I. INTRODUCTION

1. This is an action for declaratory judgment and injunctive relief against the United States Department of the Interior ("DOI"), the Secretary of the Interior, and the Bureau of Land Management ("BLM"), for their failure to comply with the National Environmental Policy Act ("NEPA") and the Federal Land Policy and Management Act ("FLPMA") prior to closing significant portions of the California Desert to off-highway vehicle ("OHV") use. Specifically, plaintiffs allege that BLM violated NEPA when it closed approximately 49,000 acres of the Imperial Sand Dunes to OHV activities without first: (1) evaluating the environmental consequences of those closures, and (2) allowing public review and comment with respect to the proposed closures and their potential environmental impacts. In addition, plaintiffs allege that BLM violated the FLPMA by instituting the dune closures without first consulting with the public and affected OHV users, as is required by 43 CFR sections 1610.2, 1610.5-5, and 8342.2. In short, BLM’s closure of the Imperial Sand Dunes to OHV use constitutes a major federal action requiring NEPA review. 5 U.S.C. § 551(13); 40 CFR § 1508.18(b)(4). No such review was conducted. The closure of the dunes also constitutes a significant amendment to the existing California Desert Conservation Area Plan ("CDCA Plan") and the Imperial Sand Dunes Recreation Area Management Plan ("RAMP"), both of which currently allow OHV activities on approximately 70% of the Imperial Sand Dunes. As such, the proposed dune closures should have been subjected to public review and comment — possibly leading to revision or rejection — prior to final approval and implementation. No such public review and comment process took place. Finally, the dune closures constitute radical alterations to formally-established OHV trails. As such, they could not be implemented until BLM consulted with OHV users who might be affected by the proposed "route changes." Again, however, no such consultation took place.

2. This action arises under and alleges violations of NEPA , 42 U.S.C. § 4321 et seq., the FLPMA, 43 U.S.C. § 1701 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., as well as their respective implementing regulations.

3. For BLM’s violations of NEPA, the FLPMA, and the APA, the plaintiffs seek an order from the Court compelling BLM to lift or otherwise rescind the dune closures until they are: (1) subjected to full and proper NEPA review; (2) processed as amendments to the existing CDCA Plan and RAMP, which would entail full public notice and participation prior to approval; and (3) processed as proposed changes to existing OHV routes, which would require consultation with affected OHV users prior to approval and implementation. Such relief is necessary to redress BLM’s illegal action, to protect the human environment, and to safeguard the integrity of the public disclosure and participation policies articulated in NEPA, the FLPMA, and the APA.

II. JURISDICTION AND VENUE

4. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory relief), and 2202 (injunctive relief), 5 U.S.C. § 702 (judicial review of agency action), and 43 U.S.C. § 1701(a)(6) (judicial review of agency action under FLPMA). Plaintiffs have exhausted all available administrative remedies, and an actual controversy exists between plaintiffs and defendants within the meaning of 28 U.S.C. § 2201.

5. Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e) because: (1) at least one of the plaintiffs is based in this district; (2) many of the plaintiffs’ members reside in this district; and (3) the Imperial Sand Dunes, which are the subject of this action, are located in this district.

III. PARTIES

6. Plaintiff American Sand Association ("ASA") is a California non-profit corporation (C4) whose 15,000 members are committed to the "multiple use" principles set forth in the FLPMA — especially as those principles apply to public lands in the California Desert, including the Imperial Sand Dunes. ASA is based in Temecula, California.

a. Members of ASA routinely travel to the Imperial Sand Dunes for purposes of camping and recreating with OHVs. Indeed, ASA members have long used their OHVs in the dune areas designated as "open" in the existing CDCA Plan and RAMP. However, since BLM has instituted the dune closures challenged in this action, ASA and its members have not been allowed to pursue OHV recreation in many areas designated as "open" in the CDCA Plan and the RAMP. This, despite BLM’s failure to process a formal amendment to the CDCA Plan or the RAMP or to formally redesignate OHV routes described in those two documents.

b. In addition, ASA members use their OHVs to access certain remote areas of the Imperial Sand Dunes which cannot be reached safely on foot. At these remote locations, ASA members take photographs and pursue other interests which allow them to experience the unique aesthetics of this portion of the California Desert.

c. ASA members also pay fees to use their OHVs in the Imperial Sand Dunes, which fees are collected and used by BLM.

d. Certain ASA members own or work for businesses that are dependent on the public’s continued OHV access to the Imperial Sand Dunes.

e. ASA and its members for many years have worked with BLM in developing management plans and OHV routes for the Imperial Sand Dunes.

f. ASA, its members, and its consultants are keenly interested in the ecology of the Imperial San Dunes, and have attempted to conduct plant surveys throughout the dune system, including those areas recently closed by BLM. Many of these areas are remote and cannot be reached safely without a motor vehicle. ASA has twice requested limited vehicle access to the closed dune areas for purposes of conducting biological surveys. Both times, BLM has denied ASA’s requests.

g. As a result of BLM’s unilateral decision to close 49,000 acres of the Imperial Sand Dunes, ASA and its members have been prevented from participating in their favorite recreational activities at the location best suited for those activities — namely, the Imperial Sand Dunes themselves. Further, they have been shut out of the decisionmaking process which led to the dune closures, despite their statutory right to participate in that process and to help shape BLM’s land use policies and actions. And many ASA members have been damaged financially by the dune closures, either through lost business revenues or through diminished value of the OHV permits they have purchased from BLM.

h. Further, ASA and its members believe that the dune closures themselves will create adverse impacts on the human environment, including human safety impacts, loss of recreational opportunities, biological impacts, and diminished aesthetic experiences.

7. Plaintiff California Off-Road Vehicle Association ("CORVA") is a California non-profit corporation (C3) whose members are committed to the "multiple use" principles of the FLPMA. CORVA members routinely travel to the Imperial Sand Dunes to use their OHVs for recreational purposes. CORVA members pay fees to BLM for the right to use OHVs in the dunes; they use their OHVs to gain access to remote dune areas where they engage in a wide array of recreational activities and are able to experience the unique aesthetics of the desert. CORVA members have long enjoyed recreating in the previously-open but now closed portions of the Imperial Sand Dunes. Because their access to the dune areas has been foreclosed without proper environmental review and public input, CORVA members have been damaged. CORVA is based in Sacramento, California.

8. Plaintiff American Motorcycle Association, Inc. District 37 ("AMA-37"), is a California non-profit corporation (C7) whose members routinely use the Imperial Sand Dunes for recreational purposes. Specifically, AMA-37 members ride their off highway motorcycles in the designated "open" areas of the dune system. Like the members of ASA and CORVA, the members of AMA-37 were not permitted to participate in the decisionmaking process which resulted in the dune closures challenged in this action. AMA-37 and its members have been damaged in that they no longer can use their motorcycles in the areas recently closed by BLM. AMA-37 is based in Perris, California.

9. Defendant DOI is a department of the United States government, and is charged with overseeing the management of public lands and resources, including those in the California Desert. Defendant Bureau of Land Management is an agency within DOI.

10. Defendant Gale Norton is the Secretary of the Interior and the official director of DOI and, by extension, of BLM.

11. Defendant BLM is an agency of the DOI and the government of the United States. BLM is charged with the management of federal public lands, including lands within the Imperial Sand Dunes of Southern California. It is BLM which develops RAMPs and OHV routes for federal lands within the Imperial Sand Dunes; and it is BLM which, after receiving public input, determines whether any given area within the Imperial Sand Dunes shall be designated as "open" or "closed" to OHV use. In its actions and decisions, including those which affect the allowable uses in the Imperial Sand Dunes, BLM is legally obligated to comply with NEPA, the FLPMA, and the APA.

IV. LEGAL BACKGROUND

National Environmental Policy Act (NEPA)

12. NEPA (42 U.S.C. sections 4321, et seq.) was enacted in 1969 to "declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321.

13. To meet this policy objective, NEPA imposes certain duties on federal agencies when they are contemplating taking a "major Federal action" that may have an impact on the human environment. A "major Federal action" is broadly defined and includes "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area," as well as actions approved by permit or other regulatory decisions. 40 CFR § 1508.18(b) (4). Prior to taking such an action, the federal agency must prepare a report which evaluates the environmental consequences of that action. This report must "utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment." 42 U.S.C. § 4332(A). For smaller projects, the report may come in the form of an Environmental Assessment ("EA"), ultimately leading to a Finding of No Significant Impact ("FONSI"). 40 CFR § 1501.4. However, for larger projects, or for projects whose EA identifies potentially significant impacts, the federal agency must prepare a more thorough report, known as an Environmental Impact Statement ("EIS"). 40 CFR §1501.4.

14. The report, whether an EA or an EIS, must include a detailed statement that describes the following: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) alternatives to the proposed action; (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (v) any irreversible and irretrievable commitment of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(c). Mitigation measures must also be discussed in the report. 40 CFR § 1502.14(f).

15. Where the proposed action involves unresolved conflicts regarding uses of available resources, the federal agency must also "study, develop, and describe appropriate alternatives to the recommended courses of action." 42 U.S.C. § 4332(E).

16. Prior to finalizing the EA or EIS, the federal agency must first "consult with and obtain the comments of any Federal Agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement [the EA or EIS] and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality, and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes." 42 U.S.C. § 4332(c).

17. Perhaps the most important aspect of NEPA is its public participation component. Not only must the acting agency circulate the Draft EIS to other federal bureaus with special jurisdiction or expertise over a given impact category, it must also circulate the Draft EIS to the public itself, which in turn submits comments and evidence to the acting agency for its consideration prior to project approval. 40 CFR § 1502.19; 40 CFR § 1503.1. Once it receives comments from other federal, state, and local agencies, and from the public at large, the acting agency must respond to those comments in writing. 40 CFR § 1503.4. The responses are then incorporated into the Final EIS. In addition, NEPA requires that the acting agency make "diligent efforts" to involve the public in preparing and implementing their NEPA procedures, and provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents "so as to inform those persons and agencies who may be interested or affected." 40 CFR § 1506.6(a) and (b).

18. Only after responding to comments on the EIS is the acting agency in a position to approve the EIS as adequate. Such approval must be set forth in a Record of Decision ("ROD") which complies with the substantive requirements of 40 CFR section 1505.2. Until an agency issues an ROD, no action concerning the proposal shall be taken which would: (1) have an adverse environmental impact; or (2) limit the choice of reasonable alternatives. 40 CFR § 1506.1. Note, however, that no ROD for a proposed action and EIS shall be issued until 30 days after the U.S. EPA publishes a notice in the Federal Register that the Final EIS has been filed. 40 CFR § 1506.10.

The Federal Land Policy and Management Act (FLPMA)

19. As its name indicates, the FLPMA was enacted in 1976 to give the Department of the Interior, through BLM, the ability to set policy for and manage public lands owned by the United States Government, including those located in California. However, BLM was not to set policy and make management decisions on its own, but was to do so with the help and input of the public. 43 U.S.C. § 1712(a) and (f).

20. Under the FLPMA, all BLM decisions must be guided by the "multiple use" and "sustainable yield" principles set forth in the statute’s "Congressional declaration of policy." 43 U.S.C. §§ 1701(a)(7), 1732(a). The term "multiple use" means the "management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people . . . ." 43 U.S.C. § 1702(c). "Multiple use" also means a "combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values . . . ." Ibid. The FLPMA also requires that BLM protect the environment while also providing "for outdoor recreation and human occupancy and use" of the public lands. 43 U.S.C. § 1701(a)(8).

21. To discharge its duties under the FLPMA, BLM must prepare management plans setting forth the uses allowed on the various lands within BLM’s jurisdiction: "The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands." 43 U.S.C. § 1712(a). (Emphasis added).

22. The term "public involvement" is expressly defined in the FLPMA to mean the following:

23. As part of the process for developing and revising land use plans, BLM must give Federal, State, and local governments, as well as the public, "adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands." 43 U.S.C. § 1712 (f). To encourage public involvement, BLM must establish and take input from "advisory councils," each consisting of 10 to 15 "representatives of the various major citizens interests concerning the problems relating to land use planning or the management of the public lands" within the geographical area being affected by BLM policy. 43 U.S.C. § 1739.

24. When developing or revising a land use plan, BLM must observe the principles of multiple use and sustainable yield, and employ a "systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences." 43 U.S.C. § 1712(c). Further, BLM must make every effort to conform its land use plan with the land use plans of state and local governments. Ibid.

25. Recognizing that the federal lands within the California Desert are unique both in terms of their resources and in terms of the competing pressures placed on those resources, Congress in 1976 formally established the California Desert Conservation Area ("CDCA") to enable BLM and the public to better plan for the desert’s future. 43 U.S.C. § 1781. Specifically, the new legislation was designed "to provide for the immediate and future protection and administration of the public lands in the California desert within the framework of a program of multiple use and sustainable yield, and the maintenance of environmental quality." 43 U.S.C. § 1781(b).

26. Pursuant to the 1976 amendment to the FLPMA, BLM was to develop a comprehensive, long-range plan for the management, use, development, and protection of the public lands within the CDCA. 43 U.S.C. § 1781(d). In addition, a special advisory committee was created to advise BLM with respect to the preparation and implementation of what became known as the "CDCA Plan." 43 U.S.C. § 1781(g)

27. The current CDCA Plan was adopted in 1980, but has been amended numerous times in the last twenty years. However, the basic purpose of the CDCA Plan has remained unchanged — to establish the allowable uses within the various desert areas covered by the plan. To that end, the CDCA Plan permits a variety of individual activities, including livestock grazing, road-building, OHV use, recreational use, water diversion, energy production, utility corridors, land exchanges, mining, and other projects consistent with the "multiple use" and "sustainable yield" precepts of the FLPMA.

28. For management purposes, BLM has divided most of the CDCA into four separate planning units: (1) the Western Mojave Desert, (2) Northern and Eastern Mojave Desert, (3) Northern and Eastern Colorado Desert, and (4) the Coachella Valley. A small portion of the Imperial Sand Dunes are located within the Northern and Eastern Colorado ("NECO") planning unit. The remainder of the dunes are in a separate sub-unit, known as the Imperial Sand Dunes Recreation Management Area.

29. With respect to OHV use within the CDCA Planning Area, BLM has developed a "coding" or use-designation system to be applied to any given area of the desert. Under this system, certain areas and trails within the CDCA are deemed "open" to OHV use, while others are deemed "closed". Among those areas left open to OHV use are large portions of the Imperial Sand Dunes.

30. As part of the CDCA planning process, BLM and the advisory councils have also prepared — and at various times, revised — Recreation Area Management Plans ("RAMPs") for select portions of the desert, including the Imperial Sand Dunes. Like the CDCA Plan, the current RAMP for the Imperial Sand Dunes designates large portions of the dunes as "open" for OHV use. Both the CDCA Plan and the RAMP are "resource management plans" as defined under the FLPMA.

31. The manner in which OHV trails and "use areas" are designated in the CDCA and RAMP is itself governed by federal regulation. (43 CFR § 8342.1). Under 43 CFR section 8342.2(a), titled "Public participation," the designation and redesignation of OHV trails is accomplished through the resource management planning process. Most important, this regulation provides that: "Prior to making designations or redesignations, the authorized officer shall consult with interested user groups, Federal, State, county and local agencies, local landowners, and other parties in a manner that provides an opportunity for the public to express itself and have its views given consideration." 43 CFR § 8342.2(a).

V. FACTUAL BACKGROUND

The Imperial Sand Dunes

32. The Imperial Sand Dunes, sometimes called the Algodones Dunes, are the largest mass of sand dunes in California. The dune system extends for more than 40 miles along the eastern edge of the Imperial Valley agricultural region in a band averaging five miles in width. As indicated in the Imperial Sand Dunes RAMP, the dunes rise to heights of over 300 feet above the surrounding desert floor and are a well-known landmark to local residents and highway travelers.

33. The dune system is traversed by two major east-west highways, near which recreational use has traditionally been concentrated. In the north, State Highway 78 crosses at the small settlement of Glamis. Highway 78 connects Brawley (29 miles west of Glamis) with Blythe (60 miles northeast of Glamis). At the south end of the recreation area, Interstate 8 crosses the dunes at Buttercup Valley. Interstate 8 provides access from El Centro (40 miles west of Buttercup) and Yuma, Arizona (20 miles east). These highways also provide access to the dunes from the major urban centers of Los Angeles, San Diego, Phoenix, and Tucson, all of which are within a day’s drive of the recreation area.

34. Rainfall in the Imperial Sand Dunes varies year to year but rarely exceeds two inches annually. Temperatures can reach 110 degrees farenheit during summer days, and drop below freezing on winter nights. However, the relatively mild climate between October and May attracts tens of thousands of OHV enthusiasts to the dunes. Among the OHV users who enjoy recreating in the dunes are members of ASA, CORVA, and AMA-37 (collectively, the "plaintiffs").

35. Under the only validly approved CDCA Plan and the RAMP, the entire Imperial Sand Dunes system — except for the Algodones Natural Area and South Ogilby Dunes — is designated as "open" to OHV use. All told, the CDCA Plan allots 118,261 acres of BLM land to "open" OHV use, and another 32,780 acres to "limited" OHV use.

The Lawsuit Filed By the Center for Biological Diversity

36. During 1998 and 1999, BLM and the Imperial Sand Dunes advisory council were reviewing resource data and OHV use patterns for purposes of updating the Imperial Sand Dunes RAMP. However, this planning process was essentially halted on or about March 16, 2000, when the Center for Biological Diversity ("CBD"), the Sierra Club and the Public Employees for Environmental Responsibility (collectively, the "CBD plaintiffs") filed a lawsuit against BLM in the United States District Court, Northern District of California, San Francisco Division (Case No. C-00-0927 WHA-ADR). In their complaint, the CBD plaintiffs alleged that BLM had violated Section 7 of the Endangered Species Act by failing to consult with the United States Fish and Wildlife Service ("FWS") regarding the potential impacts of the CDCA Plan on plant and animal species listed as "threatened" and "endangered" since the plan’s adoption. One of the plant species falling into this category was the Peirson’s Milk Vetch (Astragalus magdalenae var. peirsonii) ("PMV"), which resides in the Imperial Sand Dunes and was listed as "threatened" in October 1998.

37. Not long after the CBD lawsuit was initiated, numerous ranching and grazing interests, local governmental entities, and off-road organizations filed motions to intervene as interested parties, which motions were opposed strenuously by the CBD plaintiffs. Ultimately, no parties were allowed to intervene during the substantive portions of the lawsuit; and only a few were permitted to intervene with respect to the remedy phase. The plaintiffs here were not parties to the CBD lawsuit.

38. Prior to the CBD lawsuit reaching trial, the CBD plaintiffs, BLM and the intervenors entered into five separate settlement agreements or stipulations, one of which addressed BLM’s alleged duty to conduct a Section 7 consultation with FWS regarding the PMV (the "PMV Stipulation"). However, the PMV Stipulation — which was entered into on November 2, 2000 and put into effect on November 3, 2000 — did more than require that BLM initiate a Section 7 consultation process for the PMV; it operated to close 49,000 acres within the Imperial Sand Dunes to OHV use, even though the existing CDCA and RAMP designate these same areas as "open" to OHVs.

39. BLM’s decision to close the Imperial Sand Dunes was not based on a finding of "emergency" or on any exemption set forth in NEPA or the FLPMA. In fact, BLM submitted no evidence that the PMV is currently in biological decline in the dune areas, or that OHV use in the dunes is having a deleterious effect on the viability of the PMV. Similarly, the Court made no finding of an "emergency" or any other exception which would permit BLM to close the dunes without complying with the environmental review and public participation processes mandated by NEPA and the FLPMA. On the contrary, the Court stated expressly that BLM was required to comply with all applicable federal laws, including those which impose public participation and due process requirements on BLM.

40. In other words, BLM and the CBD plaintiffs — without sufficient technical data, without an "emergency" finding, without seeking public input, and without complying with the environmental review and public participation processes set forth in NEPA and the FLPMA — closed large portions of the Imperial Sand Dunes (among other places), radically altering, through a private "settlement agreement," the CDCA and the RAMP, as well as the OHV trails described within those two documents. In so doing, BLM violated NEPA, the FLPMA, and the APA, and ignored the public participation rights of the plaintiffs and their respective members, State and local governments, and all other interested persons.

41. On November 16, 2000, the BLM published a notice in the Federal Register indicating that, pursuant to the PMV stipulation, it would be closing major portions of the Imperial Sand Dunes on a "temporary" basis while the Section 7 consultation regarding the PMV was being conducted. (65 FR 69324) Nothing in the Federal Register notice stated exactly when the "temporary" closures would be lifted. However, in statements made during a Court hearing held on February 14, 2001, BLM indicated that the "temporary" closures would be in effect for at least one year, perhaps longer, and that it was BLM’s intent to convert all or some of the "temporary" dune closures into permanent closures.

42. Between approximately November 18, 2000, and February 1, 2001, BLM installed signs along the boundaries of the newly-closed dune areas. Each of the signs indicates that vehicular access is prohibited in the affected dunes. These portions of the dunes remain closed to this day.

43. The text of the Federal Register notice published on November 16, 2000, indicated that the dune closures had been judicially imposed on BLM. However, on April 20, 2001, the Court clarified its position with respect to the PMV stipulation, stating that: (1) the legal rights of non-parties are not affected by the PMV stipulation; and (2) the PMV stipulation was not based on any finding of "emergency" by either the Court or BLM.

44. On March 22, 2001, and again on April 13, 2001, ASA requested vehicle access into the recently-closed portion of the Imperial Sand Dunes for purposes of conducting a biological survey of PMVs. In both instances, BLM denied ASA’s request, claiming that the PMV stipulation prohibited BLM from granting vehicular access into the recently-closed dune areas.
Harm Suffered By Plaintiffs

45. As a result of BLM’s ultra vires decision to close the Imperial Sand Dunes without first conducting the environmental review and public participation processes required under NEPA and the FLPMA, plaintiffs and their members have suffered four different forms of damage.

a. First, they have been aggrieved by being completely cut out of the decisionmaking process leading to the dune closures. They have been stripped of their right to participate and shape land use policy in the dunes where they enjoy recreational activities. They have also been prevented from obtaining and submitting scientific evidence regarding the PMV’s viability in those areas open to OHV use — evidence which shows that the PMV is thriving in these areas and that the plant’s viability is dictated primarily by climate, not OHV use. And they have been prevented from offering a point of view different from that held by those who believe OHVs and PMVs cannot peacefully coexist in the same desert. In short, plaintiffs and their members have been denied the right of procedural due process.

b. Second, they have been aggrieved by BLM’s failure to evaluate the environmental impacts of the dune closures. By shunting so many OHVs onto fewer and smaller areas within the desert, BLM virtually guaranteed that certain environmental consequences would result. For example, human safety impacts can be anticipated when large numbers of people and vehicles are herded into smaller and smaller spaces. The elimination of public recreation opportunities is itself an environmental impact which must be addressed during the NEPA process. Further, by denying vehicular access to the formerly-open but remote areas of the dune system, BLM has essentially prevented plaintiffs and their members from safely entering these areas and experiencing the aesthetic resources to be found there. This, too, is an impact that must be assessed in the NEPA process. Indeed, the U.S. Supreme Court has stated explicitly that recreational and aesthetic interests are protected by both NEPA and the FLPMA. Lujan v. National Wildlife Federation, 497 U.S. 871, 886 (1990) ("We have no doubt that ‘recreational use and aesthetic enjoyment’ are among the sorts of interest those statutes [NEPA and FLPMA] were specifically designed to protect.") Although BLM describes the recent dune closures as "temporary," they will remain in effect for at least a year and are mere precursors to permanent closures. Therefore, these "temporary" or "interim" closures constitute final agency decisions which will severely limit — if not completely foreclose — consideration of alternative courses of action. As such, the dune closures were made in direct violation of NEPA. 40 CFR § 1506.1. Finally, alternatives to the closures have not been presented much less analyzed; and mitigation measures that might serve to minimize the impacts of the closures have never been developed or discussed.

c. Third, plaintiffs and their members have been aggrieved by the dune closures themselves. Despite the "open" OHV use designations set forth in the CDCA and the RAMP, plaintiffs and their members now cannot use OHVs in large portions of the Imperial Sand Dunes, substantially diminishing the recreational opportunities and aesthetic experiences they enjoyed prior to BLM’s closure of the dunes.

d. Fourth, plaintiffs and their members have been aggrieved in that they have incurred attorneys fees and legal costs in bringing this action and protecting their rights under NEPA, the FLPMA, and the APA. These are special damages as defined by the Federal Rules of Civil Procedure, Rule 9(g).

46. The harm suffered by plaintiffs and their members as a result of BLM’s actions can only be redressed by this Court.

VI. CLAIMS FOR INJUNCTIVE RELIEF
CLAIM NO. 1: VIOLATION OF NEPA

(BLM’s Failure to Conduct Environmental Review of Dune Closures)

47. Each and every allegation set forth in paragraphs 1 through 46 of this Complaint, inclusive, are incorporated herein by this reference.

48. The BLM has closed approximately 49,000 acres of the Imperial Sand Dunes to vehicular access — dune areas which are designated as "open" in the current CDCA Plan and RAMP. The dune closures constitute a major federal action under NEPA. 40 CFR § 1508.18(b)(4). Therefore, prior to approving and implementing the dune closures, BLM was required to comply with NEPA’s environmental review and public participation requirements. However, BLM failed to so comply and continues to be in violation of NEPA. The closures were approved and implemented without environmental review; without consultation with Federal, State, and local agencies; without public disclosure; without public hearing; without public input and comment; without consideration of alternatives and mitigation measures; and without proper notice in the Federal Register. BLM has, in fact, violated nearly every basic requirement, policy and tenet of NEPA. E.g., 42 U.S.C. § 4332(A),(C) and (E); 40 CFR § 1502.19, 1503.1, 1505.2, 1506.1, 1506.6, 1506.10.

49. The plaintiffs and their members, as well as the human environment, have been harmed by BLM’s failure to comply with the environmental review and public participation requirements of NEPA.

50. BLM’s closure of the Imperial Sand Dunes constitutes a final agency action for purposes of judicial review under the APA. 5 U.S.C. § 551(13), § 704.

51. BLM’s closure of the Imperial Sand Dunes, without first conducting the necessary NEPA review, was and remains arbitrary, capricious, and not in accordance with the procedures required by law, resulting in a violation of the APA. 5 U.S.C. § 706.

52. Injunctive relief is appropriate and necessary in this case, as plaintiffs have no adequate remedy at law and irreparable injury will result if the unlawful actions of the BLM are allowed to stand. Further, only an injunction issued by this Court can cure BLM’s violations of NEPA and the APA. In addition, an injunction will protect the rights and interests of the public.
CLAIM NO. 2: VIOLATION OF THE FLPMA
(BLM’s Failure to Consult with Public Prior to Implementing De Facto Amendments to
CDCA Plan, Imperial Sand Dunes RAMP, and Designated OHV Trails)

53. Each and every allegation set forth in paragraphs 1 through 51 of the Complaint, inclusive, is incorporated herein by this reference.

54. In their current form, the CDCA Plan and the Imperial Sand Dunes RAMP designate most of the Imperial Sand Dunes system as "open" to OHV use. Under the FLPMA and its implementing regulations, any changes to these "open" designations must be (a) based on an "emergency" finding, or (b) processed as amendments to the CDCA Plan or the RAMP. In the latter case, BLM must seek, receive and consider the evidence, concerns and comments presented by affected OHV users and other members of the public, including the plaintiffs and their members.

55. When BLM moved to prohibit OHVs from major portions of the designated "open" areas of the Imperial Sand Dunes, its did so without (a) making an "emergency" finding, or (b) conducting the scientific inquiry and "public involvement" process that the FLPMA requires prior any amendments to the CDCA Plan and the RAMP or the OHV trails described therein. 43 U.S.C. § 1712(a), (c) (f) ; 43 U.S.C. § 1781; 43 CFR § 8342.1, 8342.2(a).

56. Plaintiffs and their members, as well as the integrity of the FLPMA and CDCA planning process, have been harmed by the BLM’s actions with respect to the Imperial Sand Dunes closures.

57. BLM’s decision to close the Imperial San Dunes constitutes a final agency action for purposes of judicial review under the APA. 5 U.S.C. § 551(13), §704.

58. BLM’s decision to close the Imperial Sand Dunes, as well as BLM’s implementation of that decision, without first conducting the necessary technical review and public participation process required by the FLPMA, were and remain arbitrary, capricious, and not in accordance with the procedures required by law, resulting in a violation of the APA. 5 U.S.C. § 706.

59. Injunctive relief is appropriate and necessary in this case, as plaintiffs have no adequate remedy at law and irreparable injury will result if the unlawful actions of the BLM are allowed to stand. Further, only an injunction issued by this Court with cure BLM’s violations of the FLPMA and the APA. In addition, an injunction will protect the rights and interests of the public.

VII. PRAYER FOR RELIEF

THEREFORE, plaintiffs respectfully request that the Court enter judgment providing the following relief:

(1) A declaratory judgment that BLM violated NEPA and the APA by closing approximately 49,000 acres of the Imperial Sand Dunes to OHV use without first conducting the required environmental impact assessment of those closures; without consulting the appropriate Federal, State and local agencies; without giving proper notice to the public regarding the proposed closures; without seeking, accepting, or considering public input on the proposed closures; without considering alternatives to the proposed closures; and without considering mitigation measures to reduce the impacts of the proposed closures.

(2) A declaratory judgment that BLM violated the FLPMA and the APA by closing portions of the Imperial Sand Dunes to OHV use — contravening the OHV use-designations set forth in the current CDCA Plan and Imperial Sand Dunes RAMP — without first conducting the formal "plan amendment" process required by the FLPMA, which process involves a full, interdisciplinary technical analysis; public notice and participation; consultation with Federal, State, and local agencies; advisory council input; consultation with affected OHV users and other interested persons; and firm adherence to the FLPMA principles of "multiple use" and "sustainable yield."

(3) An order requiring that BLM: (i) rescind the dune closures implemented between November 2000 and February 2001 affecting approximately 49,000 acres within the Imperial Sand Dune system; (ii) remove all closure signs affecting the 49,000 acres; and (iii) return those 49,000 acres to their "open" status as set forth in the existing CDCA Plan and RAMP.

(4) An order enjoining BLM from implementing any closures of OHV-use areas within the Imperial Sand Dunes without first complying with the environmental review and public participation requirements of NEPA and the APA.

(5) An order enjoining BLM from implementing any closures of OHV use areas and trails within the Imperial Sand Dunes without first complying with the technical review and public participation processes required by the FLPMA and the APA.

(6) An order awarding plaintiffs their costs of litigation, including reasonable attorneys fees; and

(7) Provide such other relief as the Court deems just and proper.

DATED: May 17, 2001 RESPECTFULLY SUBMITTED
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP

David P. Hubbard (CA Bar No. 148660)
Theodore J. Griswold (CA Bar No. 163329)
Philip J. Giacinti (CA Bar No. 65909)
Attorneys for plaintiffs, AMERICAN SAND ASSOCIATION; CALIFORNIA OFF- ROAD VEHICLE ASSOCIATION; and AMERICAN MOTORCYCLE ASSOCIATION, INC. DISTRICT 37