ELR Citation: 46 ELR 20140
No(s). 14-15836 (9th Cir. Aug 15, 2016)

The Ninth Circuit upheld BLM's proposal to expand access for off-road vehicle use in the Imperial Sand Dunes Special Recreation Management Area. The Dunes, located in California, are home to two threatened species: the desert tortoise and the Peirson's milkvetch. Under the proposed plan, a 26,098-acre tract of land would remain closed to off-road vehicle use, as would as another 9,261 acres of milkvetch critical habitat. But the remainder of the Imperial Sand Dunes—over 127,000 acres—would be open for off-road vehicle use. BLM issued an EIS and consulted with FWS, which issued a biological opinion (BiOp) finding that the plan was not likely to jeopardize the continued existence of the milkvetch or the desert tortoise. Environmental groups challenged BLM's decision, but a district court ruled in favor of BLM, and the appellate court affirmed. Despite the groups' arguments to the contrary, the ESA did not require the BiOp to contain incidental take statements for the milkvetch. The court also rejected claims that BLM's decision to open additional land to off-road vehicle use violated the CAA, FLPMA, NEPA, and the APA. Nor did BLM act arbitrarily or capriciously when it relied on air quality analysis demonstrating that emissions resulting from visitors to the Dunes would not be increased impermissibly by the land openings.