THE TORTOISE AND THE CATTLE RANCHER.
"What's going on seems to me in violation of the letter, the spirit, and everything about this whole process," Judge Alsup told the BLM's attorney. Saying he felt "misled," the judge demanded, "When is the BLM going to come into compliance?"
He also suggested political motives might be behind the foot dragging. "I think this has something to do with the change of Administrations," he said.
The desert tortoise lives in the sprawling California Desert Conservation Area. Bounded by the Mexican border, Death Valley, and the eastern Sierra Nevada Mountains, the California Desert Conservation Area was established by Congress in 1976. It covers twenty-five million acres--the size of the state of Virginia.
In 1994, Congress acted again, making national parks of the Death Valley and Joshua Tree National Monuments and designating 3.5 million acres of the California Desert Conservation Area as wilderness. "The federally owned desert lands of Southern California constitute a public wildland resource of extraordinary and inestimable value for this and future generations," Congress proclaimed.
"The desert tortoise is really a keystone species for the region," says Daniel Patterson, a former Bureau of Land Management employee.
A trained desert ecologist, Patterson became so frustrated with the agency that he quit his job in the fall of 1996 and went to work for the Center for Biological Diversity. That group is one of the plaintiffs suing the Bureau.
The desert tortoise species has been around for more than a million years. It has adapted to its grueling environment by living underground much of the year in burrows it digs for protection from searing heat, freezing cold, and predators. The tortoises emerge during the spring to feed on wildflowers and other desert morsels and in the fall when mature tortoises lay their eggs.
The tortoise's many burrows are of vital importance to other desert critters, which use them for homes. "They're sort of like homebuilders for wildlife in the Mojave Desert," notes Patterson.
In the early 1970s, biologists discovered that the desert tortoise population was declining. Because the tortoise spends much of the year underground, an exact population count is practically impossible but, Patterson says, "every estimate is showing a 90 percent decline in their population."
By 1990, the U.S. government declared the animal a threatened species. The designation, which is just one step below formal endangered status, means that the tortoise is in imminent danger of extinction, explains Patterson. And just last year, a twelve-scientist panel of experts concluded that the desert tortoise should be declared endangered in the western Mojave Desert--the habitat in dispute with the Bureau of Land Management.
Cattle grazing appears to be the primary cause of the tortoise's skidding population. For generations, ranchers have purchased exclusive grazing rights on western federal lands. In the hot California deserts, cattle compete with the tortoise for the same springtime food, and their grazing activity can also crush the burrows.
It's a race the tortoise is losing.
By 1995, the federal government's plan for the recovery of the desert tortoise called for an end to grazing activity in the animal's habitat. In March of 2000, with no relief in sight, the Sierra Club and Public Employees for Environmental Responsibility joined Patterson's group in a sweeping lawsuit aimed at forcing Bureau of Land Management action on twenty-four endangered and threatened species in the California Desert Conservation Area.
One goal, according to the Sierra Club's Elden Hughes, was to free tortoise habitat from grazing by March 2001. "We wanted the tortoises to have the food they need," says Hughes, who chairs the club's California-Nevada Desert Committee.
Growing up on a California cattle ranch gave Hughes respect for ranching. "Ranchers work hard," he says. "Hell, I know." But, he adds, "You can't ignore the needs of wildlife and plants, or the desert will die on you, and that's what's happening to the tortoise. The BLM has not done right by the tortoise."
The lawsuit brought the Bureau of Land Management to the table, and the parties crafted an agreement, which included compromises on both sides. It covered 504,441 acres of tortoise habitat and affected ten cattle ranchers. On almost all the land, grazing would still be allowed during the summer and winter months but would be banned during the biologically SENSITIVE SPRING AND FALL PERIODS. (A total of 11,079 acres were placed totally off-limits to cattle.)
The settlement was designed to provide breathing room for the tortoise while the bureau continued weighing permanent relief measures. Judge Alsup sanctioned the agreement in early January.
Eight of the ranchers objected to the plan and filed appeals with the Bureau of Land Management. The ranchers' attack on the bureau's yet-to-be-enforced restrictions has been joined by the California county of San Bernadino, a pro-ranching county and home to ranchers involved in the suit.
This past spring, the ranchers refused to move their cattle from public lands that were off-limits for grazing during the spring and fall. The bureau, now firmly under the direction of the Bush Administration, did nothing.
Patterson began receiving reports of continued grazing on the disputed lands. "Our folks were out there on the ground telling us, `There's cows all over the place,' "he says.
Feeling frustrated and betrayed, the three organizations that thought they had a deal with the Bureau of Land Management went back into court. Jay Tutchton of the Denver-based Earthjustice Legal Defense Fund has been representing the groups. "It became apparent they [the Bureau of Land Management] weren't going to move the cows," Tutchton says. "It was a motivation problem."
Although asked to find the Bureau of Land Management in contempt of court for its settlement violations, Alsup declined, for the moment, and instead ordered the agency to remedy the situation before the fall period of tortoise activity.
"We're moving as quickly as possible," says Doran Sanchez, a public affairs official for the Bureau of Land Management in California. He denies receiving pressure from D.C. to slow down.
The bureau, he says, needs good scientific data for its management plan and its tortoise protection efforts. "I guess we just took a little bit too long in preparing that," Sanchez offers.
Since Alsup's tongue-lashing, the Department of Interior has played another card in the controversy. Seeking to expedite a hearing on the complaints filed by ranchers angry about the Bureau of Land Management grazing restrictions, Interior Secretary Gale Norton has assumed personal jurisdiction over the ranchers' case. Norton has sent the matter to Judge Harvey Sweitzer, an administrative law judge for the department. Sweitzer convened a July 24 hearing in Barstow, California, to address the complaints raised by the eight ranchers opposing the Bureau of Land Management's proposed grazing rules.
Sweitzer said he will make his ruling by August 24.
While the plight of the desert tortoise has gathered some public and media attention, a number of other species are faltering in California and the California Desert Conservation Area. Of the 283 California species listed as endangered, one-third are on bureau lands, says the agency's Ed Lorenzin.
And California's roster of endangered species is growing rapidly. "We've added," Lorenzin says, "an average of twenty species per year for the last ten years." He notes that the agency's resources for addressing the problem, in actual dollars (adjusted for inflation) and personnel, have declined.
The extraordinary growth in off-road-vehicle use is, according to Eric Wingerter, compounding the bureau's management difficulties. Wingerter is the national field director for Public Employees for Environmental Responsibility. Wingerter says the group has been contacted by "a number of BLM rangers complaining that they couldn't do their jobs."
For illustration, Wingerter mentions an annual off-road-vehicle event during Thanksgiving weekend that draws 100,000 people into the Algodones Dunes (located in the southeastern portion of the California Desert Conservation Area). Public Employees for Environmental Responsibility has compiled a short video documenting the event. It depicts a mass encampment of people partying together during the gathering.
Wingerter describes it as a scene out of Mad Max--Mel Gibson's classic post-holocaust desert movie. To deal with disputes and legal matters during the event, the Bureau of Land Management assembles 100 rangers from a multistate area.
The Center for Biological Diversity has also actively been seeking protection for endangered reptiles and plants in the Algodones Dunes area. It's a job made exceedingly difficult, as the Public Employees for Environmental Responsibility video shows, by the disregard some off-road vehicle users display toward requirements that they stay on designated trails.
"ORVs are one of the largest problems," says Patterson.
Patterson is hopeful, nonetheless. "BLM is moving toward long overdue habitat improvements to benefit the tortoise, and that's not too much to ask of ranchers who are grazing the public lands for private gain," he says. But, he adds, all of the legal wrangling might not have been necessary if the Bureau of Land Management had lived up to its earlier commitments.
"The BLM," says Patterson, "was willing to compromise the law and the interests of 280 million Americans over eight ranchers."
Will Fantle is a writer living in Eau Claire, Wisconsin.