primrose s survival and recovery. The recently issued Draft EIS for the CCMA indicates that damage to primrose and its habitat continue unabated. The DEIS presents information about the value, delicacy and degradation of resources in the CCMA. The DEIS states that the CCMA exhibits a fragile ecology, diversity and assemblage of rare and unique plants. In total, Clear Creek and surrounding watersheds support plant and animal communities that are important from the perspective of California native biodiversity. See Litmans Decl., Ex. N at -. Regarding damage to primrose habitat, the DEIS states that moderately high to extremely high rates of soil erosion appear to be concentrated near routes, [and] hillclimbs. Id. at -. Regarding the primrose, itself, the DEIS states that several areas are high priority for further protection as a result of continued damage by OHV use in sensitive species habitat. Id. at -. Further, the current Draft EIS and Draft Recovery Plan acknowledge that there have been substantial increases in OHV use in the CCMA in recent years. See Exhibit N at -; Exhibit A at. The DEIS states that over the last years there has been an average increase of % per year of OHV use visits to the CCMA. Exhibit N at -. Increased OHV use results in greater sedimentation. In September of 0, the FWS released for peer-review a draft version of the Final Recovery Plan for the San Benito Evening-primrose, identifying uncontrolled OHV use as the principle threat to the primrose and its habitat. Litmans Decl., Exhibit A at. The Recovery Plan finds that actions needed to prevent uplisting to endangered status include: (1) protecting all known occurrences and suitable habitat; () reducing or eliminating soil erosion and stream sedimentation in the watersheds that support habitat for San Benito Evening-primrose; () JUDGMENT - - (01) -

25 1 1 developing and implementing a species management plan; () establishing a seed collection; () hiring additional staff to manage OHV closure zones appropriately; and () developing and implementing a public education and awareness program. Id. at iv; see also -,. The Draft Recovery Plan also describes numerous problems with BLM s management of OHV use within the CCMA and of San Benito Evening-primrose and its habitat. It states that [v]istor use in the CCMA has been steadily increasing over the past decade. The 0 season saw a substantial increase in use over the previous seasons because the OHV community initiated an aggressive advertising campaign. Id. at. Other problems cited in the Draft Recovery Plan include numerous delays and failures by BLM to implement promised San Benito Evening-primrose protection measures, and particularly inadequate law enforcement to meet species protection needs. Id. at, 1. Perhaps most significantly, the Draft Recovery Plan does not set recovery criteria because of the continued severe imperilment of the species primarily due to OHV use. Instead, the goal set by the Draft Recovery Plan is to prevent the uplisting of the species to endangered status. The short term objective for this species is to eliminate or reduce current threats so that [FWS] can retain threatened status and do[es] not have to reclassify the species as endangered (emphasis added). Id. at 0. FWS concludes that the status of the species still remains tenuous, assigning a recovery priority of, indicating that the species faces a high degree threat and a low potential for recovery. Id. at 1. In order to prevent uplisting, FWS sets out that BLM must protect all known occurrences and suitable habitat for the primrose, including closing areas, completing the designation process for open routes, close all but main roads until the determination process is complete, close selected terrace sites, continue with construction of fencing around all existing primrose habitat, and actively enforce closure zones. Id. at -. Beyond failing to adequately protect the primrose with fences and to deter trespass through law enforcement activities, BLM has annually authorized special events that impact the JUDGMENT - - (01) -

26 1 1 primrose through increased sediment runoff. For example, on November, 0, the BLM implemented an emergency closure of part of the Larious Canyon area, within the CCMA, to protect San Benito Evening-primrose. See Litmans Decl., Exhibit K. Larious Canyon is the site of two important primrose occurrences. Fencing to protect Larious Canyon is listed in the IPS as a high priority item. Litmans Decl., Exhibit J at. However, in March of 0, BLM allowed a motorcycle enduro race through upper Larious Canyon. See Litmans Decl., Exhibit L. In this race, approximately 00 motorcycles traversed the area. Although the race did not cross the closed area, it did cause widespread soil damage and sedimentation into the closed area and occupied primrose habitat. BLM again authorized the Quicksilver Enduro for 0. See Litmans Decl., Ex. DD. Despite significant rain at the time the enduro was to take place in excess of what BLM has stated warrants closure, BLM allowed the race to proceed. See LeNeve Decl. at P -. It is surprising and alarming that despite the acknowledged continuing harm from OHVs, both in BLMs own DEIS and the FWS s draft Recovery Plan, that the BLM continues to permit such activities. It is evident that BLM has not ensured that its actions are not likely to continue to jeopardize the survival of the primrose. Furthermore, new information reveals effects of the current management of the CCMA that are adversely affecting San Benito Evening-primrose, which were not considered in the BO and that the agency action reviewed by FWS has been substantially modified. A. The BLM is Violating the ESA by Failing to Fulfill its Independent Duty to Avoid Jeopardy. The requirements of Section are clear. In fact, [o]ne would be hard pressed to find a statutory provision whose terms were any plainer than those in of the Endangered Species Act. Its very words affirmatively command all federal agencies to insure that actions authorized, funded, or carried out by them do not jeopardize the JUDGMENT - - (01) -

27 1 1 continued existence'of an endangered species or 'result in the destruction or modification of habitat of such species... Tennessee Valley Authority v. Hill, U.S.,, S.Ct., L.Ed.d 1 () (quoting 1 U.S.C. (a)()). The BLM has an affirmative duty to ensure that its actions are not likely to jeopardize San Benito Evening-primrose, a duty that it may not abdicate by relying solely on the issuance of a no-jeopardy biological opinion. As the Ninth Circuit explained in Pyramid Lake Paiute Tribe v. United States Department of the Navy, F.d, (th Cir. 0): [W]hile consultation with the FWS may have satisfied the Navy s procedural obligations under the ESA, the Navy may not rely solely on a FWS biological opinion to establish conclusively its compliance with its substantive obligations under section (a)().... A federal agency cannot abrogate its responsibility to ensure that its actions will not jeopardize a listed species; its decision to rely on a FWS biological opinion must not have been arbitrary or capricious. (emphasis in original) (citations omitted); see also Aluminum Co. of America v. Bonneville Power Administration, F.d 1, 1 ( th Cir. ) ( an action agency may not escape its responsibility under the Endangered Species Act by simply rubber stamping the consulting agency s analysis ); National Wildlife Fed n v. Coleman, F.d, 1 ( th Cir. ) ( after consulting with the Secretary the federal agency involved must determine whether it has taken all necessary action to insure that its actions will not jeopardize the continued existence of an endangered species ). Consequently, an action agency, such as the BLM, has an independent duty to ensure that its reliance on FWS s biological opinion is not arbitrary and capricious. The BLM has violated and continues to violate this independent duty. Where an action agency fails to fulfill the assumptions relied upon by FWS in developing a no-jeopardy biological opinion, the action agency violates its duty under ESA (a)(), 1 U.S.C. (a)(). For example, in Marsh, FWS based a no-jeopardy biological opinion on the JUDGMENT - - (01) -