[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
ACCESS TO THE CALIFORNIA DESERT CONSERVATION DISTRICT
=======================================================================
OVERSIGHT FIELD HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Monday, August 18, 2003, in San Diego, California
__________
Serial No. 108-49
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
GEORGE P. RADANOVICH, California, Chairman
DONNA M. CHRISTENSEN, Virgin Islands, Ranking Democrat Member
Elton Gallegly, California Dale E. Kildee, Michigan
John J. Duncan, Jr., Tennessee Ron Kind, Wisconsin
Wayne T. Gilchrest, Maryland Tom Udall, New Mexico
Barbara Cubin, Wyoming Mark Udall, Colorado
Walter B. Jones, Jr., North Anibal Acevedo-Vila, Puerto Rico
Carolina Raul M. Grijalva, Arizona
Chris Cannon, Utah Dennis A. Cardoza, California
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Nick J. Rahall II, West Virginia,
Mark E. Souder, Indiana ex officio
Rob Bishop, Utah
Richard W. Pombo, California, ex
officio
C O N T E N T S
----------
Page
Hearing held on Monday, August 18, 2003.......................... 1
Statement of Members:
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 3
Prepared statement of.................................... 5
Radanovich, Hon. George P., a Representative in Congress from
the State of California.................................... 2
Prepared statement of.................................... 3
Statement of Witnesses:
Bramham, James E., Member of the Board of Directors, American
Sand Association, Sacramento, California................... 44
Prepared statement of.................................... 46
Brown, Howard, Geologist, OMYA (California) Inc., Lucerne
Valley, California......................................... 57
Prepared statement of.................................... 58
Davis, Sheri, Director, Inland Empire Film Commission,
Riverside, California...................................... 67
Prepared statement of.................................... 70
Denner, Roy E., President & CEO, Off-Road Business
Association, Santee, California............................ 29
Prepared statement of.................................... 34
Dorame, Hon. Michael A., Supervisor, District 5, Inyo County,
Lone Pine, California...................................... 13
Prepared statement of.................................... 15
Hardiman, Michael, Private Property Inholder within the
California Desert Conservation Area, Imperial County,
California................................................. 73
Prepared statement of.................................... 76
Hubbard, David P., Counsel, Off-Road Business Association et
al., Escondido, California................................. 47
Prepared statement of.................................... 49
Kemper, Ron, Renewable Resources Representative, and Chair,
Desert Advisory Council, East Highlands, California........ 53
Prepared statement of.................................... 55
Leimgruber, Hon. Wally, Supervisor, District 5, Imperial
County, El Centro, California.............................. 11
Prepared statement of.................................... 12
McQuiston, Hon. Jon, Supervisor, District 1, Kern County,
Bakersfield, California.................................... 6
Prepared statement of.................................... 8
Pool, Mike, California State Director, Bureau of Land
Management, U.S. Department of the Interior, Sacramento,
California................................................. 86
Prepared statement of.................................... 90
Postmus, Hon. Bill, Supervisor, District 1, San Bernardino
County, San Bernardino, California......................... 18
Prepared statement of.................................... 20
Thompson, Steve, Manager, California/Nevada Operations
Office, Fish and Wildlife Service, U.S. Department of the
Interior, Sacramento, California........................... 92
Prepared statement of.................................... 93
Response to questions submitted for the record........... 96
OVERSIGHT HEARING ON ACCESS TO THE CALIFORNIA DESERT CONSERVATION
DISTRICT
----------
Monday, August 18, 2003
U.S. House of Representatives
Subcommittee on National Parks, Recreation, and Public Lands
Committee on Resources
San Diego, California
----------
The Subcommittee met, pursuant to call, at 2 p.m., in the
Shedd Auditorium, Hubbs Sea World Research Institute, San
Diego, California, Hon. George P. Radanovich [Chairman of the
Subcommittee] presiding.
Present: Representatives Radanovich and Pombo (ex officio).
Also Present: Representative Filner.
Mr. Radanovich. Good afternoon. If I could have everybody's
attention. The Subcommittee on National Parks, Recreation, and
Public Lands will come to order. This is a hearing held at the
Shedd Auditorium at the Hubbs Sea World Research Institute here
in San Diego. My name is George Radanovich, and I am from
Mariposa County, Mariposa, California, and I am Chairman of the
House Subcommittee on National Parks, Recreation, and Public
Lands.
Joining me today is the Chairman of the House Resources
Committee, Congressman Richard Pombo, from Tracy, California.
Today the Subcommittee will hear testimony regarding access to
the California Desert Conservation Area, with emphasis on the
Imperial Sand Dunes Recreation Area.
I would like to remind everybody today that this is not a
town hall meeting, but rather a formal Congressional hearing
where issues discussed are placed on the record. Therefore, I
would ask for the public's cooperation in maintaining decorum
in the room.
I would also remind everybody that this is indeed a public
hearing, and therefore anyone here today may submit written
statements for the record. Please see our clerk, Mike Correia.
Mike. Please see Mike at the end of the hearing and he will
make sure that your comments are placed in the record, the
hearing record, and your ability to do that will remain open
for about a 2 week period after this hearing today.
I do want to mention, too, and kind of reiterate what I
just said. This is not a town hall meeting. There is not--the
House rules for hearings do not allow for public comment or
public reaction to the things that are said by people that are
up front here to testify as to today.
Nor is there any provision for the allowance of written
material or posters, or things like that in the back. Audience,
I will sort of have to ask you to please remove that, too, and
remove that from the room according to the rules of the House.
The purpose of the hearing is to get all the facts into the
record, and by the selection of the three panels that we have
here today enable us to do that. If you feel that your
information was not covered by the testimony of the witnesses,
you are free and able to submit the written text.
So by in this manner in order to fashion, we can make sure
that everybody's input is in the record and every viewpoint is
covered. So with that, we will begin, and I think at this point
that I would like to ask everybody to stand and face our
Nation's flag, as Pastor Bob Winterton, of San Diego, leads us
in the Pledge of Allegiance. Bob, thank you for joining us here
today.
[Invocation by Rev. Bob Winterton.]
STATEMENT OF THE HON. GEORGE RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Radanovich. Thank you, Pastor Bob Winterton of locally
here in San Diego. Today we will hear from 13 invited witnesses
who represent county government; two Federal agencies
responsible for managing many of the resources throughout the
California Desert Conservation Area; and members from the
recreational community and industry.
Since Congress first established the California Desert
Conservation Area in 1976, in a comprehensive long-range
management plan for the public lands was developed by the
Department of Interior, it appears that all of the Federal
agencies who have management responsibility for these lands
have been locked in a continuous battle between some in the
environmental community who wish to see as much Federal land as
possible reserved only for uses that they think are
appropriate, and the recreation and business communities, who
believe that these public lands should remain available for a
variety of public uses.
In 1994, Congress took action in what it thought would be
an improvement to the management of the California desert, only
to see the management situation become worse when it passed the
California Desert Protection Act.
I am sure that the Chairman has a few things to say about
that, and I look forward to the testimony of our witnesses on
these two issues, as well as the other conflicts within the
CDCA, and any suggestions for resolving some of the access
issues.
Finally, I would be remiss if I did not thank Dr. Kent, who
is president of the Hubbs Research Institute, and his
associates, Jennifer LeBlanc and Matt Cruz, for their
assistance and hospitality in hosting this Subcommittee and
Chairman Pombo. I now yield to Chairman Pombo for his opening
statement. Richard.
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, Chairman,
Subcommittee on National Parks, Recreation, and Public Lands
Good afternoon. The Subcommittee on National Parks, Recreation and
Public lands will come to order.
My name is George Radanovich. I am from Mariposa, California, and
Chairman of the House Subcommittee on National Parks, Recreation and
Public Lands. Joining me today is the Chairman of the House Resources
Committee, Congressman Richard Pombo of Tracy, California. Today, the
Subcommittee will hear testimony regarding access to the California
Desert Conservation Area with emphasis on the Imperial Sand Dunes
Recreation Area.
I would like to remind everyone here today that this is not a town
hall meeting, but rather a formal congressional hearing where issues
discussed are placed on the record. Therefore, I would ask for
everyone's cooperation in maintaining decorum in the room. I would also
remind everyone that this is indeed a public hearing and therefore
anyone here today may submit a written statement for the record. Please
see our clerk, Mike Correia (Mike, please raise your hand) at the end
of the hearing and he will make sure your comments are placed in the
record. The hearing record will remain open for two weeks.
Today, we will hear from thirteen invited witnesses who represent
county government, two Federal agencies responsible for managing many
of the resources throughout the California Desert Conservation Area,
members from the recreational community, and industry.
Since Congress established the California Desert Conservation Area
in 1976 and a comprehensive long-range management plan for the public
lands was developed by the Department of the Interior, it appears that
all of the Federal agencies with management responsibility for these
lands have been locked in a continuous battle between some in the
environmental community--who wish to see as much Federal land as
possible reserved for only uses they think are appropriate--and the
recreation and business communities who believe that these public lands
should remain available for a variety of public uses. In 1994, Congress
took action in what it thought would be an improvement to the
management of the California Desert, only to see the management
situation become worse when it passed the California Desert Protection
Act. I am sure the Chairman has a few things to say about that. I look
forward to the testimony of our witnesses on these two issues as well
as the other conflicts within the CDCA, and any suggestions for
resolving some of the access issues.
At this point I want to take a moment to address some local
criticism about this hearing. Chairman Pombo and I decided to hold this
hearing today following a number of meetings and conversations with
some of today's witnesses, who expressed frustration with not being
able to access a number of areas within the California Desert
Conservation Area. During this same time, we heard nothing from the
local environmental community about any access issues. Once we
confirmed our witnesses, we asked our Democratic counterparts if they
wanted any witnesses and they declined. I would caution some of those
in the audience who believe this Committee is obligated to invite
certain local organizations or individuals to testify when we conduct a
hearing on access issues to Federal lands in the California Desert. We
are not, especially when those groups don't seem to have a problem with
the current management practices. I would also like to point out that
local Members of Congress were notified of the hearing and were welcome
to participate.
Finally, I would be remiss if I did not thank Don Kent, President
of Hubbs Research Institute, and his associates Jennifer LeBlanc and
Matt Cruz for their assistance and hospitality in hosting the
Subcommittee and Chairman Pombo.
I now yield to Chairman Pombo for his opening Statement.
______
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Pombo. Thank you. I would like to thank the staff of
Hubbs for their hospitality and to Pastor Bob Winterton for
delivering our invocation and leading us in the Pledge of
Allegiance today.
Mr. Chairman, I commend you for your attention today to the
conflicts recently expressed by user groups to the California
desert, many of whom are represented here this afternoon. As a
sophomore Member of Congress in 1994, I recall the heated
debates prior to the passage of the California Desert
Protection Act, and the divisive issues then, the restriction
on users, creation of wilderness and de facto wilderness, and
the impact of the Endangered Species Act.
Those same issues continue to be divisive issues that fuel
the debate today. I am privileged to now be serving in my sixth
term in the U.S. Congress, and over the years I have seen
varying approaches employed to deal with these ongoing
conflicts.
And although I don't profess to hold all of the answers, I
can tell you from my experience what does not work. Pretending
that mankind is not part of the environment does not work.
Restricting access to humankind does not work either. I
believe anything that we do as humans has an impact on our
environment and our laws should accept that. The reality here
is that we have a fixed amount of desert land, and a fleet6ing
ability to access the California desert is a real tragedy.
Using our environmental laws to lock away our national
environment is equally tragic. It is not only tragic for
visitors and recreational users, but it is also tragic for the
mining community, the ranching community, the film industry,
and the local California economies that ultimately suffer when
users are denied access.
That is not to say that the preservation of sensitive
species is not important, nor is it to say that preserving a
glimpse of our wild natural environment for future generations
is not also important.
However, I don't think that the way we best accomplish that
is by pitting user groups against each other, or by
perpetuating the belief that use and the environmental
stewardship are mutually exclusive.
In truth, we in Congress are as much as fault as anyone for
the significant social consequences that have resulted from
application of our current environmental laws. However, for 30
years we have chosen to polarize that debate, and today we find
that very little progress has been made, and in short it just
has not worked.
This afternoon a variety of testimony will be presented. We
will be hearing from user groups, local government, the Federal
agencies that are bound by the laws that we in Congress have
given them to work under.
However, across the spectrum, I am confident that we are
going to hear some commonalities. We are going to hear common
problems that keep coming up over and over, and that is where I
believe or best chance for progress lies.
That is where we have got to try and find common ground and
promote a balanced common-sense solution that we can all live
with. As many of you in this room already know, these are the
types of conflicts that brought me to the U.S. Congress a
decade ago, and I am committed to being part of the solution.
So, Mr. Chairman, I applaud your efforts today to begin
this process and I look forward to hearing the forthcoming
testimony, and identifying if and where there may be
opportunities to finally make progress on these issues. Thank
you.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard Pombo, Chairman,
Committee on Resources
Thank you, Mr. Chairman.
I would also like to extend my gratitude to the Hubbs staff for
their assistance and hospitality this afternoon, and I commend you Mr.
Chairman for your attention to the longstanding conflicts expressed by
user groups to the California Desert, many of whom are represented here
this afternoon. You know, as a sophomore member of Congress in 1994, I
remember those heated debates prior to passage of the California
Protection Act, and the divisive issues then--restrictions on users,
creation of wilderness and de facto wilderness, and the impact of the
Endangered Species Act--continue to be the divisive issues that fuel
the debate today. I'm privileged to now be serving in my sixth term in
the United States Congress, and over the years I've seen varying
approaches employed to deal with these ongoing conflicts. And although
I don't profess to hold all the answers, I can tell you from experience
what doesn't work. Pretending that mankind is not part of the
environment doesn't work. Restricting access to humankind doesn't work
either. I believe anything we do as humans has an impact on our
environment, and our laws should accept that. The reality here is that
we have a fixed amount of desert land, and the fleeing ability to
access the California Desert is a real tragedy. Using our environmental
laws to lock away our natural environment is equally tragic. It's not
only tragic for visitors and recreational users, but it's also tragic
for the mining community, the ranching community, the film industry,
and the local California economies that ultimately suffer when users
are denied access.
That's not to say that the preservation of sensitive species is not
important, nor is it to say that preserving a glimpse of our wild,
natural environment for future generations is not important. However, I
don't think the way we best accomplish that is by pitting user groups
against each other, or by perpetuating the belief that use, and
environmental stewardship, are mutually exclusive. In truth, we in
Congress are as much at fault as anyone for the significant social
consequences that have resulted from application of our current
environmental laws. However, for thirty years we've chosen to polarize
the debate, and today we find that very little progress has been made;
in short, it hasn't worked.
This afternoon, a variety of testimony will be presented. We'll be
hearing from user groups, local governments, and the federal agencies
that are bound by the laws that we in Congress have given them to work
under. However, across this spectrum, I'm confident that we're going to
hear some commonalities; we're going to hear common problems that keep
coming up over and over, and that's where I believe our best chances
for progress lie. That's where we've got to try and find common ground
and promote balanced, common sense solutions we can all live with.
As many of you in this room already know, these are the types of
conflicts that brought me to the United States Congress a decade ago,
and I am committed to being part of their solution.
So, Mr. Chairman, I applaud your efforts today to begin this
process, and I look forward to hearing the forthcoming testimony, and
identifying if, and where, there may be opportunities to finally make
progress on these issues.
______
Mr. Radanovich. Thank you, Mr. Chairman. I just want to
make sure if everybody can hear in this room. If you can't in
the back of the room, please raise your hand. Sometimes we talk
far away from the mike and it does not come out very well. So
when you are closer, it works. So I just want to make sure that
everybody can hear. If you do have a problem, please raise your
hand.
Today, we have three panels. We have a lot of people to
testify. The first panel consists of the Honorable Jon
McQuiston, who is a supervisor from District 1, in Kern County,
Bakersfield, California; and the second is the Honorable Wally
Leimgruber, who is a supervisor from District 5, in Imperial
County, from El Centro; the Honorable Michael Dorame, a
supervisor from District 5, in Inyo County, at Lone Pine; and
the Honorable Bill Postmus, a supervisor from District 1, in
San Bernardino County, San Bernardino, California.
Gentlemen, welcome to the Committee. I would ask, which is
typical to the Subcommittee, that we do swear you in. So if you
would please stand and raise your right hand, I would
appreciate it.
[Witnesses sworn.]
Mr. Radanovich. Thank you very much, and you may be seated,
and for the benefit of the audience, the way that these
testimonies work is that generally each person submits an
entire written testimony, but will have 5 minutes each to be
able to discuss their written testimony. It is better to give a
synopsis of it that we can cover it in 5 minutes.
And what we will do is take statements starting with you,
Jon, and all the way down, and then we will open the panel up
for questions from members up here. And the light system here
works, if you would, it is set to a 5 minute timer. It works
just like a traffic light; green means go, yellow means speed
up, and red means stop. So please follow the rules.
We would like to contain it within 5 minutes because of all
of the people that are testifying today, and there is going to
be a lot of talking in here, and so I think people are going to
be a little bit sore by the end of this thing, and so we want
to make sure it moves as efficiently as possible.
So, Mr. McQuiston, welcome to the Committee, and you may
begin your testimony.
STATEMENT OF THE HON. JON MCQUISTON, SUPERVISOR, DISTRICT 1,
KEN COUNTY, BAKERSFIELD, CALIFORNIA
Mr. McQuiston. Thank you, Mr. Chairman, for the opportunity
to appear today. I am coming as you know in representing Kern
County, and approximately one-third of Kern County lies in the
California Conservation Area.
In case there is questions at the end of all of our
testimony, there are three people that I would like to
introduce behind me. One is Harold Carter, the Sheriff of
Imperial County. Harold, you may want to stick your hand up.
Gerald Hillier, Executive Director of the Quad States
County Government Coalition; and Lorelei Oviatt, Senior
Supervising Planner for Kern County, who has been working on
these issues for over 8 years.
Now, Mr. Chairman, no substantive discussion of management
plans or practices within the California Desert Conservation
Area can occur without an understanding and acknowledgment of
the role of the desert tortoise in the formulation of these
plans.
The desert tortoise is the keystone species up on which the
major regional plans are based, and the tortoise recovery plan
defines six environmental significant units which serve as the
basis for the 14 proposed desert wildlife management areas or
DWMAs, and has been used as a basis of areas of critical
environmental concern, and comprising millions of acres within
the conservation area, and with that as a background, I will
proceed to my main points.
The BLM regional planning process during the last 8 years
has resulted in a substantial reduction and loss of access to
public lands. The millions of acres comprising the conservation
area are divided into subregions, each with its own management
plans.
I will be speaking today about the West Mojave, the
Northern and Eastern Mojave Desert Management Plan, and the
Northern and Eastern Colorado Desert Coordinated Management
Plans.
Each of these plans have, as a critical component, critical
habitat for the desert tortoise and reliance on the tortoise
recovery plan. The main issue is that under the Endangered
Species Act, a recovery plan requires monitoring, and this
monitoring has not been done.
Further, the desert tortoise recovery plan by its own
direction includes a requirement for a 3 or 5 year review for
the inclusion of new science. Yet, no review has occurred,
despite repeated appeals by local government, the Quad State
Coalition, and most recently even the Desert Advisory Council.
Further, the General Accounting Office concluded in its
December 2002 report that the Mojave Desert Tortoise plan
needed to be reviewed. Quite simply, the recovery plan fails to
address appropriate measures to deal with predation and
disease, which has been the major cause for tortoise
populations to crash throughout the region.
Even in areas with no motorized access, tortoise
populations in fully protected areas have seen declines in
excess of 80 percent due to predation and disease. And with
full knowledge of causes of mortality, and with much better
science today, along with the statutory mandate for monitoring,
and a promise to review the plan within 3 to 5 years, the U.S.
Fish and Wildlife Agency's position is that it needs 2 or 3
years to study the need for a recovery plan.
Now, armed with this same knowledge and awareness of these
shortcomings, and that the tortoise recovery plan is advisory
in its discretionary decisionmaking process, the Bureau of Land
Management, in consultation with the U.S. Fish and Wildlife,
nevertheless continues to use the recovery plan as the
principal foundation of new management plans within the
conservation area.
And by relying on the outdated plan, we are still not
implementing the measures that are most needed for the survival
and recovery of the Mojave Tortoise population. Instead, we are
focusing on removing access and eliminating multiple uses, all
in the name of species recovery.
My second issue focuses on motorized access. To manage the
motorized access process is a term called route designation,
which is a euphemism for road closure, for in practice the
route designation process does not create new routes, or open
previously closed routes. It is used to close or restrict
existing routes.
Multiple use, such as grazing, mining, the interests that
you noted today, are critical to counties' economies and
important to people who live there. The loss of motorized
access is the loss of multiple use.
The loss of motorized access is also a loss of sustained
yield to both renewable and non-renewable resources necessary
to sustain the product needs of a growing population from
everything that we wear, to shoes, to cars, everything, and we
either grow it, mine it, or extract it.
And for all practical purposes these losses are
irrevocable. I could walk you through another paragraph. I see
the amber light, and I want to stay on time. We have spent
countless hundreds of hours working on management plans. Our
staff, we have traveled to Washington, D.C., and we have
assisted user groups, and we have been members of steering
committees, public workshops.
Yet at the end of the day, our comments and concerns about
route designation has not made a difference. Management, by
closure, based on flawed science and antidotal evidence, is the
outcome of these long complicated processes.
Mr. Chairman, no parent likes to admit that they have ugly
children, but the route designation process is broken. Flawed
processes and flawed recovery plans drive flawed management
plans. Each plan and each office develops its own criteria and
processes for route evaluation.
Mapping is often not verified. In one region, five criteria
are used to determine route closure and only 30 percent has
been evaluated. In another region, there is 23 criteria. I see
my red light, and so I am going to conclude my comments by just
saying that route designation needs to have better processes.
The things that we would ask that this Committee consider.
The U.S. Fish and Wildlife should proceed with all deliberate
speed to commence and review for the tortoise recovery plan.
The Endangered Species Act specifically requires monitoring to
determine the efficiency and recovery measures, monitoring
should be completed.
And last, the BLM should develop with full public input a
consist process and standard for route designation, including a
requirement that the loss of a resource in recreational
opportunities would be balanced and mitigated by the inclusion
of opportunities in other areas. Thank you.
[The prepared statement of Mr. McQuiston follows:]
Statement of Jon McQuiston, First District Supervisor,
Kern County Board of Supervisors
Mr. Chairman, thank you for the opportunity to appear before your
Committee today. I am speaking today as Kern County First District
Supervisor. My district includes a portion of the California Desert
Conservation Area (CDCA). I am a current member of the Bureau of Land
Management Desert District Advisory Council representing local
government.
With me today speaking on the local government panel are Wally
Leimgruber, Imperial County Supervisor; Michael Dorame, Inyo County
Supervisor, and Bill Postmus, San Bernardino County Supervisor. In
preparation for any questions Committee members may have, I also have
behind me:
Dr. William Jefferds, Major General (Ret.-U.S. Army),
Senior Military Advisor to the Governor of the State of California, and
the Director, Office of Military Support (OMS). Dr. Jefferd's state
role is advocate for operational readiness and sustainability of bases
and ranges in the CDCA which comprise 2.3 million acres of military
land. These bases and ranges include China Lake Naval Air Weapons
Stations, Edwards Air Force Base, Fort Irwin, Marine Corps Air Ground
Combat Center at Twenty-nine Palms, Marine Corps Logistics Base,
Chocolate Mountains Aerial Gunnery Range, and the Naval Air Facility at
El Centro.
Gerald Hillier, Executive Director of the QuadState
County Government Coalition of which Kern, Imperial, and San Bernardino
counties are members. QuadState County Government Coalition is a
California Joint Exercise of Powers Act agency whose members include
six counties within four states in the Mojave Desert region (Mojave
County, Arizona; Imperial, Kern and San Bernardino counties,
California; Lincoln County, Nevada; and Washington County, Utah).
Lorelei Oviatt A.I.C.P., Supervising Planner with the
Kern County Planning Department is responsible for the Kern County Home
Rule program and has represented Kern County on BLM regional planning
issues during the last eight years.
I appreciate the opportunity you have provided today to hear the
concerns of local elected officials and users of the public lands in
the California Desert Conservation Area District (CDCA).
No substantive discussion of management plans or practices within
the California Desert Conservation Area can occur without an
understanding and acknowledgment of the role of the Desert Tortoise in
the formulation of those plans and practices. The Desert Tortoise is
the ``keystone'' species upon which the major regional plans are based.
The Tortoise Recovery Plan defines six Environmental Significant Units
(ESU's), which serve as the basis for the fourteen proposed Desert
Wildlife Management Areas (DWMAs), and has been used as a basis for
Areas of Critical Environmental Concern (ACECs) comprising millions of
acres within the CDCA. In the Tortoise Recover Plan the six ESU's are
renamed as the following recovery units: Northern Colorado Recovery
Unit, Eastern Colorado Recovery Unit, Upper Virgin River Recovery Unit,
Eastern Mojave Recovery Unit, Northeastern Mojave Recovery Unit, and
the Western Mojave Recovery Unit. With that as background, I will
proceed to my main points.
BLM Regional planning processes during the last eight years has
resulted in a significant reduction and loss of access to public lands.
The millions of acres comprising the California Desert Conservation
Area are divided into subregions, each with its separate management
plans. The list is long. The plans I will be speaking about today are
the West Mojave Plan, Northern and Eastern Mojave Desert Management
Plan, and the Northern and Eastern Colorado Desert Coordinated
Management Plan. These management plans all have as a key component
critical habitat for the Desert Tortoise and reliance on the Desert
Tortoise Recovery Plan. Under the Endangered Species Act, a recovery
plan requires monitoring, yet no monitoring has been done.
Additionally, the Desert Tortoise Recovery Plan by its own direction
includes a requirement for a three or five year review and inclusion of
new science; yet, no review has occurred despite repeated appeals by
local government, the Quad State Coalition, and most recently a request
by the Desert District Advisory Council. Further, the General
Accounting Office (GAO) concluded in its Dec 2002 report on the Mojave
Desert Tortoise that the review needed to be completed.
The Tortoise Recovery Plan fails to address appropriate measures to
deal with predation and disease which has caused tortoise populations
to crash in locations through the desert. Even in areas with no
motorized access, tortoise populations in fully protected areas have
seen population declines in excess of 80 percent due to predation and
disease. With full knowledge of the main causes of mortality, much
better science, a statutory mandate for monitoring, and a promise to
review the plan within three or five years, the U.S. Fish and Wildlife
Agency's position is it needs two or three years to study the need for
a Recovery Plan update.
With knowledge and awareness of these shortcomings and that the
Tortoise Recovery Plan is advisory in its discretionary decision-making
process, the Bureau of Land Management, in consultation with U.S. Fish
and Wildlife, nevertheless continues to use the Tortoise Recovery Plan
as the principle foundation of these new management plans within the
CDCA. By relying on the outdated Tortoise Recovery Plan in developing
these land use management plans, BLM and USFW are still not
implementing the measures most needed for the survival and recovery of
the Mojave tortoise population. Instead they are removing access and
eliminating multiple uses in the CDCA all in the name of species
recovery.
My second issue focuses on motorized access. To manage motorized
access is the process called ``Route Designation''. Route designation
is a euphemism for ``road closure'', for in practice the route
designation process does not create new routes or open previously
closed routes, it is used to close and restrict existing routes.
Multiple use such as grazing, mining, filming, recreational vehicle
use, and hunting on the public lands is critical to the county economy
and important to the people who live there. Loss of motorized access is
loss of multiple use. Loss of motorized access is also loss of the
sustained yield of renewable and non-renewable resources necessary to
sustain the product needs of a growing population, ranging from the
shoes we wear to the products in our reading glasses and even to
electric or hybrid vehicles, bicycles or the paint to mark pedestrian
walkways. For all practical purposes, these losses are irrevocable.
I would like to provide you with a view into the world of route
designation planning in the Desert District Conservation Area. Kern
County's Planning Department's commitment to develop and review these
plans has taken literally thousands of hours of staff time. Staff has
attended hundreds of meetings and reviewed encyclopedia size documents.
The Desert District Advisory Council has spent numerous meetings on the
subject, listening to citizens, reviewing documents, and developing
recommendations and specific requests to the Desert District Manager.
We have traveled to Washington D.C. and Sacramento to meet with
Department of Interior leadership to present our thoughts and ideas on
improving the process. We have assisted user groups and citizens in
understanding the process and in providing comments on the plans. We
have been members of steering committees, workgroups, public meetings
and technical review teams.
Yet, at the end of the day, our comments and concerns regarding
route designation and management of multiple use have not made a
difference. Management by closure, based on flawed science and
anecdotal evidence is the result of these long, complicated, often
tedious planning programs. We have had some small successes involving
collaborative processes on smaller areas such as the El Paso region
south of Ridgecrest, California, along with involvement of special
groups and advisory committees to manage areas such as Jawbone Canyon.
The City of Ridgecrest has also been involved in these efforts and I am
submitting supplemental information that expresses the city's point of
view. In the end, these small successes are the exception not the rule
and mostly the result of local government intervention to the state or
federal level.
Mr. Chairman, no parent likes to admit they have ugly children, but
the route designation process is broken. Flawed process and flawed
recovery plans drive flawed management plans. Each plan and each BLM
field office develops its own criteria and process for conducting route
designation and route evaluation. Mapping is often based on older maps
that are not field verified. In the Northern and Eastern Colorado
Desert Coordinated Management plan, there were five criteria and only
30 percent of the roads were evaluated. In the West Mojave Plan there
were originally 23 criteria and then a decision tree was developed.
Field verification was started, but never completed. Existing use is
brushed aside and questionable claims of impacts to a biological
resource are sufficient to close a route. Citizens fight to prove the
route should stay open, while the mere anecdotal sighting of a
migratory bird is in fact enough to have the agency close it.
It is no longer the Congressional mandate of multiple use and
sustained yield that guides the route designation process. It is, for
the most part, the staff biologists. With no consistent scientific
methodology and clear criteria throughout the resource areas, route
designation becomes a function of individual management discretion. The
CDCA is one ecological region. We continue to ask the question:
Shouldn't the multiple use and sustained yield goals of the CDCA Plan
enacted by Congress, and not the management style and philosophy of
each field office be the determinate factor in forming public policy
decisions and actions?
Flawed process and flawed recovery plans combined with settlement
agreements have created a CDCA area that barely meets the definition of
multiple use. Our neighbor, San Bernardino County, one of the richest
mineral areas in the United States, no longer has any viable potential
for mining on public lands. Cattle and sheep grazing, once a vital,
profitable industry, merely survives on the acreage left. We mitigate
for the loss of other resources, but not for the loss of vital
resources that fuel the economies of our desert communities.
Mr. Chairman to conclude, route designation must be based on good
science and sound public policy. I am not opposed to route closures,
only to a process that has no consistent criteria or standards. The
public should be able to understand the decision-making process and how
conclusions are reached. It should be clear, consistent, fair, and
promote multiple use on public lands while conserving important
cultural and biological resources for the future generations. It should
be what Congress enacted.
In summary, I would suggest the following actions for the Committee
to consider.
1. U.S. Fish and Wildlife should proceed, with all deliberate
speed, to commence the review of the Desert Tortoise Recovery Plan.
2. The Endangered Species Act requires monitoring to determine the
effectiveness of the recovery measures. Monitoring should be completed.
3. The Bureau of Land Management should develop, with full public
input, a consistent process and standard for the route designation
including a requirement that the loss of resource and recreational
opportunities would be balanced and mitigated by the inclusion of
opportunities in other areas.
I would be pleased to answer any questions you or the other members
of the Subcommittee may have.
NOTE: Additional information included with Mr. McQuiston's
statement has been retained in the Committee's official files.
______
Mr. Radanovich. Thank you, Mr. McQuiston. Are those your
notes beside you?
Mr. McQuiston. The comment that I didn't have time to make,
but thank you, this is the California Desert Conservation Area
Plan in 1980. This is not all-inclusive. These are the plan
amendments that it takes to implement this particular 1980
plan. It is still growing and it still is not right.
Mr. Radanovich. Thank you, Mr. McQuiston. Mr. Leimgruber,
welcome to the Committee. If you want to begin your testimony,
please.
STATEMENT OF THE HON. WALLY LEIMGRUBER, SUPERVISOR, DISTRICT 5,
IMPERIAL COUNTY, EL CENTRO, CALIFORNIA
Mr. Leimgruber. Thank you, Chairman, and Members of the
Committee, for inviting me to provide testimony at this
hearing. I am speaking today as the Imperial County Supervisor.
My district, the Fifth District, includes the entire east side
of Imperial County, and includes the entire 160,000 acres of
the BLM Imperial Sand Dunes recreational area.
I am a current member of the Bureau of Land Management
Desert District Advisory Council representing local government.
I also serve as Chairman of the Quad State County Government
Coalition.
I would like to speak today about the Imperial Sand Dunes
and the work of the Desert District Advisory Council. The Sand
Dunes are very special to Imperial County. The Imperial Sand
Dunes Recreational Area provides over $44 million per year
benefit to our county, a county with limited economic
opportunity.
This is an area where we want to have families come and
enjoy. We want these families to come back out to Imperial
County and feel safe. This county time and time again, with
over 750,000 visitors a year that we receive at the Dunes, are
a guest, and we want them to be able to pursue activities that
make the Dunes world-famous safely in a family environment.
We work closely with the local BLM El Centro office on law
enforcement issues to ensure that that atmosphere exists. Sine
2001 the Imperial County Board of Supervisors, the Imperial
County Sheriff, the BLM, and the California Highway Patrol have
worked together to increase law enforcement presence and
enforcement in the Dunes, and it has been highly successful.
We are involved in the process of developing the plan for
the management of the Dunes, and want to see the area reopened
based on new information and science now available. Protection
of the resource of the Dunes, and the recreational opportunity
in the Dunes are important to Imperial County.
I am currently a member of the Bureau of Land Management
District Desert Advisory Committee representing local
government. As you know the Committee was established by
Congress through the Federal Land Policy and Government Act as
a citizens advisory group to BLM.
But more specifically the Desert District Advisory Council
is to provide counsel and advice to the California Desert
Conservation Area District Manager regarding management of the
public land resource implementation and resolution of land use
conflicts, and assurance of public input in land use and
management decisions.
My experience on the District Desert Advisory Council has
come at a time when land use conflicts are always on the
agenda. We have discussed the regional plans, including
Imperial Sand Dunes, at more than one meeting.
At a meeting in Barstow, we had over 200 people attending
to testify on the Dunes as a world-class family recreational
area. This kind of participation and forum, combined with the
quality of the DAC members, makes this truly an assert to the
public land management process.
Yet, it is my experience that the recommendations of the
Committee are not given real consideration. At our December
8th, 2001 District Advisory Council meeting, after listening to
all of the public input and decision, eight specific
resolutions were passed for consideration by BLM.
One of the resolutions recommended that the use within the
Imperial Sand Dunes planning area are affected by decisions in
the final recreational area management plan be mitigated. We
mitigate for the loss of other resources, but not for the loss
of recreational opportunities, and my question is why not.
None of our recommendations were accepted and the response
letter that we received in May of 2002 was to discouraging, and
I have attached a copy of the BLM response in my written
statement for your review.
The District Advisory Council commits time and resources to
review issues and conduct meetings. The public takes time to
come and provide comment. The BLM spends time and money, and
staff resources, to conduct the meeting. There should be some
administrative review of the DAC recommendations at a higher
level than a district manager.
Mr. Chairman, to conclude, the Imperial Sand Dune
Recreational Area is unique as both a natural resource and
recreational opportunity. We need to formulate the best plan
that will expand the opportunities and ensure the economic
benefits to the community of Imperial County. I would be
pleased to answer any questions that yourself or other members
of the Subcommittee may have.
[The prepared statement of Mr. Leimgruber follows:]
Statement of Wally Leimgruber, Fifth District Supervisor,
Imperial County Board of Supervisors
Thank you, Chairman and members of the Committee for inviting me to
provide testimony at this hearing. I am speaking today as the Imperial
County Supervisor. My district, the Fifth District includes the entire
east side of Imperial County and includes the entire 160,000 acres of
the BLM Imperial Sand Dunes Recreation area. I am a current member of
the Bureau of Land Management Desert District Advisory Council
representing local government. I also serve as Chairman of the Quad
State County Government Coalition.
I would like to speak today about the Imperial Sand Dunes and the
work of the Desert District Advisory Council. The sand dunes are very
special to this county. The Imperial Sand Dunes recreation area
provides over $44 million benefit to our county, a county with limited
economic opportunism. This is an area that we want to have families
come and enjoy. We want you to come out here and feel safe. We want you
to come back to the county time and time and time again. The over
750,000 visitors a year we receive at the dunes are our guests; we want
them to be able to pursue the activities that make the dunes world
famous, safely, in a family environment. We work closely with the local
BLM El Centro Office on law enforcement issues to ensure that
atmosphere. Since 2001, the Imperial County Board of Supervisors, the
Imperial County Sheriff, the BLM, and the California Highway Patrol
have worked together to increase law enforcement presence and
enforcement in the dunes, and it has been highly successful.
We are involved in the process of developing the plan for the
management of the dunes and want to see areas reopened based on the new
information and science now available. Protection of the resources of
the dunes and the recreational opportunities in the dunes are important
in Imperial County.
I am currently a member of the Bureau of Land Management, Desert
District Advisory Committee representing local government. As you know,
this Committee was established by Congress, through the Federal Land
Policy and Government Act, as a citizens' advisory group to the BLM.
But, more specifically, the DDAC is to provide counsel and advice to
the CDCA District Manager regarding management of the public land
resources, implementation, resolution of land use conflicts and
assurance of public input in land use and management decisions.
My experience on the Desert District Advisory Council has come at a
time when land use conflicts are always on the agenda. We have
discussed the regional plans, including the Imperial Sand Dunes, at
more then one meeting. A meeting in Barstow had over 200 people
attending to testify on the dunes as a world-class family recreation
area. This kind of participation and forum, combined with the quality
of the DAC members, makes this truly an asset to the public land
management process.
Yet, it is my experience that the recommendations of the Committee
are not given real consideration. At the December 8, 2001, DAC meeting,
after listening to all the public input and decision, eight specific
resolutions were passed for consideration by BLM. One of the
resolutions recommended that all uses within the Imperial Dunes
planning area affected by decisions in the Final Recreation Area
Management Plan be mitigated. We mitigate for the loss of other
resources, but not for the loss of recreational opportunities. Why not?
None of our recommendations were accepted and the response letter we
received in May 2002 was discouraging.
The DAC commits time and resources to review issues and conduct
meetings. The public takes time to come and provide comments. The BLM
spends money and staff resources to conduct the meetings. There should
be some administrative review of the DAC recommendations at a higher
level then the District Manager.
Mr. Chairman to conclude, the Imperial Sand Dunes Recreation Area
is unique as both a natural resource and a recreational opportunity. We
need to formulate the best plan that will expand the opportunities and
ensure the economic benefits to the communities of Imperial County. I
would be pleased to answer any questions you or the other members of
the Subcommittee may have.
Attachments to Mr. Leimgruber's statement have been retained in the
Committee's official files.
______
Mr. Radanovich. Thank you very much, Mr. Leimgruber. I
appreciate your testimony. Mr. Michael Dorame, welcome to the
Subcommittee. If you want to begin your testimony that would be
much appreciated.
STATEMENT OF THE HON. MICHAEL DORAME, SUPERVISOR, DISTRICT 5,
INYO COUNTY, LONE PINE, CALIFORNIA
Mr. Dorame. Thank you, Mr. Chairman, and Committee members,
I thank you for providing the opportunity to address this body
regarding specific impacts to Imperial County government, its
residents and other public land users, and recreationalists,
brought on by actions taken by Federal land management
agencies.
It has been my experience as a county supervisor the past
6-1/2 years to witness how much public land management
practices are driven by reaction to lawsuits brought on by
environment extremists and other interest groups, without
regard for consequences suffered by people in general.
As a result of the California Desert Protection Act, some
roads were closed denying access to public lands in my
supervisorial district. Some of those roads had historic access
to mines, grazing, hunting locations, back country camping, and
other recreational activities.
Interestingly, most of the roads designated for closure led
to natural springs. Also, many closures resulted by
administrative fiat. The additional land management
responsibilities came without additional human resource
funding. So internally the park rangers decided what they could
and could not effectively patrol. No money, no manpower, no
access.
One very important county maintained road is Saline Valley
Road, originally designated as the westerly boundary of the
expanded parklands and agreed to as such by opposing interest
groups. After reaching agreement over this issue the boundary
maps were submitted to Congress, but had been altered, and did
not reflect what was agreed to.
Indeed, the westerly boundary had been moved west of Saline
Valley Road to the Inyo Mountains, insidiously performed
without public input. I asked a member of the Sierra Club
Congressional Boundary Committee if they would consider
changing the boundary back to Saline Valley Road, and the
response was that was a congressionally designated boundary,
and it will take an Act of Congress to change it.
As I address you today, Inyo County finds itself in a
precarious financial dilemma. Very recently, we have
experienced tremendous monsoonal downpours that have washed out
many of our county-maintained roads in the desert, to the
extent that we have declared a local emergency, and have
applied for emergency funding from the State to enable us to
expedite repairs that will cost in excess of a million dollars.
Saline Valley Road is one of those damaged, and here is the
hook. Historically the Inyo County Road Department has used
materials from borrow pits located west of Saline Valley Road
for repair and reconstruction.
With the movement of the westerly boundary to the Inyo
Mountains, those material borrow pits are now in designated
wilderness, thus driving up the cost of road repairs, because
without Park Service cooperation and permission, we have to
haul material over 50 miles in some cases, depending on where
the road damage has occurred.
Today, I am asking for your help. Please consider taking
action that will eventually result in the redesignation of
Saline Valley Road as the westerly boundary of Death Valley
National Park. The result will be mutually beneficial to Inyo
County, the Park Service, and the public in general; a county
road that is more cost-effectively maintained and a safe, more
enjoyable, visitor experience, and less land responsibility for
the park rangers.
Additionally, under the same Act, I have constituents who
reside in Homewood Canyon, whose historical water rights are in
potential jeopardy because their springs were either carelessly
or carefully drawn into the BLM wilderness boundary.
Some of those folks have resided in the canyon since before
the BLM was established, and possess certified, valid existing
State water rights. Please make them whole by taking action to
cherry stem their spring water source out of the BLM
wilderness.
Another example of infringement on private property rights
is the BLM closure of Surprise Canyon Road. It is a
congressionally designated cherry-stemmed road through BLM and
Park Service wilderness, terminating at Panamint City. Private
owned property.
In designating the Surprise Canyon cherry-stemmed
boundaries, Congress clearly recognized and by its action
acknowledged that private property owners had a right to
ingress and egress to their private end holdings.
In closing off access to Surprise Canyon Road, BLM's action
is inconsistent and administratively at odds with the
Congressional order which established the boundaries that
identified Surprise Canyon Road, P71, as a cherry-stemmed
access to Panamint City under the California Desert Protection
Act.
BLM's action is a de facto change of a Congressionally
established boundary without the required and necessary action
by Congress to change a wilderness boundary. If it takes an Act
of Congress to change a Congressionally designated boundary,
then that is just what it takes.
And I say to my friends at the Sierra Club that you can't
have it both ways. These private property owners have valid and
existing RS2477 access rights that are being violated. I ask
you to take action as a Congressional body that sends a clear
message to the people of the United States that their Congress
is in charge and will not allow further violations of the
people's private property rights. Thank you for listening to a
fellow representative of the people, and I will answer any
questions that you may have.
[The prepared statement of Mr. Dorame follows:]
Statement of Michael A. Dorame, Fifth District Supervisor and
Chairperson, Board of Supervisors, Inyo County, California
Mr. Chairman and Committee Members, thank you for giving me the
opportunity to address this body regarding access to the California
Desert Conservation District. I am proud to represent Inyo County,
which is located on the eastern side of the Sierra Nevada Mountains,
consisting of 10,140 square miles with a population of approximately
18,000. We are a year-round vacation destination point with vast scenic
and recreational areas offering a wide variety of outdoor recreational
activities including fishing, camping, off roading, water skiing,
picnicking, sightseeing, photography, hiking, hunting and winter
sports. We are noted for having the lowest and highest land elevations
in the continental United States and we are home to the Death Valley
National Park. Our primary source of revenue is recreational tourism.
Less than 2% of the land is privately owned. With over 98% of our land
being owned by the City of Los Angeles, the Federal Government and
other governmental agencies, protecting personal property and access
rights is vital to the health and well being of our County.
For the past several years we have been inundated with changes to
the governmental rules, regulations, guidelines and management plans
for our public lands. We have seen a historic ``packing'' industry
reduced to virtually nothing due to new restrictions in the Inyo
National Forest Plan, which restricts access and party numbers. We have
had subjective closures of roads, which were addressed by our Board in
Inyo County Resolution No. 2002-36, which reaffirmed and established
standards for the recognition of rights-of-way in accordance with
United States Revised Statute 2477. We added a ``Resource Management''
Coordinator to our staff just to keep abreast of the voluminous numbers
of requests for comment on proposed changes affecting public lands in
our County. We are in the process of yet another attempt by Senator
Boxer to claim more of our public lands for wilderness designation and
what will most probably result in further access restrictions. We
continue to vehemently argue for local control and consideration when
efforts are instigated to change designations, close roads and/or deny
access to those lands located in Inyo County. We lost a hard fought
battle to gain local input on the boundary designations for the Death
Valley National Park when it was established, which ultimately resulted
in access being denied to a multitude of personal and mining
properties.
On May 7, 2002, the Inyo County Board of Supervisors adopted
Resolution No. 2002-34 addressing our concerns with a proposed
legislative action to expand the wilderness designation for a large
part of the Inyo National Forest. In that Resolution we acknowledged
that our citizenry has identified the protection of recreational and
agricultural lands and access to public lands as priorities; we
acknowledged our 2001 Inyo County General Plan Update Goals and
Policies Report, which identifies policies to preserve and protect: (a)
a variety of recreational opportunities; (b) appropriate access to
resource managed lands; (c) current and future extraction of mineral
resources; and (d) use of public lands for agricultural operations; as
well as goals to provide for a balanced approach of resource protection
and recreation and resource use of lands. (See Attachment A.)
In Resolution No. 2002-34, the County of Inyo also identified that
the following be considered when expanding the Wilderness Systems in
the County of Inyo:
Provide opportunities to obtain local consensus and
support for any changes to public land designations in Inyo County and
address the concerns of residents and public land users;
Ensure, through prior economic analysis, that Inyo
County's communities and businesses will not be adversely impacted by
changes to public land designations;
Protect existing recreation, grazing, packing, mining,
research, archeological and cultural uses on federal lands, including
access;
Protect private property rights, including vested water
rights, and access to private land inholdings and other lands that may
be affected by adjoining federal land acquisitions;
Ensure there are no net loss of privately owned property
in Inyo County as a result of expanded Wilderness designations; and,
finally
Ensure there is no net loss in revenues to local
governments necessary to provide and maintain essential public
facilities and services.
The Inyo County Board of Supervisors remains committed to
continuing to protect our inherent rights whenever and wherever our
lands and our access to these lands are jeopardized. More specifically,
the California Desert Conservation District is located in the southern
portion of Inyo County. Just a few examples of how denied access
impacts our County follow.
Some road closures and the denial of access to public lands
resulted from the California Desert Protection Act which is encompassed
by the District. These roads, which were closed, had historic access
and were R.S. 2477 right-of-way roads. When the Park boundaries were
drawn the following roads were eliminated and are no longer reflected
on the Park maps. It should be noted here that no local input was taken
prior to the elimination of these roads. Some of the roads closed or
eliminated are: Waucoba Wash and Waucoba Mine Road, Lower Saline Road,
Rainbow Canyon Road, Jackass Flats, 4 Spurs off the main road. (A more
detailed list of the roads can be found on Attachment B.)
Private property rights are severely infringed upon when wilderness
boundaries are established without regard to local input relative to
private inholdings, such as the case with the residents of Inyo County
who live in Homewood Canyon. The water source for some of the residents
in Homewood Canyon are natural springs and when the boundaries for the
California Desert Protection Act were drawn these springs were absorbed
into the BLM wilderness boundaries. As a result the water source for a
domestic water supply for certain individuals was put in jeopardy.
Those water conveyances must be ``cherry stemmed'' and the boundaries
redrawn so that ingress and egress to the springs is removed from the
BLM jurisdiction in order to protect a fragile domestic water source
and the property rights for those effected residents.
Another example of infringement on private property rights is the
BLM closure of Surprise Canyon Road. Surprise Canyon road was a
Congressionally drawn ``cherry stem'' boundary of the California Desert
Protection Act. Panamint City is at the end of Surprise Canyon Road and
part of the ``cherry stem'' designation. There are approximately 28
private property owners who are currently denied access to their
property in Panamint City because of the BLM action to gate the road.
Originally when the boundaries for the California Desert Protection
Act were drawn Surprise Canyon Road, was designated as Route P71. This
is the road to Panamint City, and it was clearly ``cherry stemmed'' to
allow access to the private property. In 2000 the Center for Biological
Diversity (CBD) filed a lawsuit against the BLM. In May 2001, BLM, as a
settlement to the lawsuit, agreed to perform an emergency closure of
Surprise Canyon Road up to Panamint City and to perform an
Environmental Impact Statement (EIS). This closure was the result of an
agreement between the BLM and CBD, and did not involve any local or
public input. The EIS is to include a decision regarding human access
into the Surprise Canyon as well as a determination about the
suitability of designating Surprise Canyon Creek as an addition to the
system of Wild and Scenic Rivers of the United States under the
provision of the Wild and Scenic Rivers Act. BLM in reaching a
settlement with the Center, agreed to mechanically close Surprise
Canyon Road, in direct opposition to the California Desert Protection
Act boundaries, and thus deny access to those individuals who have
private property in Panamint City, even though in the lawsuit the Court
ordered that the private property owners in Panamint City were not to
be denied access to their property. BLM's action is inconsistent with
the Congressional Order, which established the boundaries and
identified Surprise Canyon Road, Route P71, as a ``cherry stemmed''
access to Panamint City in the California Desert Protection Act.
Here is another example of the effects of indiscriminate boundary
designation. When discussions began regarding the western boundary for
the Death Valley National Park, various environmental and special
interest groups became involved in the negotiations for the boundary
line. After years of negotiations and deliberations, the group agreed
that the western boundary for the Park would parallel the eastern side
of Saline Valley Road. This was done because Saline Valley Road could
be easily defined as a boundary line because there was a County Road
already being maintained. What transpired next, was that one party left
the table believing that an agreement had been reached on the western
boundary, which identified the eastern side of Saline Valley Road as a
boundary line. The group remaining at the table then changed the
boundary line and extended it beyond Saline Valley Road west to the
Inyo Mountains thereby encompassing Inyo County's Saline Valley Road
into the National Park.
While the County continued to have responsibility for Saline Valley
Road because it was listed on the County's Maintained Mileage System as
well as it being an R.S. 2477 right-of-way, with the change in
boundary, the County lost access to its ``road materials'' borrow pit
and in order to maintain Saline Valley Road now must transport road
materials over 50 miles increasing the cost to the County of
maintaining the road. Had local concerns been heard by those
responsible for the indiscriminate changing of the western boundary
line and acted accordingly, this unfortunate situation would not exist.
As a real-time example of what I am referring to, from July 29,
2003, through August 2, 2003, torrential rainfall in Inyo County
resulted in massive and dangerous mud and rock slides to the roads in
the southern portion of the County. On August 8, 2003, our Director of
Emergency Services declared a Local Emergency because the damage to our
roads resulted in over $1,060,000 and, in a small county like Inyo,
this unexpected cost will virtually wipe out our road reserves. One of
the roads affected by these slides was Saline Valley Road.
In order for the County to expeditiously and cost effectively
complete the emergency repair of that road, we need access to the
closest road materials pit, our Waucoba Borrow Pit, which is closed to
us because of the Death Valley National Park boundary. We have just
received authorization from the National Park Service to allow us to
use the borrow pit temporarily for our repairs to the Saline Valley
Road. In the Park Service's authorization to utilize the borrow pit,
they have restricted our use in such a manner as we will probably not
be able to sufficiently repair the road without supplemental materials
being transported. While we are grateful that access in this instance
was given, the fact remains that any on-going or future repairs will
still be costly to the County because we have been denied continued
access to our original borrow pits.
Additionally, what is most frustrating about this situation is that
it would be mutually beneficial to both the County and the Park Service
if the original boundary line of Saline Valley Road had been left as
originally agreed upon or was to be restored. The Park would have
enhanced visitation because of access via a well-maintained County road
and the County would regain access to their materials borrow pit to
promote the cost effective on-going repair and maintenance of the road.
In closing, I would like to encourage this Committee to take the
message back to their peers in Congress that when Congressional action
is taken on wilderness designations and boundaries, that those Agencies
tasked with the responsibility to regulate and enforce these actions be
provided with sufficient resources and an understanding of the Act to
ensure that the enforcement is consistent with the intention of the
Act. It is also vital that there is a clear and concise understanding
that enforcement must encompass local input to ensure the protection of
local priorities, i.e., economy, environment, personal property rights,
access, etc. Additionally, I would like to request that boundary
adjustments be made to rectify the denial of access to private property
in Inyo County, and to bring the western Boundary of the Death Valley
National Park back to the originally agreed upon designation of being
parallel to the east side of Saline Valley Road.
Attachments to Mr. Dorame's statement have been retained in the
Committee's official files.
______
Mr. Radanovich. Thank you very much, Mr. Dorame. I
appreciate your testimony. Mr. Postmus, welcome to the
Committee. If you want to begin your testimony, that would be
terrific.
STATEMENT OF THE HON. BILL POSTMUS, SUPERVISOR, DISTRICT 1, SAN
BERNARDINO COUNTY, SAN BERNARDINO, CALIFORNIA
Mr. Postmus. Thank you very much, Mr. Chairman, and welcome
to the both of you, and thanks for coming down to San Diego. We
are glad to be here today because of the weather, and the fact
that it is 75 degrees out today. My name is Bill Postmus--
Mr. Radanovich. You would agree that this is a better
choice than Death Valley would you not?
Mr. Postmus. Much. Absolutely. My name is Bill Postmus, and
I am the county supervisor for the First District of San
Bernardino County, California. San Bernardino County is the
largest local governmental jurisdiction in the lower 48 States,
and contains over 8 million acres of public lands under a
variety of Federal jurisdiction.
San Bernardino County has experienced significant impacts
from the desert management and so-called protection over the
past 27 years, and my word to the Committee is simple; enough
is enough.
My request to this Committee, to Congress, and to the
Department of Interior, is four-fold. Number 1, we did a
moratorium on implementation of land use planning until the
monitoring of recommendations of the General Accounting Office
audit are implemented on reserves, parks, and wilderness.
The imposition of further planning decisions and
elimination of land uses is definitely inappropriate. Neither
the Bureau of Land Management, the Park Service, nor the Fish
and Wildlife Service have taken positive actions to deal with
the main causes of the tortoise decline. Instead, they continue
with land closures.
Number 2, we request a thorough review of the National Park
Service's units and programs. They have eliminated most
historic land uses within their jurisdictions, and we are not
aware of any monitoring to determine the effect on resources or
economics in our area.
Number 3, the Congress should cease all private land
acquisitions by the Federal Land Management Agencies within the
California Desert Conservation Area. San Bernardino County now
has lost over 600,000 acres in the last 4 years. That is
600,000 acres. Plus, many ranches and mines.
And currently there is the passage of H.R. 380, which
contains a retroactive provision, such that at least the
county's tax base losses would be made up by a interest-bearing
endowment, and before we recommend amendments to the California
Desert Protection Act to remove sunset provisions of Park
Service advisory commissions, provide for the inclusion of
access for wildlife habitat management, including maintenance
of water facilities within the Park Service wilderness units,
and the review of wilderness boundaries, and review current
actions of the National Park Service regarding limitations on
hunting under the guise of the Endangered Species Act.
The California Desert Conservation Area was created in a
special section of the Federal Land Policy and Management Act
of 1976, emphasizing a multiple use management of public lands.
This particular concept had become lost in subsequent
legislation and regulatory implementation.
The California Desert Plan was completed in 1980, and
approved by the U.S. Secretary of the Interior. It affirmed a
balance multiple use management of public lands, together with
wilderness preservation for special interest areas. That plan
was recommended favorably by a unanimous vote of the Desert
Advisory Council.
After adoption of the plan, it was challenged by the off-
road vehicle interests and one local government in a now-
forgotten lawsuit. Ultimately decided in the Ninth Circuit
Court of Appeals, it was found that while the plan made
everybody a little unhappy, it had completely followed its
congressional mandate to balance land use, and provide for new
uses, and protect wilderness values.
Unsatisfied with the outcome of this particular litigation,
environmental groups immediately launched a plan to impose
their vision, and I specify their vision, of desert management.
Using Congress rather than the courts, their efforts resulted
in the passage of the California Desert Protection Act in
October 1994, designating almost 9 million acres of wilderness
on the Bureau of Land Management and Park Service administered
lands. It eliminated by a designation of thousands of miles of
existing access road. Concurrent with the passage of the Desert
Protection Act, actions took place relative to implementation
of the Endangered Species Act within this region.
Specifically, land management protection proposals
regarding the Desert Tortoise, and in 1994 Critical Habitat was
designated a recovery plan which was adopted. The Protection
and Land Management goals of the Desert Tortoise Recovery Plan,
and the California Desert Protection Act, have never been
actually integrated. They moved forward on parallel tracks.
This caused extended land use restrictions, non-
consideration of resources management options, and a doubling
up of closures without consideration of the effects of one
another against the other.
The Desert Protection Act has already closed and subjected
to wilderness management millions, and I mean millions of acres
of public land. The recovery plan drives further closures, and
the removal of multiple-use from remaining public lands within
the desert and San Bernardino County.
Over the last decade, livestock grazing has largely
disappeared. Mining has been very much restricted, and no new
mining in the foreseeable future. Recreational uses for
hunting, rock hunting, and further enjoyment has been
completely diminished.
In December of 2002 the General Accounting Office found
that for all the actions implemented either from the wilderness
parks or from the desert tortoise recovery plan, neither the
Fish and Wildlife Service, nor the Bureau of Land Management,
were evaluating the effectiveness of their actions.
Yet, they continue to issue and implement plans that
propose the establishment of even more reserves. The total cost
to date exceed over $100 million, and there is some estimates
that are even higher than that, with little to show for that
particular dollar amount.
We do not oppose conservation and property management of
the public lands and their many resources. We do believe,
however, that the remaining BLM administered public lands must
remain open for multi-use land management in which the public
is afforded an opportunity for access.
In closing, I would just again like to thank the Committee,
the Subcommittee, for the meeting down here in San Diego today,
and I would be happy to answer any questions. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Postmus follows:]
Statement of Bill Postmus, First District Supervisor,
San Bernardino County Board of Supervisors
I am Bill Postmus, Supervisor, First District of San Bernardino
County, California. As such I represent perhaps one of the largest
geographic areas of public lands in the United States. San Bernardino
County is the largest local government jurisdiction in the lower 48 and
contains over 8 million acres of public lands under a variety of
Federal administration including Bureau of Land Management (BLM),
National Park Service (NPS) and U.S. Forest Service (USFS). The subject
of my testimony today is directed to those areas under BLM and Park
Service administration.
I feel well qualified to make this statement since San Bernardino
County, besides having a huge area of public land within its boundary,
has also experienced the greatest impacts from desert management and,
so called protection, over the past 27 years. My word to the Committee
is simply ``enough is enough!'' I and the members of my panel, during
our testimony, will present specifics as to why we feel that way and
will present recommendations to you and to the Congress for future
action. We also will touch on matters as related to why task measures
have failed to meet the overall public interest, particularly the loss
of public access to public lands and the loss f the concept and
principles of multiple use management.
My request to this Committee and to the Congress is four-fold:
1. First, we would like to have the Department of the Interior
(DOI) impose a moratorium of the implementation of further land use
planning within San Bernardino County. We have the Northern and Eastern
Mojave (NEMO), Northern and Eastern Colorado (NECO), and the draft of a
Western Mojave Plan currently before us. We feel strongly there must be
a halt until the elements of the General Accounting Office (GAO) audit
completed last December that reported on issues associated with
management of the desert tortoise are implemented. Specifically until
there is efficacy monitoring, the imposition of further planning
decisions such as land acquisitions and elimination of land uses is
absolutely inappropriate. Neither BLM nor FWS has taken any positive
actions to deal with the main causes of tortoise decline--disease and
predation. Instead they continue to promote further land closure.
2. We request a thorough review of National Park Service Programs
and whether they accomplished the goals that they were set out to
accomplish. They have eliminated most historic land uses within the
region, and we are not aware of any monitoring that has taken place to
determine the effect on resources. We also feel strongly that the Park
Service has inadequately portrayed the heritage aspects of those
programs and has not provided any evaluation of any economic losses,
including to county revenues.
3. The Congress should cease all land acquisitions by the land
management agencies within the California Desert Conservation Area. San
Bernardino County has lost over 600,000 acres in the last five years,
plus ranches and mines. This has had a significant impact on our tax
base. We urge the passage of H.R. 380, which contains retroactive
provision such that at least the counties loss of tax base would be
made up by interest bearing endowment.
4. We recommend amendment of the California Desert Protection Act
specifically to provide for removal of sunset clauses associated with
the advisory commissions that were established to recommend on Park
Service plans. In removing the sunset clauses, we further recommend
that the charters be expanded to include oversight on all planning and
actions taking place within the boundaries of the three national park
units within the county. We also believe that the California Protection
Act should be amended to include access for wildlife habitat management
including maintenance of water facilities within Park Service
wilderness areas. Through oversight, either accidental or otherwise,
the access provisions contained in Title I of the Act providing for
such access within BLM wilderness was not extended to the Park Service
wilderness established in Titles III, IV, and V of the Act. We also
understand that NPS is attempting to limit the hunting protections
contained in the CDPA. In so doing they are seeking regulatory
direction from the State of California. Congress must direct The
Department of the Interior to cease this action. The regulatory
direction being sought ties the need to The Endangered Species Act and
the desert tortoise recovery plan. This is ludicrous given the lack of
any definitive foundation in studies or research for a causation of
tortoise decline in the Eastern Mojave from legal hunting activity.
I want to review for the Committee and for the record a brief
history of the California Desert Conservation Area. The California
Desert Conservation Area (CDCA) was created in 1976 as a special
section of the Federal Land Policy and Management Act (FLPMA) of 1976,
emphasizing multiple-use management of public lands. The discussion of
desert management had been a continuous subject of conversation among
resource managers, the public and Congress in the early 1970s, and the
creation of Conservation Area was folded into the passage of FLPMA in
1976 sponsored by Congresswoman Shirley Pettis who then represented the
area prior to Congressman Jerry Lewis.
The California Desert Plan was directed to be completed by 1980
under the provisions that created the Desert Conservation Area, and
during that four-year time frame, that task was accomplished. The Plan
was approved by Secretary of the Interior, Cecil Andrus, during the
last days of the Carter administration. It reflected a balancing that
affirmed multiple use management of public lands together with
wilderness preservation for special areas. The plan was recommended
favorably by a unanimous vote of the Desert Advisory Council at a
meeting convened in the center of the Desert Conservation Area at
Zyzzx, California.
Interestingly enough after adoption of the plan, it was challenged
by a group of off-road vehicle organizations and one local government
within the Desert Conservation Area in a now-forgotten lawsuit. It was
argued in District Court and the 9th Circuit Court of Appeals. The
courts found that the whole plan made everybody a little unhappy, but
that it had completely followed its mandate to balance land use, new
uses and protection including wilderness management, and the courts
affirmed that BLM could proceed further with implementation.
Unsatisfied with the outcome of that litigation the environmental
groups immediately launched a plan to impose their vision of desert
management on the public. They used Congress rather than the Courts.
This included overriding BLM's recommendations for some two million
acres of wilderness by their proposal of creating six million acres of
wilderness in the area, establishing a new national park and expanding
both Death Valley and Joshua Tree National Parks.
The environmental organizations gained their with the assistance of
the two Democratic senators from California which were elected in 1992,
with passage of the California Desert Protection Act (CDPA) in October
1994, which essentially carried out their agenda. It established close
to 9-million acres of wilderness designation both on BLM and National
Park Service administered lands and eliminated, by these designations,
thousands of miles of existing access roads.
It is important to note that the efforts of the environment
organizations and the senators to impose the California Desert
Protection Act on the citizens of San Bernardino County and the rest of
the Desert was opposed by the House delegation in place at the time,
most of whose members are still present in the House: Congressmen
Lewis, Hunter, and Thomas, who took specific actions for amendments,
few of which were passed by the, then Democratic controlled, Congress.
I also point out that the Chairman here today, Richard Pombo, was also
a participant and carried amendments relative to access right up until
the passage in the House, though those efforts, sad to say, were
rebuffed at the time.
Concurrent with the passage of the protection act, actions were
also taking place relative to implementation of the Endangered Species
Act within the region and specifically land management protection
proposals regarding desert tortoise. The Desert Tortoise (Gopherus
agassizii), is a species native to the Mojave Desert and whose range
extends from the Mojave-Ridgecrest area, east to St. George, Utah.
Critical habitat was designated in 1994 and the Recovery Plan for the
species was also adopted the same year.
What has never happened and the question that I believe is
appropriate for inquiry is that the protection and land management
goals of the Desert Tortoise Recovery Plan and the California Desert
Protection Act have never been integrated. They move forward on
parallel tracks. The Desert Protection Act has already closed and
subjected to wilderness management millions of acres of public lands,
the Recovery Plan is moving forward in its land use plans to provide
further closures and remove from multiple use remaining public lands
within the Desert.
What have been the effects of the legislative and regulatory
actions by the Federal government over the last decade?
First, livestock grazing within the region has been severely
impacted. For all practical purposes sheep grazing in the West ended
after Fish and Wildlife Service issued a jeopardy opinion in 1990.
While sheep have continued to come in small numbers, in the big picture
they no longer provide any economic usage in public lands.
WEMO, if adopted, will permanently close these allotments.
Likewise, cattle grazing has also all but disappeared from the desert
with the exception of two or three allotments. The National Park
Service acquired most of the higher elevation grazing with the
establishment of the Mojave National Preserve. While grazing was
protected by legislation, the Service aggressively sought funding to
buy out as many ranches as possible, and with the exception of the
Blair operation, have succeeded in eliminating all of the livestock
operations in that region. And now, even after hunting protection was
guaranteed in the CDPA, the NPS management is seeking further
restriction. Meanwhile, outside of National Park Service areas
remaining grazing has been impacted by tortoise biological opinions,
and litigation by environmental groups such that much of the spring use
traditionally has taken place has been severely restricted. This
despite showing over 100 years of co-existence, and some of the best
remaining tortoise populations are within the grazing allotments.
Perhaps the greatest impact on the desert from an economic
standpoint has been the effect of the California Desert Protection Act
on mining. The California Desert Conservation Area, and specifically
San Bernardino County, has been touted for the last century as a
``world class minerals area.'' BLM had a conference in the late 1980s
in which a variety of scientific papers on known mineral values and
current technology documented and confirmed these values. Those values
were basically locked up because of the Desert Protection Act since
most of the highly mineralized areas were withdrawn by designated
Wilderness Areas and the National Park Service units. Though the
legislation did protect valid existing rights, those are very difficult
to exercise within areas of wilderness and the National Park Service.
A case study in point is the Rainbow Talc Mine in the southeast
corner of Death Valley National Park.
The mine had been located in the during the 1980s by two mining
explorers and they discovered and filed claims upon what was considered
some of the most highly valuable talc certainly in the United States.
They had international interest in development. The area had been
surveyed for wilderness characteristics by BLM in the 1970s when they
did the wilderness inventory and was specifically recommended excluded
in the 1980 California Desert Plan for inclusion in the wilderness
preservation system. Past mining activity had closed down at the Ibex
area adjacent when it was incorporated into Death Valley National park
at an earlier stage. Though this is clear evidence of mineral values in
the area. Instead of accepting BLM recommendation, in 1994 the
California Desert Protection Act expanded Death Valley to incorporate
the area of the Park ignoring the agency recommendation, and
additionally placing it in the National Wilderness Preservation System.
The access road from Highway 127 was in such a condition that a normal
touring car could pass over much of its distance. This was totally
ignored in the CDPA and while it originally served as a boundary
between two wilderness study areas, it ceased to exist. The outcome of
several years of negotiations in which no mining plan could ever be
approved on NPS staff, the owners of the claims sold the property to
the National Park Service. Sadly, it was a mine that could have
generated income, property taxes and employment. Instead, the agency
spent public money to prevent its development. Located some 4.5 miles
from a paved road, it is now far removed from even public view and few
will ever see the frame that the original owners build over the mine
even though it is a lovely historic structure.
From the information that we have been able to glean from the
mining industry in general, all mine exploration in the CDPA has
ceased. Few anticipate that if economic deposits are located that the
regulatory framework is such that development could be accomplished.
San Bernardino County has historically had major mines open and close
in the desert, and while some have cried ``boom and bust,'' the fact of
the matter is that there has been a rather even flow in recent decades
of mineral development. As one mine begins to slow it has always seemed
that another mine came into play. The most recent example is the
Coliseum Mine that was actively worked prior to the passage of the
CDPA. It has now been closed. Viceroy Mine along the Nevada line
reached its peak production about concurrently with the passage of the
CDPA and was so active that in fact the boundaries of the Mojave
Preserve were shrunk to accommodate it. It is now undergoing closure.
There are no new mines to replace these economic properties or to
replace lost tax revenues.
Molycorp in the past has produced rare earths for a number of years
but has run into regulatory issues associated with National Park
Service. They are still milling but have not returned to production.
The sad fact is that as Coliseum and Viceroy close, and Molycorp
continues to struggle to come back, there is no new mine in the wings
in the County to replace the tax revenue that has been lost by the
closures of these properties. The mineral values, particularly with
Molycorp are significant for revenue as well as strategic ore and
technology applications. The only ongoing example is, of course, the
mine in Imperial County in Indian Pass that Supervisor Leimgruber can
speak to in far more detail. While a valuable property, that too
illustrates the difficulty in getting any mining property permitted.
Fundamentally, with no access mining and other economic use simply
cannot exist.
Concurrent with the closure of public access within the desert
associated with national park and wilderness designation we have been
faced with the new round of land use planning undertaken by BLM in the
region. These were the NECO, NEMO and West Mojave planning efforts that
have affected San Bernardino County. NECO and NEMO are completed. One
aspect of the Recovery Plan is the designation of Desert Wildlife
Management Areas (DWMAs) covering a recommended 1,000 square miles
(640,000 acres). In NECO, Chemeheuvi Valley is a designated DWMA with
over 800,000 acres. NEMO has also been completed and designated smaller
DWMAs adjacent to the area of the Mojave National Preserve (MNP) in
Ivanpah Valley and Shadow Valley. The MNP was advocated to add to
tortoise protection, however, its presence is not now counted toward
DWMAs and protection is expected to come from BLM multiple-use lands.
In review of the Desert Tortoise Recovery Plan, in December 2002,
the General Accounting Office (GAO) issued a report that showed that of
all the actions either from wilderness or from the Desert Tortoise
Recovery Plan that neither Fish and Wildlife Service or BLM were doing
anything to evaluate the effectiveness of their actions, yet they
continue to issue draft plans such as the recently published Western
Mojave Habitat Conservation Plan which proposes the establishment of up
to four additional DWMAs in the western part of the desert, embracing
not only San Bernardino County but parts of Inyo and Kern Counties. To
date the GAO estimated $100,000,000 of Federal funds had been expended
with little to show for it.
Our opinion and recommendations do not oppose conservation and
proper management of the public lands and their many resources. We do
believe, however, that the BLM administered public lands need to be
left open for professional multiple-use land management in which the
public is afforded an opportunity for access to perform economic
activities such as mining and grazing and a variety of recreational
pursuits such as hunting and rock hounding. What we see instead is a
concerted effort in the 1990s and continuing by the land management
agencies to further limit access and to further limit economic uses of
these public lands and we see the loss of additional millions of acres
and miles of access after the closure of almost 10% of California by
the CDPA in 1994.
As I stated at the outset, we propose five items:
1. We believe that the agencies, with Congressional support,
declare a moratorium on implementing further land use plans. We believe
the findings of the GAO audit must cause efforts to be focused upon
monitoring the effectiveness of action already taken including broad
areas of national park and wilderness within the county within the
California Desert Conservation area. Equally essential is refocusing
agency efforts on disease and predation in tortoise populations.
2. We believe that there should be a complete review of National
Park Service programs. Has ranching removal resulted in any positive
change? What values have been lost, including tax revenue and income?
Is NPS assuming interpretation of the ranching and mining heritage or
obliterating it? While I touched on the conservation aspects and the
purchase of ranches, there has also been a removal of the livestock
watering facilities, which we believe has had a profound impact on the
area, particularly in relation to bighorn sheep populations. The Mojave
National Preserve was established as a Preserve and not a Park, in
which hunting, grazing and a variety of uses would continue under the
Park Service Administration rather than BLM. The Park Service
Administration has done everything in its power to make this a ``park''
and not a ``preserve.'' Their move to get State Fish and Game
restrictions on hunting exemplifies this. As such, we question both its
management programs as well as the effectiveness of them. County
comments in the General Management Plan were essentially rejected. For
example, have tortoise populations increased in the habitat areas since
the Park Service has purchased the ranches and removed the livestock?
Until this is known should the agencies be purchasing and retiring
further grazing privileges outside areas that traditionally were left
to multiple-use. In essence, the programs of the agencies seem to be
turning the entire desert into a park-like management and not making
any clear distinction between Park Service and BLM areas. Recently, as
NPS began to dismantle the ranches, it has also begun removing the
water developments. This impact must be addressed. Further, under the
guise of the Endangered Species Act, it is seeking to impose new
restrictions on hunting. What we are funding is that even when Congress
writes in protections for uses and access, the agencies seek to
overturn them when the use-oriented focus does not fit what they see as
their ``mission.''
3. The agencies need to stop further land acquisition until there
has been efficacy monitoring.
4. We believe Congress should move quickly to enact H.R. 380. H.R.
380 has been authored by Congressman Radanovich working closely with
this County's public lands consultant. It contains a retroactive
provision. Data shows that in the last four years no county has
suffered Federal land acquisitions to the extent of San Bernardino
County, though many counties throughout the West have been losers. The
proposal in H.R. 380 also would provide for payment in lieu of taxes
for the capital assets involved in ranches and mining operations that
may also be purchased. Current formulas under the Payment in Lieu of
Taxes (PILT) programs do not do this. We urge speedy hearings on H.R.
380 and hope that it can pass the House during the current 108th
Congress.
5. Last, we do recommend oversight of the California Desert
Protection Act. With the exception of a couple of access issues, it has
not been visited by the Congress since 1994. This hearing is a step in
the proper direction. Clearly we would like to work with the Congress
in adjusting several of the boundaries. There are probably several
areas in which we might agree that wilderness designation should be
dropped or shrunk. We are still concerned relative to much of the
access issues contained in amendments that you, Congressman Pombo,
carried in 1994 are still needed. We felt that the recent BLM
regulatory decisions relative to recordable disclaimers will provide an
avenue of approach in dealing with these on a land title basis. We were
disturbed that the House recently restricted these and hope that the
restriction is only for a period of FY 2004 appropriations. We urge
instead that Congress wholeheartedly support the BLM program to provide
legal access and also that the Congress either revisit the area of many
of these cherrystems in the wilderness or urge that the agencies deal
with the access issues as they exist on the ground. Remember that the
recordable disclaimer provision does require that a road exist. It does
not provide for new access. It does not provide for improvement of the
access. It simply provides for passage of title for the access. Our
concern rests upon the fact that we never had a chance to prove up on
these access routes before the California Desert Protection Act and its
wilderness designations, and now DWMAs, slammed the door shut and
before BLM had a procedure. The public has been frozen out of the new
National Park Service units except on the main roads. There is not even
access to maintain valid existing rights that are supposedly protected
under the CDPA. We urge that the Congress endorse BLM's procedure and
allow it to apply to all public lands. Congress must assure that
``valid existing rights,'' whether they be mines or access roads,
really has meaning in practice.
______
Mr. Radanovich. Thank you very much, Mr. Postmus. I
appreciate your testimony. Now is the time for the members up
here to be able to ask questions of each of the folks that
testified.
I want to begin a little bit with Supervisor Dorame. Your
testimony is very good, but the Saline Valley Road and the
circumstances by which it was included in the plan, can you go
into that a little bit more? And you also noticed something
about the Surprise Canyon Road.
And just for my benefit and maybe somebody else's, too,
could you give me an idea of how it was--
Mr. Dorame. If I can beg your assistance here. I worked
with one of my able-bodied constituents for 8 weeks after the
California Desert Protection Act was implemented, and basically
what we have right here is we have a 75 mile long road that
comes down to here.
This is the Saline Valley Road here. It is 75 miles long,
and it is a very, very cross-country type road.
Mr. Radanovich. A county road.
Mr. Dorame. Yes, a dirt road, and it is a county road. It
was agreed that this was going to be the westerly boundary of
the new park lands coming down to here, and then down to
Highway 190 down here.
But we have a borrow pit here on the southern end of the
road, and we have a borrow pit here that was west of the road
going toward the Inyo Mountains. What has occurred here was
that this was drawn in after one group left the table, and then
this was arbitrarily drawn in west of the road to the Inyo
Mountains, and so we find ourselves in a predicament with
having to gain permission and cooperation to be able to
maintain the road.
The former park superintendent, I had a discussion with him
on this, and I said if we are unable to continue maintaining
the road, what happens if we relinquish it to the park. And he
said I am going to be brutally honest with you. It is not what
you want to hear.
That road, we don't have the money to maintain it. So he
said they would probably end up closing off access. So if this
gives you an indication, Mr. Chairman, this is what we were
talking about.
And there is mining, and there are canyons, and there is
grazing that used to take place going up in here, and people
right now don't have access to those mine sites. And all that
deer hunting up there.
And while I have this map, what we did was we got the new
park boundary here, and that is 54 percent of Inyo County is
the new park land that is going in here. And these green lines
are the open roads, and the red is all the routes that were all
closed off, and that constitutes approximately 204 miles of
roads that were closed off in the California desert in the
national park.
The black bold line here is all the new park boundary going
into San Bernardino County, but most of it is in my district. I
have a district that encompasses 6,500 square miles, and that
is what we are asking for, is for some relief there.
Mr. Radanovich. Thank you, Mr. Dorame.
Mr. Dorame. Thank you, sir.
Mr. Radanovich. Mr. Leimgruber, I would like to have--you
mentioned in your testimony that as a member of the DAC that
sometimes your recommendations may not go ignored, but don't
bear any fruit and don't go anywhere.
What is it that--I see in my notes here that it usually
ends up in a 10-to-2 vote. Is that the problem with the DAC, is
that it is usually--is it lopsided and not balanced, or what is
your--
Mr. Leimgruber. When we have our District Advisory Council
meetings, and we begin to discuss some of the impacts that are
imposed in our county, again, if we use recreational area,
usually we have the opportunity to mitigate that.
We have brought recommendations back, and we have said that
some of these closures that are forced upon our area, we would
like to have those areas mitigated. I do have a map of Imperial
County that shows all of our closed desert area, and the result
of that is that there is only smaller and smaller areas that
are open now for public access.
And we have multiple use in our county, and we would like
to have these areas actually reopened. We have aggregate
sources there that are available for our road construction, our
off highway vehicle use, and actually we would like to see that
a reopened area.
We have areas of camping that have been closed, and we
would like to see those areas opened. But the impacts are more
and more closures, and we don't have the opportunity to
mitigate those impacts.
Mr. Radanovich. Thank you very much, Mr. Leimgruber. I
recognize the Chairman, Mr. Pombo, for any questions.
Mr. Pombo. Well, thank you. I guess the one question that I
have got is that when we went through he California Desert
Protection Act, and when that bill was moving its way through
Congress, one of the big issues of debate at the time was that
it was recognized that parts of the desert were going to be
shut off, and that some mines that they were not going to have
access to, and there were some areas they were not going to
have access to.
And the argument was made at the time that the loss in
economic activity for the counties would be made up by
recreation, and that more people coming into the area would
make up the economic loss that all of you have talked about.
Has that happened?
I mean, have you seen a huge increase in recreation, and
has the management of the desert changed in a way that has made
it more attractive and more friendly for families and for
people to come down and spend time in the desert? Let me start
with you, Mr. Leimgruber.
Mr. Leimgruber. Again, I would like to address that
question. Obviously the recreational opportunities in Southern
California, we could actually include form Las Vegas, from
Phoenix, and on a major holiday weekend, and we have six of
those a year, we have visitors from the State of Washington
drive all the way down.
The impacts on our area because of closures actually force
the visitors to ride in a smaller area, and with the population
and the smaller area, that's why the sheriff of Imperial County
is here today listening to the testimony, because he is tasked
with the enforcement of the laws that we are going to provide a
safe family environment to our guests.
And this past year of 2002, on Thanksgiving, was the first
year that we have not have had a fatality. And I want to
express my appreciation again to the law enforcement agencies
that as we enjoyed the Thanksgiving holiday with our family,
this law enforcement agency was out in the desert enforcing the
laws.
We have been able to control an element that was actually--
and I look at a lot of the areas that they have had an
opportunity to go to in the past that is opened and closed, but
we have had an element come to our county that should have been
dealt with at the onset.
You get a football game, a stadium event, and you have a
multitude of law enforcement agencies there, they are going to
deal with that element, and they are going to be locked up and
taken out of there.
And the question, the same question, arises here that we
want these families to feel safe. This past year, we have had a
decline in visitors. Now, the economy and so forth, I am not
going to address all the intricacies of those issues, but I
want to stress the importance of a long enforcement presence
there in the dunes to make sure that the families that go there
for recreation are safe.
Mr. Pombo. Would any of the other members like to comment
on that?
Mr. Dorame. Thank you, Mr. Chairman. We realize
approximately 1-1/2 million visitors to Death Valley National
Park. We have a transition and use tax that applies to
visitation and residents alike of Inyo County.
We have not really realized much in terms of increased
revenue. Economic stimulus is always there because of the
creative thinking of our chambers of commerce and other
business people, volunteers.
But as far as recreation in those lands that have been
closed off, I get more complaints than I do thank you, and I
want to tell you that most of those are because of activities
that folks are unable to participate in as I had stated
earlier; back country camping in the Inyos and White Mountains,
and four-wheeling.
That used to be my big thing, going up in the solitude of
the mountains, and that was my recreation, and spending the
night looking at the stars at an 11,000 foot elevation. I used
to do a lot of that. You can't do it anymore. It is closed off.
And a lot of folks--my son is a hunter, and has been
hunting for 8 years now in his adult life, and he can't--he is
about ready to give it up because everybody is compressed into
a small area now, whereas you used to be able to really use
those mountains and flush out some game.
It is not there anymore. The game is probably still there,
but you can't go into some of these. One of the biggest
complaints we have is that we have different--and we understand
this. We have different management charges by our Federal
agencies.
The Park Service, to their credit, they have to manage
their wilderness, and in a conservation management type style.
BLM is multiple use, but the problem is that the people don't
know when they are in BLM, or when they are in the Park
Service. So there have been citations issued and things such as
that for practices that could not be permitted within the Park
Service boundary.
My suggestion to the Park Service and working with them
over these years was to increase a level of confidence in the
users and have them come up, and let's try to find, and give
them direction where your park land boundary is, and even they
did not know.
So it is a process that we are working through, but folks
just don't know when they are in the park, unless they are
really in the park, or when they are in BLM. It is an issue
that we will try and work our way through, and hopefully when
we do, people will be more receptive of this, and it will
increase some more usage, but it has not. It has been
detrimental. Thank you, sir.
Mr. Radanovich. Mr. Postmus, did you have--
Mr. Postmus. Yes, Mr. Chairman. San Bernardino County has
definitely been hit hard by the Desert Protection Act. In the
2003 fiscal year budget, the County of San Bernardino received
about $1.69 million in actual payment from the Federal
Government in terms of help.
That is about 20.6 cents an acre, and when the national
average is something around 35 cents an acre. There is too few
visitors coming into the national Mojave preserve right now. We
are not seeing any real impacts in terms of dollars coming into
the local economy.
And due to the fact that we have had now more and more of
our ranches being closed, that has been a major hit to our
local economy, and the fact that we are not going to be seeing
any new mines in the near future. This is definitely another
hit to our county.
In fact, if you look at the largest tax producers in San
Bernardino County, believe it or not, even though the county is
heavily weighted in the southern part, and we have a population
of 1.9 million people in the county, our three largest single
tax producers are in my district, and they are mining
operations.
But due to the fact that we are not seeing any new mining
coming into the area, it is going to eventually have a major
economic impact to the district and to the county.
Mr. Pombo. Mr. McQuiston.
Mr. McQuiston. Just one statement, Congressman Pombo. I
think the core of your question went to that there was
discussion that with the California Desert Protection Act, and
the loss of these huge amounts of land and some of the mining
and multiple use, there would be an offset by increased
recreation.
We certainly have nothing that would indicate that that
assumption proved true, and I would say that in the last few
years with the management plans and practices, and more and
more constraints on these activities, that we have not realized
anything.
And in having been on the peripheral of that in another
life, I would just say that we heard some of those same
discussions, too, and oppose them for public policy reasons,
because even if there were an offset, it is a bad offset for
public policy, because you are having an economy of
recreational use to offset the economy of other uses of the
desert, which is contrary to multiple use and sustained yield.
So even if it were true, as a matter of public policy it would
be a bad public policy.
Mr. Pombo. Well, thank you, and thank you as a panel.
Mr. Radanovich. Gentlemen, thank you very much for your
testimony. That concludes the testimony of this panel, and we
will go ahead and move on to our second one. Again, thank you.
The second panel consists of the following: Mr. Roy Denner,
who is President and CEO of the Off-Road Business Association,
from Santee, California; Mr. Jim Bramham, a Board Member of the
American Sand Association, in Sacramento, California; Mr. David
Hubbard, Counsel of the Off-Highway Recreation Community, from
Escondido, California; Mr. Ron Kemper, a Grazing Leaseholder in
the California Desert Conservation Area, East Highlands,
California; Mr. Howard Brown, a Mining Geologist, from OMYA
California, Incorporated, Lucerne Valley, California; Ms. Sheri
Davis, Director, Inland Empire Film Commission, from Riverside,
California; and Mr. Mike Hardiman, who is an Inholder within
the CDCA, Imperial County, California.
Ladies and Gentlemen, welcome to the Committee. And again
now that you are all comfortably seated, I would ask you to
stand up, because as is the custom, we would like to have our
witnesses sworn in.
[The witnesses were sworn.]
Mr. Radanovich. Thank you. You may sit down. Again, we are
going to adhere to the 5 minute rule. I am going to make an
exception with Mr. Denner, because I understand that you
represent quite a few off-road vehicle groups, and you do have
a powerpoint presentation. So I will let you go over that a
little bit, Mr. Denner.
If you would like to begin, and again we will go through
the panel, everybody speaking for 5 minutes, and then we will
open up the panel for questions by Richard and I. Mr. Denner,
welcome.
STATEMENT OF ROY DENNER, PRESIDENT AND CEO, OFF-ROAD BUSINESS
ASSOCIATION, SANTEE, CALIFORNIA
Mr. Denner. Congressman Radanovich and Congressman Pombo, I
certainly thank you for having this hearing. It is long overdue
and sorely needed. I have projected up on the wall a slide that
shows the boundaries of the California desert district.
It is something over 10 million acres, and runs all the way
from the Mexican border, up to Bishop, and then runs past
Edwards Air Force Base. In 1980, a plan was developed to manage
this area, and it looks like this, and Supervisor McQuiston
already mentioned it.
And for 20 years this is what we have been using as a
management document. The next slide I am going to throw up here
real quickly shows that the same territory overlaid by national
parks, and national preserves, military reservations, and
wilderness areas.
All of these, of course, can be subtracted from public
lands available for public use and vehicle access. And then we
take the next one, an overlay. The desert tortoise in DWMAs,
desert wildlife managements, what you see left there in the tan
color is what is left in the California desert district for
vehicle access and off-road recreation, and significantly
reduced from what we had not too many years ago.
On March 16, 2000, the BLM was sued by the Center for
Biological Diversity, the Sierra Club, and the Public Employees
for Environmental Responsibility, for its failure to implement
this plan.
The problem was that they said that the BLM did not consult
with Fish and Wildlife regarding endangered species, two
primary species, one the Desert Tortoise across the entire
CDCA; and the other is the Peirson's Milk Vetch Plant within
the Imperial Sand Dunes Recreation Area.
Emergency closures resulted from a settlement agreement
between the BLM and the CBD, adding over 800,000 acres to the
public land unavailable for OHV recreation. These closures were
identified as interim emergency closures necessary until BLM
could complete its consultation with Fish and Wildlife.
On August 7, 2000 several pro-access groups were accepted
as intervenors on behalf of the BLM for the CBD lawsuit. On
March 20, 2001, a settlement agreement with a multitude of
stipulations was signed by the BLM CDCA at that time, and also
the intervenors and the plaintiffs.
Very little effort, on the part of the BLM, was exerted to
negotiate the extensive demands of the plaintiffs. The primary
focus on the part of the intervenors was the Imperial Sand
Dunes Recreation Area, very likely the most popular OHV
recreation area in the universe.
And since the settlement the plaintiffs have been actively
spreading the word to the OHV community through the
intervenors, approved of the settlement, and this is a true
statement. What they don't describe is the fact that the BLM
CDCA manager at the time made it clear that if the intervenors
did not sign the agreement that he would be forced to close the
entire ISDRA until consultation with Fish and Wildlife was
completed.
And the intervenors concluded that half-a-loaf, of course,
is better than none, and so they signed the agreement. Some
might call this good negotiating on the part of the plaintiffs.
I call it blackmail.
As a result of Park and Preserve areas, military
reservations, wilderness designations, restrictions within
Desert Tortoise habitat, and the emergency closures resulting
from the lawsuit, millions of acres of BLM lands within the
CDCA that were once to OHV enthusiasts are now closed to this
form of recreation.
A document published by the California State Parks in 2002,
titled, ``Taking the High Road,'' points out that while the
number of vehicles licensed in California for off-highway use
increased by 108 percent in the last 20 years, the number of
acres available for OHV recreation in California decreased by
48 percent.
This same report refers to an economic impact study that
was completed in 1993 that showed that the annual economic
impact of OHV recreation in the State of California was over $3
billion and that is with a B, at that time.
Since then the level of activity and the price of equipment
have escalated the point where current estimates of the
economic impact are between $8 and $9 billion. Access concerns
and economic impacts in my opinion are directly related.
BLM's solution for meeting the requirements imposed by the
settlement agreement, its far-reaching stipulations, and the
agreed to implementation schedule, was to divide the CDCA into
five separate major planning areas, and develop a separate new
plan for each planning area.
Planning efforts were hastily initiated in order to meet
the compressed time schedule. The new planning areas are shown
on the map on the wall. The species that are threatened under
the ESA, that is the driving factor behind the new management
plan for the Imperial Sand Dunes Recreation Area is the
Peirson's Milk-Vetch Plant.
Since the ISDRA is considered to be one of the most popular
recreation areas in the world, since the closures there have
attracted attention nationwide, the hearing Committee will be
receiving separate testimony on this planning area. So the
balance of my testimony will focus on the remaining CDCA
planning areas.
Four major new planning areas within the CDCA focus on the
need to protect the Mojave Desert Tortoise, listed as
threatened under the ESA. These plants, which are really--these
are real environmental impact statements. They are not
management plans supported by EISs.
They are known as the NECO, Northern and Eastern Colorado
planning area; NEMO, Norther and Eastern Mojave planning area;
the Coachella Valley planning area; the WEMO, the Western
Mojave planning area. The costs that went into preparing these
plans probably could have cured cancer.
Approximately a decade ago, a team of biologists developed
the Mojave Desert Tortoise Recovery Plan. Supervisor McQuiston
went into this plan and the problems with it at great length,
and I would ditto everything that he said about the problems
with the Desert Tortoise Recovery Plan, and so I won't repeat
my testimony relative to the Desert Tortoise Recovery Plan.
But the bottom line of it though is that when you take the
fact that these plans are being driven by the CDCA lawsuits,
and not by good scientific efforts to provide science on the
Desert Tortoise Recovery, it is clear that the plans are driven
by litigation and not by good planning science.
Otherwise, the planning effort would have been delayed
until good science on the Desert Tortoise is available to
support the planning decisions. Members of the Desert Advisory
Council, Supervisor Wally Leimgruber discussed that, and I
won't go into detail about the advisory council and its
charter.
However, I do want to point out that someone asked about--I
think it was Congressman Pombo asked about these 10-to-2 votes.
I would like to go into a little more detail on that. At the
meeting that Supervisor Leimgruber talked bout in El Centro, we
had three votes of a 10-to-2 ratio, and the 10-to-2--I guess it
was Congressman Radanovich who asked about that.
The 10-to-2 ratio supported three motions that were made,
three specific motions. One was the mitigation concept that
Supervisor Leimgruber talked about, and if there is an impact
to desert users as a result of implementing the ESA, that that
impact should be mitigated, just like we mitigate impacts on
species.
In other words, if an area has to be closed because of good
proven science, that the use of the public access to that area
is endangering a truly listed endangered species, and we would
be the first to agree that that areas needs to be closed to
that vehicle access.
However, another area should be expanded or a new area
should be opened so that there is no net loss of mitigation,
and perhaps we should even consider expanded factors of 3-to-1,
or 5-to-1, like we do in mitigation for endangered species.
Two other significant votes of that 10-to-2 were made. One
was--let me catch up here. The second vote was that the BLM not
close off OHV recreation areas that are included in the NECO
plan; Ford Dry Lake and Rice Valley Dunes. These are OHV areas
that are within the NECO planning area.
The planner for NECO openly admitted at a DAC meeting that
the only reason that these areas are being closed was due to,
quote, under-utilization. DAC members suggested that possibly
some time in the future that these areas might see more
utilization as a result of all of the other closures throughout
the California Desert District.
The final NECO plan, for which a record of decision has
been issued, is in the process of being implemented and it
closes both of these OHV recreation areas. And the third 10-to-
2 vote was that these plans be held up until the Desert
Tortoise recovery plan could be revisited, and someone has
already addressed the fact that that has not been done, and
moved ahead with finalizing the plans, and even going to the
point of getting records of decision.
At this point in time, records of decision have been issued
for the NECO, the NEMO, and the Coachella Valley Plans. In
spite of concern from several DAC members and the public, the
1.2 million acre Coachella Valley plan, which runs from the
Palm Springs area to the Salton Sea, does not today include a
single open OHV recreation area.
One can only wonder what the kids who live in that area who
once rod their dirt bikes after school, are doing after school
today to burn on their excess energies. The NEMO plan sets the
stage for eliminating forever the point-to-point competitive
events.
A world-class desert motorcycle race that was held in the
Mojave Desert for many years was the Barstow to Vegas Hare and
Hound Race. The Desert Vipers Motorcycle Club, which I am
representing, has submitted applications for permits for the
last 8 years and have been denied every year.
The denials are in spite of the fact that the club as met
with desert managers and laid out a course that has no impact
on tortoise habitat. Most of it is on dirt roads. This action
is in direct conflict with the original California Desert
Conservation Plan that allowed competitive events.
A particularly good example of how the CDCA BLM management
discriminates the OHV community is evident in a recent news
release that describes a contest for inventors of robotic
devices.
The Department of Defense is conducting a grand challenge,
which is scheduled for March 13, 2004. They are working with
BLM managers to lay out three different race courses--you
guessed it, from Barstow to Las Vegas.
The actual race route will not be announced until 2 hours
prior to the start of the race, and not one, but three courses.
Contestants from across the globe will race their robotic
vehicles over one of these courses for a grand prize of $1
million.
These vehicles are large enough to transport, quote, to
transport supplies and ammunition to troops in the field. It
seems appropriate to assume that the DoD considered
environmental impacts when choosing this race route, and picked
a route where impacts would be minimal or non-existent.
Why then are desert motorcycle racing enthusiasts shut out
year-after-year? Are government agencies that hold race events
that much more important than motorcycle racing enthusiasts? A
copy of the DoD announcement about this race event is included
with my testimony.
The WEMO plan, the largest and the last of the CDCA plans,
is currently in development. Somebody talked about the route
designation effort and so I will not go into that. It has been
pulled out as an EA, which presumes no significant impact, even
though thousands of miles of trails are being closed.
And the other area of the WEMO plan that I wanted to point
out was the Surprise Canyon situation, and which someone has
already pointed out. It is cherry-stemmed out of a wilderness
area.
And in addition to the WEMO area point-to-point events,
specifically the Barstow-to-Vegas motorcycle race, has been
eliminated from the WEMO plan to be compatible with its
elimination of the same race in the NEMO plan.
If this Committee is not yet convinced that there is
trouble ahead for the BLM and its management of the CDCA in the
future, consider this. No funds are available in the BLM's
budget to implement the new CDCA plans.
In my recent trip to Washington, D.C., our group was told
that this year's Federal budget does not appropriate any money
for implementing these plans. No private enterprise would even
consider developing extensive long-range business plans without
ever considering where the money to implement the plans will
come from, or how much is allotted in the budget.
Since this country was founded, travelers have always
recognized that roads, trails, and paths were available for
passage unless they were posed closed. The BLM, CDCA-wide is
implementing a closed unless posted open policy.
They are attempting to identify acceptable routes to travel
within each planning area. In order to do this, they must first
identify all the routes and trails within the total 10 million
acre CDCA, an impossible task even if they had sufficient
staff. Once a manageable number of routes have been identified
as approved routes of travel, any trails that were not included
in the BLM's inventory will be gone forever, even if they were
once utilized as popular routes of travel.
Signing these approved routes of travel is another problem.
This will be an extensive, time consuming, expensive process.
With no budget for implementing the CDCA management plans,
where will the funding come from?
Once records of decision have been issued approving the
management plans, the ``closed, unless posted open'' policy
immediately goes into effect. So, for all practical purposes,
all desert routes will be closed until the BLM acquires
resources to implement the signing program.
The average trail or route user cannot be expected to
obtain maps from the BLM and learn how to identify approved
routes of travel on those maps before they recreate on public
lands. Furthermore, route signs can disappear for many reasons.
How will the trail user know if that trail has been closed?
Summary. First of all, management by closure. Attached to
my testimony is a letter, dated June 20, 2002, to the BLM
manager for the CDCA. This letter addressed some of the
concerns that I have listed in my testimony, as well as other
examples of the BLM's, quote, management by closure policy
within the CDCA.
This policy has had a tremendous negative impact on public
access to public lands within the California Desert District.
An example is in the Rands Mountain area, OHV enthusiasts--and
someone talked about being a 4-wheel drive enthusiast.
There used to be over a thousand miles of 4-wheel drive
trails in the Rands Mountain area. Those trails have been
systematically closed by the BLM until only 129 miles were left
about 2 years ago.
Unfortunately, this and many other closures in the areas
have led to an increase in illegal OHV use in closed areas. The
BLM's solution to the law enforcement problem that resulted
from illegal riding was to close 29 more miles of trails.
Extending this concept, the BLM must believe that if all OHV
areas are closed, the illegal riding problem will go away.
In the area of dwindling access, I am not going to
reiterate this. It has to do with the mitigation concept, and
if there is no policy for protecting or mitigating impacts on
OHV recreation, the ultimate event is going to be foreclosure.
The funding problem I have identified. The end result as a
I see it is here is what is going to take place. The EIS
management plans will never be implemented without funds and
resources.
The anti-access organizations will file a plethora of new
lawsuits against the BLM for not implementing the new plans;
and the only action the BLM will be able to take without
sufficient standing or sufficient funding will be emergency
closures. I predict that the lack of access to public lands in
the CDCA coming with these attempts to implement these plans
will escalate to a level never thought possible.
Thank you for allowing me to present my position on public
access, and thank you for giving me a few more minutes. As you
can see, there are many issues across the CDCA.
[The prepared statement of Mr. Denner follows:]
Statement of Roy Denner, Off-Highway Vehicle Recreation Representative,
San Diego, California
I. THE 10 MILLION ACRE CDCA MANAGED BY THE BUREAU OF LAND MANAGEMENT
(BLM)
The map displayed depicts the area known as the California Desert
Conservation Area (CDCA). It is approximately 10 million acres in size
and runs from the Mexican border north almost to Bishop and is bounded
on the east by the Colorado River. The western boundary extends beyond
Edwards Air Force Base. This area has been managed by the BLM under a
management plan originally developed in 1980 (The CDCA Management
Plan).
National Parks, National Preserves, Military Reservations, and
Wilderness Areas can all be subtracted from public lands within the
CDCA when considering lands available for Off-Highway Vehicle (OHV)
recreation. When Desert Tortoise Habitat or Desert Wildlife Management
Areas are added to the restricted areas, it is obvious that the
opportunities for OHV recreation in the California Desert on BLM
managed lands have diminished significantly.
On March 16, 2000, the BLM was sued by the Center for Biological
Diversity (CBD), the Sierra Club, and the Public Employees for
Environmental Responsibility (PEER) for its failure to implement the
CDCA Plan. The BLM was accused of not consulting with U.S. Fish &
Wildlife (USF&W) regarding Endangered Species primarily the Desert
Tortoise, across the entire CDCA; and the Peirson's Milk Vetch Plant,
within the Imperial Sand Dunes Recreation Area (ISDRA). Emergency
closures resulting from a settlement agreement between the BLM and the
CBD, et al., added over 800,000 acres to the public land unavailable
for OHV recreation. These closures were identified as ``Interim
Emergency Closures'' necessary until the BLM could complete its
consultation process with USF&W.
On August 7, 2000, several pro-access groups were accepted as
interveners on behalf of the BLM for the CBD lawsuit. On March 20,
2001, a settlement agreement with a multitude of stipulations was
signed by the BLM CDCA Manager (at the time), the Interveners, and the
plaintiffs. Very little effort, on the part of the BLM, was exerted to
negotiate the extensive demands of the plaintiffs. The primary focus,
on the part of the interveners, was the Imperial Sand Dunes Recreation
Area (ISDRA)--very likely the most popular OHV recreation area in the
universe! Since the settlement, the plaintiffs have been actively
spreading the word that the OHV community through the interveners
approved of the settlement which is a true statement! What they don't
describe is the fact that the BLM CDCA Manager made it clear that if
the interveners didn't sign the agreement he would be forced to close
the entire ISDRA until consultation with Fish & Wildlife was completed.
The interveners concluded that a half a loaf is better than none so
they signed the agreement. Some might call this good negotiating on the
part of the plaintiffs. I call it ``blackmail''!
As a result of Park and Preserve areas, Military Reservations,
Wilderness designations, restrictions within Desert Tortoise habitat,
and the Emergency Closures resulting from the lawsuit, millions of
acres of BLM lands within the CDCA that were once open to OHV
enthusiasts are now closed to this form of recreation. A document
published by California State Parks in 2002 titled ``Taking The High
Road'' points out that while the number of vehicles licensed in
California for off-highway use increased by 108% in the last 20 years,
the number of acres available for OHV recreation in California
decreased by 48%.
The same report refers to an economic impact study that was
completed in 1993 that showed the ``Annual Economic Impact of OHV
Recreation in California'' to be over $3 billion at that time. Since
then, the level of activity and the price of equipment have escalated
to the point where current estimates of $8 to $9 billion are being
targeted. Access concerns and economic impact are directly related.
II. REVISIONS TO THE CDCA NEW MANAGEMENT PLANS (Actually EIS's)
BLM's solution for meeting the requirements imposed by the
settlement agreement, its far-reaching stipulations, and the agreed-to
implementation schedule, was to divide the CDCA into five separate
major planning areas and develop a separate new plan (EIS) for each
planning area. Planning efforts were hastily initiated in order to meet
the compressed time schedule.
The five new planning areas are shown on the map. The species
listed as ``threatened'' under the ESA (Endangered Species Act) that is
the driving factor behind the new Management Plan for the Imperial Sand
Dunes Recreation Area is the Peirson's milk-vetch Plant. Since the
ISDRA is considered to be one of the most popular OHV recreation areas
in the world, and, since the closures there have attracted attention
nationwide, the Hearing Committee will be receiving separate testimony
on this planning area. The balance of my testimony will focus on the
remaining CDCA Planning areas.
Four major new planning areas within the CDCA focus on the need to
protect the Mojave Desert Tortoise listed as ``Threatened'' under the
ESA. These plans, which are actually Environmental Impact Statements,
not land management plans supported by EIS's are known as:
NECO Northern and Eastern Colorado planning area.
NEMO Northern and Eastern Mojave planning area.
The Coachella Valley planning area.
WEMO The Western Mojave planning area.
I am holding up copies of the EIS's for these planning areas to
give the Hearing Committee a feel for the magnitude of these planning
efforts.
III. THE MOJAVE DESERT TORTOISE RECOVERY PLAN (DTRP)
Approximately a decade ago, a team of biologists developed the
``Mojave Desert Tortoise Recovery Plan''. The purpose of this plan was
to provide for protection and recovery of the Mojave Desert Tortoise
(MDT), listed as ``Threatened'' under the ESA. The biologists who
developed the plan recognized that information on the MDT was sketchy
and anecdotal. Scientific support for biological theories was not
available at the time the DTRP was developed. The drafters of the Plan
included a provision in the DTRP to review the Plan in three to five
years so that any science developed in the interim could be included at
that time. As of this Hearing, the DTRP has never been revisited.
Without regard for the lack of good science to support the DTRP, the
BLM has proceeded with the completion of major new land plans within
the CDCA acknowledging that the driving forces behind these plans are
the DTRP and the stipulations agreed to in the settlement agreement
resulting from the lawsuit filed by CBD, et al. It is clear which of
these factors is most important to the BLM. The BLM planning efforts in
the CDCA are being driven by litigation not good planning science.
Otherwise, the planning effort would be delayed until good science on
the desert tortoise was available to support the planning decisions!
IV. CDCA ADVISORY COUNCIL AND THE BLM
Members of the California Desert District Advisory Council (DAC)
are appointed by the United States Secretary of the Interior. The DAC
is composed of representatives from various stakeholder interest groups
within the CDCA. The DAC's charter is to advise the BLM's CDCA manager
regarding management of that area. At a meeting in El Centro during
December 2001, members of the DAC voted 10 to 2 to recommend that the
BLM hold up the new CDCA Management Plans (EIS's) until the DTRP could
be re-assessed. Most members agreed that it was not responsible
planning to develop major new plans based on a recognized unsupported
DTRP. The BLM CDCA Manager indicated that the implementation schedule
committed to in the CBD, et al. settlement and stipulations did not
allow time for review of the DTRP prior to finalizing and implementing
the new plans (EIS's). If, and when, the re-assessment of the DTRP
shows that the original Recovery Plan is significantly in error, all of
the BLM Management Plans that are based on the DTRP will need to be
redone! What a drastic waste of taxpayers' money!
The Desert Advisory Council made two other significant
recommendations on a vote of 10 to 2 at the December 2001 meeting. The
first recommendation was that the new Desert Management Plans whenever
they would be completed include a provision for mitigating impacts to
recreation and other desert interests, just as impacts to threatened or
endangered species are mitigated. For example, if an area needs to be
closed to human use due to a scientifically proven impact on a species,
another area should be opened or expanded to mitigate the impact on
desert access providing a ``no-net-loss'' situation. This concept was
not implemented in any of the new plans.
The second recommendation made with a 10 to 2 vote was that the BLM
not close two Off-Highway Vehicle Recreation Areas Ford Dry Lake and
Rice Valley Dunes. These OHV areas are within the NECO planning area.
The planner for NECO openly admitted at a DAC meeting that the only
reason that these areas are being closed is due to
``underutilization''! DAC members suggested that, at some time in the
future, these areas might see more utilization as a result of all of
the other closures throughout the CDCA. The final NECO Plan, for which
a Record of Decision has been issued, closes both of these areas!
V. STATUS OF CDCA PLANS
At this point in time, Records of Decision have been issued for the
NECO, NEMO and the Coachella Valley Plans. In spite of concern from
several DAC members and the public, the 1.2 million acre Coachella
Valley Plan, which runs from the Palm Springs area to the Salton Sea,
does not include a single legal open OHV recreation area. One can only
wonder what the kids who live in that area, who once rode their dirt
bikes after school, are doing after school today to burn off their
excess energy!
The NEMO Plan sets the stage for eliminating point-to-point
competitive events forever! A world classic desert motorcycle race that
was held in the Mojave Desert for many years was the Barstow to Vegas
Hare & Hound Race. The Desert Vipers Motorcycle Club has submitted
applications for permits for the last 8 years and have been denied each
year. The denials are in spite of the fact that the club has met with
desert managers and laid out a course that has no impact on tortoise
habitat most of it is on dirt roads. This action is in direct conflict
with the original California Desert Conservation Plan that allowed
``competitive events''.
A particularly good example of how the CDCA BLM management
discriminates against the OHV community is evident in a recent news
release that describes a contest for inventors of robotic devices. The
Department of Defense is conducting this ``Grand Challenge'' which is
scheduled for March 13, 2004. They are working with the BLM managers to
lay out three different racecourses from Barstow to Las Vegas. The
actual race route will not be announced until two hours prior to the
race start. Not one, but three! Contestants from ``across the globe''
will race their robotic vehicles over one of these courses for a grand
prize of $1 million. These vehicles are large enough to ``transport
supplies and ammunition to troops in the field''. It seems appropriate
to assume that the DOD considered environmental impacts when choosing
this race route and picked a route where impacts would be minimal or
non-existent. Why, then, are desert motorcycle racing enthusiasts shut
out year-after-year? Are government agencies that hold race events that
much more important than motorcycle racing enthusiasts? A copy of the
DOD announcement is included with this testimony.
The WEMO Plan, the last and largest of the CDCA Plans is currently
in development. The Route Designation effort has been pulled out of the
planning process and has been released under an EA (Environmental
Assessment) rather than being part of the EIS planning process. An EA
presupposes ``no significant impact'' will result from the action.
Thousands of miles of back roads and trails will be closed under this
EA to, allegedly, protect the Desert Tortoise. It is difficult to
understand how this can be considered ``no significant impact''!
Also part of the WEMO area, is a popular place known as Surprise
Canyon. Surprise Canyon is located in the Panamint Mountains near
Ridgecrest and runs right through the middle of a large Wilderness
Area. It was ``cherry-stemmed'' out of the Wilderness Area by Congress
when the Wilderness Area was created. Surprise Canyon has historically
provided the only access to the mining town of Panamint high in the
mountains. It has also been long-recognized as a popular extreme four-
wheel drive recreation trail. It was closed to vehicle access, as an
``emergency closure'', to satisfy one of the stipulations in the CBD,
et al. lawsuit. The Canyon has a seasonal stream running through it. As
part of the WEMO planning effort, the BLM is proposing that Surprise
Canyon be made a ``Wild and Scenic Waterway''! No consideration is
being given concerning why the U.S. Congress cherry-stemmed the passage
out of the Wilderness when the Wilderness area was created!
Of course, point-to-point competitive events specifically the
Barstow to Vegas motorcycle race has been eliminated from the WEMO Plan
to be compatible with its elimination in the NEMO Plan.
If this Committee is not yet convinced that there is trouble ahead
for the BLM and its management of the CDCA in the future, consider
this: No funds are available in the BLM's budget to implement the new
CDCA plans! During a recent trip to Washington, D.C., our group was
told that this year's federal budget does not appropriate any money for
implementing these plans. No private enterprise would even consider
developing extensive long-range business plans without ever considering
where the money to implement the plans will come from or how much is
allotted in the budget!
VI. CLOSED UNLESS POSTED OPEN POLICY
Since this country was founded, travelers have always recognized
that roads, trails, and paths were available for passage unless they
were posted ``closed.'' The BLM, CDCA-wide, is implementing a ``Closed
Unless Posted Open'' policy. They are attempting to identify acceptable
routes of travel within each planning area. In order to do this, they
must first identify all routes and trails within the total 10 million
acre CDCA an impossible task, even with sufficient staff. Once a
manageable number of routes have been identified as approved routes of
travel, any trails that were not included in the BLM's inventory will
be gone forever even if they were once utilized as popular routes of
travel.
Signing the approved routes of travel is another problem. This will
be an extensive, time consuming, expensive process. With no budget for
implementing the CDCA Management Plans, where will the funding come
from? Once Records of Decision have been issued approving the
Management Plans, the ``closed, unless posted open'', policy
immediately goes into effect. So, for all practical purposes, all
desert routes will be closed until the BLM acquires resources to
implement the signing program. Individual trail and route users cannot
be expected to obtain maps from the BLM and learn how to identify
approved routes of travel on those maps before they travel on public
lands within the CDCA! Furthermore, route signs can disappear for many
reasons. How will the trail user know if that trail has been closed?
VII. SUMMARY
A. Management by Closure
Attached is my letter dated June 20, 2002, to the BLM Manager for
the CDCA. This letter addresses some of the concerns listed above as
well as other examples of the BLM's ``Management by Closure'' policy
within the CDCA. This policy has had a tremendous negative impact on
public access to public lands within the California Desert District.
Another example of Management by Closure: In the Rands Mountain
area, OHV enthusiasts have always had over 1,000 miles of trails to
explore. Those trails have been systematically closed by the BLM until
only 129 miles were left about two years ago. Unfortunately, this and
many other closures in the area have led to an increase in illegal OHV
use in closed areas. The BLM's solution to the law enforcement problem
that resulted from illegal riding was to close 29 more miles of trails.
Extending this concept, the BLM must believe that if all OHV areas are
closed, the illegal riding problem will obviously go away.
B. Dwindling Access
No protection or mitigation for impacts to public access to public
lands within the CDCA is considered in any of the new plans. If plans
continue to provide for reduction in access to public lands and never
provide for protecting public access eventually, all public access to
public lands will be gone!
C. Funding Problem
The new CDCA Management Plans (EIS's) have been developed without
any concern for the cost to implement them. Planners have been given
the go-ahead to develop plans that address every environmental concern
no matter what resources are necessary for implementation. Unlike
rational business management plans, no compromises have been considered
to make sure that the plan can be implemented within the budget that
has been allocated. All of this is taking place during a time when the
Federal Government is cutting back on funds allocated to agencies like
the BLM. It doesn't take a CPA to figure out that this ain't gonna
work!
VIII. End Result:
The Plans (EIS's) will never be implemented! (No funds!
Serious staffing shortage!)
The anti-access organizations will file a plethora of new
lawsuits against the BLM for not implementing the new plans.
The only action the BLM can take without sufficient
staffing or sufficient funding will be ``Emergency Closures''.
Lack of access to public lands in the CDCA will escalate
to a level never thought possible.
Thank you for allowing me to present my position on public access
to public lands within the California Desert Conservation Area.
______
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Mr. Radanovich. Thanks, Mr. Denner, and again we want to
make sure that all viewpoints are represented here, and time
allowed to be able to do that. Mr. Jim Bramham, who is with the
American Sand Association from Sacramento. Welcome to the
Subcommittee, and please begin your testimony.
STATEMENT OF JIM BRAMHAM, BOARD MEMBER, AMERICAN SAND
ASSOCIATION, SACRAMENTO, CALIFORNIA
Mr. Bramham. Thank you very much, and thank you for
allowing me to speak today on behalf of the 14,000 sand sport
enthusiasts who are members of the American Sand Association,
and the millions of Americans who recreate in sand dune areas
throughout the United States.
In the spirit of the west, and in pursuit of relaxation,
exploration, rejuvenation, education, and family unification,
more than 1.4 million Americans visit the ISDRA each year,
making it among the most visited places on public lands, and it
is a vital outlet to the pressures of urban living.
For us, the closing of the west started with the 1980
desert plan. This plan broke the desert up into several use
categories. It closed the very large Eureka and Kelso dune
complexes, and a portion of the Imperial Dunes, leaving less
than one half of the traditional sand recreation areas open.
With the entire California desert on the planning table,
the discussion scale at that time was 1-to-10, with middle
ground being five. With the adoption of this plan, Americans
lost more than one-half of their 130 years of opportunities.
The 1994 California Desert Protection Act granted
wilderness protection to more than twice the acreage found
suitable by the Carter administration. At plus or minus 7.5
million, or any other estimate that you would use, the
designation incorporated many areas that have extensive road
networks, mineral and recreation values.
During this period of discussion, it is no longer 1-to-10,
but 1-to-5, and middle ground is 2.5. With the passage of this
act, Americans lost significantly more historic access. Their
desire for access was not diminished, just their preferred
designations.
The anti-access advocates, bent on recreational genocide,
continue to use every avenue available to them to further their
agenda to close the west. Their weapon of choice the last
several years of the ISDRA has been the Endangered Species Act.
Using incomplete and poorly designed studies, they bludgeoned
the U.S. Fish and Wildlife Service into granting threatened
status to the Peirson's Milk Vetch, even though their own staff
questioned the scientific validity of the available data.
In March of 2002, armed with this designation, several
anti-access groups sued the bureau, demanding that nearly half
of the remaining acreage be closed until a new plan could be
completed. The BLM accepted these restrictions to public access
without a fight.
Dr. Art Phillips, a highly regarded plant biologist, has
now done an in-depth analysis of the Peirson's Milk Vetch.
These studies of both living germinating plants and the
sustaining seed bank have proven that the plant is thriving
throughout its range.
It is prolific in its seed production, and clearly does not
fit the description of a threatened species. Dr. Phillip's work
is both peer reviewed, repeatable, and verifiable. The BLM has
just completed a recreation area management plan for this area.
The plan seeks to protect species which clearly do not need the
level of protection afforded under the ESA. To achieve this
goal the plan severely restricts access to a significant
portion of the dunes.
This, coupled with a 4-year revisit clause, stops long term
business decisions that would spur economic growth and bring
jobs to the area. Now compounding the issue, the BLM is moving
forward with a business management plan to implement this ramp,
and the U.S. Fish and Wildlife Service continues down the
unwarranted path toward critical habitat designation.
The whole planning process has its foundation in the
unstable sands of poor science and friendly litigation. These
access or anti-access groups sued for a process, and what has
been produced is a NEPA document with full public participation
that they now disagree with.
So they have returned to court litigating over the result.
It is said that this process has wasted so many taxpayer
dollars that could have been better used to truly protect the
resource and provide enhanced recreation experiences.
This type of use of well-intentioned public policy is
rampant, put on display for all to clearly see at the ISDRA.
One to ten? No, 1 to 2.5 or less. Middle ground? Why? Is 75
percent not enough protection?
Please do not let the anti-access advocates continue to
close the west to our family and our future generations. Thank
you.
[The prepared statement of Mr. Bramham follows:]
Statement of Jim Bramham, Board Member, American Sand Association,
Sacramento, California
A Foundation of Unstable Sand
I am here today representing the more than 12,000 sand sports
enthusiasts who are members of the American Sand Association (ASA) and
the millions of Americans who recreate in sand dune areas throughout
the United States. I am currently on ASA's Board of Directors, member
Technical Review Team (TRT) for the ISDRA, past President of the
California Association of 4-Wheel Drive Clubs (CA4WDC), and a former
Vice Chair of the California Off Highway Motorized Vehicle Recreation
(OHMVR) Commission. Thank you again for an opportunity to be part of
this important hearing.
For nearly 200 years, Americans had the right to travel where and
by what conveyance they deemed appropriate throughout nearly all of
America. The West was opened by imaginative pioneers using ever more
sophisticated forms of transportation and recreation. As the West was
settled, routes of travel were established and as leisure time
increased adventures like a Sunday drive became increasingly popular.
The pursuit of relaxation, exploration, rejuvenation, education, and
family unification continue each and every weekend as thousands of sand
sport recreationists travel to the various areas available for this
activity. From October through Easter, the Imperial Sand Dune
Recreation Area is among the most visited piece of public lands in the
United States with weekend visitorships exceeding 100,000. It is a
vital outlet from the pressures of urban living.
The closing of the West started with the passage of Federal Land
Policy and Management Act (FLPMA) in 1976. Previous to the passage of
FLPMA Americans were allowed to travel the California desert restricted
only by a few military installations and private property. To the
access community, this is 100%. The outgrowth of FLPMA was the 1980
California Desert Plan. This Plan broke the desert up into several user
categories, severely limiting access to many popular areas. The
California desert contains several dune systems, the most prominent
being Eureka, Kelso, Dumont, Rice and Imperial also known as the
Algodones Dunes. The Desert Plan placed the very large Eureka and Kelso
Dune complexes and a portion of the Imperial Dunes off limits to
motorized recreation leaving less than half of the available sand dune
recreation areas available. At this point the discussion scale is 1 to
10 with middle ground being 5, with the adoption of the plan the access
community loses more than half its opportunities.
Under the Carter Administration, a Wilderness suitability inventory
was conducted. It determined that slightly less than 3 million acres of
the desert is suitable for Wilderness designation. Senator Cranston and
later Senator Dianne Feinstein crafted the California Desert Protection
Act that granted Wilderness protection to more than twice the suitable
acreage. At +/- 7.5 million acres this designation incorporated many
areas that have extensive road networks and mineral and recreation
values. This Act designated the Eureka, Kelso and North Algodones Dunes
as Wilderness. During this period the discussion is no longer one to
ten but one to five and middle ground is 2.5. With the passage of the
Act the access community dropped below 25% of historic access.
According to the Desert Plan and Desert Protection Act the areas in
the Imperial Sand Dunes outside of Wilderness are to be managed as
intensive use areas with a portion to also be managed for motorized
access with less development. This was codified in the first Dunes
Management Plan and later in the 1987 Recreation Area Management Plan.
Recent California surveys have shown that more than 14% of
California households engage in Off Highway Vehicle (OHV) activities
and nationally, less than 2% of Americans use the Wilderness system.
The anti-access advocates either emboldened by their desert land heist
for just 2% of the population or just bent on recreational genocide
continue to use every avenue available to them to further their agenda
to close the West. Their weapon of choice in the last several years at
the ISDRA has been the Endangered Species Act (ESA).
Using incomplete and poorly designed studies, they bludgeoned the
U.S. Fish and Wildlife Service into granting threatened status to the
Peirson's Milk Vetch even though the USFWS staff questioned the
completeness, accuracy and scientific protocol of the data presented to
justify this action. In March of 2000 armed with this designation, the
Center for Biological Diversity and other anti-access groups sued the
Bureau of Land Management (BLM) demanding that nearly half the
remaining acreage be closed until a new plan could be completed. In the
waning years of the previous Administration, the sue and surrender or
friendly lawsuit was in vogue and without a fight the BLM accepted
these restrictions to public access.
Several studies commissioned by concerned citizens brought Dr. Art
Phillips, a highly regarded plant biologist, to do in-depth analysis of
the Peirson's Milk Vetch. These studies of both living germinating
plants and the sustaining seed bank have proven that this plant is
thriving throughout its range, is prolific in its seed production, and
clearly does not fit the description of a threatened species. Dr.
Phillips' work has been peer reviewed and is repeatable and verifiable.
The BLM was required by this same litigation to complete a
Recreation Area Management Plan (RAMP) for this area. The plan, as
written, seeks to protect a plant which clearly does not need the level
of protection afforded under the Endangered Species Act (ESA). Although
the RAMP calls for a return to the original Desert Plan land use
designations it severely restricts access to a significant portion of
the dunes. This coupled with a 4-year revisit clause that precludes the
local economy and recreationists from making long-term business
decisions. Eliminating these draconian provisions would increase
confidence in the plan, spur economic growth and bring jobs to the
area's economy. Now a business plan to implement this RAMP is being
finalized by the BLM.
Although the USFWS is currently evaluating a petition to de-list
the Peirson's Milk Vetch, which is based on sound science, the whole
planning process has its foundation in the unstable sands of poor
science and friendly litigation. These anti-access groups sued for a
process. What has been produced is a NEPA document with full public
participation that they disagree with. Now they have returned to court
litigating over the result. It is sad that this process has wasted so
many taxpayer dollars and placed work demands on several federal
agencies that could have been better used to truly protect the resource
and provide enhanced recreation experiences. This type of abuse of
well-intentioned public policy is rampant, put on display for all to
clearly see at the ISDRA.
One to ten? No, 1 to 2.5 or less. Middle ground? Why? Is 75% not
enough protection?
The ESA must be reformed. If it remains public policy, it must be
used to grant protection only to truly needy candidates. It must
include peer review requirements, test plot analysis, recovery plan
analysis, thresholds of recovery, and cost benefit analysis.
Please do not let the anti-access advocates continue to close the
west to my family and our future generations. Thank you.
______
Mr. Radanovich. Thank you very much, Mr. Bramham. I
appreciate your testimony. Mr. David Hubbard, who is with the
Off-Highway Recreation Community, Escondido. Welcome to the
Subcommittee, and you may begin your testimony.
STATEMENT OF DAVID HUBBARD, COUNSEL, OFF-HIGHWAY RECREATION
COMMUNITY, ESCONDIDO, CALIFORNIA
Mr. Hubbard. Thank you. My role this afternoon is to
describe the kind of litigation-driven land planning that now
controls the CDCA and the Imperial Sand Dunes. The CDCA, as I
described in my written materials, is ground zero for
litigation between the pro-access and anti-access camps.
Currently, there are 10 lawsuits pending before Federal
Courts that relate to the CDCA and there are three in the cube,
and by in the cube, I mean that they are simply waiting for
their 60 day time period to lapse so that they can file a
complaint in Federal Court.
In addition, my other role is to give you some examples to
demonstrate why litigation in land planning is ineffective and
counterproductive from both a public access perspective, and
ironically from a natural resource perspective.
The two examples that I would like to discuss are the
Desert Tortoise and the Peirson's Milk Vetch. Just as important
my other role here is to ask for the help of Congress in
changing the situation. As has been discussed the Endangered
Species Act is used as a weapon to restrict public access to
public land.
As one gets into the science and the motivations of those
who produce it and interpret it, what you learn is that this
litigation is not about protecting plants and animals. It is
about people. Specifically, it is about one group of people
imposing its will on the activities of another group of people.
That needs to stop, and the only way it will stop is if
Congress regains control of this situation through legislation,
and amend the Endangered Species Act, and also provide in terms
of additional legislation protective status to public
recreation.
It needs to move up on the priority list of activities that
are protected under Federal statutes. Only in this way will
there be a balance struck between natural resource protection
and public access to public lands. In March of 2000, as you
have heard, the Center for Biological Diversity filed a lawsuit
in Federal Court, the result of which was the massive closure
of more than 1 million acres of public lands in the California
desert.
The stipulations that created this closure were not the
product of a public process. The closures were subjected to
environmental review. They were not subjected to an economic
analysis. They simply were entered into by the defendant, BLM
management, and the plaintiff group.
Other groups attempted to get into the lawsuit, and a gun
was put to their head, and they signed on the dotted line, but
the effect in essence was a back door deal that ended up
closing a million acres in the California desert.
Not surprisingly, the pro-access group, the folks that I
represent, the folks that are behind me wearing the orange
shirts, have started to fight back. But unfortunately we are
having to fight back by filing yet more lawsuits.
What this means is that the courts, and not Congress, and
not the administrative agencies who are charged with keeping
the public lands open to the public, and making sure that the
laws are followed. It is the courts that are really planning
and directing the management of these lands.
This is not the way it is supposed to go, and it is not the
best way of managing this large expansive territory. Part of
the reason that it is a lousy way of doing it is that the
courts only adjudicates the issues that are presented to it by
those parties who are before it, which means that a lot of
stakeholders, a lot of the people who are going to be affected,
aren't even before the court, and their interests are never
considered.
And just to give you some idea, right now as I indicated,
there are 10 lawsuits currently pending in Federal Court, and
there are 3 others that will likely be filed in the next few
weeks. And as a result of these things, a lot of money is
spent, and a lot of money is wasted, and there is very little
benefit to the actual species under consideration.
Perhaps the best example is the desert tortoise, where more
than a hundred-million dollars has been spent, most of it to
remove people from the desert. As a result of that effort,
there are more desert tortoises dying now than there were
before.
There has been no advance in tortoise recovery, and the
primary reason for that is that the entire recovery effort has
been focused on removing people from the desert and not on the
true cause of the Desert Tortoise mortality, which frankly are
things that are not related to human activity, such as off-road
use or camping, but are related to disease, upper respiratory
tract disease, which is sort of the tortoise version of SARS.
Unfortunately, neither the BLM nor the Fish and Wildlife
Service, or any other group, has done what most people would
think would be required when you have that kind of epidemic,
which is to quarantine and control.
I see that my time is up, and I would be very happy to
answer any questions that you might have with respect to the
litigation that now really controls land management in the
CDCA.
[The prepared statement of Mr. Hubbard follows:]
Statement of David P. Hubbard, Esq., Lounsbery, Ferguson, Altona & Peak
LLP, Escondido, California, Counsel for the Off-Road Business
Association; American Sand Association; American Motorcycle
Association, District 37; San Diego Off-Road Coalition; and California
Off-Road Vehicle Association
Federal Court Litigation Over Public Lands In the California Desert
I. The Center for Biological Diversity Lawsuit
In March of 2000, the Center for Biological Diversity and two other
plaintiff groups (collectively, ``CBD'') filed suit against the Bureau
of Land Management (``BLM'') for its alleged failure to comply with the
federal Endangered Species Act (``ESA'') as it applies to the
California Desert Conservation Area (the ``CDCA''), an immense expanse
of public lands located in the desert region of southern California.
Specifically, CBD alleged that BLM had violated Section 7 of the ESA by
failing to consult with the United States Fish & Wildlife Service
(``USFWS'') regarding the impacts of permitted activities within the
CDCA on various threatened and endangered species. With virtually no
input from the affected public, BLM entered into a series of settlement
stipulations with CBD which shut down more than 1 million acres of
formerly-open public recreation areas in the desert. These closures
were to remain in effect until the Section 7 consultation process could
be completed. However, in most cases the ``interim'' closures have been
incorporated into permanent management plans, resulting in a huge loss
of public recreational space and opportunity.
II. Legal Actions Filed by Public Access Groups In Response to CBD
Settlement
Not surprisingly, the recreational community has started to fight
back, initiating its own litigation campaign to reopen the recently-
closed areas of the CDCA. These suits have challenged the new
management plans (and their closure strategies) on grounds they violate
the Federal Lands Policy and Management Act (``FLPMA'') and the
National Environmental Policy Act (``NEPA''). In addition, certain
recreation groups have filed actions against BLM and USFWS under the
ESA itself. For example, in October 2001, the American Sand Association
(``ASA''), the Off-Road Business Association (``ORBA''), and the San
Diego Off-Road Coalition (``SDORC'') filed a petition with USFWS to
remove the Peirson's Milkvetch (``PMV'') from the federal list of
threatened and endangered species, as permitted under Section 4 of the
ESA. The PMV is a plant species endemic to the Imperial Sand Dunes
Recreation Area (``ISDRA''). As a ``threatened'' species, it drives
most of the regulatory activity in that region. When USFWS failed to
respond timely to the delisting petition, ASA and its co-parties filed
suit in federal court. This case was settled in August 2003, with USFWS
paying the plaintiffs' attorneys fees.
In another action, the American Motorcycle Association District
37--along with ORBA, CORVA, SDORC, and the Utah All-Access Alliance--
filed suit against BLM and USFWS for their gross mismanagement of the
Desert Tortoise Recovery Plan. The complaint demonstrates that the
Desert Tortoise recovery effort has cost taxpayers more than $100
million but has been a complete failure. Tortoise populations continue
to decline rapidly, primarily due to Upper Respiratory Tract Disease
(``URTD''). However, instead of aggressively tackling the disease, BLM
and USFWS have continued in their misguided policy of attempting
recovery by removing people from the desert. So while the public loses
access to these public lands, tortoise populations continue to be
ravaged by URTD and nothing is being done about it. The lawsuit seeks
to reverse this situation.
III. The Costs and Pitfalls of Litigating Over the CDCA
The number of legal proceedings relating to the CDCA is staggering.
And for both plaintiffs and defendants, this constant string of
litigation consumes tremendous amounts of financial resources. A
partial list of the various lawsuits and administrative challenges
includes the following:
American Motorcycle Association, et al. v. Department of
Interior, et al., U.S.D.C. Southern Dist. Calif., Case No. 02 CV 1998B
(NEPA and FLPMA suit challenging interim closures throughout CDCA on
grounds that closure decisions were made without public input and
without environmental review)
Off-Road Business Association, et al. v. Department of
Interior, et al., U.S.D.C. Southern Dist. Calif., Case No. 03 CV 1079
JM (NEPA suit challenging recently-adopted management plan for the
Western Colorado Desert region of the CDCA on grounds that
Environmental Assessment for the plan does not adequately disclose,
analyze, or mitigate the plan's impacts on recreation)
San Diego Off-Road Coalition, et al. v. Department of
Interior, et al., U.S.D.C. Southern Dist. Calif., Case No. 03 CV 1199
BTM (NEPA suit challenging recently-adopted management plans for (1)
the Northern and Eastern Colorado region of the CDCA and (2) the
Northern and Eastern Mojave Desert region of the CDCA on grounds that
the Environmental Impact Statements for the plans do not adequately
disclose, analyze, or mitigate the plans' impacts on recreation and on
the spread of URTD among desert tortoise populations)
California Off-Road Vehicle Association, et al. v.
Department of Interior, et al., U.S.D.C. Southern Dist. Calif., Case
No. 03 CV 1444 BTM (NEPA suit challenging recently-adopted off-highway
vehicle route designation plan for the Western Mojave Desert region of
the CDCA on grounds that the Environmental Assessment for the plan does
not adequately disclose, analyze, or mitigate the plan's impacts on
recreation and on the spread of URTD among desert tortoise populations)
American Sand Association, et al. v. USFWS, et al.
U.S.D.C. Southern Dist. Calif., Case No. 03-315L-LAB, (ESA suit
demanding that USFWS respond to petition to delist the Peirson's
Milkvetch (see above))
American Motorcycle Association, et al. v. USFWS, et al.,
U.S.D.C. Northern Dist. Calif., Case No.--------(ESA suit over failed
Desert Tortoise Recovery Plan (see above))
Center for Biological Diversity, et al. v. USFWS, et al.,
U.S.D.C. Northern Dist. Calif., Case No. C 03 2509 SI (ESA suit
challenging the Biological Opinions for the Desert Tortoise and
Peirson's Milkvetch)
Center for Biological Diversity, et al. v. Department of
Interior, et al., U.S.D.C. Southern Dist. Calif., Case No. 01 CV 2101
(ESA suit demanding that DOI designate critical habitat for various
threatened and endangered plant species in the CDCA, including the
Peirson's milkvetch)
Center for Biological Diversity 60-Day Notice of Intent
to Sue over USFWS's decision not to place the Flat-tailed horned lizard
(FTHL) on the list of threatened species. (The FTHL resides in various
regions of the CDCA.)
Center for Biological Diversity 60-Day Notice of Intent
to Sue over BLM's Approval of the Recreation Area Management Plan
(RAMP) for the Imperial Sand Dunes Recreation Area, on grounds it fails
to provide adequate protection for the Peirson's Milkvetch.
Center for Biological Diversity's Petition to List the
Andrews Dune Scarab Beetle as a Threatened Species. (The Andrews dune
scarab beetle is endemic to the Imperial Sand Dunes.)
What this partial list demonstrates is that the CDCA is ``ground-
zero'' for public access and environmental litigation. No place in the
nation fosters so many lawsuits between public user groups and the
anti-access wing of the environmental movement.
The results of this phenomenon have been disastrous. In the shadow
of litigation, very little proactive land management planning actually
takes place, as BLM and USFWS must instead spend most of their
resources responding to court orders. Worse, the legal decisions issued
by the courts tend to be made in a vacuum and address only those
interests advanced by the litigating parties. The needs and desires of
other stakeholders are not taken into account, since they are not
before the court. In this way, special interest groups have been able
to use the judicial system to impose their will on the land. The
traditional policy-making bodies--Congress, BLM, USFWS--have largely
lost control of the process and now merely respond to directives issued
by the courts.
Ultimately, the public users of public lands pay the price for
this--usually in the form of lost access. Simply put, the federal
government is not doing enough to protect public use of the land.
Rather than face a highly organized, well-trained, and well-funded
anti-access group in court--or worse, risk a contempt charge by failing
to comply with a court order--the federal agencies choose to capitulate
and close trails and camping areas throughout the CDCA. Experience has
shown that the federal agencies would rather deal with vocal but
unorganized desert visitors than fight the likes of CBD and the Sierra
Club. This has got to change; and only Congress can change it.
IV. Using the Endangered Species Act to Frustrate Public Access
A quick review of the lawsuits described above will reveal the
source of the problem. Anti-access groups have learned that the best
way to remove people from the CDCA is to claim that their presence in
the desert jeopardizes the viability of threatened or endangered
species. They know that the ESA places species protection above all
human-centered considerations. When push comes to shove, the people are
shoved out. Furthermore, the anti-access groups know they need not
present much in the way of solid scientific evidence to establish that
the alleged ``jeopardy'' exists. Even weak evidence of a human-related
threat to a protected species is often sufficient to support an
injunction closing down huge areas of public land.
Ironically, the plants and animals that are used as ``standard
bearers'' for this kind of litigation rarely benefit from all of the
legal maneuvering. So much emphasis is placed on removing people, that
little energy is left to really address the true needs of the species.
Three examples of this phenomenon are the Desert Tortoise, the
Peirson's Milkvetch, and the Andrews Dune Scarab Beetle.
A. The Desert Tortoise
The Desert Tortoise was ``emergency'' listed in 1989 due to an
extreme outbreak of URTD in the Western Mojave Desert. In some regions,
more than 80% of adult, reproductive tortoises succumbed to the
disease. However, USFWS and BLM did not institute immediate measures to
control and stop URTD from spreading. With the aid of the anti-access
lobby, they instead implemented land management policies that removed
human activities from large swaths of tortoise habitat, believing this
would somehow improve tortoise survival. It did not.
Throughout the 1990s, URTD spread to tortoise populations
throughout the entire range of the species. Tortoises with the disease
were detected in the Mojave and Colorado deserts of California, as well
as in the deserts of Arizona, Nevada, and Utah. Not surprisingly, the
overall reproductive rate of tortoises began to decline. Still, nothing
was done to combat the disease or stop the epidemic from spreading.
Instead, USFWS and BLM imposed more controls on human use of desert
tortoise habitat.
As of 2003, the disease is still rampant and killing tortoises at
rates far higher than that assumed in the 1994 Desert Tortoise Recovery
Plan. Indeed, recovery will be impossible if URTD is not brought under
control However, no plan for stopping URTD in the field has been
devised. There is no concerted effort to identify sick tortoises and
quarantine (or euthanize) them. On the contrary, BLM has continued to
placate the anti-access lobby by closing down more vehicle trails and
recreation areas as a means to ``recover'' the tortoise. Not only has
this failed, it actually serves to increase disease transmission, as
trails often form a barrier between sick and healthy tortoise
populations.
Then, to add insult to injury, this whole backward process is
blessed by the federal court and deemed necessary for compliance with
the ESA. This is tragic and stupid. And if it continues, the CDCA will
be closed to most forms of public recreation, and the tortoise will be
extinct.
B. The Peirson's Milkvetch
In the Imperial Sand Dunes, a slightly different but equally
troubling process is taking place. Under pressure from the anti-access
lobby, USFWS began in 1996 to consider the Peirson's milkvetch
(``PMV'') for potential listing as a threatened species. The plant is
endemic to the Imperial Sand Dunes and has a limited range, so the
agency felt it was a suitable candidate for protection. However,
neither USFWS nor any other agency knew how many plants actually lived
in the dunes. They also had no idea as to the size and health of the
PMV's seed bank, which is a key factor in determining the reproductive
viability of a plant species.
While deliberating on the listing question, USFWS sent a memorandum
to BLM asking for abundance data on the PMV. The memo indicated that
without such data no listing decision could be made. BLM never provided
the information requested, primarily because no one had ever performed
a plant census for the PMV or a seed bank study. Nevertheless, the
plant was listed as ``threatened'' in October 1998, with off-highway
vehicle (OHV) recreation identified as the biggest threat.
Since that time, the need to ``protect'' the PMV has driven land
management decisions in the Imperial Sand Dunes Recreation Area. In
fact, approximately 50,000 acres of the ISDRA were recently closed to
vehicle use for the express purpose of safeguarding the PMV.
Ironically, however, BLM monitoring data from 1998, 1999, and 2000
establish that PMV abundance in the open riding areas has ``increased
substantially'' since 1977, when BLM commissioned the last programmatic
survey of the plant. The monitoring reports also determined that OHVs
rarely come in contact with PMV colonies, which largely explains why
the plant continues to thrive in the open areas.
The public access community looked upon these monitoring data with
great hope. The numbers confirmed what dune riders and campers had
suspected along--namely that the plant is abundant and not threatened
by recreational activities, including OHV use. Still, BLM would not
rescind the closures. Instead, BLM left them in place, claiming that a
court order from the original CBD lawsuit prevented it from reopening
these 50,000 acres to recreation.
In response, the American Sand Association retained a highly
qualified biologist, Arthur Phillips, III, Ph.D., to conduct a plant-
by-plant count of the PMV in the ISDRA. The purpose of this effort was
to prove to BLM and USFWS that the PMV was abundant enough to be
removed from the list of threatened species, thereby eliminating the
need for the dune closures. Dr. Phillips performed his plant census in
the Spring of 2001 and what he found was startling. In the ``open''
areas alone, he and his staff counted approximately 72,000 plants, most
of which had already flowered and set seed. Helicopter overflights of
the ``closed'' areas revealed PMV colonies of similar size and number.
Dr. Phillips also determined that less than 1% of the PMV plants showed
evidence of contact with vehicles, and most of these suffered only
minor damage.
In July 2001, Dr. Phillips presented his data to BLM in written
form. These data, along with that developed by BLM during its 1998-2000
monitoring surveys, provided the technical basis for the delisting
petition ASA and others filed with the Department of Interior on
October 24, 2001. Later, Dr. Phillips augmented his plant census
information with a seed bank study for the PMV. Through this work, Dr.
Phillips determined that the PMV seed bank contains between 3.5 million
and 5.6 million seeds. These lie dormant just under the surface of the
sand and will bloom when climate conditions (i.e., heavy rainfall)
become ideal. According to Dr. Phillips, the size of the seed bank and
the long-term resilience of the seeds themselves indicate that the PMV
is well-poised for continued reproductive success. These data also have
been presented to USFWS and BLM.
In 2003, BLM issued a Recreation Area Management Plan (RAMP) for
the ISDRA. Users of the dunes had hoped the RAMP would be built around
the technical data that had been developed by, or presented to, BLM
over the past four years. That is, they hoped the RAMP would recognize
that OHV users and PMV plants peacefully coexist in the Imperial Sand
Dunes, and that there is no reason for continued or expanded closures.
Unfortunately, the RAMP was designed with different interests in mind.
Instead of fully reopening the 50,000 acres that had been closed in the
aftermath of the CBD lawsuit, the RAMP imposes a tight cap on the
number of vehicles that may travel into these areas, which means that
very few people will be permitted to enjoy this region of the dunes.
One would think the anti-access groups would be content with this
result; but they are not. They have already filed suit challenging the
Biological Opinion (``BO'') on which the RAMP is based, claiming the BO
wrongfully determined that the RAMP would not ``jeopardize'' the PMV.
Of course, they have no data to support this assertion. The anti-access
groups have also filed a 60-day Notice of Intent to Sue on the RAMP
itself, positioning themselves to bring yet another lawsuit to keep
those 50,000 acres completely free of campers and OHV riders.
C. The Andrews Dune Scarab Beetle
Currently, the biggest threat to the anti-access agenda in the
Imperial Sand Dunes is the petition to delist the PMV, which is still
pending before USFWS. If USFWS finds that delisting is warranted, many
of the most draconian restrictions on public access in the dunes will
have no legal or biological justification. The closures, at least in
part, will have to come down. To ward against this possibility, CBD has
now filed with USFWS a petition to list the Andrews Dune Scarab Beetle
as a threatened or endangered species. The beetle, if listed, would
then function as a surrogate ``shield'' species in the ISDRA should the
PMV be delisted.
However, the Scarab Beetle listing petition is little more than a
shrill attack on OHV users and has little to do with the actual
population dynamics of the species in question. Not only does the
petition fail to include basic information regarding the number of
beetles residing in the dunes, it does not discuss population trends at
all. In short, the petition does not indicate how many beetles exist or
whether their numbers are growing or declining. Further, the petition
provides no evidence that OHV's affect population trends one way or the
other. Most of the technical evidence cited in the petition is old,
much of it generated in the late 1970s by a biologist (Andrews) whose
work has been sharply criticized by BLM and USFWS.
The public access community has responded by issuing comments
identifying defects in the Scarab Beetle listing petition; but there is
great concern that the beetle will be listed even in the absence of
credible data warranting such protection. One way or the other, it is
clear that this controversy--as with all others involving the ISDRA--
will end up being litigated in federal court. And once again, the
government and the public it is supposed to serve may find its hands
tied by a judicial order that is inconsistent with the long-term
planning needs of the ISDRA.
V. The Need for Legislative Reform: Protecting Public Access to Public
Lands
Ultimately, the trend towards court-based land management in the
CDCA will continue unless Congress changes the laws that judges are
required to interpret and enforce. Public access to key recreational
venues must become a legislative priority. Public access must be given
protective status so that a proper balance is struck between resource
conservation and public use. This likely will require amendments to the
Endangered Species Act. But more important, it will require that
Congress pass new legislation explicitly protecting public recreational
access. Only in this way will the public's ability to access and enjoy
the land be preserved. Put simply, it is time for Congress to take
control of this situation and craft a better statutory scheme for land
management in the California Desert.
Thank you for allowing me to present my position on public access
to public lands within the CDCA.
______
Mr. Radanovich. Thank you, Mr. Hubbard, for your testimony,
and we will be able to ask questions when you get done. The
Committee is pleased to be joined by Congressman Bob Filner
from this neck of the woods, and I am sure that part of his
district is in this habitat area. Mr. Filner, welcome.
And we will move on then to Mr. Ron Kemper, who is a
Grazing Leaseholder in the California Desert Conservation Area
from East Highlands, California. And I do ask for unanimous
consent to allow Mr. Filner to sit on the panel. There being no
objection, so ordered. Mr. Kemper, welcome to the Committee.
Please begin your testimony.
STATEMENT OF RON KEMPER, GRAZING LEASEHOLDER IN THE CALIFORNIA
DESERT CONSERVATION AREA, EAST HIGHLANDS, CALIFORNIA
Mr. Kemper. Thank you, and thank you for inviting me. As
you mentioned, I am a rancher, and hold personal property, as
well as a Federal grazing permit on Federal lands within the
California Desert Conservation Area.
I will be addressing my testimony to the subjects of access
and grazing issues having to do with the 10 million acres
managed by the Bureau of Land Management, as prescribed by the
CDCA.
For some time those of us in the grazing industry have been
concerned by the revisions to the CDCA known as NEMO, NECO, and
WEMO, because these revisions are based upon an outdated
document known, a discretionary document, as the Mojave Desert
Tortoise Recovery Plan.
In addition to being a rancher, I also represent grazing
interests and have been the Chair of the Desert Advisory
Council for the last 2 years. All of us on the advisory council
have known that the plan has been outdated for some time and
have given strong recommendations to the BLM to not implement
NEMO, NECO or WEMO until such time as the Desert Tortoise
Recovery Plan can be updated as required by the plan itself.
When we received copies of the draft documents of NEMO and
NECO, we were extremely disappointed that the preferred
alternative would make it very difficult for some of the
ranchers to stay in business.
We were further disappointed when we learned that the BLM
had not relied upon the Five C's process required under the
Taylor Grazing Act, whereby they must carefully consider,
consult, coordinate, and cooperate with the holder of a Federal
grazing permit on Federal lands.
Their response was that they did not feel that they were
required to do so and that they were otherwise complying with
the Mojave Desert Tortoise Recovery Plan. Grazing interests
informed the BLM's area managers and the district manager that
they believed that they could come up with an alternative which
would be based on good science to fully protect the Desert
Tortoise, while assuring that the rancher would remain
economically viable.
The BLM indicated that they would allow the grazing
interests to formulate this alternative, and that such
alternative would be included in the plan. Moreover, the BLM
agreed seriously to consider a grazing interests plan as a
preferred alternative.
The grazing interests retained nationally renowned range
expert Professor Wayne Burkhart. In addition, grazing interests
participated in the work of a technical review team that spent
over 1,000 man-hours of study, which led it to formulate a set
of recommendations.
That technical review team included the following members
of the Desert Advisory Council; myself, representing the
Renewable Resources; Ilene Anderson, also representing
Renewable Resources and a botanist with the Native Plant
Society; Bill Bederly, representing the public at large; Bob
Ellis, representing the Sierra Club and Desert Survivors; Paul
Smith, representing business interests and tourism.
The other members of the technical review team were Dr.
Avery, known tortoise expert from Drexel University. Dr. Avery
is the only tortoise expert who has ever done a study on the
competition between cattle and tortoises.
Ray Bransfield, a wildlife biologist with the U.S. Fish and
Wildlife out of Ventura; Phil Metica, a wildlife biologist,
U.S. Fish and Wildlife Service, Las Vegas; Bud Schaefer, the
NEMO team leader for BLM; Ed LaRue, wildlife biologist and
participant in the WEMO planning project.
And Larry Foreman, head biologist for the California Desert
District and the Bureau of Land Management; Dick Grow, also
with the Bureau of Land Management and NEMO team leader; Molly
Brady, Needles Field Officer Manager for the Bureau of Land
Management; Larry Morgan, lead range land management specialist
from the Bureau of Land Management.
And Teresa McBride, BLM range land management specialist;
Milton Blair, a holder of a Federal grazing permit known as
Lazey Dazey Allotment; Richard Blancol, a holder of a Federal
grazing permit for Valley Wells Allotment; Tim Overson, an
operator for the Valley View Allotment; and John Stone, a
holder of a forest grazing permit; and John T. Stone, a range
specialist representing grazing interests. And Dave Thornton
was also present, who is a current operator at Valley Wells.
I see that I am about out of time and so I will come to a
conclusion. Even though over a thousand man-hours were spent,
and even though the TRT gave recommendations to the district
manager of the BLM on the planning process, and even though
there was a vote of 10-to-2 or 11-to-2 on a recommendation to
move forward with the plan as presented by grazing interests,
it was not accepted as a preferred alternative.
What was horribly discouraging to grazing interests was it
was not even included as an alternative in the document. It was
as if the work that we had done did not exist. If you have any
questions, I would be happy to answer them.
[The prepared statement of Mr. Kemper follows:]
Statement of Ron Kemper, Renewable Resources Representative and
Chair of the Desert Advisory Council
The Desert Advisory Council is mandated by Congress and
representatives are appointed by the Secretary of the Interior for the
purpose of giving the Bureau of Land Management direction and advice in
their land use plans.
I, Ron Kemper, am a rancher and hold personal property as well as a
federal grazing permit on federal lands within the California Desert
Conservation Area (CDCA).
I will be addressing my testimony to the subjects of access and
grazing issues having to do with the 10 million acres managed by the
Bureau of Land Management, as prescribed by the CDCA.
For sometime those of us in the grazing industry have been
concerned by the revisions to the CDCA known as NEMO, NECO & WEMO,
because these revisions are based upon an outdated document known as
the Mojave Desert Tortoise Recovery Plan.
All of us on the Advisory Council have known that the plan has been
outdated for some time and have given strong recommendations to the BLM
not to implement NEMO, NECO or WEMO until such time as the Desert
Tortoise Recovery Plan can be updated as required by the plan itself.
In receiving copies of the draft document, NEMO & NECO, we were
extremely disappointed that the preferred alternative would make it
very difficult for some of the ranchers to stay in business. We were
further disappointed when we learned that the BLM had not relied upon
the Five C's process required under the Taylor Grazing Act, whereby
they must carefully consider, consult, coordinate and cooperate with
the holder of a federal grazing permit on federal lands. Their response
was that they did not feel that they were required to do so and that
they were otherwise complying with the Mojave Desert Tortoise Recovery
Plan.
Grazing interests informed the BLM's Area Managers and the District
Manager that they believed they could come up with an alternative which
would be based on good science, would fully protect the desert tortoise
while assuring that the rancher would remain economically viable. BLM
indicated it would allow the grazing interests to formulate this
alternative and that such alternative would be included in the plan.
Moreover, the BLM agreed seriously to consider our plan as the
preferred alternative.
The grazing interests retained nationally renowned range expert
Professor Wayne Burkhart. In addition, grazing interests participated
in the work of a technical review team that spent over one thousand
man-hours of study which led it to formulate a set of recommendations.
That technical review team included the following members of the Desert
Advisory Council: myself, representing Renewable Resources; Ilene
Anderson, also representing Renewable Resources and a Botanist with the
Native Plant Society; Bill Bedderly, representing the public at large;
Bob Ellis, representing the Sierra Club and Desert Survivors; and Paul
Smith, representing business interests and tourism. The other members
of the Technical Review team were: Dr. Avery, known tortoise expert
from Drexel University.--Dr. Avery is the only tortoise expert who has
ever done a study on the competition between cattle and tortoises; Ray
Bransfield, a Wildlife Biologist with U.S. Fish & Wildlife out of
Ventura; Phil Metica, Wildlife Biologist, U.S. Fish & Wildlife
Services, Las Vegas; Bud Seehafer, the NEMO team leader for BLM; Ed
LaRue, Wildlife Biologist and participant in the WEMO Planning Project;
Larry Foreman, head Biologist BLM; Dick Crow with BLM and NEMO team
leader; Molly Brady, Needles Field Office Manager BLM; Larry Morgan,
lead Range Land Management Specialist BLM; Teresa McBride, BLM Range
Land Management Specialist; Milton Blair, holder of a Federal Grazing
Permit known as Lazey Dazey Allotment; Richard Blanco, holder of a
Federal Grazing Permit for Valley Wells Allotment; Tim Overson,
operator for the Valley View Allotment; John Stone, the holder of a
Forest Grazing Permit; John T. Stone, a range specialist representing
grazing interests; and Dave Thornton, current operator at Valley Wells.
This diverse technical review team, as noted, spent over one
thousand man-hours of investigation before coming up with their
recommendations designed to achieve: (1) desert tortoise recovery; (2)
public land health; and (3) survival of economically viable ranching.
(A copy of the TRT minutes and recommendations are attached as Exhibit
A.) 1 - 8
On or about December 8, 2001, as Chair of the Technical Review
Team, I made a report to the Desert Advisory Council as a whole.
Several of the TRT participants, including Dr. Avery, were present and
provided clarifying testimony to the DAC. After the assurances by TRT
participant and Needles Area Manager Molly Brady, that monies would be
available for funding study projects, DAC's recommendation was for
remaining allotments to be kept active in their present form and that a
study be initiated to quantify their relationship between grazing and
desert tortoise survival for which the BLM would arrange funding. As of
that time, within DWIMA boundaries it would be required to remove
cattle when the monitor concluded there was competition between
tortoises and cattle for feed. This was done in the form of a motion
and 2nd and was passed by an 11 to 2 vote. (Copy of vote is attached as
Exhibit B.) 1
It is disappointing to report, even though in excess of a thousand
man-hours had been spent and wildlife biologists from BLM, Fish &
Wildlife and the private sector had agreed that this plan could work,
the DAC recommendations were not supported as the preferred
alternative. In fact, in a show of total disrespect and bad faith,
those recommendations were not even included as an alternative in the
finished document.
BLM managers will tell you that they support experimental
management plans and adaptive management. However, I am not aware of a
single case in which this has proved to be true. However, I can cite
many cases in which, in fact, just the opposite was true. The ones, of
course, with which I am most familiar involve opportunities missed on
my own allotment.
First of all, allow me to state that the most recent attempt at
adaptive management was the result of a negotiated settlement between
the BLM and the Center for Biodiversity. With all their presumed
wisdom, these two parties believed that it was more important for all
the ranchers to share the pain and economic hardship than it was to
protect the tortoise. My allotment does not have even a single acre of
desert tortoise critical habitat; however, I was required to exclude
cattle from approximately 1/3 of my allotment, two times a year, at the
only time I had trapped waters and the cattle could benefit from those
waters and the forage created near them.
In order to mitigate the exclosures noted, the bureau agreed to
conduct an environmental review and issue a decision for a new pipeline
in California Valley and to do so in enough time to enable its
installation prior to November 2002. This would allow use of this
portion of the ranch at a time when water was not seasonally trapped in
cofferdams. To date, the BLM still has not completed the environmental
review. (See attached Exhibit C.)
I wish to place it on the record that at all times we have complied
with the decisions and never trespassed cattle. We upheld our end of
the bargain, costing our family in excess of $35,000 in additional hay.
Undue delays have caused us to sell almost half of the native cattle.
We were not allowed to use our forage or water in the excluded areas;
we voluntarily reduced the number of cattle to preserve range health on
the balance of the ranch. I have enclosed copies of the written
communications regarding this project. (See attached Exhibit C.)
In order to keep from having to sell cattle, I also applied for
several vacant allotments. To date none of these allotments have been
given to applicants and I now understand they are being considered for
retirement from availability for application.
With regard to access and wilderness please allow me to say that we
have many miles of fence line, roads, cofferdams, pipelines and water
tanks within supposed wilderness, wilderness that is supposedly a road
free area untrammeled by man. This is absolutely ludicrous. This has
been a cattle ranch for over one hundred years; it is not a wilderness.
May I answer any questions for the Congressmen?
NOTE: Attachments to Mr. Kemper's statement have been retained in
the Committee's official files.
______
Mr. Radanovich. Thank you very much, Mr. Kemper. We are now
joined by Mr. Howard Brown, who is a mining geologist from the
OMYA California, Incorporated, Lucerne Valley. Mr. Brown,
welcome to the Subcommittee, and you may begin your testimony.
STATEMENT OF HOWARD BROWN, MINING GEOLOGIST, OMYA CALIFORNIA,
INC., LUCERNE VALLEY, CALIFORNIA
Mr. Brown. OK. Thank you for the opportunity to speak here.
I am Howard Brown, a geologist, and I have been working the
Mojave since the 1970's, and I am also on the Desert Advisory
Council representing non-renewable resources.
Mining dates back to the dawn of civilization, and
civilization cannot exist without the consumer products made
from minerals, and as has been pointed out by other speakers,
mining in the California desert is a major industry, which
produces over $2 billion worth of minerals per year.
The mining industry in Southern California directly employs
about 20,000 people and accounts for $35 million in local
taxes, and $60 million in State taxes per year. Mining is a
non-renewable resource, and as mineral deposits are depleted,
new mineral deposits must be found, permitted, and mined, to
provide raw materials our society demand.
If you can't grow it, you have to mine it. Mining is more
than trucks and motors. It is about thousands of consumer
products made from mined materials. Issues facing industry
include a regulatory environment which is progressively
excluding access to public lands to search for new mineral
deposits in a regulatory environment which makes permitting a
mine needlessly time consuming, excessively expensive, and at
best very difficult.
This is largely due to the Endangered Species Act, which
has been misused without adequate science in litigation to
force the creation of inadequate land use plans, land closures,
mineral withdrawals, and regulatory designations which
eliminate access to public lands to search for minerals, or
make permitting a new mine very difficult.
As an example, the BLM Northeast Colorado River desert
area, or NECO, contains many areas of known mineral potential.
However, the Endangered Species Act and the regulatory
environment will make access for mineral exploration or
permitting a new mine very difficult.
Every inch of land in the 5.5 million acre planning area is
habitat for the endangered tortoise, or an obscure species of
rats and bats, or lizards, which are managed as endangered or
de facto endangered even though they are not.
And I would refer to a series of overlay maps in my written
testimony which showed a progressive elimination of areas of
mineral potential as all these different species' habitat is
overlaid.
Recent mining industry surveys, which compare California
and other western States to Canada and the rest of the world,
demonstrate that although California has good infrastructure
and is well-endowed with minerals, the existing regulatory
environment discourages mineral investment.
Many exploration companies have left the desert for other
places in which mineral exploration and mining investment are
more welcomed. And again I would refer in the written testimony
to figures 6, 14, and 15.
A resolution of the issues include revisions to the
Endangered Species Act, a more permissive and streamline
regulatory permitting environment, and access to public lands
for mineral exploration. Thanks for the opportunity to state my
views.
[The prepared statement of Mr. Brown follows:]
Statement of Howard Brown, Geologist, OMYA (California) Inc., Lucerne
Valley, California, Representing the Mining Industry in the California
Desert
MINING IN THE CALIFORNIA DESERT
economic importance, the regulatory environment and
issues facing the industry
Howard Brown, OMYA California Inc., P.O. Box 825,
Lucerne Valley, CA 92356
SUMMARY
Mining dates back to the dawn of civilization. Civilization could
not exist without the thousands of consumer products made from
minerals. Mining in the California desert is a major industry, and
produces over $2 billion worth of minerals per year. The mining
industry in southern California directly employs about 20,000, and
accounts for $35 million in local taxes and $60 million in state taxes
per year. Mining is a non renewable resource, and as mineral deposits
are depleted, new mineral deposits must be found, permitted and mined,
to provide raw materials our society demands.
Issues facing the mining industry include a regulatory environment
which is progressively excluding access to public lands to search for
new mineral deposits, and a regulatory environment which makes
permitting a mine needlessly time consuming, excessively expensive, and
at best very difficult. This is largely due to abuse of the Endangered
Species Act, which has been misused without adequate science, and
litigation, to force the creation of inadequate land use plans, land
closures, mineral withdrawals, and regulatory designations which
eliminate access to public lands to search for minerals, or make
permitting a new mine very difficult.
The BLM Northeast Colorado River Desert Area (NECO), contains many
areas of known mineral potential, however abuse of the Endangered
Species Act and the regulatory environment will make access for mineral
exploration, or permitting a new mine very difficult. Every inch of
land in the 5.5 million acre planning area is habitat for endangered
tortoise or obscure species of rats bats or lizards which are managed
as endangered (de-facto endangered) even though they are not.
An example from the west Mojave is the Elementis Inc. Hectorite
Mine near Newberry Springs. Continuously mined for 75 years, the BLM
has proposed an ACEC (Area of Critical Environmental Concern) over
active private mining land and mining claims, to protect tortoise and
lizard habitat. The poorly planned Pisgah Crater ACEC lacks adequate
scientific data, and will dramatically limit future expansion of the
mine, despite the fact that other ACEC alternatives are available.
Recent mining industry surveys which compare California and other
western states, Canada, and the rest of the world, demonstrate that,
although California is politically stable, has good infrastructure, and
is well-endowed with minerals, the existing regulatory environment
discourages mineral investment. Many exploration companies have left
the desert area for other places in which mineral exploration and
mining investment are more welcomed.
Resolution of the issues include needed revisions to the Endangered
Species Act, a more permissive and streamlined regulatory environment,
and access to public lands for mineral exploration.
RESOLUTION OF THE ISSUES WILL INCLUDE:
1) ACCESS TO PUBLIC LANDS FOR MINERAL EXPLORATION,
2) STREAMLINED REGULATORY ENVIRONMENT,
3) PROACTIVE COLLABORATIVE NEGOTIATED DESIGNATION OF CONSERVATION
AREAS
4) REVISIONS TO THE ENDANGERED SPECIES ACT,
1) ACCESS TO PUBLIC LANDS FOR MINERAL EXPLORATION
During the last decade we have seen increased systematic and
progressive closures of vehicular access to public lands. Since the
land in the desert area is often remote, and desolate, vehicular access
may be the only realistic access to areas for mineral exploration.
Roads which have been in existence for decades have been closed to
protect species habitat. In some cases roads have been closed that
provide access to prospects and mining claims, which are known to
contain valuable mineral deposits, and other areas which are thought to
have high potential for mineral discoveries.
The rationale for closing existing roads is that the habitat value
of endangered and sensitive species is greater than all past, existing,
and future human needs and values combined. The process of road closure
is sometimes arbitrary, may be based on lack of user group input, poor
maps, little ground based surveys, and does not always result in a
resolution which is beneficial to the species or public lands users.
We believe the proposed vehicle network plans must be modified, so
that existing vehicle access to known mineral deposits, occurrences,
mines and prospects, and areas of significant mineral potential be left
open, until those mineral deposits can be evaluated, and found to be
either of present or future economic interest, or determined to be of
no present or future value, at which time those individual roads may be
closed. But in no case should existing roads to known mineral deposits
or areas of potential mineral deposits be closed.
We are strongly opposed to the proposed road closures within the
OHV road network plan until known and potential mineral resources can
be fully and confidently evaluated within the framework of long term
societal needs for mineral resources. The short sighted approach to
eliminate access to known and yet to be discovered mineral resources to
protect obscure biotic species, will ultimately have long-term negative
impacts to the availability of consumer products upon which we all
depend.
We suggest a more proactive collaborative approach in which
regulatory agencies consult more with user groups to work out
acceptable resolutions which recognize long-term future growth and
multiple use human societal needs BEFORE designating road closures.
2) STREAMLINED PERMITTING PROCESS
In 1999 Congress requested a study by the National Research Council
(NRC) to assess the regulatory framework for hardrock mining on federal
lands. Among the NRC report conclusions were that permitting procedures
for mineral exploration and mining projects commonly take significantly
longer than is necessary. They commented that the NEPA process should
not be viewed as an opportunity to slow the process. The NRC report
recommended that the BLM and the Forest Service should implement a more
timely permitting process.
We commend the BLM for its efforts to streamline the process in the
most recent land use plans such as WEMO, NECO and NEMO, and adoption of
the proposed ``Las Vegas'' model for dealing with endangered species.
Basically, a mitigation ratio of acres or $ cost per acre is
established. The proponent provides the mitigation land in the
designated ratio, and or pays the established mitigation fee and moves
thru the process, rather than more and more studies, or endless
litigation. This pragmatic and practical procedure although not without
flaws, such as significantly increased mitigation ratios and fees, will
hopefully streamline the process of dealing with endangered species
relative to mine permitting.
3) PROACTIVE COLLABORATIVE NEGOTIATED DESIGNATION OF CONSERVATION AREAS
Various land use categories such as ACEC, Research Natural Areas
(RNA), habitat connectivity corridors (HCC), biological transition
areas (BTA), special review areas (SRA) and other such designations are
created for research and education, to protect endangered, sensitive
and other non-listed species, but also typical representation of common
plants, and typical representation of common geologic, soil or water
features.
Management policy for many of the ACEC, RNA and other conservation
designations include exclusion or severe limitations on vehicular
access, or other disturbances of habitat for non-listed species.
An example from the west Mojave is the Elementis Inc. Hectorite
Mine near Newberry Springs. Continuously mined for 75 years, the BLM
has proposed an ACEC (Area of Critical Environmental Concern) over
active private mining land and mining claims, to protect low density
tortoise habitat, non-listed species habitat, and typical
representation of common geologic features.
Management measures within the ACEC include prohibition of vehicle
traffic, and protection of habitat for non-listed species. The poorly
planned Pisgah Crater ACEC will dramatically limit future expansion of
the mine, and close existing mine related roads despite the fact that
other ACEC alternatives are available.
Greater communication with the mining company before the plan was
distributed to the public would have allowed a mutually acceptable
boundary to be drawn which is beneficial to the mining company as well
as the species.
4) REVISIONS TO THE ENDANGERED SPECIES ACT
It is commonly believed that the Endangered Species Act needs
revisions. Several proposed revisions follow:
A) Require peer reviewed science before listing is proposed.
So many cases of listing packages based on incomplete and or non
peer reviewed ``science,'' which have later been shown to be inadequate
or simply incorrect. Example: The carbonate endangered plant species in
the San Bernardino Mountains, became listed, and only in the 6 years
after listing was adequate legitimate field work done, and which now
shows only 5% of the habitat was ever threatened.
B) Unbiased economic analysis to be required as part of the listing
package.
Numerous cases of economic analysis being initiated long after
listing completed and only when critical habitat is proposed. Example:
San Bernardino Mountains endangered carbonate endemic plants critical
habitat economic analysis was only done 6 years after the listing was
completed, and after critical habitat was formally proposed. Analysis
presented by mining companies indicated an impact in excess of $10
billion, whereas the FWS analysis indicated an impact of less than $200
million. The huge discrepancy alone would suggest additional work is
necessary, but the mining company analysis was completely dismissed.
C) Distinct populations and subspecies which are not genetically
different should not get special protection.
Example: Several of the ``endemic'' Carbonate species in the San
Bernardino Mountains, are known to be subspecies of a much wider
ranging species which extend from Canada to Mexico.
D) Delisting of a species when adequate science shows there is no
threat to the survival.
Some species have been listed based on perceived threats. After
listing adequate scientific data was established to demonstrate the
perceived threats were not real or were much less significant than
originally perceived, and did not threaten the survival of the species.
E) Removal of disincentives to reintroduce endangered species.
Example: The carbonate endemic subspecies in the San Bernardino
Mountains. Planting and nursery studies have shown that the plants can
be successfully reintroduced during reclamation, however, agencies
refuse to allow credit for their reintroduction in reclamation. However
the reintroduced plants are given full protection under ESA. Full
credit must be given for successfully reintroduced plants, and
disincentives removed.
F) Provisions for non permanent disturbances and benefits to habitat
must be allowed.
Mines are non-permanent disturbances, and reclamation is required.
Reclamation may result in the creation of new habitat, which will
benefit or promote reintroduction of the species.
Example: The San Bernardino Mountains Carbonate endemic plant
species. Most of the overburden from the carbonate mines is subeconomic
carbonate rock, which is placed in overburden sites. These overburden
sites create new habitat for the plant species, where it did not
previously exist, and thus, create habitat connectivity and promote
reintroduction of the plants, yet no credit is given for this activity,
rather it is viewed as a threat to the species. This needs to change
and beneficial aspects must be recognized.
______
MINING DATES BACK TO THE DAWN OF CIVILIZATION
THE FIRST PEOPLE IN AMERICA WERE AWARE OF MINED MATERIALS
IN THE FORM OF TOOLS OR MINERALS WHICH PRESERVED OR IMPROVED THE FLAVOR
OF FOOD
MINING AND UTILIZATION OF RAW MATERIALS IS THE ROOT OF
CIVILIZATION
CIVILIZATION AS WE KNOW IT COULD NOT EXIST WITHOUT MINING
EMPLOYMENT
Desert mining industry directly employs 16,640 in
Imperial, Inyo, Kern, Riverside, and San Bernardino Counties
Mining employs 19,630 In Southern California
Each $1 million in mineral production directly accounts
for12.8 jobs in the 5-county desert area, and 15.1 jobs in Southern
California
TAXES
Within the 5 county desert area, mineral production
accounts for: $34.3 million in local taxes and $54.4 million in state
taxes
Southern California mineral production accounts for:
$37.5 million in local taxes and $61.3 Million in state taxes
IF YOU CANT GROW IT, YOU HAVE TO MINE IT
MOST PEOPLE DO NOT RECOGNIZE THE IMPORTANCE OF MINING IN
THEIR LIVES
CIVILIZATION COULD NOT EXIST WITHOUT MINING AND CONSUMER
PRODUCTS MADE FROM MINERALS
MINING IS NOT JUST TRUCKS AND LOADERS
MINING IS THOUSANDS OF CONSUMER PRODUCTS MADE FROM
MINERALS
THE MINING REGULATORY ENVIRONMENT
SURVEY RANKING FACTORS WHICH INFLUENCE MINERAL INVESTMENT
ATTRACTIVENESS
COMPARES AREAS IN USA, CANADA, AND THE WORLD
TOP OF CHART IS ATTRACTIVE FOR INVESTMENT BOTTOM OF CHART
IS DETERRENT
CALIFORNIA RANKS NEAR THE BOTTOM FOR MANY FACTORS
DUE TO ABUSE OF THE ENDANGERED SPECIES ACT AND EXCESSIVE
ENVIRONMENTAL REGULATIONS
NORTHEAST COLORADO RIVER DESERT AREA
NECO AREA
MANY AREAS WITH MINERAL POTENTIAL
HOWEVER, ABUSE OF THE ENDANGERED SPECIES ACT AND THE
REGULATORY ENVIRONMENT WILL MAKE PERMITTING A NEW MINE VERY DIFFICULT
EVERY INCH OF LAND IN THE 5.5 MILLION ACRE NECO AREA IS
HABITAT FOR ENDANGERED TORTOISE OR OBSCURE SPECIES OF RATS, BATS, OR
LIZARDS
UNTIL REGULATORY CHANGES OCCUR AND THE ENDANGERED SPECIES
ACT IS MODIFIED, OTHER PLACES ARE MORE ATTRACTIVE FOR MINERAL
INVESTMENT
RESOLUTION OF THE ISSUES WILL INCLUDE:
1) LACCESS TO PUBLIC LANDS FOR MINERAL EXPLORATION,
2) LSTREAMLINED REGULATORY ENVIRONMENT,
3) LPROACTIVE COLLABORATIVE NEGOTIATED DESIGNATION OF CONSERVATION
AREAS
4) LREVISIONS TO THE ENDANGERED SPECIES ACT,
______
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Mr. Radanovich. Thank you very much, Mr. Brown. I
appreciate your testimony. We are now joined by Ms. Sheri
Davis, who is the Director of the Inland Empire Film
Commission. Ms. Davis, welcome to the Subcommittee, and you may
begin.
STATEMENT OF SHERI DAVIS, DIRECTOR, INLAND EMPIRE FILM
COMMISSION, RIVERSIDE, CALIFORNIA
Ms. Davis. Thank you very much for the opportunity to
present our concerns and perhaps suggestions on commercial uses
within the California Desert Conservation Area. As you
mentioned, my name is Sheri Davis, and I am the director of a
regional film office, the Inland Empire Film Commission, and my
area covers a large portion of the CDCA.
Even though the Imperial Sand Dunes are not within my
region, all issues regarding filming in the desert have a
common thread. To explain a little bit about what a film
commission does, our job is location scouting, problem solving,
the liaison in between agencies and the industry; permitting,
protection of crew and services development, specifically
designed to keep production in our jurisdictions.
To give you an idea of the typical project recently, Disney
came to me looking for a location to simulate the deserts in
Morocco. They had just recently returned from Morocco, and were
about to give up filming in California because they were told
by other location professionals that it was too difficult to
accomplish this in the California desert.
However, working with the regional film offices and the BLM
film offices, Disney was able to utilize both cut back in the
Dumont Dunes, and therefore have successful shootings in San
Bernardino County.
It is also a pleasure when you work with an industry that
practices good stewardship of the public land, as well as to be
monitoring, and voluntarily self-regulated. The film industry
is one of the 10 top economic industries in California and
generates almost $30 billion in economic activity Statewide.
However, according to the U.S. Department of Commerce the
runaway production is currently costing the American economy
over $10 billion in economic loss in the year 2001 alone.
Ironically, the locations most often sought in these countries
can be found right here in California, and quite often within
the CDCA area.
In the CDCA area, a major cause of runaway production is
due to the limited amount of pre-approved filming locations,
overly burdensome processes, and time consuming and restricted
conditions.
The mission of the BLM that requires compatible, multiple,
and sustainable use of public land now appears to only allow
specific management for specific uses without regard to the
potential compatibility of a mandate for multiple use.
It is particularly distressing to my industry, as we appear
to be excluded as one of the specific users. The film industry
does not need a large tract of land permanently set aside for
our use. We just need joint compatible use with other public
land users on an intermittent basis.
An interesting fact is that even if the land is available
to public and other commercial use, it is not necessarily open
for filming. In the County of San Bernardino alone, the Barstow
field office manages 30 million acres.
One example that I can give you is the El Mirage OHV area,
which encompasses 25,858 acres, open to the public, but only
3,000 of those acres has a problematic environmental assessment
done to ensure that filming will not have a negative impact in
this OHV recreation area.
An example recently occurred in a area designated as a long
term visitor area, LTVs, and in this area anyone can pay $100
for a permit to camp for a 6 month period and not be restricted
to the use of roads or camping areas.
Unfortunately, when a film crew wanted to use exactly the
same LTVA for a few days of filming, the story was very
different. Recently, a Warner Brothers' production was required
to contract for writing an environmental assessment, a
biological evaluation, and paid for conducting a Section 7
consultation, and required to hire a certified desert tortoise
monitors, with a total permitting cost to the film production
in the same LTV area of $170,000.
With these types of restrictions, and seemingly unequal
treatment of desert users, it is not surprising to find that
filming of several major features and television have moved to
Australia and dressed their deserts as our deserts in
California.
A major challenge that faces the industry when trying to
film on public lands is the long processing process. And I
believe the general consensus of the industry is that the
Federal agencies are unresponsive.
However, filming by its very nature is a temporary land
use, and is generally fully compatible with the mandate of the
Federal Land Management Policy Act to manage land for multiple
use and sustained yield.
Given the concern that the implementation of a new desert
management plan will have an adverse economic impact on the
desert communities and user groups, the issues of the film
industry should certainly receive attention. We can have a
dramatic impact on communities adjacent and near the Federal
lands open for filming.
And just to give you an example. A feature film will spend
between the $70,000 and $100,000 a day when coming to your
district to film, and commercials can average $30,000 to
$50,000 a day; with still photographs coming to about $10,000 a
day or more.
With the magnitude of the economic impact in the desert
areas from filming is considered, it is more than a little
startling to see either zero socio-economic analysis to no more
than a few lines dedicated to filming restrictions in each of
the desert plans.
A potential solution currently to the issues of filming in
the CDCA under consideration for proposal to the BLM and other
DOI agencies by the film industry is the formation of a large-
scale programmatic environmental assessment or EIS for filming
in various regions.
A proposal is currently in development will be presented to
the BLM desert district office and State office within the next
few months.
In summation, I would like to say that the film industry is
committed to good stewardship of the land, conservation, and
the environment, and will remain dedicated to the protection of
the endangered species.
We are not looking for preferred treatment, but just to be
considered equal as one of the mandated multiple uses of the
Federal lands. The public lands must remain open for multiple
use for all land users, and such multiple use should be
encouraged and supported by the Department of the Interior.
Thank you for your time in listening to the concerns of
this film industry, and I will be happy to answer any
questions. And, Mr. Chairman, I would just say that a wise
person surrounds themselves with wiser counsel, and so I would
like to ask that Marshall Wittenberger and Ray Arthur join me
during the questioning period, as they have been instrumental
in helping me to develop my testimony and can add significantly
to responding to your questions. Thank you.
[The prepared statement of Ms. Davis follows:]
Statement of Sheri Davis, Director, Inland Empire Film Commission,
Riverside, California
Thank you Chairman Pombo and Committee members for the opportunity
to present concerns and suggestions on behalf of numerous movie,
television, media and film industry professionals regarding commercial
and non-commercial uses of the 10 million acre California Desert
Conservation Area (CDCA). As with the panel members who have already
presented or spoken prior to me regarding issues related to access and
restrictions in the CDCA in relation to their particular interests, the
film industry also has certain issues that must be addressed in order
to ensure access to public lands for filming.
First, by way of introduction, my name is Sheri Davis and I am the
Director of the Inland Empire Film Commission. The role of the Inland
Empire Film Commission and the role of all regional or state film
commissions are to serve as an ombudsman between the film industry and
our local, regional or state jurisdictions. The region my office
represents covers the vast majority of the area covered by the CDCA.
The Imperial Sand Dunes is not within my region but all issues
regarding filming in the desert have a common thread. Our services to
the film and media industry include but are not limited to providing
location scouting, information gathering, processing and suggestions on
permitting issues, handling local concerns and citizen and governmental
groups. To give you an idea of a project I might typically work on, my
most recent assignment was helping Walt Disney Productions find a
location to simulate the country of Morocco for a film called
``Hidalgo.'' Disney was about to give up given the constraints they
were faced with and after being told it would be too difficult to
accomplish this in the California desert. I am pleased to report though
that through hard work and cooperation from the BLM, Disney was able to
utilize the Dumont Dunes in San Bernardino County as the location.
Everyone worked together to serve the industry well and kept the
filming and money generated by the production within the United States
and in particular within San Bernardino County.
Other responsibilities of the film commissions include maintaining
databases of professional crew and services, which is specifically
designed to keep jobs in our jurisdictions. Marketing includes trade
shows, industry calls, trouble shooting and becoming the problem solver
for both the industry and the jurisdiction is just all part of a day's
work in the life of a film commission. The Inland Empire Film
Commission interacts daily with the Barstow Field Office of the Bureau
of Land Management. As a regional film office, we have found them to be
exemplary with their approach to filming on the public lands that they
manage. We daily discuss filming permits, which includes discussing the
necessity of bonds depending on the type of filming activity, special
effects and any other possible impact to the land. But it is extremely
helpful to be part of an industry that is concerned about the
environment and health of the public lands, willing to be monitored,
and to be voluntarily self-regulated.
The film industry is certainly one of the most important industries
in California as well as in the United States It is estimated by
industry analysts that:
The film industry is within the top 20 economic
industries in California and generates almost $30 billion a year in
economic activity statewide;
The Film industry is among top 20 California industries
as ranked by output (Gross State Product);
The Film Industry is Ranked 5th in employment among
California export industries, providing more than 270,000 jobs;
With the largest concentration of motion picture
activity, California accounts for 70% of total revenues and 60% of the
total employment in the industry nationwide; and
Filming is a Driver industry with linkages to tourism,
apparel design and manufacturing, furniture and cosmetics generating
hundreds of millions of dollars in economic activity and keeping
thousands of workers employed each year. It is a multi-billion dollar
industry nationwide.
Even though there have been some marvelous successes,
unfortunately, due to several of the concerns being expressed here
today regarding the limitations of access to public lands, the film
industry, particularly in California, has been experiencing what is
termed as ``domestic runaways'' or ``runaway productions''. This occurs
when a film or production company determines that the costs or
constraints of filming in a United States location are too restrictive
and seek an alternate location, usually Canada, Australia or Great
Britain in order to allow filming to occur in an expedient and
economical manner. Domestic runaways are a very serious problem. The
United States Department of Commerce estimated that ``domestic
runaways'' cost the American economy over $10 billion in economic loss
to foreign countries in the year 2001 alone. Ironically, the locations
that are most often sought in other countries are usually sought to
simulate the Mojave or Colorado deserts, the American Southwest,
Midwest, forest lands, rivers and open ranges--all of which could have
been provided right here in the United States of America and many
within the CDCA area.
In the CDCA, a major cause of domestic runaways is due to the
limited amount of pre-approved filming locations, overly burdensome
processes and time consuming and restrictive conditions imposed upon
the film industry due to public land use plans and policies, perceived
conflicting uses, endangered or sensitive species concerns and cultural
resources issues. While the film industry is keenly aware that all of
these matters are of the utmost importance to preserving the California
desert for now and for generations to come, we believe that the
restrictions caused by the multitude of management plans and endangered
species concerns have caused the mission of the BLM to be altered from
the Congressionally mandated requirement under the Federal Land
Management Policy Act (FLPMA) that requires compatible multiple and
sustainable use of public lands to be a mutated phenomena that allows
only specific management for specific uses without regard to potential
compatibility or the mandate for multiple use. This is particularly
distressing for the film industry as they appear to be summarily
excluded as one of the specific users, being limited on a regular basis
to filming on a few thousand acres of land within the millions
available within the CDCA. The best part though of this situation is
that the film industry does not need large tracts of land permanently
set aside for exclusive use, we need only joint compatible use with
other public land users and uses on an intermittent basis.
This ``specific use'' phenomenon is apparent in the amount of land
available on a regular basis for filming activities as compared to the
quantity available exclusively for grazing activities, recreation and
mining. A common misunderstanding is the fact that even though land is
available to the public for use as well as land available for mining,
grazing and other uses, it is not necessarily open for filming. As an
example, in the County of San Bernardino, the Barstow Field Office
manages 3 million acres. This acreage is open to recreation and mining
unless prohibited. However, most of the land is not currently open for
filming and special permission including environmental assessments,
environmental impacts reports and Section 7 consultations often have to
be performed in order to film in locations that are used on a daily
basis by the public for everything from casual mining to OHV open-use
areas.
As a specific example, the El Mirage OHV area has 25,850 acres open
to the public but only 3,000 acres have a programmatic Environmental
Assessment done to ensure that filming will not have a negative impact
in this OHV recreation area. It is my experience that not only is
filming a welcome and exciting sight for the public using these areas,
the public are thrilled to have been there and seen it happen--
conflicts rarely, if ever, occur.
There have been several instances where film companies and other
user groups have been required to perform desert tortoise surveys or
other sensitive species surveys, cultural resources surveys and write
environmental assessments in areas that the BLM has designated as Long
Term Visitor Areas (LTV areas) or other like unrestricted public use
areas as a restriction of filming. In the LTV areas, anyone who pays a
$100 permit can camp out for a six-month period; they are not
restricted to roads or camping areas. The LTVAs are basically giant
(some 10,000+ acres) free-for all public access and camping zones. When
a film crew comes in though and wants to use exactly the same LTVA for
a few days of filming the story is very different. In a recently filmed
Warner Brothers production soon to be released called ``Torque,'' the
film company was required to contract for writing an environmental
assessment, a biological evaluation and paid for conducting a Section 7
consultation and required to hire certified desert tortoise monitors.
Most of this location was located within a BLM LTVA and other areas
that had already undergone environmental review for prior projects. The
total cost to the film production was in excess of $170,000. Had
exiting NEPA environmental documentation been utilized by way of
tiering, the cost to the production company and time in processing
could have been significantly reduced.
While the need to protect special status species is a given, and
desert tortoise monitors are required to protect the animals, the
excessive documentation and permitting requirements imposed upon a
highly regulated, self-policing and low impact compatible user appears
to be incredibly burdensome. With these types of restrictions and
seemingly unequal treatment of desert users, it is not surprising that
filming for several major features and television productions has moved
to Australia and dressed the sets to appear to be the California
desert.
A major challenge that faces the industry when trying to film on
Public Lands is the long permit processing time. It is the role of the
regional and state film offices to educate the BLM Field Offices with
regard to the exigencies of the production schedule from the original
contact, to scouting to shooting. Often a commercial production may
only have a couple of weeks or even days from being selected by an ad
agency to the last day of filming. To give you an example, Plum
Productions, a local Los Angeles-based production company was recently
awarded a contract for filming a commercial for Ford Motor Company. The
commercial had to be completed in 15 days from the agency awarding the
contract. There were hundreds of locations to be scouted with 23
locations being selected, and multiple agencies from which to gain
permission and permits including the BLM, the U.S. Forest Service, and
the Los Angeles Department of Water and Power. Then the company had to
put 2 production crews shooting simultaneously, daily having to move 50
vintage cars (some not running) and on the 15th day, the production
company wrapped and went home. They also left the land cleaner, the
community of Lone Pine, California, an economically depressed area,
inviting them back and great images to show the world.
Admittedly, there may be different impacts caused by certain types
of filming that require an environmental analysis to be performed and
not all locations would be appropriate for bringing in even a small
film crew. However, filming by its very nature is a temporary land use
that is generally fully compatible with the mandate of the Federal Land
Management Policy Act to manage land for multiple use and sustained
yield. Filming is and can be compatible with areas approved for
grazing, off road vehicle activity, mining and recreational use and
camping. With proper environmental planning and restrictions, any
filming activity can be fully controlled, monitored and any potential
damage fully mitigated by pre-planning efforts. Even in the most
sensitive of environments, adequate and even beneficial controls and
measures can be implemented to allow the use of the area for filming,
again keeping the business in the area in which it belongs, the
California desert.
There are many examples of the film industry restoring federal
lands to a better condition than when they arrived. The industry has
funded numerous federal historical projects as well as financial
contributions to further protect the federal lands for use by future
generations to enjoy. The film industry has long been a great partner
to the federal agencies and the environment. Just one example is the
Earth Communications Office (ECO). Founded 10 years ago, the ECO uses
the power of communication to improve the global environment. They
utilize the skills and talents of members of the entertainment industry
to create public service campaigns that educate and inspire people
around the world to take action to protect the planet. Some prominent
board members include: Pierce Brosnan, Cindy Crawford, Woody Harrelson,
Producers Ron Howard and Brian Grazer just to mention a few. The ECO
also consults with and educates studios, ad agencies, postproduction
houses and other communications-based business on how to operate their
facilities in a more environmentally friendly manner. Two of their
successes are the elimination of rain forest wood Lauan in movie and TV
set construction and helped stop wasteful packaging of the CD longbox
used by record companies
Given the concern that the implementation of the new desert
management plans will have an adverse economic impact on the desert
communities and user groups, the issues of the film industry should
certainly receive attention from members of Congress and the Department
of Interior representatives. The Film Industry can dramatically impact
the communities adjacent or near the federal lands open for filming.
For example, a feature film can spend between $70,000 and $100,000 a
day when filming on location while commercials average $30,000 to
$50,000 per day, with still photography spending up to $10,000 a day.
When the magnitude of the economic impact in the desert areas from
filming is considered, it was more than a little startling to see
either zero socioeconomic analysis to no more than a few lines
dedicated to filming restrictions in each of the desert plans, NECO,
NEMO an WEMO, that could would restrict filming activities even
further.
A potential solution currently to the issues of filming in the CDCA
under consideration for proposal to the BLM and other DOI agencies by
the film industry is the formation of large-scale programmatic
environmental assessment or EIS for filming in various regions. This
programmatic could then be used as a prototype for other public land
areas such as National Forests and other BLM managed lands. Pre-
identification of filming locations and the co-use of areas currently
permitted for other activities such as mining, grazing and recreation
as long as the uses remained compatible would be preferable and allow
maximum flexibility for scouts to identify locations and obtain permits
rapidly. Providing maximum choice and rapid permitting will work to
keep filming in the desert and will keep the economic activity from
leaving the borders of the State and counties. This effort will require
multi-jurisdictional involvement and an open mind from our federal
partners including the United States Fish and Wildlife Service. The
film industry needs more than just five or six places consisting of a
few thousands acres in which to film on a regular basis. An inventory
of public lands where biological and cultural data is available or
other EIS or EAs have been approved will aide in the identification of
potential filming sites. We believe that we can work together to
identify hundreds of sights within the CDCA alone that would be pre-
approved locations and have required mitigation measures in place that
must be followed in order to use the area.
Again keeping the business where it belongs, in the CDCA and in the
counties of southern California. This proposal is currently in
development and will be presented to the BLM Desert District office and
State Office within the next few months.
In summation, I would like to say that the film industry is
committed to preservation and conservation of the environment and the
industry will remain dedicated to protection of endangered species.
However, the public lands must remain open for multiple uses for ALL
land users and where compatible use can be had--and such multiple uses
should be encouraged and supported by the Department of the Interior.
There may need to be some policy and attitude changes that occur in
order for us all to work together but this is not impossible--after all
nothing is impossible in the movies!
Thank you for the time to listen to the concerns of the film
industry and please forward any questions or comments you may have
directly to me.
______
Mr. Radanovich. Thank you very much, Ms. Davis, I
appreciate your testimony.
Next is Mr. Mike Hardiman, who is an Inholder within the
California Desert Conservation Area from Imperial County. Mr.
Hardiman, welcome to the Committee.
STATEMENT OF MIKE HARDIMAN, INHOLDER WITH THE CALIFORNIA DESERT
CONSERVATION AREA, IMPERIAL COUNTY, CALIFORNIA
Mr. Hardiman. Thank you, Mr. Chairman. I have three blown-
up photographs that I would like to put on the three easels.
Mr. Radanovich. Sure. You can have someone help you there.
Mr. Hardiman. Thank you, Mr. Chairman. Thank you for the
opportunity to testify at today's hearing. My name is Mike
Hardiman, and I own a parcel of private property that is
surrounded by government-owned land, a situation referred to as
an inholding. Inholdings are common in the western United
States, although there are inholdings in nearly ever State.
My property is surrounded by the Bureau of Land Management
lands in northern Imperial County, just off the Bradshaw Trail.
This trail is a county-maintained dirt road, which stretches
from the north shore of the Salton Sea, eastward to the town of
Palo Verde along the Colorado River.
I purchased the inholding in 1990 when I was a resident of
Orange County, and I could get out there once a month or so.
Now living back east, I am lucky to see it twice a year. During
the battle over the Desert Protection Act, I watched Senator
Cranston, Congressman Beilenson, and their allies aim to lock
up as much public land as they could.
I decided that if I wanted to keep pitching a tent in the
desert, I may have to buy own campground and so I did. Mr.
Chairman, inholders are an important part of the overall mix
that benefits recreational use in the desert. Here are a few
examples.
The current issue of Blue Ribbon Magazine reports that the
Widowmaker motorcycle hillclimb has returned for the first time
since 1988. Featured on ABC's Wide World of Sports and located
on public land for 25 years, it was shut down by politics 15
years ago.
The revived Widowmaker was held totally on private property
this year in Croydon, Utah, providing an excellent recreation
opportunity for 747 entrants and 15,000 spectators. At the
northern end of the Imperial Sand Dunes, the Glamis Beach Store
is located on an inholding.
It offers a full range of food, supplies, and gasoline, and
is open year around. Across the road is an ATV repair shop. No
other retail establishments are available for many miles, and
so these provide significant convenience for recreationalists.
At the Ocotillo Wells offroad recreation area, the Blu-In
Diner has gas, diesel fuel, ice, and friendly advice. The Split
Mount Store is part of a large inholding with many property
owners that includes an RV park, diner, an ATV parts and repair
business, and residences that are generally used as weekend
homes.
These inholdings are preferable to the lease arrangements
found in many national parks, which are much more subject to
the whims of hostile bureaucracy and extreme environmental
groups. The inholdings are also generally independently owned
small businesses, whereas the Feds tend to show favoritism
toward large corporations in their lease negotiations.
My inholding is unimproved vacant land. Over the years, I
have used it for camping, as a base camp for rock climbing, and
hiking on surrounding public lands, for sightseeing, and to
educate uninitiated urbanites.
My nephew earned several Boy Scot Merit Badges in the
desert, including Astronomy, Backpacking, Climbing, Geology,
Rifle Shooting, and Wilderness Survival. A group of hunters
uses the land with my permission on Veteran's Day weekend each
year to hunt chukar and quail.
Mr. Chairman, in many ways there is more public access to
my private property than there is to surrounding public lands.
This is due to my willingness and that of other inholders to
voluntarily allow use of our property, combined with increasing
restrictions on public lands.
For example, near my land is an ACEC, or area of critical
environmental concern, and two WSAs, or wilderness study areas.
These study areas can be studied forever without an agency
making further land use decisions. There is no deadline. Even
worse, while it is being studied, it is managed even more
strictly than wilderness, because a management plan has not
been completed.
And, of course, there is the Endangered Species Act,
looming like the Grim Reaper over both private property rights
and multiple use of the public lands. This interlocking
directorate of land use controls is excessive, and new
proposals should not move forward until the existing ones are
handled properly.
Here are a few photos that I took just last week when I was
out in the desert. The first one is an example of excessive
restrictions placed on public land use. We hear that you can do
things in the wilderness and this kind of thing. This is a
reality and it is right here.
Thirty feet from a central line and that is it, and in some
areas it is 100 feet from a central line, and in this case, it
is only 30 feet from the center line, and you can pull off and
camp out. And this is along Dupont Road in the Chuckwalla
Mountains in Riverside County.
A 30-foot restriction on pulling off the road to go camping
does not permit enough privacy or cover from dust kicked up by
other vehicles that may travel through. Next is a dramatic
example of maintenance and cleanup failures by our public land
agencies, and in this case, the Department of Defense.
Over there in the front, that is me surrounded by those
bombs that are larger than human beings, each larger than an
adult, and adjacent to the Bradshaw Trail, a county maintained
two-lane road that Imperial and Riverside Counties maintain.
Those bombs are adjacent to the Bradshaw Trail as it passes
by the Chocolate Mountain Navy Bombing Range. And I believe
they are inert, but I do not know what environmental hazards
they may hold. And there is the Bradshaw Trail right there
adjacent to it.
It seems that the Federal land management agencies place a
high value of visual landscapes and are anxious to establish
zoning and viewshed restrictions on adjacent private property.
Perhaps the Federal agencies, and in this case the Department
of Defense, should clean up their own act on public lands
first.
Finally, here is what could be called the Desert Tortoise
Berlin Wall right there. This is located north of the Imperial
Sand Dunes, along the highway, including a barbed wire topping
the chain link fence. It is over 8 feet tall, and stretched out
away from the road out of sight over a hill, a menacing
eyesore.
Mr. Chairman, just as President Reagan spoke to the Soviet
Union years ago about bringing down the Berlin Wall, I ask this
Committee to tear down this wall. Indeed, endangered species
can be protected alongside recreational access and private
property rights. The Endangered Species Act needs to be
reformed to reestablish its basic credibility, for the benefit
of both species and people.
I see that my time is up, and I will quickly ask the
Committee to examine and hopefully act on three bills; H.R.
1662 by Congressman Walden, which will improve the process of
evaluating scientific data under the Endangered Species Act.
And H.R. 1517 by Congress Graves, which will focus on the
Land and Water Conservation Fund revenues to recreational
facility maintenance and improvements, and prohibit further
land acquisition from the fund.
And finally H.R. 1153 by Congressman Simpson, which would
place up to a 10 year maximum limit on studying Wilderness
Study Areas. Thank you for the opportunity to testify today.
[The prepared statement of Mr. Hardiman follows:]
Statement of Michael Hardiman, Private Property Inholder,
Imperial County, California
Good afternoon Mr. Chairman, thank you for the opportunity to
testify at today's hearing.
My name is Mike Hardiman. I own a parcel of private property that
is surrounded by government-owned land, a situation referred to as an
inholding. Inholdings are common in the western United States, although
there are inholdings in nearly every state.
My property is surrounded by Bureau of Land Management lands in
northern Imperial County, just off the Bradshaw Trail. This trail is a
maintained dirt road which stretches from the north shore of the Salton
Sea eastward to the town of Palo Verde along the Colorado River.
I purchased the inholding in 1990 when I was a resident of Orange
County, and I could get out there once a month or so. Now living back
east I am lucky to see it twice a year. During the battle over the
Desert Protection Act, I watched Senator Cranston, Congressman
Beilenson and their allies aim to lock up as much public land as they
could. I decided that if I wanted to keep pitching a tent in the
desert, I may have to buy my own campground! And so I did.
Mr. Chairman, inholders are an important part of the overall mix
that benefits recreational use in the desert. Here are a few examples.
The current issue of Blue Ribbon magazine reports that the
``Widowmaker'' motorcycle hillclimb has returned for the first time
since 1988. Featured on ABC's Wide World of Sports and located on
public land for twenty-five years, it was shut down by politics fifteen
years ago. The revived Widowmaker was held--totally on private
property--this year in Croydon, Utah, providing an excellent recreation
opportunity for 747 entrants and 15,000 spectators.
At the northern end of the Imperial Sand Dunes, the Glamis Beach
Store is located on an inholding. It offers a full range of food,
supplies and gasoline, and is open year round. Across the road is an
ATV repair shop. No other retail establishments are available for many
miles, and so these provide significant convenience for
recreationalists.
At the Ocotillo Wells offroad recreation area, the Blu-In Diner has
gas, diesel fuel, ice and friendly advice. The Split Mountain Store is
part of a large inholding with many property owners that includes an RV
park, diner, an ATV parts and repair business, and residences that are
generally used as weekend homes.
These inholdings are preferable to the lease arrangements found in
many national parks, which are much more subject to the whims of
hostile bureaucracy and extreme environmental groups. The inholdings
are generally independently owned small businesses, whereas the feds
tend to show favoritism toward large corporations in their lease
negotiations.
My inholding is unimproved vacant land. Over the years I have used
it for camping, as a base camp for rock climbing and hiking on
surrounding public lands, for sightseeing and to educate uninitiated
urbanites. My nephew earned several Boy Scout Merit Badges in the
desert, including Astronomy, Backpacking, Climbing, Geology, Rifle
Shooting and Wilderness Survival. A group of hunters uses the land with
my permission on Veteran's Day weekend each year to hunt chukar and
quail.
Mr. Chairman, in many ways there is more public access to my
private property than there is to surrounding public lands. This is due
to my willingness and that of other inholders to voluntarily allow use
of our property, combined with increasing restrictions on public lands.
For example, near my land is an ACEC, or Area of Critical
Environmental Concern, and two WSAs, or Wilderness Study Areas. These
study areas can be studied forever without an agency making further
land use decisions. There is no deadline. Even worse, while an area is
being studied, it is managed even more strictly than wilderness,
because a management plan has not been completed.
And of course, there is the Endangered Species Act, looming like
the Grim Reaper over both private property rights and multiple use of
the public lands. This interlocking directorate of land use controls is
excessive, and new proposals should not move forward until the existing
ones are handled properly.
Here are a few photos I took just last week. This first one is an
example of the excessive restrictions placed on public land use. It is
located on Dupont Road, a lightly traveled single track dirt road in
the Chuckwalla Mountains in Riverside County. A thirty foot restriction
on pulling off the road to go camping does not permit enough privacy or
cover from dust kicked up by other vehicles that may travel through.
Next is a dramatic example of maintenance and cleanup failures by our
public lands agencies. These bombs, each larger than an adult, are
adjacent to the Bradshaw Trail as it passes by the Chocolate Mountain
Navy bombing range. I believe they are inert. I do no know what
environmental hazards they may hold.
It seems that the federal land management agencies place a high
value on visual landscapes and are anxious to establish zoning and
viewshed restrictions on adjacent private property. Perhaps the feds
should clean up their own act on public lands first.
Finally, here is what could be called the Desert Tortoise Berlin
Wall. This is located north of the Imperial Sand Dunes. Including the
barbed wire topping the chain link fence, it is over eight feet tall,
and stretched out away from the road out of sight over a hill, a
menacing eyesore.
Mr. Chairman, just as President Reagan spoke to the Soviet Union
years ago about bringing down the Berlin Wall, I ask this Committee to
tear down this wall. Endangered species can be protected alongside
recreational access and private property rights. The Endangered Species
Act needs to be reformed to reestablish its basic credibility, for the
benefit of both species and people.
I ask the Committee to support legislation such as H.R. 1662
sponsored by Congressman Walden and others to require more thorough,
qualified and independently reviewed biological evidence of a species
being in trouble before it can be listed as endangered or threatened.
Two other legislative recommendations. I suggest the Committee
consider H.R. 1517 by Congressman Graves. This would dedicate Land and
Water Conservation Fund revenues to recreational maintenance and
improvements and prohibit further land acquisition from the fund. H.R.
1153 by Congressman Simpson would place an expiration of ten years on
Wilderness Study Area reviews.
Thank you for your consideration.
______
Mr. Radanovich. Thanks, Mr. Hardiman. I appreciate your
testimony. We will go to the question and asking portion of
this hearing. Mr. Denner, give me an idea of what you would
like to see as a result of this hearing. What might you like to
see accomplished after this?
Mr. Denner. I guess I could write a book in answering that
question, but if I came up with two key things that we have
addressed here today, the first one is, and which was repeated
by several people, and that is the concept of mitigation;
mitigation on the impacts of public uses of land when portions
of the Endangered Species Act are implemented.
Mr. Radanovich. No net loss--
Mr. Denner. No net loss, or perhaps even a positive ratio
of mitigation for recreation, just like if it is a not very
serious closure, because there is not really very good science,
but it looks like it ought to be closed. Well, I would consider
that as a poor reason for closing an area.
So maybe the area that we lose should be mitigated on the
basis of 3 or 5-to-1 like we do when there is a serious
mitigation for an impact on a species. And I guess the second
thing, which was repeated over and over again, is that it is
hard for me to believe that you have a board of stakeholder
members who are appointed by the United States Secretary of the
Interior, who have no muscle.
You know, these people sit in a group to advise the BLM,
and we have given you repeated examples of how our advice, and
I have been informed over and over again, is not ignored. They
take it into account, but they just refuse to act on it.
And it seems like it is out of proportion for a group of
people appointed by the U.S. Secretary of the Interior to have
no strength, and that they can be overridden by a local BLM
area manager's decision on his or her own part.
So I would like to see some muscle put into the advisory
councils that advise the Federal agencies.
Mr. Radanovich. Thank you very much, Mr. Denner. Can I ask
the same question of anybody who might want to respond to that
as well? Mr. Hubbard, did you want to respond to that?
Mr. Hubbard. I would like to respond to it. I think that
when you heard more than once is that there needs to be some
legislative reform with respect to the Endangered Species Act.
Not the least of which from a lawyer's perspective, one of
the biggest problems is that once an Endangered Species Act
lawsuit is filed, almost quick on its heels is a motion for a
preliminary injunction, which is legalese for the plaintiff
coming in and asking the court to shut down an area until the
merits of the case can be adjudicated.
In most circumstances there is a balancing of hardships to
determine whether the injunction should be issued, but when the
Endangered Species Act is invoked the rules change. There is
not really a balancing of hardships. If the plaintiff can
demonstrate with a very small amount of evidence, and maybe not
even very credible evidence, that there is some human-related
threat, the court will issue the injunction, and it doesn't
matter how it might affect people.
That needs to change so that those people who are
interested in protecting access can at least put those who
would shut down areas through the paces, and force them to look
at the data, and force them to present evidence that there
really is a threat warranting an injunction.
And that would be one area that I think would greatly
assist us in establishing some kind of a balance. But I think
overall the entire Act needs to be reviewed, because not only
does it not assist in the many businesses and the public who
wants to access these lands, but the fact is that it is a
complete failure in its primary responsibility, which is to
protect species and get them out of endangered status.
The number of success stories that the Endangered Species
Act can claim is very, very few, and the entire framework needs
to be changed. The last thing or the second thing that I think
needs to come out of this is when you are arguing for public
access to public lands, and you are coming up against another
group that is using the Endangered Species Act, you are at an
immediate disadvantage because your interests by law are not on
par with the Endangered Species protection, and that needs to
change as well.
There needs to be a congressional effort and a legislative
directive that protects public access, including motorized
access for recreation. Until that happens, we are going to
continue to see this erosion of public ability to access the
desert, and other places throughout the United States.
Mr. Radanovich. Mr. Hubbard, while I have you, I just want
to ask one quick question. You had mentioned that CDCA was
ground zero between access and those who oppose access. Are
those that are opposing access, is that access of any kind, or
is it limited to motorized access in your view?
Mr. Hubbard. It is not limited to motorized access. The
same groups that have brought these lawsuits, they are trying
to eliminate mining, eliminate grazing, and they are not real
thrilled with the equestrian community.
It is not just motorized access. Motorized access I think
for them is an easy target, and so they have moved into the
fore, but it is not just motorized access.
Mr. Radanovich. OK. Thank you very much. Mr. Chairman.
Mr. Pool. Thank you. If I can, I would like to start with
Mr. Kemper, and one of the things that we have heard testimony
on today was about the loss of grazing land and a number of
ranches within this whole area. Can you explain a little bit to
the Committee why that is happening, and what are some of the
factors that are playing in that have caused a number of
ranches to fold up in the area?
Mr. Kemper. Unfortunately, when the ranching community
applied for intervenor status in the CDCA lawsuit they were not
granted, and so the ranchers were really without representation
or a negotiating tool during the settlement agreement.
The settlement agreement that was entered into between the
Bureau of Land Management and the Center for Biological
Diversity required the grazing community to remove cattle for
spring closure and also a fall closure, which was economically
devastating.
You know, we are not talking about something that could be
managed. There were not fences to hold them off those portions
of the ranches, and it was simply an impossible task in order
to comply, and I believe very few ranchers were able to comply
a hundred percent. I was one of them, but I had to remove
cattle. From a financial standpoint, it was devastating to our
family, as well as for the others.
Mr. Pombo. So what you are saying is that a settlement was
reached that the grazing community was not a party to? You were
not in the room negotiating it and the folks that were in the
room decided that you had to go?
Mr. Kemper. That is correct.
Mr. Pombo. And was that based on ESA, on the Endangered
Species Act?
Mr. Kemper. It was based on a lawsuit that was filed,
because BLM had missed a deadline for consultation with Fish
and Wildlife, and it was not really a specific issue, but for a
missed deadline in consultation.
Mr. Pombo. Well, thank you. Mr. Hardiman, you are currently
an inholder within the area. The access to your property where
you are, has that changed over the years, or do you still enjoy
the ability to get to your property?
Mr. Hardiman. Unfortunately, the property is near the
Bradshaw Trail, which is about a mile-and-a-half off the trail,
on a very lightly traveled road. That road is maintained by the
various inholders that are out there, and it has not been shut
down or attempts to do that yet.
But, for example, with the R.S. 2477 regulation, Bradshaw
Trail certainly qualifies, but I am just off of what used to be
called the Nyland Road. It used to be that you could go from
Nyland to Blake, but it was cutoff about 50 years ago when the
bombing range was established in the Second World War.
So much of the road has gone into disrepair, but a mile-
and-a-half or 2 miles of it or so are still maintained by
inholders themselves. I am out there with a shovel literally.
So it has been OK so far, but I would guess that is because
maybe it has not been considered to be important enough to
bother with yet. The key word is yet.
Mr. Pombo. Are you familiar with any other inholders, and
what their situation is, in terms of access? Has here been
access that has been cutoff to private property?
Mr. Hardiman. Outside of this area there has been something
with the Forest Service, but I think with the other agency as
well, and that if you want to get to your property that you
have to have a permit or an approval of some sort to travel
over a road.
One example that I recall in Colorado was a family was
restricted from using a well-established road during the
winter. The road was about 12 miles over public land, and
during the winter, they were no longer allowed to use
snowmobiles. they had to walk the 12 miles with supplies to get
in there during the winter.
And which was a very high elevation, and effectively
restricted the use of their land to just the summer months. And
since they lived there year around, that was a very big problem
for them. So there are problems with restricting access, and
that is one example that I can think of off the top of my head.
Mr. Pombo. If I could go back to Mr. Kemper on the whole
issues of access to private holdings. I understand that you
also have private holdings within the area?
Mr. Kemper. Yes.
Mr. Pombo. And has access to the private lands been a
problem?
Mr. Kemper. The private holdings that I have within the
Federal grazing lease are actually pipelines and fence lines,
and that sort of thing. But we are somewhat restricted because
we have five wilderness areas on our grazing lease that cross
over fenced boundaries, and fenced maintenance roads, pipeline
roads, cofferdams, well sites, and we are told that we can't
maintain those in the same fashion that we have in the past in
order to continue to trap waters, and in order to allow cattle
to continue to graze.
Mr. Pombo. Because of the wilderness designation?
Mr. Kemper. Because of the wilderness designation.
Mr. Pombo. But if all of those features exist, it would not
qualify as wilderness.
Mr. Kemper. I don't believe it is wilderness. My
understanding of a wilderness is a roadless area that is
untrampled by man. We have got wells, window sites, 28 miles of
pipeline, 30 miles of fence, and the maintenance roads for
those improvements, and lots of those improvements are within
the wilderness areas.
Mr. Pombo. Thank you.
Mr. Radanovich. Thank you, Mr. Chairman. Mr. Filner.
Mr. Filner. Thank you, Mr. Chairman. I do appreciate the
courtesy of being allowed to sit with you since I am not a
member of this Committee. I guess I don't appreciate the
discourtesy of not being informed officially of the hearings
since we are dealing with issues in my area, in my district,
and it is usually Congressional protocol to at least notify
folks who have an interest in that area to invite them.
An official congressional hearing as I understand it
generally has members of the minority party staff present, and
it has minority party members, and it has alternation between
Democrat and Republican, and also witnesses chosen by the
minority party.
I don't see any of that here, which leads me to believe
that this is not a true congressional hearing. But be that as
it may, I want to tell you without being hostile, Rich, and
George, my friends, as you know in the redistricting process, I
was assigned Imperial County.
I did not have Imperial County before, and I am an urban
guy. And I had a lot to learn about my new district, and I set
out to learn it. I set out to learn about people who are
farming. I went out to every farmer that I could find, and went
through the fields with them, and tried to understand the
processes.
I went out to the desert with a group from the Desert
Protective Council. I went off-roading with a group from the
American Sand Association. I had a lot of fun by the way. That
is a great sport.
So I am really trying to learn about the issues, and I
don't know enough about them, and an oversight congressional
hearing should be one in which we learn from each other, where
I could learn about what the off-road community wanted, and
what the grazing community wanted, what the inholders wanted.
I even know that expression, and I have learned a lot by
listening, too, and frankly, Mr. Chairman, I have heard a lot
of stupid things that are being done that I would like to work
with you to solve. But when a hearing like this is stacked
without hearing another side --
Mr. Pombo. Would the gentleman just yield for a second?
Mr. Filner. Sure. You don't like the word stacked, I know.
Mr. Pombo. Well, I don't care. You can use any word that
you want. But I think that the record deserves to be accurate
in that respect. Every single member of the Committee was
invited. The minority chose not to attend, and they chose not
to invite witnesses.
Mr. Radanovich. And the minority chose not to inform you
that the hearing was going to be held.
Mr. Filner. Look, George, if I would set up a hearing, I
could arrange--you might be on legal grounds, but look, I am
talking about good public policy. We are trying to learn about
these issues, and you have got to have both sides to learn
about them frankly.
You can learn a lot by listening to one side, and I can
learn a lot listening to the other side. I don't even consider
myself on one side or the other by the way. I am here to learn
from both sides, and I only have one, which leads me to believe
that we are not--when you are not being fair, you force someone
like me who is trying to learn to another position, because you
are not allowing a free exchange of position.
Frankly, I think you would profit by it. If the people who
want or are trying in your view to prevent access, or the lack
of an environmentalist, if they appear that way in a public
hearing, it is obvious to people.
And therefore everybody learns from each other. I would not
be afraid of setting up something in which not everybody is on
the same side. It leads you to believe that you are afraid of a
debate, and you should not be afraid, and nobody should be
afraid of that.
I don't even see--is there an agenda here as is required? I
don't see a public commentary, which I understand is--does the
public have this? Nobody in the public seems to have this, and
is there a public comment period as required by law? I don't
see it on here.
Mr. Radanovich. Two weeks after today's date.
Mr. Filner. No, I mean oral comment. You just have these 13
people and that is it?
Mr. Radanovich. That is the standard operating procedure,
and it is written comment 2 weeks afterwards.
Mr. Filner. Look, George, I would rather not be on this
legalistic debate. If you want to come up with good policy you
have a public debate on it, and that is how you could have
arranged this if you wanted to, but you chose not to.
You want to show that these people that you are going to
defend them back in Washington, and they will think that you
are going back and fighting for them, when actually they are
doing you a disservice, I say to the folks in the orange
shirts, because they come back, and everybody says, oh, they
had a stacked hearing and I am not going to even bother looking
at any of the comment, or any other thing.
I mean, nobody is doing me a big favor when they do this,
although they are trying to show you that they are. So, you
know, this is a dog and pony show which has no effect on the
legislation, and forces people to say or to go this way.
You guys want intelligent policy, and I want intelligent
policy. We don't get intelligent policy unless we see there is
a clash of opinion. I don't even know--I have not made up my
mind on the BLM plan.
Mr. Pool will tell you that I have had many discussions
with him and I have read all the stuff, and I wanted to see
what both sides would say. I don't get both sides. That leads
me to think that you are afraid of having that again.
So if you are going to educate folks who will put good
public policy back in Washington rather than have people
polarized on each end, and who can yell at each other, you can
have that. But that is what you are doing.
You are the majority, and you can do whatever you want. But
you are not going to get good public policy as a result, and
these folks might not even have their best interests served as
a result. I thank the Chairman.
Mr. Radanovich. The Subcommittee Chairman would respond
that I am sad that this is a one-sided hearing, but I am afraid
that your problem is with your minority staff and your minority
who chose not to send people here. I don't think the people in
this group, or the members that sit here, either the Chairman
or myself, are afraid of intelligent debate when the other side
does not show up.
Mr. Filner. You could have just called me and said, Bob,
would you like to be at a hearing and do you have any
suggestions. You could have done that, George. You know that.
Come on. If I was in your position, I would have done that.
Mr. Radanovich. Under protocol the minority statute--
Mr. Filner. I don't care what protocol. You guys know each
other, and just give me a call and say we are doing stuff in
Imperial County, and do you have any suggestions.
Mr. Radanovich. OK. Thank you.
Mr. Filner. And I appreciate your kindness and your--
Mr. Radanovich. You are welcome. Any other questions--
Mr. Filner. And you guys can do an overblown and do
whatever you want, and it is not going to do your cause any
good.
Mr. Radanovich. You are out of order. Maybe now is the time
to go to the Finding Nemo joke that was on the board here a
little bit earlier. Mr. Brown, in your opinion, can mining be
accomplished in the CDCA in such a way that it has little or no
impact on mining and the endangered species?
Mr. Brown. Well, we have to have regulations, and mining is
a heavily regulated industry. Every aspect of a mining
operation is scrutinized by numerous agencies long before the
first shovel of material is moved, and right now the
environment, the permitting environment, is one that is
excessively time consuming and expensive, and if not changed
will ultimately force the industry to go elsewhere.
In 1999 when Congress requested a study by the National
Research Council to assess regulatory framework for hard rock
mining on Federal land, one of the conclusions was that the
permitting process was needlessly long, and recommended that
the BLM and Forest Service should implement a more timely
process.
And I think the effort that the BLM is trying to put forth
in the West Mojave Plan and also in NECO and NEMO, which I am
going to call the Las Vegas model, in theory should streamline
the process, whereby a mitigation fee or mitigation ratio is
established, and the proponent pays the fee, and moves through
the process, rather than an endless amount of litigation.
I think that it is a pragmatic and practical procedure,
although not without flaws, since as significantly increased
mitigation ratio of the fees to streamline the process, and
ultimately result in solutions that are beneficial to both the
species and the proponents of the project. So I think that the
answer is yes.
Mr. Radanovich. Thank you, sir. Are there any other
questions of this panel?
Mr. Pombo. If I could, Mr. Chairman, just one further
question to Ms. Davis. I was somewhat intrigued by your
testimony. Because it has become increasingly difficult or
bureaucratic to have access for the industry that you are
talking about, they are making decisions to film in what you
said was Australia?
Ms. Davis. And Canada.
Mr. Pombo. And Canada, and other places. Is it worth it to
them to make that big of a move just because of that process
that exists here?
Ms. Davis. Oh, absolutely, because most of the land that
has the location look that they are over unfortunately is not
available to them in the normal CDCA area and the rest of the
land in the United States under Federal agencies.
That is why we are looking at doing a programmatic that
would perhaps open up the land for us for additional use and
programmatics have already been done for other commercial
users, so that perhaps we can be competitive with that.
Mr. Pombo. That is interesting. I would be interested in
working with you in the future to try to see if we could not
move that along.
Ms. Davis. I would love that.
Mr. Pombo. Because that is--I know that industry spends a
huge amount of money like others, and when you talk about
multiple-use land, that is definitely part of it. So, thank
you.
Mr. Radanovich. Any other questions? Mr. Filner.
Mr. Filner. I apologize, as I was late and missed the
testimony. Mr. Brown, just again as someone who is trying to
understand this, and trying to be respectful to both sides on
this issue, but exactly how would you change the BLM plan that
has been presented from the interests of the off-road
community?
Mr. Brown. The plan starts with its foundation in a
scientific process that was filed from the start, and our
concern with that is that with the listing of Peirson's Milk
Vetch was incomplete data to start with, and even with the Fish
and Wildlife Service, their own staff, they questioned the
validity of that science when it was used to do that.
And now that more studies have been done in the bureau's
own monitoring process that the original studies that were
conducted were not repeatable and verifiable, and therefore
they could not monitor with them to see year to year how that
process was going on.
And as they developed a better monitoring process, they
found that the plant was not having the difficulties that they
originally felt that it was having across this range, and since
then there has been extensive study done that have proven that
there are more than 70,000 viable species in 1 year, and a
large seed bank that will continue to allow this particular
species to continue.
And so if you take that as the foundation--I mean, it is a
foundation on sand, and so from there you just keep building on
that process, and as you create a ramp to protect something
that does not necessarily need the protection as great as the
ESA provides, you make management decisions that then lead to
this type of a ramp situation being larger and more draconian
than it should be, and not necessarily protective of the
environment.
And by restricting the uses into an ever smaller area, and
restricting the number of people who can go into a specific
area of the dunes, you may actually do more harm to the plant
than good.
So we see that this whole thing is built on a foundation of
poor science to start with. We certainly would like to see them
decide whether or not the plant should be delisted. There is a
petition in front of them to delist the plant.
If they were to delist the plant, then we would obviously
see a whole another view of that ramp. They are going ahead--
the Fish and Wildlife Service continues down the path of
critical habitat designation.
The Bureau's statement in the press yesterday was that they
have taken that into account in this process, and probably
would not change the ramp. But still we just see--and then a
business plan to implement a ramp that is designed for science.
So you are asking me specifically what we would change;
those conditions within a ramp that have to do with
specifically protecting a species that does not reach the
criterion, which included the 4-year revisit clause, and
includes the limits of visitation in the center part of the
dunes, and the restriction of the camping around certain areas,
and any sort of buffer zone that is outside that area to hold
those uses within a given quadrant.
Mr. Filner. What is the congressional role in the situation
now? BLM has put out a draft plan for comment. Does the
Congress have any role, or is there any legislation one way or
the other that can deal with it now?
Mr. Radanovich. We might want to hear from the Director in
the next panel.
Mr. Filner. I have been trying by the way, and I think I
was successful, along with Mr. Hunter, in getting increased
funds for--I don't know the word that I want to use--for
protection of the people. That is, some more police protection
in the area. Is that something that you have any problem with,
or something where you would want to see increased visibility
of security?
Mr. Brown. I think that those issues are intensely
important to us, and we do feel strongly about that, and we
appreciate the help that you have done in bringing that funding
here, and it is something that needs to be repeated annually.
These folks are going to continue to come and they are
going to continue to go there to recreate, and they need the
visitors services, and that is part of what we feel strongly
that Congress needs to interject itself in, is the continual
funding source to make sure that recreation across the west,
and not just in the CDCA, but throughout the west.
Our sand and recreation folks have many available spots on
the Bureau of Lands throughout the western United States, as
well as just general access to public lands, that provides a
recreation component that needs to be funded by Congress.
Mr. Filner. One last thing if I may, Mr. Chairman. I as a
newcomer to Imperial County, I had thought that the county has
not developed its echo tourism to the extent that it might. I
mean, it is an incredibly beautiful area as the people who come
there for the dunes know.
Is there anything that the county or the State, or Federal,
can do to be more welcoming to your community? What would you
like to see done?
Mr. Radanovich. Excuse me, but I am going to have to
interrupt. No response from the crowd, please. This is a
hearing. The information needs to go into the record and so the
people who are recording it need to be recording it properly.
So you may continue, but I would encourage people to--
Mr. Filner. I mean, for example, that there might be a
visitors center set up, et cetera, those kinds of things.
Mr. Brown. And there has been north of the Glamis Store,
and there the Bureau of Land Management has placed an area to
interpret that, and to provide wilderness parking. The county
has provided on the county property that is within the dunes a
vista overlook that encourages the general public to come there
and enjoy that view and vista. And with the interpretative site
--
Mr. Filner. Is there anything else that could be added?
Mr. Brown. Not unless they were to do something to
encourage more use, which certainly they could advertise or put
an ad in the Sunset Magazine and ask more folks to come there.
But as far as facilities, that is one of the problems with
wilderness designation, is that you cannot build any facilities
within the wilderness that provide visitor service.
So they would all have to be built, all the services, all
the visitor centers, all these interpretative signs, anything
that you want, parking areas, any type of development would
have to be done off of the lands that are designated
wilderness.
So the eco-tourists is certainly a viable possibility, but
the numbers, I just--that area has been designated non-
motorized since 1980.
Mr. Filner. Yes, but you get there from Interstate 8 one
way or the other, or from the north. I mean, you can do
something along those roads, I assume.
Mr. Hubbard. Congressman Filner, if I could perhaps add a
comment. The problem I think with eco-tourism in this
particular area is that if you eliminate vehicle access, you
have created for yourself really a safety issue. This is an
extremely hostile environment if you are forced to walk very
far.
And one of the problems with the loss of access is that
except for extremely able-bodied hikers, you have really
reduced the areas that most people can go to safely anyway, and
you can't very well have a strong eco-tourism in this area
unless you are providing some level of vehicle access.
And without the vehicle access, people will not go there.
It is not safe for them to do so. So maybe eco-tourism with
very tight restrictions on vehicle access works in some areas,
but in this particular part of the desert it creates a safety
issue, and I just don't see it happening.
Mr. Brown. Imperial County does have an escape document
here that they have printed, with the idea of bringing all
forms of recreation to Imperial County. So it encourages all
forms of access to public lands.
Mr. Filner. Thank you.
Mr. Radanovich. Any other questions of this panel, because
we are going to dismiss this panel? Ladies and gentlemen, thank
you so much for your testimony, and I appreciate you being
here.
We are going to bring up our third and final panel. Mr.
Mike Pool, who is the California State Director of BLM< who is
here from Sacramento, and Mr. Steve Thompson, who is the
California-Nevada Operations Officer of the U.S. Fish and
Wildlife Service, Sacramento.
[The witnesses were sworn.]
Mr. Radanovich. Thank you very much. Please be seated.
STATEMENT OF MIKE POOL, CALIFORNIA STATE DIRECTOR, BUREAU OF
LAND MANAGEMENT, SACRAMENTO, CALIFORNIA
Mr. Radanovich. Mr. Pool, I do not know how you manage an
area as big and complex as this, as well as you, Mr. Thompson,
and so I am looking forward to your testimony. If you want to
go ahead and start, and again 5 minutes each, and then we will
open it up for to the panel for what I am sure will be many
questions, and we certainly appreciate it. Welcome to the
Committee, and you may begin.
Mr. Pool. Thank you. I do have some opening remarks. Mr.
Chairman, and members of the Subcommittee, welcome to Southern
California. Just to the east of us lies the California desert
conservation area, or the CDCA. This 25 million acre region was
recognized as unique among landscapes throughout the country
when it was designated by Congress in 1976 as the Nation's
second and by far its largest national conservation area.
When that designation was made as part of the Federal Land
Policy Management Act, Congress highlighted through its
official planning a wide range of land management challenges.
Some of these challenges include the very same conflicts that
you have heard about today.
That is, how to balance recreational access, particularly
off-road vehicle access, with the protection of sensitive
desert resources, particularly rare and endangered species of
wildlife and plants. This landmark legislation was also
recognized as very special public land resources that were
uniquely located adjacent to an area of a large population.
Your congressional predecessors were very foresighted
legislators. In fact, the challenges that led out for the BLM
in 1976 made it more daunting today than they were back then.
For example, in 1976 there were only five wildlife plant
species in the California desert listed as threatened or
endangered under the Endangered Species Act, and now there are
14 wildlife species and 10 plant species listed by the Fish and
Wildlife Service in this region.
The human population in Southern California has grown from
an estimated 12 million in 1976 to 20 million people now, with
dramatic growth occurring in the western desert region known as
the Inland Empire.
To address these challenges the Federal Land Policy and
Management Act directed BLM to prepare a comprehensive long
range plan for the management, use, development, and protection
of the public lands in the CDCA.
It also established the California Desert Conservation Area
Advisory Committee to ensure full public participation and
involvement in this important planning process, and that
Committee, now called a council, plays a vital role in helping
us guide management of the desert.
The overall plan was completed in 1980 was developed in
cooperation with State and local governments. The Los Angeles
Times characterized the plan at that time as, quote, a balanced
plan, and no one group will be entirely happy with it, and that
is a good sign.
Twenty-three years later the BLM is in the midst of
updating that plan through six regional plan amendments that
are being characterized by the media as much the same.
Controversial plans that neither recreationalists nor
environmentalists, nor the effected users, are very happy with.
Whether that is a good sign or not, I will leave that to
editorial writers and others to decide in the future. I can
tell you that my staff, and I am here in California, are trying
to do to the very best of our abilities to balance public
interests as we develop these plan amendments and to make these
plans fair.
As State Director, I have made it clear that our overriding
goal is to allow as much public access and use of the desert as
we can, while meeting the legal requirements of the Endangered
Species Act.
The legal tightrope that we are talking about in this
region is very real. The BLM alone has seven major lawsuits
currently being litigated by both sides regarding this plan
updates and implementation actions, with four more notices of
intent to file lawsuits pending.
The Fish and Wildlife Service has additional lawsuits filed
whose outcomes will also affect BLM's ability to authorize
various public land uses in the desert. Much of the controversy
being discussed today can be traced back to one of those
lawsuits filed in early 2000 by the Center for Biodiversity,
the Sierra Club, and others, and settled to a series of five
consent decrees between August of 2000 and April of 2001.
This controversial settlement made in our behalf by the
U.S. Department of Justice was done to avoid the likelihood of
a Federal Court granting the plaintiffs' request for a desert-
wide injunction on all BLM authorized activities under the
California Desert Plan until Endangered Species Act
requirements were met.
The injunction would have included almost the complete
closure of the Imperial Sand Dunes to off-highway vehicle use,
the elimination of livestock grazing, large scale road
closures, and other massive disruptions to public uses in the
desert.
Rather than taking that risk the settlement required the
BLM to reconstruct a much more narrowly focused range of public
activities until we complete the land use amendments now
underway.
For the last 3 years, the BLM has been working against the
clock to complete those plans. They have been very expensive,
and they have been very controversial, and they have been very
time consuming. However, with input from thousands of members
of the public, as well as State and local governments, we have
completed four of these regional plan amendments.
These include plan amendments for the Northern and Eastern
Colorado Desert, the Northern and Eastern Mojave Desert, the
Coachella Valley, and the Western Colorado Desert. The final
two plans for the West Mojave Desert and the Imperial Sand
Dunes Recreation Area are still underway.
The Imperial Sand Dunes comprise 160,000 acres located
approximately 130 miles to the east of us, and we are in the
final stages of developing a major update to our recreation
activity plan, or RAMP, developed in 1987.
In my personal opinion, the Imperial Sand Dunes provide a
world-class recreation opportunity for off-highway vehicle use.
Literally hundreds of thousands of recreationalists and other
visitors come to the dunes annually to enjoy its vistas and
off-highway vehicle opportunities.
As one of the most popular OHV areas in the Southwestern
United States, this area presents significant management
challenges, including law enforcement, visitor safety and
services, and protection of sensitive resources.
The listing of a plant called Peirson's milk-vetch by the
Fish and Wildlife Service in 1998 requires BLM to determine how
to balance recreational use with required legal protections of
the Endangered Species Act.
We believe the plan now being finalized does that, with the
creation of a 33,000 acre adaptive management area that will
allow us to monitor the plant, while still providing limited
OHV access use, so that we can gather evidence one way or the
other as to whether the plant and vehicle are compatible.
The settlement described earlier required us to close
49,000 acres of the 160,000 acres of dunes used for OHV use.
Our pending plan would open the 49,000 acres back to off-
highway vehicle use, including the 33,000 acres within the
adaptive management area. We hope to have that plan completed
very shortly.
The West Mojave Plan now in draft for public review is by
far the most comprehensive of the six regional land use plans.
It is also a habitat conservation plan that is being prepared
in collaboration with the region's cities, counties, State, and
Federal Agencies to meet cross-jurisdiction requirements.
As such, it is the largest HCP ever developed, covering 9.3
million acres. The overall goal is to streamline and develop
less costly procedures for complying with the requirements of
both the Federal and California Endangered Species Acts. This
approach is aimed to stimulate economic development within this
rapidly growing region, while still conserving more than 100
identified federally listed, State-listed, and sensitive plan
and animal species.
An innovative and broad-based super group of interests,
representing the many public entities and groups affected by
this plan, have held countless meetings to develop many aspects
of the draft. The rest of our public is now providing us
comments through September and we hope to have that plan out in
early next year. Let me know how much time I have. I have more
comments.
Mr. Radanovich. How long do you think?
Mr. Pool. I would say probably 2 minutes.
Mr. Radanovich. Two minutes? You have got it.
Mr. Pool. Thank you. Even though BLM has received
tremendous public assistance and involvement in all these
planning efforts, we know probably that none of these groups
are completely satisfied with the plan's outcome.
We understand their views, and we want to assure them that
their comments are indeed being carefully considered. However,
we also acknowledge that Congress gave us a tough job in
balancing these widely divergent public expectations and
desires about the future of the California Desert.
I must also point out that the implementation of these
plans will indeed be extensive. We will be working with the
administration, the appropriations Committee, and members of
the California delegation to try to obtain the necessary
funding so we are not vulnerable to similar future lawsuits.
A number of the California Desert's Congressional
delegation have already been very supportive of funding needs,
and we thank them for their personal efforts. In summary, Mr.
Chairman, as a fellow Californian, I appreciate you bringing
your esteemed Subcommittee here to listen to the public
regarding these important issues.
I very much appreciate hearing the views of those who are
testifying today, and I assure you that the BLM here in
California remains strongly committed to trying to reach a fair
and balance approach to management of the public lands in this
important region.
That concludes my summary, and I have written testimony
provided for the record. I have also provided the Subcommittee
with an additional transcript of my written testimony. And I am
glad to answer any questions that you may have.
[The prepared statement of Mr. Pool follows:]
Statement of Mike Pool, State Director,
California Bureau of Land Management
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify today on access to the California Desert
National Conservation Area (CDCA) and, in particular, the Imperial Sand
Dunes Recreation Area.
Background
In 1976, with passage of the Bureau of Land Management's (BLM)
organic act, the Federal Land Policy and Management Act (FLPMA),
Congress recognized the 25 million-acre CDCA as unique among landscapes
throughout the country. When the CDCA was designated as part of FLPMA,
Congress highlighted a wide range of land management challenges in this
area. Some of these challenges include the very same conflicts you are
examining today--that is, how to balance recreational access, primarily
off-road vehicle access, with the protection of sensitive desert
resources, particularly rare and endangered plant and animal species.
FLPMA also recognized that these very special public land resources
were ``uniquely located adjacent to an area of large population.''
The challenges Congress recognized when it created the CDCA twenty-
seven years ago are even more daunting today. For example, in 1976,
there were only five plant or animal species in the California Desert
that were listed as either threatened or endangered under the
Endangered Species Act (ESA). Currently, there are 10 plant species and
14 animal species in this region listed by the U.S. Fish and Wildlife
Service (FWS). Moreover, the urbanization of this region has increased;
the population in Southern California has grown from an estimated 12
million in 1976 to 20 million people today. Dramatic growth has
occurred in the western desert region, often referred to as the
``Inland Empire.''
To address these resource management challenges, FLPMA directed the
BLM to prepare a comprehensive, long-range plan for the ``management,
use, development, and protection'' of the public lands in the CDCA.
Congress established the California Desert Conservation Area Advisory
Committee to ensure full citizen involvement and participation in this
important planning process. The overall plan, developed in cooperation
with the State and local governments, was completed in 1980. Twenty-
three years later, the BLM is in the midst of updating that plan
through six regional plan amendments. The California BLM is working
diligently to balance the various competing public interests as we
develop these plan amendments. It is our goal to allow public access
and use of the CDCA consistent with the resource and species protection
requirements of the ESA.
Plan Amendments
For the last three years, the BLM has been working to complete plan
amendments for the six plans that encompass the CDCA. The plan
amendments fulfill the requirements of five consent decrees entered
between August 2000 and April 2001, in connection with a lawsuit filed
by the Center for Biological Diversity, Sierra Club, and Public
Employees for Environmental Responsibility against the BLM. The
resulting plan amendments, while controversial and very time-consuming,
have been developed with substantial public, State and local government
input. At present, we have completed four of these amendments. They are
the Northern and Eastern Colorado Desert, the Northern and Eastern
Mojave Desert, the Coachella Valley, and the Western Colorado Desert
amendments. Attached to this statement is a detailed update on the
progress of these four plan amendments. The two remaining plan
amendments, covering the Imperial Sand Dunes Recreation Area and the
West Mojave Desert, are still underway, and are discussed more fully
below.
The Imperial Sand Dunes (Dunes) comprise 160,000 acres located
approximately 130 miles to the east of us. We are in the final stages
of developing a major update to our Recreation Area Management Plan
(RAMP) for the Dunes. The RAMP was originally developed in 1987. The
Dunes provides world-class recreation opportunities for off-highway
vehicles (OHV). Over a million recreationists come to the Dunes
annually to enjoy its vistas and OHV opportunities. In 2002, 1.2
million people visited the Dunes, with visitation during the busy
Thanksgiving holiday weekend exceeding 170,000. As one of the most
popular OHV areas in the Southwestern United States, the Dunes presents
significant management challenges, including law enforcement, visitor
safety and services, and protection of sensitive resources.
The 1998 listing of the Peirson's milk-vetch as a threatened
species by the FWS required the BLM to determine how to balance
recreation use with resource protections under the ESA. We believe the
plan now being finalized achieves this balance, through the creation of
a 33,000-acre adaptive management area that will allow us to monitor
the plant while still providing limited OHV access to determine the
impacts of interaction between the plant and OHV use. While settlement
of the litigation required us to close approximately 49,000 acres of
the Dunes, our proposed plan would re-open those lands to OHV use,
including the 33,000 acres within that adaptive management area. A
Final EIS/Proposed Plan was released on May 23, 2003. Since the end of
the required 30-day public protest period, the BLM has been evaluating
11 protests it has received.
On August 5, 2003, the Service proposed to designate critical
habitat for this species on approximately 52,780 acres of sand dunes in
Algodones Dunes in Imperial County, California. Earlier this year, the
Service completed consultation on BLM's draft Recreation Area
Management Plan (RAMP) for the Dunes. Based on the review of the draft
RAMP and the provisions to conduct monitoring and study efforts, the
Service determined that implementation of the RAMP would not likely
jeopardize the continued existence of the Peirson's milk-vetch in the
Algodones Dunes within the next four years.
The West Mojave Plan, a resource management plan amendment which is
also an interagency Habitat Conservation Plan (HCP), was prepared in
collaboration with the region's cities, counties, State and Federal
agencies, and covers 9.3 million acres in the western portion of the
Mojave Desert. It includes within its boundaries China Lake Naval
Weapons Center, Edwards Air Force Base, Fort Irwin, the Marine Corps
Logistics Base at Barstow, and the Marine Corps Air Ground Combat
Center. It is by far the most comprehensive of the six regional land
use plans and is intended to streamline and develop less costly
procedures for complying with the requirements of both the Federal and
California Endangered Species Acts. The HCP is intended to stimulate
economic development within this rapidly growing region while
conserving more than 100 identified Federally-listed, State-listed and
sensitive plant and animal species.
The HCP would establish a balanced and equitable program that would
cut permitting costs in half, eliminate construction delays through the
adoption of a pre-approved conservation and mitigation strategy, and
enhance business planning certainty. Cost reductions would result
primarily from the elimination of the administrative costs associated
with the preparation of the reports and applications necessary to
obtain incidental take permits. The HCP would allow for appropriate
resource use and community expansion. The West Mojave Plan would also
include a regional strategy for conserving sensitive wildlife species
that would be implemented in a collaborative manner by local
governments and State and Federal agencies. The plan would be
implemented on public lands through the amendment of the BLM's CDCA
Plan, and on private lands through the issuance of programmatic
incidental take permits to local cities and counties by the California
Department of Fish and Game and FWS.
An important part of this effort has been designing a network of
motorized vehicle access routes for the western Mojave Desert to
provide access to recreation venues, commercial and industrial sites,
and other destinations. On March 21, 2003, the BLM published an
environmental assessment that examined the impacts of establishing a
vehicle access network. A 30-day public comment period followed. On
June 30, 2003, the Record of Decision was issued for the West Mojave
route designation. This access network is also included in the draft
West Mojave Plan/HCP now out for public comment. The 90-day public
comment period on the draft plan will close on September 12, 2003.
Conclusion
The CDCA is a vast, challenging, controversial, and fascinating
resource area. In keeping with Secretary Norton's 4Cs--consultation,
cooperation and communication all in the service of conservation--the
BLM remains steadfast and committed to reaching a fair and balanced
approach to managing the public lands in this important region. We
believe this approach will best serve the many competing needs and
interests of the area. Mr. Chairman, that concludes my testimony. I
would be happy to respond to any questions the Committee may have for
me.
______
Mr. Radanovich. Thank you, Mr. Pool. I appreciate your
testimony. Mr. Thompson, welcome to the Subcommittee, and you
may begin yours, and then we will open it up to the panel for
questions.
STATEMENT OF STEVE THOMPSON, CALIFORNIA-NEVADA OPERATIONS
OFFICER, U.S. FISH AND WILDLIFE SERVICE, SACRAMENTO, CALIFORNIA
Mr. Thompson. Thank you, Chairman Radanovich, and
Congressman Pombo, and Congressman Filner. Again, my name is
Steve Thompson, and I am the manager for the Fish and Wildlife
Service operations in California, Nevada, and the Klamath
Basin. and so we certainly have our hands full with Fish and
Wildlife Service issues in the two States and Klamath.
The Service really appreciates the invitation to make a
presentation today about the Desert Tortoise Recovery Plan and
its impact on access to Federal Land. The Service has a long
history of working closely with the Bureau of Land Management,
and Mike Pool and his staff, and John Jarvis of the National
Park Service, and the State agencies, such as Bob Hiatt at Fish
and Wildlife and their Fish and Game here in California, and
Terry Cropworth in Nevada.
Now, our purpose is the use of the public lands while
providing for conservation and recovery of the Desert Tortoise
and other listed species. The Desert Tortoise is one of the
better known inhabitants of the California desert, and is
currently listed as threatened under the Endangered Special
Act. In 2994, the Service finalized critical habitat for the
Mojave Desert population in California, Nevada, Arizona, and
Utah.
Now, this is a species that has been well studies by over
40 years of research in the desert community and we still need
to know a lot more about the desert tortoise. There is a
tremendous amount of information that has yet to be learned.
We also finalized the recovery plan for the tortoise in
1994, and the goal of the recovery plan is to protect habitat
and reduce mortality, through the establishment of management
actions and partnership efforts, leading to the eventual
delisting of the species.
Recovery implementation balances conservation for the
Desert Tortoise, with continued use of public resources. We
continue to try to accomplish our primary objectives with the
cooperation and involvement of local communities, land
management agencies, State Fish and Wildlife agencies, and
other partners.
The Desert Tortoise Recovery Team was disbanded after the
final recovery plan was approved by the Service in 1994.
Subsequent recovery implementation and monitoring became a
conservation strategy taken on by the Desert Tortoise
Management Oversight Group, and the Desert Managers Group.
Because recovery implementation occurs largely on public
lands, recovery guidance and oversight involves land managers
such as the Department of Defense, BLM, the National Park
Service, as well as the Fish and Wildlife Service.
Based on new information which indicates that there is a
substantial decline in the Desert Tortoise population in
numerous areas the Service is conducting a formal review for
the 1994 recovery plan.
In March of 2003, we formed an assessment team of
scientists, comprised with expertise in desert tortoise
biology, conservation biology, desert ecology, and disease,
along with the scientists that would review the monitoring
techniques to address concerns raised by the report completed
by the GAO in December of 2002.
The assessment committee will reassess the recovery plan,
and recommend changes based on the new information. This
assessment process is open to stakeholder involvement, and the
assessment committee will submit a report with their
recommendations to the Desert Tortoise Management Group and the
Desert Management Group, or excuse me, the oversight group, for
consideration by January of 2004.
These groups will then use this new information to revise
the recovery plan, which will take approximately 1 year. In our
attempt to balance species recovery with appropriate land use,
the BLM and the Service has been challenged on several lawsuits
related to the Desert Tortoise.
We currently have active lawsuits from environmental
groups, to the off-road vehicle groups. Finding a balance
between recreational use and environmental protection in the
California desert is truly a challenge and our goal.
Mr. Chairman, the Service is diligently working with BLM
and interest groups so that an appropriate number of roads and
trials can be developed that allows for both the conservation
and the recovery of the desert tortoise, and access to the
California desert.
We are required by law to work toward the recovery of the
desert tortoise. But we don't do it alone. We welcome the
participation of any and all users of the desert, and only with
broad participation can we develop plans that will protect the
desert for people, and our tremendous wildlife heritage that we
have in this country.
We thank you for the opportunity to present this testimony,
and I will be happy to answer any questions.
[The prepared statement of Mr. Thompson follows:]
Statement of Steve Thompson, Manager, California/Nevada Operations
Office, Fish and Wildlife Service, U.S. Department of the Interior
Mr. Chairman and Members of the Subcommittee, thank you for the
invitation to appear before you to present testimony regarding the
desert tortoise recovery plan and its impact on access to Federal land
in the California Desert Conservation Area and the Imperial Sand Dunes
Recreation Area. I am Steve Thompson, Manager of the U.S. Fish and
Wildlife Service's (Service) California/Nevada Operations Office.
The Service is working with the Bureau of Land Management (BLM),
the National Park Service (NPS), and State wildlife agencies to provide
access and use of public lands while providing for the conservation and
recovery of the desert tortoise and other listed species. We are
required by law to work toward recovery of the desert tortoise; but we
cannot do it alone. We encourage and welcome your assistance and
guidance and the participation of any and all users of the desert. Only
with broad participation can we develop plans that will conserve
imperiled species and their habitats.
Background
The desert tortoise is one of the better known inhabitants of the
California Desert and is currently listed as threatened under the
Endangered Species Act (ESA). Information on high mortality rates
associated with a respiratory disease resulted in the emergency listing
of the Mojave desert tortoise as endangered in 1989. In 1990, further
review of other threats to the desert tortoise, such as habitat loss
and degradation and predation by common ravens, led to its listing as
threatened. In 1994, the Service finalized critical habitat for the
Mojave Desert population in California, Nevada, Arizona and Utah.
The threatened Peirson's milk vetch is another listed species found
in the area. On August 5, 2003, the Service proposed to designate
critical habitat for this species on approximately 52,780 acres of sand
dunes in Algodones Dunes in Imperial County, California. The Service
listed the plant as a threatened species under the Endangered Species
Act in 1998 primarily because of threats to the plant by off-highway
vehicle use. Earlier this year, the Service completed consultation on
BLM's draft Recreation Area Management Plan (RAMP) for the dunes. Based
on the review of the draft RAMP and the provisions to conduct
monitoring and study efforts, the Service determined that
implementation of the RAMP would not likely jeopardize the continued
existence of the Peirson's milk-vetch in the Algodones Dunes within the
next four years.
Desert tortoise recovery plan
The Service initiated work on the recovery plan for the desert
tortoise in October 1990 with the establishment of a recovery team
including nationally recognized scientists in desert tortoise biology,
conservation biology, desert ecology, and diseases of reptiles. The
recovery team incorporated scientific data provided by researchers from
the Service, BLM, NPS, and four State wildlife agencies from
California, Nevada, Arizona and Utah, and from universities from
southern California, Nevada and Colorado. The recovery team completed a
draft recovery plan in 1993 and, after an opportunity for public
comment, finalized it in 1994.
The desert tortoise faces a variety of threats to its recovery.
Upper respiratory tract disease, predation by the common raven, and
habitat loss and degradation are among the foremost threats facing this
species in the areas covered by the recovery plan. Human activities
contribute to these sources of mortality by altering landscapes, which
in some cases can increase resources for the common raven.
The recovery strategy for the desert tortoise is based on accepted
principles of conservation biology, including the creation of habitat
reserves (desert wildlife management areas, or DWMAs) of sufficient
size with establishment of adequate regulatory mechanisms to halt
human-caused habitat destruction, degradation, and fragmentation and
direct mortality of the species. To achieve the goal of habitat
protection and species persistence, the recovery plan identifies and
recommends, based on an extensive body of published literature, that
certain types of management actions be taken to assist in the recovery
of the species. In addition, the recovery plan called for monitoring of
the recovery units to document the species condition over time.
Furthermore, the plan identified delisting criteria which include: 1)
as determined by a scientifically credible monitoring plan, the
population within a recovery unit must exhibit a statistically upward
trend or remain stationary for at least 25 years; 2) the long-term
viability of desert tortoise populations within a recovery unit must be
ensured through habitat protection or intensive management; 3)
provisions must be made for population management within each recovery
unit so that discrete population growth rates are maintained or
increased; 4) regulatory protections or land management commitments are
to be implemented to provide for the long-term protection of the
species and its habitat; and 5) the population in the recovery unit is
unlikely to need protection under the ESA in the foreseeable future.
Based on the Desert Tortoise Management Group's (MOG) and others'
input, the best available scientific and commercial data available at
the time was used to formulate the management actions and options
recommended in the recovery plan. The goal of the recovery plan is to
protect habitat and reduce mortality via the establishment of
management actions and partnership efforts, leading to the eventual
delisting of the species. The recommendations in the recovery plan were
consistent with BLM's Management Plan for desert tortoise habitat
protection and with the NPS goals for Mojave Desert habitat protection.
To achieve the goal of habitat protection and species recovery, the
recovery plan identifies and recommends management actions be taken to
assist the recovery of the species. Management actions target the
recovery needs for each recovery unit, and land management agencies,
both Federal and State, establish the specific boundaries and
management of these areas through their land use plans.
Recovery Implementation
Recovery implementation balances conservation of the desert
tortoise with continued use of public resources. We continue to
accomplish recovery objectives for the desert tortoise recovery with
the cooperation and involvement of local communities, land management
agencies, State fish and wildlife agencies and other partners. With the
help of local communities, tortoise-proof fencing has been constructed
along major roads and highways that bisect important tortoise habitat.
In addition, other activities have contributed to recovery
implementation including: the removal of excess wild horses and burros;
the U.S. Department of Agriculture - Wildlife Services has conducted
raven-control activities in Nevada to protect young tortoises
vulnerable to raven predation; research has been initiated and
conducted to address desert tortoise recovery issues including disease,
translocation techniques, and effects of grazing; livestock permits
have been purchased from willing sellers; habitat has been enhanced or
restored through the efforts of many conservation partners; and a
range-wide population monitoring program was initiated in 2001 to
identify population trends and document recovery.
Management actions in these conservation areas are not the sole
decision of the Service or the BLM. We are a member of two
organizations that provide management guidance related to tortoise
recovery throughout the Southwest--the MOG, which is chaired by the
Service, and the Desert Managers Group (DMG). Both groups have
representatives from several federal and state land management
agencies. These groups also seek input from the users of the desert,
from environment organizations to off-road enthusiasts.
The Desert Tortoise Recovery Team was disbanded after the final
recovery plan was approved by the Service in 1994. Subsequently,
recovery implementation and monitoring became a responsibility of the
MOG and the DMG for the California deserts. The MOG and DMG work in
concert to coordinate rangewide desert tortoise recovery
implementation. Because recovery implementation occurs largely on
public lands, recovery guidance and oversight involves land managers
such as the Department of Defense, BLM, NPS, as well as the Service,
which are all represented in the MOG and DMG.
The Service has worked as a member of the MOG to outline processes
and time frames for completing Section 7 consultations on BLM's land
use plans. Since the listing of the desert tortoise and other species
in the California Desert Conservation Area, the Service has issued over
250 biological opinions, which have allowed the BLM and the public the
ability to use and enjoy these lands. In addition, the Service has
developed programmatic biological opinions, which allowed and continue
to allow BLM activities and projects to go forward in desert tortoise
habitat where the effects of the activities are expected to be small.
Land use prescriptions recommended in the recovery plan have been
implemented across the range of the desert tortoise to a limited
extent. In its December 2002 report to Congress, the General Accounting
Office stated, ``To protect the tortoise, government agencies have
restricted grazing and off-road vehicle use and taken other protective
actions in desert tortoise habitat, but the effectiveness of these
actions is unknown. Research is underway, in several areas, including
tortoise disease, predation, and nutrition, but the research has not
assessed the effectiveness of the protective actions.'' The Service
believes that the effectiveness of recovery actions is difficult to
determine because desert tortoises may not respond in a measurable way
for a number of years following implementation of recovery actions
because of the length of time required for desert tortoises to reach
maturity. Years of below-average rainfall will further slow the pace of
recovery of the numbers of desert tortoises and the condition of their
habitat.
The future of desert tortoise recovery
Based on new information that indicates substantial declines in
desert tortoise populations in numerous areas throughout its range, the
Service is conducting a formal review of the 1994 recovery plan. In
March 2003, we initiated an assessment of the 1994 plan by forming an
Assessment Committee comprised of scientists with expertise in desert
tortoise biology, ecology and disease, along with scientists who will
review the monitoring techniques to address concerns raised by the
recently completed GAO report. The Committee will reassess the recovery
plan to gather and evaluate existing and new information on the status
and trends of desert tortoise populations and recommend changes to the
recovery plan based on new information. This assessment process is open
to involvement from interested parties through participation in the MOG
and DMG monthly meetings. The Committee will submit a report with its
recommendations to the MOG and DMG for consideration by January 2004.
These groups will use this new information to revise the recovery plan,
which will take approximately one year.
A desert tortoise disease workshop was conducted in November 2002,
involving wildlife disease experts. At the workshop, the group
concluded that the cause of mortality is influenced by multiple factors
including drought, poor nutrition, environmental toxins, predation, and
habitat degradation including human developments and infrastructure.
These factors, in combination, may cause disease and mortality. The
California Department of Fish and Game and U.S. Geological Survey are
preparing a report which summarizes the discussions and recommendations
from the workshop to address disease management. We anticipate this
report in the near future.
In our attempt to balance species recovery with appropriate land
use, the BLM and Service have been challenged in several lawsuits
related to the desert tortoise. We currently have active lawsuits from
environmental groups and off-road vehicle groups. Finding a balance
between recreational use and environmental protection in the California
Desert is truly a challenge and our goal.
Conclusion
Mr. Chairman, the Service is diligently working with BLM and
interest groups so that an appropriate network of roads and trails can
be developed that allows for both the conservation and recovery of the
desert tortoise and access to the California desert. We are required by
law to work toward recovery of the desert tortoise; but we don't do it
alone. We welcome the participation of any and all users of the desert.
Only with broad participation can we develop plans that will protect
the desert for people and wildlife. Thank you for the opportunity to
present this testimony and I would be happy to answer any questions.
______
[Mr. Thompson's response to questions submitted for the
record follow:]
Responses to questions submitted for the record by Steve Thompson,
Manager, California/Nevada Operations Office
The following are responses to questions raised at the above-
referenced hearing regarding reported declines in desert tortoise
populations within wilderness areas in the California Desert
Conservation Area and concerns about the listing of Peirson's milk-
vetch, which was published on October 6, 1998.
Regarding desert tortoise populations, recently published studies
conducted in the California desert by researchers with the U.S.
Geological Survey Biological Research Division have reported population
declines at several permanent study plots. We are currently reviewing
these studies to determine if they provide evidence of long-term
population trends in wilderness areas in the California desert.
In his testimony, David Hubbard, Counsel for the Off-Highway
Recreation Community, stated that the U.S. Fish and Wildlife Service
(Service) had requested additional information regarding the Peirson's
milk-vetch from the Bureau of Land Management (BLM). Mr. Hubbard
emphasized that the Service never received this requested information,
and asked why, despite this lack of response, we moved forward to list
the plant. We believe he is referring to our November 14, 1996,
memorandum (Attachment 1) to BLM that requested ``additional
information on the abundance of Peirson's milk-vetch on BLM lands''.
Our memo described what documents the Service had and asked specific
questions to determine if BLM held other pertinent information. BLM
provided no written response to our memo, but they did provide a letter
(Attachment 2) during the earlier comment period which stated that no
additional information or monitoring on the Peirson's milk-vetch had
been conducted since 1992.
Although BLM was not able to provide us with additional information
regarding the Peirson's milk-vetch, we determined that the species
should be listed, based upon the best available science. For any
listing decision, the Service evaluates the five factors prescribed in
section 4(a)(1) of the Endangered Species Act. After our evaluation of
all the listing factors in section 4(a)(1), the Service concluded that
Peirson's milk-vetch should be listed as threatened (rather than
endangered) based on specific concerns relative to factors A (the
present or threatened destruction, modification, or curtailment of its
habitat or range), D (inadequacy of existing regulatory mechanisms),
and E (other natural or manmade factors affecting its continued
existence). A copy of the five factor analysis from the Federal
Register notice listing the plant and a bibliography which demonstrates
the science used by the Service in deciding to list the Peirson's milk-
vetch are attached (Attachment 3).
You also expressed concern at the hearing that Service staff
disagreed on the listing of Peirson's milk-vetch. We have reviewed the
available information and have determined that the Ventura Fish and
Wildlife Office and Carlsbad Fish and Wildlife Office were in agreement
on the listing decision (Attachment 4).
Finally, the Service recently made a 90-day finding that the
petition to remove Peirson's milk-vetch from the Federal List of
Threatened and Endangered Wildlife and Plants presented substantial
information indicating that delisting this plant may be warranted. We
have initiated a status review to determine if delisting this species
is warranted. The comment period to provide information to the Service
to be considered for the 12-month finding closed on November 4, 2003.
______
Mr. Radanovich. Thank you very much, Mr. Thompson. I do
have a couple of questions that I am going to start asking. Mr.
Pool, you had mentioned that the Center for Biological
Diversity has filed a lawsuit in conjunction with the Sierra
Club and the Public Employees for Environmental Responsibility
against the BLM.
What has been the financial impact of that lawsuit in terms
of time and responding to it and such. Can you give me an idea?
Mr. Pool. Well, we have estimated that it is close to $9
million over a 3 year period. It has been very expensive, and
very time consuming, and laborious, because those were court
ordered deadlines in which to complete the plans.
Mr. Radanovich. What has been the effect of these lawsuits
and your overall ability to manage the desert and maintain
consensus with your various constituencies?
Mr. Pool. I think that it has taken away from kind of part
of our culture, BLM's culture for many, many years, to actually
collaborate and sit down and talk to people, to public land
users, and when you get into litigation arenas, I think it
takes on kind of a life of its own. It is derisive, and causes
polarization among the users, and polarization with county and
local governments.
Litigation can take people into a venue where they perhaps
are excluded. They don't have a stake at the table. So I think
it has been a heavy impact on the agency, and ever since that
suit has been filed, and we have followed through or attempted
to follow through diligently on the consent decrees, we have
then tried to rebuild these relationships.
We value our public users. Our field offices are in close
proximity to areas where we deal with our users every day. But
this has been kind of a new phenomenon for BLM on a grand
scale. With the courts and deadlines that are dictating our
outcomes, as opposed to taking more time to sit down and talk,
and collaborate all interests at the table.
And I am hopeful that once we get these plans complete that
we can move back into that arrangement and plan implementation.
Mr. Radanovich. Thank you. It was mentioned by some of the
other people that were addressing the Committee that the Desert
Advisory Council, whose members are appointed by the Secretary,
and by other folks, it was mentioned that the BLM is sometimes
unresponsive to their recommendations or input. What would be
your response to that? It was mentioned that there were these
10-to-2 votes,
Mr. Pool. Yes, and I am aware of some of those dynamics. We
do value our council. They are nominated and they are selected
to advise the BLM in a variety of program categories. Some, and
not all, but some cases partially do we adopt the
recommendations.
I would say that in the last 3 years, because of the
emphasis placed on these plans that we were not able to adopt
all or part of the recommendations, but to the extent possible,
we tried to factor the recommendations and thoughts into our
land use plans.
The land use plans were the driving force because of the
consent decree and the timeframe in which to complete these
plans.
Mr. Radanovich. Mr. Thompson, I just want to ask briefly if
I may, and I don't know too much about the Desert Tortoise, and
I don't have any desert in my district, and so this is all
pretty much new to me. But I understand that there is an 80
percent mortality rate in the Desert Tortoise on land
designated as wilderness.
In other words, in lands where there is on recreational use
permitted, how do you reconcile that? Is that something that is
a tough thing to reconcile, or--
Mr. Thompson. I am not aware of that number, and so that is
a new number to me. I can ask the biologists and get a answer
back to you in writing to answer that question, but that is
something new to me.
Mr. Radanovich. All right. Under the Desert Recovery Plan,
in the absence of monitoring, how do you determine the
effectiveness of the Desert Tortoise Recovery Plan?
Mr. Thompson. Well, we do have a monitoring program going
on and previously there was a density system that was working
and we are now in a line sampling system that is in, I believe,
its third year.
And my understanding is that we will be doing that for
another couple of years until we can get a trend established
and a baseline to move from that. The problem or the challenge
that we have I guess is that sampling on an area from Nevada,
and Utah, and California, it is huge area to sample, and to get
a typically significant sample costs a significant amount of
dollars.
All the agencies, including the Park Service, BLM, and a
huge push in the Department of Defense, we have been able to do
as much monitoring as we can afford. But we need to do more.
Mr. Radanovich. And my question was based I guess on a GAO
2002 report which criticized the Fish and Wildlife for its lack
of monitoring of the Desert Tortoise, and am I to understand
that those have been changed on what has been happening since
then?
Mr. Thompson. Yes.
Mr. Radanovich. All right. Thank you. I am going to have to
leave. I have a six o'clock flight out to go back home, but I
just wanted to thank the Chairman for holding this Subcommittee
hearing here, and I think it is really good to get this
information in the record, and I appreciate the opportunity to
do that, and so we will recognize my Chairman for any
questions.
Mr. Pombo. I am going to recognize Mr. Filner for any
questions that he may have at this point.
Mr. Filner. Just briefly, I think, George, that you showed
in your colloquy with Mr. Pool the difficulties when you get
into litigation. I mean, with litigation, and again I would
just say--and I say it with all sincerity, and not to cause you
any--or just to be ornery or anything.
The only way to avoid that is to get people into the same
room and talking with one another, and get them at the same
table and try to figure it out. I don't know about the past,
but if we are going to go like this, we are never going to get
out of litigation.
I mean, you have one side that says one thing, and the
other side another, and there are different rooms, and
different times, and they just clash. And there will be
litigation out of that.
We are in this business of politics because we believe that
there is rational decisionmaking that is possible, and there
are compromises that are there, and people have to give and
listen, and out of that process we believe that good policy can
come out.
And I would just encourage you in the future to try to get
that discussion--and again, I don't know what has happened in
the past, but all I can see is what I see in front of me, and
we are not having that kind of discussion and we ought to.
And I would pledge to be there and to have that discussion
so we can in fact get away from spending $9 million in 3 years
on litigation, which we all recognize is stupid, and it just
does not help anybody.
And we ought to figure out from people who wear the orange
shirts, and people who don't wear the orange shirts, how to get
that dialog done rationally. Thank you.
Mr. Pombo. Well, I would just say to my colleague that
welcome to our world. In the years that I have had the
opportunity to be a member of Congress and to work on these
issues, the conflict that is there sometimes is--that you see
no way around it.
And you work extremely hard to try to solve the problems.
Mr. Pool, we have handed you what in my determination would be
an impossible job, and that is to manage an area under a number
of different Federal laws, with a number of different judges'
decisions coming down on top of you, and told you to figure it
out.
If we were able to stop the clock where we are right now
with all of the decisions that have been made with all of the--
of what I believe are contradictory Federal laws that are in
place that you have to somehow manage this millions and
millions of acres under, do you think that it would be possible
to work out a multiple use plan for the desert that would
protect the areas that are pristine, and the areas that are
wilderness, and to protect those as wilderness areas; and to
set aside the areas that are endangered species habitat, and
come up with some kind of a plan that would allow this multiple
use that we gave you, and we told you that it had to be managed
as multiple use, could you put that all together if we could
just stop the legal clock for a minute? Is it possible to put
that together?
Mr. Pool. That is a tough question. I think in looking at
Southern California that what has happened over several years
is that the desert is being allocated, and some of these
allocations are permanent.
Other allocations are still pending, like WSAs. Even when
we complete these plans, we will get new demands on the
landscape. So as the demands grow, and with the conservation in
use, the landscape is finite. So the pressures will continue.
I guess in reference to your question, Congressman, I feel
strongly that how we go about these allocations should be done
in an open collaborative way, such that people can feel
comfortable to meet, and to discuss, and respect the other
person's point of view, and the best solutions that I have seen
in public plan management is when we create and allow those
forums to become synergistic.
People come up with new ideas, and I can say that everybody
that I have gotten to know in this room today has always had
that attitude, and have always expressed a willingness to work
with BLM in a collaborative way and to go the extra step to
assist on the ground.
But there are those on the fringe, on the environmental
fringe, that have no desire to do that whatsoever, and that I
think is part frustration, and that's why I think we will
continue to see more lawsuits, and countersuits, and it is
enforcement that many of the land use decisions that we are
obligated to make given our multiple resource charter is
dictated by the courts.
And so I am hopeful that with these new planning efforts,
and they are by no means perfect, as they never are, that we
can move forward and work with our user groups. And I will add
this. That these plans will be extensive. The 1980 plan was
extensive.
And I think back in the '80's when BLM, and not only in
California, but elsewhere, prepared a variety of land use
plans. We were reliant, and perhaps solely reliant, on
Congressional appropriations.
And I think that in recent years that we have learned how
to better leverage our resources to challenge cost shares,
forming fringe groups, foundations, and building upon our
volunteer program.
The public lands belong to all members of the public, and
the Bureau cannot go it alone. We need their assistance in all
of our use categories, particularly recreation here in Southern
California, to help manage these areas in an effective manner.
Mr. Pombo. Well, I have got to tell you that I really do
feel for you on the job that is in front of you, because--and
the reason that I asked the question the way that I did, if we
could stop the clock for a minute, was because we both know
that no matter what solution that you come up with that there
will be new lawsuits filed.
And that changes the dynamic of everything and our ability
to try to sit down and get different groups at the table and
work something out. As long as there is always a constant
threat of another lawsuit coming down, it makes it extremely
difficult to effectively manage these areas.
I think that most people that are the off-road groups and
the outside users, the mining groups, they just want some
certainty in this process. Tell us what we can do and what we
can't do, and then leave us alone.
And with that constituency, I think that is the most
frustrating part, and one of the reasons why we are holding
this hearing today is because of the frustration of so many
people who have contacted the Committee and contacted me
personally.
Mr. Pool. I can appreciate that.
Mr. Pombo. Mr. Thompson, just a couple of questions for
you. In your prepared statement, you--and I am paraphrasing,
and this may not be exactly what you said. But you said a
balance between conservation and access.
The Endangered Species Act really does not allow you to do
that. The Endangered Species Act requires you to do whatever it
takes to recover that species.
Mr. Thompson. Well, we do have some flexibility with the
Act, and I think it gets back to your earlier discussion about
what I would really characterize as non-discretionary
deadlines. And those are legal deadlines now that--both legal
and through the courts that are on us.
When we have the time to sit down--and we have some
outstanding biologists, and they do a darn good job in my
opinion of sitting down with all folks and working through
tough challenges. There is some flexibility in the Act, and we
have to take care of the species, and that is what the Act says
to do.
But when we are able to sit down with BLM up front and work
hard through the process, we have done over 250 biological
opinions in the desert, and the majority we have not heard
about today. There have been some that we have had difficulty
in getting through.
So there is some flexibility in the Act, and if we had more
time, we can normally work through these issues and get to a
solution that people can live with and can also recover the
species.
Mr. Pombo. One of the issues that was testified to earlier
involved new data and new studies that have been done on
Peirson's Milk Vetch, and I believe the gentleman's name was
Dr. Arthur Phillips.
And the gentleman testified--Mr. Bramham testified
earlier--about this new information that had come up. Are you
familiar with that, and have you had a chance, or have the
people in your agency had an opportunity to review that?
Mr. Thompson. Yes, they have. They presented the data to us
as part of their package, and we reviewed that with all the
other data that is out there. We have to use the best available
science to make a decision, and that is certainly part of it,
the data presented by the folks today.
Mr. Pombo. And I wouldn't ask you to prejudge what decision
would come of that, but if a delisting procedure would be asked
for, at that time you would pull in all of this new information
and look at the possibility of delisting?
Mr. Thompson. Yes. The first thing that we would do is make
a 90 day finding, and at that point we would determine whether
it was substantial or not, and then make a recommendation to
the Director and to the Secretary, and they would make the
final decision.
Mr. Pombo. Just out of curiosity, on the original listing
on the Milk Vetch, what was the scientific information that
that was based on?
Mr. Thompson. I would have to get back to you on that. I
have not read the original package, and a part of it was the
threats from the off-road vehicles, and that is part of the
package that came in and I do know that part. But I would have
to look at the original data and I have not seen that.
Mr. Pombo. If you could provide that for the community, I
would appreciate it, because I would be very interested to know
what science was used in making that original decision. What
year was that listed? Do you remember or does anybody know?
'98?
Mr. Thompson. 1998.
Mr. Pombo. All right. If you could provide that on what
information was used, because as you know, we have been working
on the science provisions in the Endangered Species Act for the
past few years, and we really would like to get to a point
where we have more confidence in the science that is being
used, and give you guys the ability to have more confidence in
the decisions that are being made.
I know that that when you get in the middle of lawsuits
that sometimes a lot of that gets lost, but we would at least
like to give you guys a fair shot at having better science, in
terms of that. Mr. Filner, do you have any further questions?
Mr. Filner. No, I would just thank you for coming down to
San Diego. I do appreciate people sitting through several hours
of testimony. I think we all learned from it. I came to learn,
and I have learned a lot, and I will continue to try to learn
from what appears to be two sides here.
Just one thing, Mr. Pool, bothered me I guess a little bit
on your statement to the Chairman, where you used the
statement, environmental fringe. You were not implying that
there was a fringe on only one side of this issue?
Mr. Pool. No, no.
Mr. Filner. That everybody on one side is OK, and the other
side is not?
Mr. Pool. No, let me correct that. There is fringe on every
program category. I mean, over the course of my career. I am
just saying that for what we have been dealing with more
recently in Southern California, it seems like that there is an
environmental fringe that purposely elect not to participate in
a lot of our forums.
And from scoping, to people devoting time at evening
meetings, and on weekends, to try to come up with a consensus,
and it is not as if they have been excluded and they are not
invited. They have.
But it seems that the only tool that they elect to place on
BLM is litigation, and that is what I am saying, Congressman.
Mr. Filner. All right. Well, Rich, I hope that we can find
some way to improve some of these things that cry out for
improvement. And I know that I am a new guy as you just said to
these issues, but I want to work with you to solve them, and
without putting people on two sides, if we can do that, and
getting an intelligent decision out of here. Thank you.
Mr. Pombo. Well, thank you, and I welcome your voice to the
debate. This is something that has been going on for many, many
years, and I know that with your new district that it is
something that impacts your constituency a great deal.
Mr. Pool and Mr. Thompson, I want to thank you very much
for making the effort to be here to testify. I look forward to
working and continuing to work with both of you on these issues
in the future.
Again, I want to thank our hosts for opening this facility
for us for all of the interested members of the public for
attending this. Thank you all for being here, and the hearing
is adjourned.
[Whereupon, at 5:05 p.m., the Subcommittee was adjourned.]