Center for Biological Diversity

Protecting endangered species and wild places of western North America
and the Pacific through science, policy, education, and environmental law.

MEDIA ALERT for immediate release Thursday, September, 6, 2001


The letter below was sent today to BLM on behalf of the Center for Biological Diversity, Public Employees for Environmental Responsibility and Sierra Club. This was all verbally communicated to BLM on August 27-29.

Contact: Daniel Patterson, Desert Ecologist, Center for Biological Diversity 520.623.5252 x 306
Jay Tutchton, Attorney, Earthjustice 303.871.6034


September 6, 2001

Erica Niebauer
Temi Berger
Office of the Regional Solicitor
Pacific Southwest Region
2800 Cottage Way, E-1712
Sacramento, CA 95825

BY FAX: 916-978-5694

Lisa Lynne Russell
U.S. Department of Justice
Environment and Natural Resources
Division Wildlife and Marine Resources Section
P.O. Box 7369
Ben Franklin Station
Washington, DC 20044-7369
BY FAX: 202-305-0275

Re: Position on CCC Meetings in Barstow

Dear Erica, Temi & Lisa:

Thank you for your letter of August 31, 2001. You asked for more
information on the Center's position concerning Judge Sweitzer's decision
and the CCC meetings in Barstow. I write to provide such information and
also to further exhaust the Center's obligation under the Consent Decree to
attempt to negotiate disputes in good faith before seeking court enforcement.

Judge Sweitzer's Decision:

As we have previously discussed, the Center believes it is possible for the
BLM to comply with both Judge Sweitzer's limited remand concerning CCC and
the Federal Court Consent Decree entered by Judge Alsup. Even assuming,
and it is a large assumption, that the livestock industry representatives
wish to engage in a constructive dialogue with BLM on the contours of the
seasonal closures, there is no reason such discussion could not be
concluded between August 24, 2001 and September 7, 2001. The schedule for
Judge Sweizter's ruling was developed solely by Ms. Norton's counsel, Ms.
Klee. It was presented to Judge Alsup as a workable schedule and accepted
by Judge Alsup over the Center's objection that the decisions should be put
in full force and effect. A limited administrative remand such as that
which Judge Sweizter entered was always a predictable possibility. BLM's
current position, as expressed in statements from the Secretary's office,
that the Klee schedule is an "unworkable" schedule imposed on the current
Secretary by the outgoing administration is hypocritical in the
extreme. Judge Alsup specifically asked this administration to adopt the
consent decree -- and it did so. Then when the current administration
failed to comply with the Consent Decree, Judge Alsup asked how BLM
proposed to fix the problem. The Department of the Interior and Ms. Klee
put forth the current schedule as the solution. BLM should be prepared to
explain to Judge Alsup why it put forth an "unworkable" schedule in its
earlier efforts to avoid being found in contempt of court -- and why BLM
now attempts to blame the unworkable schedule on departed officials -- when
nothing of the sort is true.

Moreover, the sole potential excuse for BLM's failure to comply with the
Consent Decree, the CCC failure, can only be assigned to BLM's own
negligence in failing to follow its CCC regulations. While the Center
fully believes, as is apparent from the record developed before Judge
Sweitzer, that CCC is a futile endeavor in this case -- i.e. it is hard to
"cooperate" with people who pointedly ask not to be contacted. The fact
remains that BLM's only potential defense, in light of Judge Sweizter's
ruling rejecting the futility argument, is that BLM negligently failed to
follow its own regulations and persist in its efforts to contact the
hostile permittees. That is not much of a defense.

The Center will agree to no extension of the September 7, 2001 date
provided in the Consent Decree. BLM should do now what it represented to
the Federal Court it would do back in January 2001 - put the grazing
decisions in full force and effect. Such a full force and effect decision
is even more justified now given the balance of Judge Sweizter's ruling.

If BLM fails to put the grazing decisions into full force and effect on
September 7, 2001, the Center will seek to have BLM held in contempt of
court and/or move for injunctive relief. Such an unfortunately necessary
contempt motion may or may not be limited solely to the grazing issue, but
may involve other issues where BLM is in violation of the various consent
decrees and which have been brought to BLM's attention in previous
correspondence with the Center.

As discussed above, BLM will be hard pressed to defend a contempt
motion. However, even if Judge Alsup declines to find BLM in contempt of
court based on a general reluctance to fine or imprison federal officials,
he must find BLM is in violation of the consent decree -- as he has done in
the past. Such a violation removes the Center's obligation not to seek
further injunctive relief. Accordingly, the Center may move for board
scale (i.e. much more extensive than the negotiated seasonal closures)
injunctive relief concerning grazing in desert tortoise habitat. Given
Judge Sweizter's ruling, such a motion for an injunction will be impossible
for BLM to defend. Judge Sweizter's ruling represents the position of the
Department of the Interior. Judge Alsup will accept it as an admission of
a party opponent. Judge Sweizter's ruling essentially removes any
potential defense BLM might have had to a permanent injunction motion.

CCC in Barstow

CCC is the responsibility of the BLM, not the Center. The Center expects
BLM to meet its CCC responsibilities and to do so before September 7th. As
previously indicated, the Center believes that in this case, given the
previous statements of the permittees and their counsel, CCC is a complete
waste of time. BLM already designed the seasonal closures for maximum
permittee convenience. It is quite likely no more convenient closures are
possible. The permittees simply object to the existence of any closures at
all. We are long past that point. Nonetheless, the Center is available by
phone to review any reasonable seasonal closure modification arrived at in
Barstow. However, to be considered reasonable any such modified seasonal
closure must comply with the Consent Decree in terms of the dates of
closure and approximate total acreage. The Center will not accept any
reduction in the amount of critical habitat protected, nor will the Center
accept an "slide" of protected habitat to the Eastern Mojave. The Western
Mojave is where the Tortoise is most imperiled.

Finally, the Center believes that BLM should conduct its CCC with the
permittees on an individualized basis. The permittees are in an obvious
conflict of interest with each other. Any acre given back to one permittee
will likely be extracted from another. More importantly some permittee's
might do better if the settlement collapsed. For example, Mr. Mitchell and
Mr. Kemper have no critical habitat on their alltoments. They might do
better under an injunction of all grazing in critical habitat. On the
other hand, Mr. Fisher and Mr. Blair would be worse off (losing greater
percentages of their allotments) under an injunction of grazing in critical
habitat. Whether or not these permittees have waived these obvious
conflicts of interest (generally required in writing) is an issue between
them and their counsel. However, BLM should at least point out to the
permittess, on an individual basis, how they stand to be affected if the
negotiated consent decree is not implemented and how they are negotiating
against each other in what amounts to a "zero sum game." In my opinion, to
do otherwise is unethical.

All that being said, if to our great surprise, the BLM and the permittess
do come up with a proposal that essentially complies with the consent
decree but varies somewhat as to specifics (boundary lines being the most
obvious) the Center will consider it immediately. Please contact me to
initiate any such discussions. I will be available all day today and Friday.


Jay Tutchton,
Counsel for the Center et al.


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