Michael Gennaro

SAN FRANCISCO (CN) — A federal judge heard arguments in a San Francisco courtroom on Thursday about whether the Bureau of Land Management is violating the Endangered Species Act because of its roads in the Mojave Desert.

Plaintiffs include the Center for Biological Diversity and the Sierra Club, along with Desert Survivors, California Native Plant Society, Defenders of Wildlife, and the Desert Tortoise Council.

In their complaint, the plaintiffs say the Bureau of Land Management has refused to take measures “to protect public lands from adverse impacts of off-highway vehicles or to preserve and recover listed and special status species as part of their management of the West Mojave Planning Area of the California Desert Conservation Area.

Specifically, they challenge the bureau's 2019 designation of off-road vehicle routes in the west Mojave. The groups claim the routes were designated illegally, and that the bureau did not provide the public with “high-quality, up-to-date information” about the routes in violation of the National Environmental Policy Act.

The groups claim regulations require the bureau to close areas to off-road vehicles where they “are causing or will cause negative impacts to soil, vegetation, wildlife, wildlife habitat, cultural resources, wilderness suitability, or threatened and endangered species.”

Of particular importance to the plaintiffs is the status of the Mojave desert tortoise, a species native to southeastern California, southern Nevada, southwestern Utah, and northwestern Arizona. The species is critically endangered.

“The tortoise is an iconic species that is closely associated with the western Mojave desert and the health of the ecosystem, and yet we see alarming declines in the species over the period that the court has been looking at this issue,” said Lisa Belenky, counsel for plaintiffs.

Off-road vehicles present a particular harm to these tortoises — they're are hard to see, so off-road vehicles can run them over. The presence of off-road vehicles can alter the tortoise’s behavior, degrade the soil and introduce and spread non-native plant species in its environment.

Belenky said that there was a total decline of almost 50% in the population of western Mojave adult tortoises from 2004 to 2014. She estimates that over 67,000 tortoises were killed. There was also a decline in juveniles, calling into questions the species’ future

“In light of these declines, the Fish and Wildlife Service basically endorsed the Bureau of Land Management to use a balancing between the off-highway vehicles use and the impacts to the tortoise, rather than looking at what the impacts are to the tortoise and its potential recovery first,” Belenky said.

Senior U.S. District Judge Susan Illston told Belenky that the agencies must walk a fine line between keeping land open and protecting species.

Victoria Tejeda, counsel for the plaintiffs, said that it is not clear that the bureau properly designated its routes with the intention of minimizing harm to the tortoises or other species in the Mojave.

Tejeda argued the agency was required to apply an “undue degradation standard” and “minimization criteria” when designating routes in order to minimize the impact on the environment.

“The record simply does not show that the criteria were used to inform route decisions in order to minimize impacts,” Tejeda said.  “This standard has simply not been met."

Arguing for the government, attorney Paul Turcke said that there is no detailed explanation of every decision in the process of approving a route, and that plaintiffs were applying an impossible standard.

“There’s not a case that says what plaintiffs are trying to get the court to require here, which is to provide a detailed explanation of all of these steps in this process, " Turcke said. “If plaintiffs are right, and the bureau has to provide a more detailed explanation of how it reached all of these 51,000-plus conclusions, then I think the court should pause before finding that the law requires that because that’s going to be a pretty onerous burden for any agency to satisfy.”

Illston agreed it would be. Turcke also said the plaintiffs were “cherry picking” language.

“The unnecessary, undue degradation standard has never been applied successfully in the way that plaintiffs are attempting to do it here,” Turcke said.

“It just doesn’t make sense that you could ignore the 51,000-plus route reports that attempt to minimize impacts, but just generally contend that there was unnecessary degradation occurring in some holistic fashion across the project area,” he continued.

Illston took the matter under submission and said she would issue a ruling in the coming weeks.

“Maybe I agree with you; I’m not sure,” she said, having previously described the case as “opaque.”