South Dunes Closures of the Imperial Sand Dunes

Many questions have arisen from the new closures in the South Dunes of the Imperial Sand Dunes Recreation Area (ISDRA). Most are legitimate and some are based on lack of information.

The fight to reopen the closures started in 1998. Because many duners have not been going to the ISDRA since then, many are just now becoming familiar with the long history and complex issues.

The result of reducing that history and set of issues into an understandable essay is below. It is based on questions recently posed to the American Sand Association (ASA).

Another article, titled Peirson’s Milk Vetch and the ISDRA Closures, is the “Cliff’s Notes” version that presents similar information in chronological order and provides other information critical to understanding how the current closures were imposed on us. We strongly urge reading both articles.

As usual, we expect our responses to generate as many questions as they answer. We welcome those questions.

SUMMARY:

  • Some alternatives presented by the BLM did not include closure of the Patton Valley corridor but were not considered viable options by the BLM.
  • ASA, hundreds of our members, other partnering off-road organizations, and hundreds of their members asked for a Patton Valley corridor but BLM is not obligated to, and did not, grant the requests.
  • Information on the 8 alternative plans is provided herein.
  • No back room deals were made by ASA.
  • ASA did meet with the environmental groups involved but ASA would not capitulate.
  • BLM & FWS do not negotiate land management decisions.
  • Web links are provided as a repository of pertinent documents: some are on ASA site and some are on BLM site.
  • ASA was not hoodwinked.
  • Lack of knowledge pertaining to formulation and implementation of BLM management plans can lead to this belief.
  • ASA worked with Senate Representatives and other legislators to no avail.
  • Possible steps to obtain a Patton Valley Travel Corridor are under consideration.
  • Many links to federal agencies and the ASA web sites are included to provide backup information as well as a historical perspective.

We start by addressing the concern of “back-room horse trading deals.” There were no negotiations or trading with any federal agencies or environmental groups: backroom or of any other sort.

The ASA did meet with Center for Biological Diversity (CBD) and Public Employees for Environmental Responsibility (PEER) (hereafter referred to collectively as CBD) on several occasions in an attempt to reach an agreement on the closures. These are the 2 green advocacy groups that filed a suit against the Bureau of Land Management (BLM) who is the federal agency responsible for management of the ISDRA. This suit temporarily closed 49,300 acres for approximately 14 years at the ISDRA. Details of the suit are below. In part, the meetings were held so that the judge would see that we had attempted to reach an agreement out of court. BLM and US Fish and Wildlife Service (FWS) representatives were once in attendance but only to advise on procedural matters and to stay informed. FWS and BLM did not and could not participate in the discussions.

In brief, the meetings were unproductive as CBD was steadfast in their desire to make the temporary closures permanent. They knew that if ASA could be swayed to support closure instead of opposing it, they could achieve their goal of permanently closing approximately 47,000 acres. Those acres consisted mostly of the central section of the dunes south of Highway 78. The BLM would oblige knowing that they would not be sued.

Failing an agreement, CBD threatened to pursue more closures at the ISDRA. Moreover, CBD would not guarantee against another environmental group seeking more closures in the future. ASA maintained that any closure must be science driven and we did not yield.

In order to impart the long history and vast amount of information related to our 16-year battle, we delve into several questions that have recently been posed of the ASA. We feel this provides a logical way to address the concerns many have regarding the South Dunes closures. In addition, it presents pertinent information as required by the context. Many sources are listed to assist in the understanding of the complex issues at the ISDRA. Please pay special attention to the Peirson’s Milk Vetch and the ISDRA Closures article. In addition to those sources, links are dispersed below that provide excellent information and background.

QUESTIONS:

Q There were eight different alternatives proposed in the new management plan, did any of them include keeping the road from the Sand Highway to Patton Valley open?

Yes, some of the BLM alternatives did show that same acreage as open but none of them was the preferred alternative (#8). None of the alternatives specifically called for a Patton Valley Travel Corridor (PVTC) or was designated as such. Some of the alternatives showed the same acreage as the old PVTC as open, others showed it as closed. Some were more favorable to the off road community others were less so. The same can be said with regard to the environmental community.

There was no reasonable expectation that any of the other 7 alternatives would somehow become the preferred alternative. The best way to get a sense of the 8 alternatives is to go to the link provided below. Move forward to page 20 where the maps of the 8 alternatives of OHV management begin.

BLM Eight Alternatives

Please keep in mind that the users of the ISDRA do not design the alternatives nor do they choose which alternative becomes the preferred alternative. We have only the opportunity to make statements in the scoping meetings, make comments during a certain period, and make protests within a similar period. The ASA did all of these things and instructed our membership on how to do so as well. After this process, the BLM implements management plans as they see fit. They are not required by law to do as any individual or group suggests.

Please note the link to the BLM’s Recreation Area Management Plan (RAMP) and Record of Decision (ROD) from June of 2013. RAMP & ROD

Map 2-26: OHV Management Areas Alternative 8 led us to believe that the PVTC continued to exist. See page 27 at: Alternative 8

When questioned, the BLM was quick to note that we had misinterpreted the maps. This was clarified on the second paragraph on page 2 of the ISDRA DRAMP Errata Sheet under 2.3.16.1 OHV Management Area Designations. DRAMP Errata Sheet

From the link above:

Map 2-26: OHV Management Areas Alternative 8 depicts polygons labeled “Closed to OHV Use.” The largest of these polygons, in the southern portion of the map, appears to be divided by a heavy green line, which could be interpreted as an open OHV travel corridor. This is a mapping error caused by joining two polygons to create one. It is not the intent of BLM to create a travel corridor through Pierson’s milk-vetch critical habitat under Alternative 8 and the Proposed Plan. The correct polygon is shown on Map 3-2: Pierson’s Milk-vetch Critical Habitat. The incorrect polygon shown on Map 2-26 will be replaced with the correct polygon shown on Map 3-2 to emphasize BLM’s proposed management action of closing all Pierson’s milk-vetch critical habitat to OHV use, with no travel corridors through critical habitat.

Q Where can I find the maps outlining the eight different proposals?

Following is a link to the Maps for alternatives 1 through 8 and other maps that pertain to the new RAMP. OHV maps begin on page 20. Maps

Q Was anyone from the ASA involved in actual negotiations with the CBD and BLM about what riding areas would be "given up" in order to reopen the 40K in Glamis?

As stated above and in multiple ASA newsletters, there were no negotiations with BLM or FWS: only discussions with CBD and PEER. BLM cannot engage in negotiations. That is not the process.

BLM independently designs alternatives and chooses a preferred alternative. The BLM then follows federal guidelines of a public review process.[1] The BLM must strictly follow the public comment process and once complete, the BLM configures and implements the RAMP as they see fit: they are not obligated to follow or act upon any comments.

The first meeting between the ASA, CBD and Sierra Club is referenced on page 8 (bottom) of the September 2004 newsletter. The CBD presented a proposal to which we did not agree. September 2004 ASA Newsletter

Information regarding the second meeting the ASA conducted with CBD and the Sierra Club can be found in our March 2005 newsletter. This meeting was held to discuss the closures and was not a negotiation. Please see page 14 at: March 2005 ASA Newsletter

BLM independently developed the 8 alternatives after conducting three public scoping meetings for the ISDRA RAMP planning effort. The first meeting was held on April 22, 2008 in San Diego. The second meeting was held on April 23, 2008 in Phoenix and the final meeting was held on April 24, 2008 in El Centro. Following is a link to the ISDRA Management Plan Scoping Report: Scoping Plan Report

Alternative 8, the preferred alternative chosen independently by BLM, included the critical habitat (CH) closures. According to BLM, the new closures are based on the Peirson’s Milk Vetch (PMV) CH. The CH is based on the greatest concentrations of the PMV and economic factors. These concentrations were derived by the 1998 listing and the BLM 2005 Dunes Monitoring Report. Unfortunately, the CH designation included all cells with the densest populations of PMV: the PVTC contains several of those cells. See Federal Register

After the Draft RAMP (DRAMP) and environmental impact statement (EIS) were released, a 90-day public comment period started on March 26, 2010. The public comment period was extended an additional 45 days to August 9, 2010. The ASA held several info meetings to get our members up to speed and instruct them on how to make meaningful and useful comments. This resulted in hundreds of valid comments from dune users with the majority citing the need for a PVTC. All comments in favor of a PVTC went ignored by BLM.

Q Is there a document depository whereby ASA members can get access to the actual filings in the District Court litigation?

The following link is a work in progress and with volunteer help will one day contain all the filings. ASA Download Page

In the meantime here are links that can be helpful:

CBD Lawsuit
BLM ISDRA Management Plan
Glamisonline.org archive (scroll down to History of CBD Lawsuit).

Q Where can I find the comparative economic analysis that was discussed at the Duner’s Diner meeting in November 2014 that set forth the finding that most of ISDRA-related economic benefits are attributable to Glamis and less are attributable to the southern riding areas?

Please refer to the following link for the July 2004 Economic Analysis of CH Designation for the PMV prepared for the FWS by Industrial Economics. Economic Analysis

We’ve also included an analysis from McClure Consulting who the ASA hired to review the economic analysis conducted by Industrial Economics. The analysis provided by ASA was taken into account by FWS in redefining the CH.

ASA Final Response

Q Many people believe that the ASA just got hoodwinked: ASA wanted so badly to get the 40K reopened that it didn't see the bigger picture or, at worst, just gave up on Gordon's Well to satisfy the "big boys" at Glamis.

While the ASA Board of Directors (BOD) are volunteers, they are all professionals and have not been “hoodwinked”; neither did they yield to anyone from any segment of the duning community.

The ASA, along with the rest of the public, saw the PMV CH coordinates for the first time when notice of final PMV CH designation was posted in the Federal Register on 2/14/08 by FWS. The coordinates start on page 33 at Federal Register February 14, 2008.

CH designation does not legally require land closure so at that time there was no action to take. There is a comment period before official CH designation. The ASA attorney and biologist made appropriate comments. Unfortunately, the CH designation included all cells with the densest populations of PMV: the then-open corridor to Patton Valley contains several of those cells. We suspected the new RAMP would certainly reference it in some way and this would provide an opportunity to comment once again.

ISDRA visitors have little to no sway with the FWS as to what CH should or would be. The FWS relies on the “best available science”. The federal public comment process did little to influence the final CH outcome. The FWS is at liberty to designate what they believe to be the best available science. No consideration was given to OHV activity in their CH designation and FWS stated such in the Federal Register Record of Decision.

A suit was filed by the CBD in an attempt to increase the CH and FWS was ordered by the court to go back and reevaluate the CH. This resulted in the reduction of CH acreage: in part due to the ASA economic analysis. Subsequently, another suit was filed by Richard Maddalena and Duners for Equity attempting to further reduce the acreage. That suit did not prevail but at the same time cemented the amount of CH acres thereby protecting that amount from further litigation and potential increases that would have been suggested by CBD.

The first time anyone outside the FWS and BLM knew that the 2014 closure might equal the entire CH is when the final DRAMP was issued in 2012. The previous 2003 RAMP, which was vacated by the court, included the Adaptive Management Area (AMA) that would be open to a limited number of OHVs and no mention of a PVTC was needed.

The coordinates were not listed in any revision of the RAMP; probably because FWS can go back at any time and change them and they did not officially exist until 2008. Until the 2012 DRAMP, there was no action to take other than as stated above. After the 2012 DRAMP was issued, ASA took every action available to us which was to make appropriate comments and to instruct our membership on how and why to do the same.

ASA, along with hundreds of its members, provided meaningful and useful comments asking for a PVTC and they were ignored by BLM. The federal agencies are not required to act upon public comments. The first time the public knew the PVTC was definitely closed is when the final RAMP was recorded in the Federal Register in 2014.

The ASA then sent a protest letter via our attorney to the BLM through our partnership with Ecologic.[2] Of primary concern was the fact that the lack of a PVTC wasn’t disclosed or analyzed in the Draft or Final Environmental Impact Statement. In addition, we protested the PVTC closure because we knew it would have a significant impact on recreation in the Gordon’s Well area. The ASA is on record opposing the closure of the PVTC. Protest Letter

After the ASA submitted our letter protesting the removal of the Patton Valley travel corridor, the BLM responded with their protest resolution. Protest Resolution

The BLM, according to El Centro Supervisory Outdoor Recreation Planner Neil Hamada, proposed what they thought FWS would accept in order to obtain a “no-jeopardy” Biological Opinion (BO).[3] As required by the Endangered Species Act (ESA), the no-jeopardy BO is required in order for the new RAMP to legally move forward. BLM also wanted the plan to be as litigation-proof as possible.

As stated on the BLM website at: BLM ISDRA Facts & FAQ's:

The BLM based all closures on scientific monitoring of Peirson’s Milk-vetch to balance sustainable OHV recreation and conservation. The previous Sand Highway area to Patton Valley was included in monitoring cells which had high populations of Peirson’s Milk-vetch. In order to develop a balanced and defendable plan, and to reopen the 49,000 acres of administrative closures, the BLM will manage 100% of critical habitat as closed to OHV recreation.

BLM’s approach was simple: they re-opened everything that was temporarily closed in the 2000 settlement and then closed all of the PMV CH. The OHV community regained approximately 40,000 acres but lost some very important acreage.

Q Has the ASA published a "Milk Vetch for Dummies" guide to explain the complex "science" ostensibly behind the latest reopenings and closures?

Yes, that is the article referenced above. It explains how the PMV was the basis for the 2000 lawsuit and how it impacts us today. The article istitled Peirson’s Milk Vetch and the ISDRA Closures and can be found at Peirson's Milk Vetch and the ISDRA Closures.

Q People are having a very difficult time understanding how all those previously-closed acres that were once so "critical" to Milk Vetch habitat ceased being so critical with a flip of a switch, while a new set of acres (which had been subject to unrestricted riding for years) suddenly became a critical habitat. This seems very counter-intuitive. This is especially true with respect to very narrow strip of land needed to get to Patton Valley from the Sand Highway. Also counter-intuitive is how long stretches of dunes where there never have been any plants are now somehow critical habitat for plants (including the very tops of large dunes, where nothing grows).

One must keep in mind that the 49,300 acres that were closed in 2000 were administrative in nature and not based on yet-to- be-determined best science available. The 49,300 acre area was a temporary settlement as agreed to between the parties of the suit pending development of a new RAMP.

The boundaries of the settlement were laid out by a ground truthing process. Representatives from BLM, FWS, and CBD physically drove the perimeter of the soon-to-be closures. Over the objections of CBD, ASA was also in attendance. The only reason that the settlement included a PVTC is that, during the ground truthing, ASA vehemently insisted that a PVTC be maintained for public safety reasons.

Statement by the BLM - October 20, 2000:

Statement by the BLM (bottom of page)

The Bureau of Land Management (BLM) and plaintiffs in a lawsuit filed last March against BLM concerning compliance with the Endangered Species Act reached a settlement October 20, 2000, on certain restrictions on vehicle use in portions of the Imperial Sand Dunes Recreation Area in Southern California to protect the Peirson's Milk vetch, a plant found nowhere else in the United States.

The settlement, filed with the U.S. District Court for the Northern District in San Francisco and pending final approval by that Court, is part of ongoing overall settlement discussions resulting from a lawsuit filed against BLM by the Center for Biological Diversity, the Sierra Club, and Public Employees for Environmental Responsibility. The basis of the suit is that BLM has not yet consulted with the U.S. Fish and Wildlife Service (FWS) on the effects of California Desert Plan, covering more than nine million acres of public lands, on a number of threatened and endangered species...

Part of the settlement was the temporary closure of 49,300 acres at the ISDRA that included a PVTC.

Below is a link to an article from the FWS that explains the PMV issue and how it was studied, densities, etc. This should help explain why dunes with nothing on them are, in the opinion of FWS, important as CH for the plant. In essence, it is thought by many that a contiguous area is more beneficial to a plant’s survival than several small disconnected patches.

Fish & Wildlife Article

Following is a link to the 2005 PMV monitoring study maps that show density based on differing criteria - they are self-explanatory. In 2005, 1.8 million plants were statistically “counted”.

Monitoring Study

This is a link to the BLM’s web page of FAQ's that relates their reasoning for the current closures. BLM provided this information at the November 2014 Duner’s Diner Meeting.

BLM FAQ's

Q Does the ASA have any members of the U.S. House or Senate helping with this fight in any meaningful way?

Not at this time. In the past, we have worked with CA Congressman Duncan Hunter and more recently his son, Congressman Duncan D. Hunter. Through our partnerships we have also worked with the Chairman of the House Natural Resources Committee and California Senator Hollingsworth[4]. Their efforts were largely unsuccessful as any effort to undermine the ESA is met with strong opposition by powerful environmental groups such as the Sierra Club. We appreciate any suggestions of others that we can contact.

Q What efforts are underway to secure the immediate reopening (this season) of the route to Patton? This is absolutely critical.

The Federal Government moves very slowly. We are certain that nothing will change during this season. To get a PVTC, an amendment may need to be made to the CA Desert Protection Plan, which could require another Section 7 consultation under the ESA with FWS, and an EIS, NEPA, CEQA, and so on - it could take years and could result in a costly "NO".

We are currently consulting with our attorney on where best to focus our volunteer efforts and resources as we move forward. However, the CBD has filed an appeal of the RAMP and it would be in the best interest of the duning community to take no action until the CBD appeal is settled.[5]

At this time the ASA sees 3 options:

  • Delist the PMV with the hope that it removes the closure – this will take at least 5 years and there is no guarantee that a delisting will not require land closure.
  • Petition FWS for a reduction in PMV CH based on a new economic analysis that considers financial impacts on affected parties and public health and safety concerns. These could justify a PVTC and could provide a defensible basis for the federal agencies.
  • Pursue a PVTC without either of the above – this would be a simple request to the federal agencies to accommodate the dune users and to improve public safety.

Please be sure to read the article titled Peirson’s Milk Vetch and the ISDRA Closures that be found at Peirson's Milk Vetch and the ISDRA Closures.


[1] The link to the Federal Register Notice of Availability for public comments is at Federal Register Notice

[2] In 2005, several OHV organizations joined together to form Ecologic Partners which provides a venue for its members to reach a consensus in legal matters and to pool economic resources. The current members of Ecologic Partners are the Off-Road Business Association, the American Motorcyclist Association District 37 and the ASA. Dave Hubbard is legal counsel for ASA and Ecologic.

[3] In general, a biological opinion is required when an action (e.g., construction activity) is estimated to adversely affect an ESA-listed plant or animal species. Depending upon the species in question, NOAA Fisheries or USFWS issues a biological opinion on the effects of the proposed action on the affected ESA-listed species. If the agency concludes that the species will be unaffected, the proposed action receives a no-jeopardy biological opinion and continues as planned. If the proposed action is found to jeopardize a species, the federal government may propose alternatives, require additional mitigation measures or deny the project. If the proponent can modify the project to align with proposed alternatives and/or satisfy the recommended mitigation requirements, the proposed action can proceed.

[4] Senator Dennis Hollingsworth (R-Murrieta) – his last 4-year term ended in 2010 due to term limits.

[5] You can view a copy of the CBD appeal at CBD Appeal

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