Court upholds Obama-era ban on uranium mining near Grand Canyon

The Kanab North uranium mine near the Grand Canyon above Kanab Creek. (Mark Henle/The Republic)

Joshua Bowling
WKYC.com

PHOENIX — The U.S. 9th Circuit Court of Appeals on Tuesday upheld a 20-year ban on new uranium mining on public land near the Grand Canyon, while also striking down a challenge to an existing uranium mine south of Grand Canyon National Park.

In its opinion, the court ruled that the ban, imposed in 2012 under former president Obama, lines up with the Constitution and federal environmental laws. However, it ruled that a mine 6 miles south of the national park had a right to operate.

"We upheld the decision of the secretary of the Interior to withdraw, for 20 years, more than 1 million acres of public lands around Grand Canyon National Park from new mining claims," the opinion states. "That withdrawal did not extinguish 'valid existing rights.' "

The ban was put in place by the U.S. Department of the Interior under former secretary Ken Salazar. It came as mining operations were renewing their interest in uranium deposits near the canyon.

A spokeswoman for the Department of the Interior declined to comment Tuesday and said the Department of Justice handles questions on litigation.

A DOJ spokesman declined to comment and did not respond to further questions.

The suit — led by the Havasupai Tribe, Grand Canyon Trust, Center for Biological Diversity and Sierra Club — sought continued protections under the standing mining ban.

"The Havasupai people have been here since time immemorial. This place is who we are,” Havasupai Tribal Chairman Don Watahomigie said in a statement. "This place, these waters and our people deserve protection. The lives of our children and the purity of our waters are not to be gambled with and are not for sale."

In addition to the canyon's symbolic value, supporters of the suit argued it has significant economic value.

Grand Canyon National Park in 2016 contributed about $904 million to local economies and supported nearly 9,800 jobs, according to the National Park Service.

"The Department of the Interior’s decision to protect one of the world’s most enduring landscapes and the sustained health of indigenous communities that live within the watershed of the Grand Canyon was a strong and appropriate one,” said Kevin Dahl, Arizona senior program manager for the National Parks Conservation Association.

About 1 million acres adjacent to the Grand Canyon are protected under the ban, though the continued exception for existing mines came as a disappointment to the plaintiffs in the suit.

"We are disappointed that the court did not uphold the challenge to Canyon Mine, however, and we will continue to do all we can to ensure permanent protection of these lands," Sierra Club Grand Canyon chapter director Sandy Bahr said in a statement Tuesday.

The appeals court's decision comes on the heels of President Trump's decision to drastically shrink two national monuments in Utah — a decision a Navajo Nation attorney called a "slap in the face."

Interior Secretary Ryan Zinke, has drawn conservationists' ire for his review of national monuments, in particular those established under former presidents Obama and Bill Clinton.

He initially ordered a review of the Grand Canyon-Parashant National Monument, north of the Canyon, an area that sits atop uranium deposits. Ultimately, he left the monument unchanged.

In a statement Tuesday, Sen. Maria Cantwell, D-Wash., criticized Zinke for "ongoing actions to hand over public lands to extractive industries instead of ensuring taxpayers get a fair deal."

A history of litigation

The suit is far from the first for the uranium mining ban.

In 2012, the year it was put in place, The Arizona Republic reported that the National Mining Association and the Nuclear Energy Institute challenged the ban's constitutional merits.

Hal Quinn, president and CEO of the mining group, said at the time that the Interior Department "offered no evidence ... that a million-acre land grab is necessary to avoid environmental harm."

Taylor McKinnon, of the Center for Biological Diversity, said in a statement Tuesday that opening exposing the land to uranium mining could do harm to its aquifers.

“Any effort to lift this crucial ban will meet fierce opposition,” his statement read. “There’s every reason to believe uranium mining could permanently damage Grand Canyon’s precious aquifers and springs. That’s an unacceptable risk, and it’s immoral of Congress and Trump to even consider it.”

What's next?

Although the mining ban has worked its way through the legal system, some believe this could be the end of the line.

Roger Clark, Grand Canyon program director for the Grand Canyon Trust, said he doesn't believe the case will end up before the Supreme Court.

"In both cases, the appellate court upheld the district court and there was no discrepancy in their rulings and there’s very little, I’m told by our attorneys, angle for appeal in either case," he said. "I’m not an attorney, so I’ll put that caveat in there."

Tortoise relocations challenged

Desert tortoises, such as this adult photographed near the Ivanpah Valley, are listed as threatened with extinction. The Marine Corps plans to move more than 1,100 of them from 88,000 acres in the Johnson Valley, northwest of Landers, to protect them from live fire exercises planned for this summer. (STAN LIM)

BY DAVID DANELSKI
Press-Enterprise

An environmental group filed a legal challenge Tuesday, March 8, to the military’s plans to move more than 1,400 protected desert tortoises out of an expansion area at the Marine Corps Air Ground Combat Center at Twentynine Palms.

The Center for Biological Diversity filed a notice of intent to sue, contending that federal agencies have failed to fully examine how the move might harm the Mojave Desert tortoises as required under the Endangered Species Act. Such a notice is required before a lawsuit may be filed in federal court.

Tortoises are listed as threatened with extinction, but the Marines say they have to move them from 88,000 acres in the Johnson Valley to protect the reptiles from live ammunition training exercises planned for this summer.

The center argues that studies have shown that half of the tortoises will perish within three years of being moved in part because they haven’t found or dug underground burrows that give them shelter and protection from coyotes and other predators.

Military officials could not be reached Tuesday, but last week Walter J. Christensen, head of the training center’s conservation branch, and Marine Corps Lt. Col. Timothy B. Pochop, director of natural resources and environmental affairs at the training center, said the Marines are taking great care and expect most of the animals to survive.

Using helicopters will reduced stress from travel, and military officials are choosing release sites that are less likely to be prowled by coyotes, they said. And individuals from the same social groups will be placed near one another.

Most of the animals will be moved to federal land southeast of Barstow known as the Ord-Rodman Critical Habitat Unit, which is overseen by the federal Bureau of Land Management.

Ileene Anderson, a biologist with the center, said the group has seen no evidence that the military has analyzed impacts to tortoises and other wildlife already living in the critical habitat area, which has a limited amount of food, water and other resources.

Such an analysis is required under the National Environmental Policy Act, she said.

“This massive translocation proposal is being rushed through the process this spring without fully considering how it may affect the already declining tortoise population in the western Mojave,” said Anderson. “What we should be doing is recovering this population, not pushing it closer to extinction.”

The move has not yet been approved by the U.S. Fish and Wildlife Service, which still needs to sign off on the relocation plan and an analysis that showed that the move would not jeopardize the survival of the species, said Brian Croft, a biologist with the wildlife service.

Military officials want to start moving the tortoises as early as this month while the weather is still cool. The relocation is expected to take a team of about 100 biologists as long as two to four weeks to complete.

Croft said such a move should be done by mid-May – before it gets too hot for the reptiles to be above ground. The tortoises survive the desert’s harsh climate by spending the hottest and coldest months in their subterranean burrows.

The planned move stems from a 2013 decision by Congress to expand the Marine Corps Air Ground Combat Center to enhance live ammunition training operations deemed necessary for national security.

Project pumping desert water for O.C. to begin next year

Cadiz Valley Water Project

BY TOMOYA SHIMURA
Orange County Register

Construction for a project that will pump drinking water from a Mojave Desert aquifer and pipe it to south Orange County is slated to begin early next year.

Los Angeles-based Cadiz Inc. plans to install wells to capture water from the natural aquifer that lies beneath 70 square miles of remote valley east of Twentynine Palms. The private developer which owns the land would also build an underground 43-mile pipeline along railroad right-of-way to the Colorado River Aqueduct, which delivers water to Southern California residents.

Once built, Cadiz plans to lease the facilities to a joint powers authority created by the Santa Margarita Water District, which will oversee day-to-day operation of the well and pipeline.

Santa Margarita hopes the project will reduce the district’s reliance on the wholesaler Metropolitan Water District, from which Santa Margarita buys 85 percent of its water. The MWD has increased water prices over the last two decades.

The well would pump some 16 billion gallons of water a year, and Santa Margarita plans to purchase about 20 percent of its water supply from the project. The district serves 165,000 people in Coto de Caza, Ladera Ranch, Rancho Santa Margarita and parts of Mission Viejo and San Clemente.

However, the Cadiz Valley Water Conservation, Recovery and Storage Project has met resistance from a coalition of environmental groups, who argue the project would dry up desert springs and hurt vegetation and wildlife habitat.

The groups filed lawsuits after the project was approved by Santa Margarita’s board and San Bernardino County supervisors in 2012.

The plaintiffs claimed that Santa Margarita, not in the area the project will affect, shouldn’t have been the lead agency to oversee environmental reviews for Cadiz. They also said San Bernardino County violated its desert groundwater ordinance by approving the project.

Orange County Superior Court Judge Gail Andler shot down the lawsuits last year, stating that the plaintiffs had failed to prove the project would violate state environmental laws.

The Center for Biological Diversity, Sierra Club and San Bernardino Valley Audubon Society then appealed the decision to the state’s Fourth Appellate District in Santa Ana and filed their opening briefs in April.

“All cases were resoundingly denied in superior court, and we stand by that record and we think everything will be upheld by the court of appeals,” Cadiz spokeswoman Courtney Degener said.

The company is waiting for the MWD board to approve moving Cadiz water through its aqueduct later this summer and plans to start construction at the beginning of next year, she said. Cadiz is expected to spend $225 to $275 million on construction.

In addition to Santa Margarita, Cadiz has entered into agreements with the following water providers interested in buying water from the project, Degener said. They include: Three Valleys Municipal Water District, Jurupa Community Services District, Golden State Water Company, Suburban Water Systems, California Water Service Company, Lake Arrowhead Community Services District and San Luis Water District.

Eagle Mountain legal battle settled after 15 years

A massive iron ore mining pit at Eagle Mountain in the remote desert just east of the Coachella Valley. (Jay Calderon, The Desert Sun)

Sammy Roth
The Desert Sun

A longstanding legal battle over land around the old Eagle Mountain iron mine has been settled in a deal that some activists hope could bring the mine one step closer to inclusion in Joshua Tree National Park.

The old mine has been the subject of fiery debate in recent years, with several groups fighting over its future. The owners have been trying to sell the land to another mining company, while a separate company has obtained federal approval to build a hydroelectric power plant at the site. Conservationists, meanwhile, want to see the area absorbed by Joshua Tree National Park, which surrounds it on three sides.

The legal settlements signed last month don’t directly address any of those possibilities. Rather, they require Kaiser Eagle Mountain, which owns the mine, to return to the federal government certain lands surrounding its property, which the company received as part of a land exchange 15 years ago.

Regulators say that Kaiser still has the right to mine those lands, and that the partial reversal of the land exchange is more of a technicality than anything. Bureau of Land Management spokeswoman Dana Wilson said the land’s return to federal control “doesn’t in any way relate” to the possibility of the area becoming part of the national park.

“If the park service is interested in the future in pursuing that, then we’d need to cross that bridge when we get to it,” she said.

Conservationists, though, see last month’s settlements as a major step toward the land being incorporated into Joshua Tree National Park. They’ve argued that the old mine — and the ghost town next to it — have conservation and historic value, and would allow park visitors to learn about the history of mining and steelmaking.

Donna Charpied, a local activist who brought one of the lawsuits to undo the land exchange, said Kaiser giving up its ownership of some of the land removes “a monumental stumbling block” to the national park proposal.

“We just knocked one of the heads off the hydra,” she said. “Time to get that land back to the park now. There’s no reason not to.”

It’s unclear what prompted Kaiser to agree to the settlement, after years of fighting Charpied and the National Parks Conservation Association in court. Kaiser Eagle Mountain Vice President Terry Cook said the company could have demanded it get back the lands it gave up 15 years ago, but that it decided to be “magnanimous” by letting the federal government keep them.

Those lands are important because of their conservation value. The Bureau of Land Management said in a statement that they include critical habitat for threatened and endangered species, including the desert tortoise, the flat-tailed horned lizard and the Yuma clapper rail.

“We thought long and hard about it, and we decided we’d let the (Bureau of Land Management) retain the lands, even though we were entitled to receive them back,” Cook said. “We’re trying to do the right thing by people.”

It’s possible that Kaiser had other motives for agreeing to the settlements as well. David Lamfrom, who works for the National Parks Conservation Association, speculated that the company might be trying to ease a potential sale to another mining company.

“Having a longstanding lawsuit over the raincloud of any prospective buyer just makes things so much more complicated,” he said.

It’s also unclear what the settlements mean for the hydroelectric power plant proposed by the Eagle Crest Energy Company. The Federal Energy Regulatory Commission granted a license for the plant earlier this year, but Kaiser has thus far refused to sell its land to Eagle Crest.

The possibility of a sale could be more remote now, since some of the land that Kaiser returned to the federal government could be needed for the hydroelectric plant. Cook, Lamfrom and Charpied all said they weren’t yet sure what the reversal of the land exchange means for Eagle Crest’s proposal.

Conservation groups and the National Park Service have vehemently opposed the hydroelectric project, saying the power plant would drain billions of gallons of groundwater from an aquifer adjacent to Joshua Tree National Park.

The Eagle Crest Energy Company first proposed the hydroelectric project two decades ago — a move that angered Kaiser executives, who at the time had endorsed a plan to build a massive garbage dump at Eagle Mountain. That plan, which fell through last year, would have involved Kaiser selling its land to the Sanitation Districts of Los Angeles County, which would have built the landfill.

In preparation for that sale, Kaiser executed a land swap with the federal Bureau of Land Management in 1999. That land exchange was the source of the legal controversy that was finally settled last month.

As part of the original land exchange, Kaiser gave the federal government land it owned alongside the Eagle Mountain railroad, which stretches from the eastern shore of the Salton Sea to the mine site. In exchange, the company received federal land surrounding the mine, which would have been used for the landfill project.

But conservation groups have long criticized the exchange, saying that it was carried out illegally and that federal land managers got the worse end of the deal. They’ve also argued that the exchange is no longer necessary now that the landfill plan has been scrapped.

Now, those groups have succeeded in reversing part of the land exchange. The reversal may or may not have practical implications — Kaiser could still mine the exchanged lands — but Lamfrom sees the end of the long-running legal battle as critical to Eagle Mountain’s future.

“This is a milestone that I think gets us back to a place where we can start having reasonable discussions about what the future of this landscape is,” he said.

Lamfrom’s organization supports studying Eagle Mountain for inclusion in the national park, saying that setting aside the area would connect important fragments of wilderness.

National park officials have agreed that preserving the area would be beneficial. Such a step would require action by Congress or President Barack Obama’s administration.

Industrialist Henry Kaiser founded the iron mine in the 1950s, on land that was carved out of the southeastern corner of the Joshua Tree National Monument — the predecessor to the national park. But the mine was shut down in the early 1980s as production of steel in the United States waned.

Federal and state regulators maintain that Kaiser never gave up its mining rights at Eagle Mountain, although local activists have contested that claim. Charpied and others have accused Kaiser of conspiring with state regulators to keep control of the site, which still has millions of tons of valuable iron ore.

SMWD establishes agency to oversee Cadiz groundwater project

By TOMOYA SHIMURA
Orange County Register

A project that will pump drinking water from a Mojave Desert aquifer and pipe it to south Orange County has taken another step forward.

The Santa Margarita Water District board of directors recently approved establishing the Fenner Valley Water Authority to control and operate the delivery of the groundwater.

The district is moving forward with the plan after an Orange County Superior Court judge in May shot down lawsuits filed over the Cadiz Valley Water Conservation, Recovery and Storage Project by environmental groups trying to stop the project.

District spokesman Jonathan Volzke said operating under the joint powers authority shields Santa Margarita and its customers from liabilities.

Los Angeles-based Cadiz Inc. plans to install wells to capture water from the natural aquifer that lies beneath 70 square miles of remote valley east of Twentynine Palms. The private developer which owns the land would also build an underground 43-mile pipeline along railroad right-of-way to the Colorado River Aqueduct, which delivers water to Southern California residents.

Cadiz is estimated to spend $225 to $275 million for the construction, spokeswoman Courtney Degener said.

There’s no timeline for the beginning of construction, Degener said. The company needs to reach an agreement with the Metropolitan Water District of Los Angeles on moving water through its aqueduct, she said.

The opposition has so far filed appeals in four of the six lawsuits, but the project will continue moving forward regardless, Degener said.

The well would pump some 16 billion gallons of water a year, and Volzke said Santa Margarita plans to purchase at least 5,000 acre feet a year, or 20 percent of its water supply, from the Cadiz project. The district serves 165,000 people in Coto de Caza, Ladera Ranch, Rancho Santa Margarita and parts of Mission Viejo and San Clemente.

Santa Margarita buys 85 percent of its water from the Metropolitan Water District, which has increased water prices each year for the last two decades, Volzke said. The Cadiz project could reduce the district’s reliance on the Metropolitan Water District.

“It would give us more local control over the cost of water,” Volzke said.

Once built, Cadiz plans to lease the facilities to the Fenner Valley Water Authority, which will oversee day-to-day operation of the well and pipeline.

Cadiz is trying to reach an agreement with other water agencies that have shown interest in buying water from the project, Degener said. They include: Jurupa Community Services District, Golden State Water Company, Suburban Water Systems, California Water Service Company and Three Valleys Municipal Water District, San Luis Water District and Lake Arrowhead Community Services District.

Superior Court Releases Final Decisions in Cadiz Project Environmental Litigation

Rulings Confirm Sweeping Victory for Project

Today, Orange County Superior Court Judge Gail Andler issued final Statements of Decision ("SOD") in the six outstanding California Environmental Quality Act ("CEQA") challenges to the approvals of the Cadiz Valley Water Conservation, Recovery and Storage Project ("Cadiz Project"). The final SODs affirm the previously announced May 1, 2014 Minute Order issued by the Court, which denied all claims against the Project's environmental review and found that the Santa Margarita Water District ("SMWD") and the County of San Bernardino ("County") acted properly in approving the Cadiz Project and its permits.

"We are grateful for Judge Andler's decisions, which further validates what we have long believed: That Southern California water users can benefit from this immense, sustainable water supply without harming the environment," said Scott Slater, Cadiz CEO.

In accordance with California law, the Project went through a thorough and expansive environmental review and permitting process over 18 months from 2011 - 2012. After extensive public input and technical review, the Project's Environmental Impact Report ("EIR") was certified on July 31, 2012 by SMWD, the Lead Agency of the CEQA process. On October 1, 2012, the County Board of Supervisors, a Responsible Agency under CEQA, approved the Project's Groundwater Management, Monitoring, and Mitigation Plan under the County's Desert Groundwater Ordinance.

Lawsuits challenging these key approvals were filed in 2012 by various parties. Three cases were dismissed or settled in 2013 and six cases brought separately by the Center for Biological Diversity and Tetra Technologies (NYSE: TTI) proceeded to trial in December 2013 before Judge Andler. These cases alleged that the procedures followed and the quality of the analysis during the CEQA process were inadequate and sought a reversal of the core Project approvals. The final SODs set forth the basis for denying all of Petitioners' claims and validated the thorough environmental review of the Project.

How the Mojave ranchers were wiped out for the sake of desert tortoise

• The Mojave desert tortoise was declared an endangered species in 1989, and cattle were deemed a danger to them
• Most ranchers left, unable to afford the court battles to stay
• Cliven Bundy is the last rancher left out of about 50

Last man standing: Rancher Cliven Bundy stands near a metal gate on his 160 acre ranch in Bunkerville, Nevada May 3, 2014 (Reuters)

By REUTERS

When the U.S. government declared the Mojave desert tortoise an endangered species in 1989, it effectively marked the cattle ranchers of Nevada's Clark County for extinction.

Rancher Cliven Bundy once had neighbors on the range: when the tortoise was listed, there were about 50 cattle-ranching families in the county. Some of them fought court battles to stay, rejecting the idea their cattle posed a danger to the tortoises. But, one by one, they slowly gave up and disappeared.

Bundy has proven himself one of the most tenacious of this vanishing breed. Backed by armed militiamen, the rancher forced federal agents to stop rounding up his cattle in April, which were grazing illegally on public lands shared by the tortoises.

Bundy initially joined his neighbors in their legal fight to stay but then took a more hardline stance, refusing to recognize federal authority over the land. In 1993, he stopped paying grazing fees and his permit was canceled. In 1998, when authorities banned grazing on much of the federal range, he ignored a court order to move.

In its years-long dispute with Bundy, the federal Bureau of Land Management (BLM) has portrayed the rancher as a scofflaw, free-riding on the backs of roughly 16,000 ranchers on BLM allotments across the United States who pay their grazing fees. They say he now owes $1 million, most of it fines.

But interviews with some of Bundy's former rancher neighbors and ex-BLM officials suggest the reality is more complex: in Clark County, at least, the BLM no longer wanted the ranchers’ fees. It wanted them off the range to fulfill its legal obligation to protect the tortoises living on its land. To achieve this, it joined forces with the county government.

Clark County is not an isolated case. Disputes over land rights are playing out in many Western states, especially in rural areas, where some residents and lawmakers question the legitimacy of the federal government's claim to swathes of land.

In New Mexico, a county government is arguing with federal land managers over whether a rancher can take his cattle to a fenced-off watering hole. In Utah, protesters have been defiantly driving all-terrain vehicles down a canyon trail closed by the U.S. government.

In Clark County, it was rancher versus tortoise.

'When they got the turtles listed as endangered ... they pushed to get the cattle off,' said Melvin Hughes, who once ranched alongside Bundy on the Bunkerville allotment, one of a dozen or so large federal grazing areas in Clark County.

The rationale for ending grazing cited by federal government agencies was plausible but, the agencies conceded, unproven: that livestock grazing harms desert tortoise populations, in part because they compete for the same foods, such as grasses and the new spring growth of cacti.

'They said the cattle was eating the feed from the turtles,' said Hughes. 'Hogwash!'

When the tortoise was listed in 1989, Las Vegas, the county seat, was one of the fastest-growing U.S. cities. For Vegas to spread even an inch farther into the tortoise-filled desert risked a federal offense under the Endangered Species Act.

The county successfully sought a permit that would allow development that inadvertently killed tortoises in some parts of the county if they funded conservation efforts in other parts.

To get the permit, the county made numerous commitments to the U.S. Fish and Wildlife Service to help the desert tortoise thrive. One of those promises was to pay willing ranchers to give up their grazing rights.

'Clark County made a choice: urban development is far more important to us than ranchers on the periphery of the county,' said James Skillen, author of a book about the BLM called The Nation’s Largest Landlord.

'The BLM is part of that larger tension between a kind of urban and environmentally conscious West and a traditional resource West,' he said. 'Those conflicts are just going to keep going and the Endangered Species Act is going to continue to be a mechanism of that conflict.'

Clark County officials did not respond to interview requests.

Bundy's refusal to recognize federal authority over the range has made him a folk hero in some conservative quarters. His two-bedroom home, in which he raised 14 children, sits south of a spill of lush grasses and reeds along the Virgin River.

Wise-cracking militia men with holstered handguns check the identities of visitors to guard against intrusion by federal agents. Although Bundy's popularity was badly dented by his widely reported remarks in which he wondered whether black people were worse off now than under slavery, dozens of supporters remain in camps on his property.

Bundy maintains the BLM’s aim from almost the moment the tortoise was listed was to drive the ranchers out of Clark County on a pretext he dismissed as 'wacko environmental stuff.'

'I could tell that the BLM was trying to manage us out of business,' Bundy told Reuters, explaining his decision to stop paying grazing fees.

His critics say he is ignoring laws that do not suit him and treating public land as if it is his own private range. The BLM said it could not answer specific questions about the Clark County disputes.

One of Bundy’s former neighbors is his cousin Kelly Jensen, a fourth-generation cattleman who owned a 40-acre ranch and grazed his cattle on the public lands around it.

Life as a rancher was not a lucrative business, Jensen recalled. Most of the Bunkerville allotment’s 160,000 acres is arid brown-dusted desert.

He estimated the profit on a cow sold for slaughter was about $50. Still, he said, ranching was 'in the blood,' and he liked its self-sufficiency: if you needed a new fridge, you just sold a couple of cows.

Desert tortoises, which can live more than 60 years, have always been part of the landscape. They face myriad threats: development, disease and a huge explosion in the population of ravens, which prey on young tortoises. People sometimes shoot tortoises or crush them in their cars.

In its 1989 listing of the tortoise, the Fish and Wildlife Service named all those threats and more, including livestock grazing. But in 1994, it acknowledged in its Desert Tortoise Recovery Plan that the 'extremely controversial' question of whether cattle harmed tortoise populations was not settled.

In 2002, the U.S. Geological Survey said in a report that the evidence for the harm done by cattle was 'not overwhelming.' William Boarman, the biologist who wrote the report, said he was not aware of subsequent studies showing a strong link.

Still, the Fish and Wildlife Service said in its recovery plan, until it could be proved beyond doubt that the two species could get along, grazing should be banned in critical tortoise habitat.

Soon after the tortoise was listed, the BLM issued an emergency rule requiring the ranchers to remove their cattle from the range, according to the ranchers. A group of them hired a lawyer and asked for a hearing before an administrative law judge to overrule the order.

'Our argument was that livestock grazing on these allotments in these circumstances is not harming the desert tortoise,' said Karen Budd-Falen, the lawyer the ranchers hired. 'The court ruled from the bench: the cows can stay, the BLM is wrong.'

About a year later, the BLM again issued a clearance order, and the ranchers won a second victory in court. It didn't matter in the long term: the BLM began tightening grazing rules and working with Clark County to convince the ranchers to leave.

'We won the case, but we still have to get off the range,' rancher Jensen said.

Bob Abbey, who was the BLM's Nevada director for much of this period, acknowledged that the steps taken by the BLM to protect the tortoise had made life difficult for some ranchers.

'When you limit grazing in such a prescriptive nature many ranchers feel they cannot make a living,' he said.

Abbey said the BLM worked with Clark County to offer payments to the ranchers because it was the 'fairest way of resolving' the issue.

Some ranchers seemed happy with the money they were offered, said Budd-Falen, the lawyer.

But ranchers interviewed by Reuters said that given the choice they were presented with, their sales were hardly willing.

'We had no say in what we were going to get,' said Calvin Adams, who also ranched on the Bunkerville allotment.

About seven years after first fighting the BLM before a judge, he accepted $75,000 to give up his grazing rights. 'I couldn't afford to pay the lawyers when they just keep taking you to court,' he said.

It is not clear how many ranchers accepted a buyout and how many left for other reasons. Either way, the efforts of Clark County and the BLM were effective: it took many years, but eventually more than 1 million acres of federal rangeland was emptied of cattle apart from those belonging to Bundy.

Clark County has spent millions of dollars of developers' money on conservation efforts, from signage to studies, and relocated thousands of tortoises that were in the way of development projects into conservation areas.

But the development allowed by the county's permit has killed hundreds of tortoises, too. A 2001 report by the county estimated that upwards of 400 tortoises were killed each year in building projects after it dropped a mandatory requirement to relocate tortoises before construction began.

It is still too soon to tell whether the tortoise population is recovering, or at least holding stable, according to the Fish and Wildlife Service and biologists.

Meanwhile public land in Clark County's Dry Lake Valley has been zoned for solar energy development. For any projects to proceed, developers would have to balance the damage by conserving tortoise habitat elsewhere.

The BLM says it has found a perfect swathe of land for these conservation efforts, pending final approval. There is one problem: it is home to hundreds of Bundy's trespassing cattle.

Bundy may soon find he is in the way all over again.

Judge rejects environmental challenges to Mojave groundwater project

An aerial view of Cadiz Inc. property in the Mojave Desert in 2012. (Al Seib / LA Times)

by Bettina Boxal
Los Angeles Times

In a one-page ruling, an Orange County Superior Court judge last week swept aside environmental challenges to Cadiz Inc.’s plans to pump groundwater from beneath the Mojave Desert and sell it to Southern California suburbs.

The May 1 decision by Judge Gail Andler cleared one set of obstacles to the controversial project. “We’re grateful for that result,” Cadiz Chief Executive Scott Slater said. “We’re going to keep our head down and keep going about things the right way.”

But opponents vowed to appeal the ruling, and Cadiz still has several other hoops to jump through.

Lawsuits filed by the Center for Biological Diversity, an environmental group, and Tetra Technologies Inc., a corporation that extracts an industrial salt from the desert aquifer, challenged the project’s environmental review, calling it inadequate.

They also contended that San Bernardino County should have led the review, rather than the Santa Margarita Water District, which has signed an agreement to buy water from Cadiz.

Andler expressed concern over the district’s lead role but concluded that it “did not rise to the level” of a violation of state environmental law.

Adam Keats, senior counsel with the biological center, said his organization will appeal the decision. “This is a long-haul game for us, and we’re not giving up that easily. This is one opinion.”

Conservation groups, Sen. Dianne Feinstein (D-Calif.) and federal scientists have expressed concern that the pumping operation could dry up springs used by wildlife in the nearby Mojave National Preserve.

Groundwater in Cadiz’s proposed well field also contains naturally occurring hexavalent chromium, a carcinogen, at levels of 14 parts per billion to 16 parts per billion, exceeding the state’s new drinking water standard of 10 parts per billion.

That is likely to complicate Cadiz’s plans to use the Colorado River Aqueduct to deliver its supplies to customers more than 100 miles to the west.

The Metropolitan Water District of Southern California, which owns the aqueduct and uses it to send river water to millions of Southland residents, has said in formal comments that the Cadiz supplies would have to be treated before they could be pumped into the aqueduct.

“We’re pretty close to the standard,” Slater said. “We just don’t think it’s a significant issue for us.”

Also unresolved is whether the project will have to undergo a lengthy federal review. Cadiz wants to build a pipeline from the well field along an existing railroad right-of-way that crosses federal land.


The project is a precedent-setting private venture that proposes to annually withdraw enough groundwater from beneath the parched Mojave to supply 100,000 homes. Water sales could bring Cadiz $1 billion to $2 billion in revenue over 50 years.

Environmental documents show that the pumping would, over the long term, lower the groundwater table and deplete the aquifer under Cadiz’s property as well as surrounding public lands.

Cadiz experts have dismissed concerns about the operation, saying it will have minimal environmental effects.

Court OKs Dicey Cadiz Groundwater Pumping Project in the Mojave Desert

Ken Broder
AllGov.com

An Orange County Superior Court judge lined up six lawsuits filed to stop a controversial groundwater pumping project in the Mojave Desert and shot them all done in one brief legal opinion.

Judge Gail Andler ruled last week that Cadiz Inc. can move forward on its plan to divert surplus water from the Colorado River to an aquifer beneath 35,000 acres of land it owns, augment that supply by capturing water otherwise lost to nature, pump 16 billion gallons of water a year out of the aquifer and ship it via a 43-mile pipeline that hasn’t been built yet to the Colorado River Aqueduct.

The aquifer would be maximized with state-of-the-art conservation; participating water districts would contract for a share; thirsty Southern Californians would have a new, innovative source of water; and Cadiz shareholders would make a lot money. The shareholders got a jump on their end of the deal when the stock price rose around 30% the first business day after last Friday’s court ruling.

Cadiz has been pursuing the project for more than a decade, fending off environmentalists, desert residents, nearby mining interests, political watchdogs, water district officials and one honked-off Los Angeles Times columnist.

Michael Hiltzik described the project in 2009 in rather unflattering terms, seven years after the Metropolitan Water District of Southern California (MWD) had already rejected it. He dismissed the existence of “surplus” Colorado River water, questioned the amount of water said to already be in the aquifer, wondered about the environmental hurdles and detailed some of the political wheels that were greased to advance the project.

Cadiz CEO and Board Chairman Keith Brackpool was appointed to the state Horse Racing Commission in 2009 by Governor Arnold Schwarzenegger. He was elected chairman in 2010 before leaving last year. Schwarzenegger’s chief of staff, Susan Kennedy, worked for Cadiz for awhile and in 2005 received $120,000 in consulting fees while serving on the state Public Utilities Commission (PUC).

Brackpool and his associates contributed $43,650 to then-Los Angeles Mayor (and former Assembly Speaker) Antonio Villaraigosa and paid him a consultant fee while he was in between political assignments. He donated $345,000 to various campaigns by former Governor Gray Davis. San Bernardino County Supervisor Brad Mitzelfelt picked up $10,000 in campaign contributions in 2007-08 and Congressman Jim Costa of Fresno received $12,000.

Conservation groups have long opposed the Cadiz project over concerns that pumping water from the aquifer would dry up springs that support bighorn sheep and other wildlife. Air quality and groundwater beneath the Mojave Preserve also could be affected. They said the environmental impact report and groundwater management plan were deficient and challenged the role of the Santa Margarita Water District in Orange County in approving them.

Delaware Tetra Technologies, Inc., a mining company, filed suit against the project at one point, arguing that a drop in the water table would adversely affect the mining of salt in nearby dry lake beds.

All of the objections hit a dead end in Judge Andler’s court, at least temporarily, although she expressed some reservations. Andler said the water district, which wants to buy some of the water, might not be the right entity to serve as lead agency. But she wasn’t going to block the project over that.

Litigants in the case, including the Center for Biological Diversity, San Bernardino Valley Audubon Society, the San Gorgonio Sierra Club and the National Parks Conservation Association, may appeal. Even if they don’t, Cadiz still faces significant challenges. The company has to build a pipeline across public land, which may involve federal review.

Judge rules in favor of water mining

By Janet Zimmerman
Riverside Press-Enterprise

A judge on Friday rejected legal challenges filed against a controversial plan to mine water from a desert aquifer and pipe it to cities across Southern California.

Orange County Superior Court Judge Gail Andler issued a brief decision that clears the way for the Cadiz Valley Water Conservation, Recovery and Storage Project 40 miles east of Twentynine Palms.

“Cadiz is grateful for the thorough and deliberate review by the trial court and the court’s validation of the environmental review,” Scott Slater, the company’s chief executive officer, said in a statement.

The ambitious proposal to pump an average of 50,000 acre-feet per year — more than 16 billion gallons — from beneath the remote valley was challenged by the Center for Biological Diversity, National Parks Conservation Association, San Bernardino Valley Audubon Society, Sierra Club San Gorgonio chapter and Delaware Tetra, a brine-mining operation in the area.

Ileene Anderson, a biologist with the Center for Biological Diversity in Los Angeles, said the decision may be appealed.

“We are very disappointed,” she said.

The groups challenged project approvals by the Santa Margarita Water District in Orange County and San Bernardino County supervisors, as well as the environmental review, environmental impact report and groundwater management plan.

In her decision, Andler expressed concern over the designation of Santa Margarita Water District as the lead agency.

“Nonetheless, the court is not persuaded that those concerns constitute sufficient grounds” to halt the project, she wrote.

Santa Margarita is one of the potential buyers of the water, as is the Jurupa Community Services District in Riverside County and five other agencies as far north as San Jose.

Critics accuse Cadiz of overestimating the amount of natural water — such as rain — that will seep into the ground and replenish the aquifer. They also say the operation will drain the desert's precious water supply in the area between Joshua Tree National Park and the Mojave National Preserve.

Proponents say the project will spur economic growth by bringing a new source of water to a state plagued by drought.

Still at issue is a right-of-way application for a pipeline that would cross public land overseen by the Bureau of Land Management. A federal review may be required.

Environmentalists pushed Bundy ranch standoff over endangered [sic] tortoises

A helicopter takes off from a staging area of BLM vehicles and other government vehicles off of Riverside Road near Bunkerville, Nevada over the weekend of April 12-13, 2014. (Reuters)

Michael Bastasch
Daily Caller

Some have speculated that the standoff between federal agents and Nevada rancher Cliven Bundy is the result of a secretive deal orchestrated by Senate Majority Leader Harry Reid and political allies in the solar industry.

But the Bundy standoff is really the culmination of a long battle with environmentalists who want to keep federal lands off limits to economic activity. The primary vehicle used by government officials and environmentalists to advance this goal has been the desert tortoise, which was listed as “threatened” under the Endangered Species Act in 1990.

The land Bundy’s family had used for cattle grazing since the late 1800s suddenly became off-limits. Bundy refused to give up his grazing rights and wound up in a prolonged court battle. The court ruled against Bundy in 1998 and ordered him to remove his cattle, or else the Bureau of Land Management (BLM) would do it for him.

The BLM even had a webpage detailing the problems they saw from Bundy’s “trespass cattle” that were grazing in desert tortoise habitat. The webpage, however, was deleted. So was the cached copy after the Bundy standoff became nationwide news.

A screenshot of the deleted page from the BLM’s website shows that environmental groups were some of the main forces aligned against Bundy’s trespass cattle. Environmentalists were pushing for the disputed federal lands to be used as “offsite mitigation” for the impact of solar development. Solar development in the area is heavily supported by Nevada environmental groups.

“Non-Governmental Organizations have expressed concern that the regional mitigation strategy for the Dry Lake Solar Energy Zone utilizes Gold Butte as the location for offsite mitigation for impacts from solar development, and that those restoration activities are not durable with the presence of trespass cattle,” the BLM page says.

“The Center for Biological Diversity has demanded action to resolve trespass in designated critical desert tortoise habitat in several letters,” BLM page notes. “Western Watersheds has requested a verbal status update and later filed a Freedom of Information Act request.”

The Center for Biological Diversity (CBD) and the Western Watersheds Project (WWP) have been actively pushing the government to impose heftier grazing fees on cattle ranchers for years, along with pressuring officials to close of huge areas of public lands to grazing and oil and gas development.

“While Cliven Bundy is an extreme example, WWP knows that this sense of entitlement and disregard for federal authority is not uncommon in public lands ranching,” WWP said in a statement. “Bundy’s cows are not the only livestock trampling fragile deserts, precious riparian areas, and imperiling native plants and animals. That is why WWP will continue working to end abusive public lands livestock grazing and to press for meaningful policy reform.”

“We’ve been working for the Mojave desert tortoise since 1997. Challenging the Bureau of Land Management’s grazing practices on arid public lands, we’ve helped protect millions of acres of fragile tortoise habitat,” CBD says on its website.

“It’s so blatant,” says Rob Mrowka, senior scientist with the Center for Biological Diversity said of Bundy’s trespass cattle in 2009. “Anyone can go out there anytime of the year and see cattle. BLM employees trying to protect sensitive plants and animals are very frustrated. It’s a problem that’s been going on and on.”

In April 2012, the BLM were preparing to remove Bundy’s cattle from federal lands, but mysteriously abandoned the operation — note that this was an election year. CBD filed an intent to sue against the BLM under the Endangered Species Act for failing to remove the Bundy’s trespass cattle that year.

CBD was also enraged when the BLM halted removing Bundy’s cattle this month during a fierce standoff between armed federal agents, Bundy supporters and militia members. The BLM returned the 400 cattle they had rounded up to Bundy, angering environmentalists.

“The BLM has both a statutory and sacred duty to manage our public lands in the public interest, to treat all users equally and fairly,” said Mrowka. “Instead it as allowing a freeloading rancher backed by armed thugs to seize hundreds of thousands of acres of the people’s land as their own fiefdom.”

“The BLM monumentally failed to remove the trespass cattle, collect fees, or protect the land for more than 20 years,” Mrowka added. “Now it backed down in the face of threats and posturing of armed so-called ‘sovereignists.’ This is absolutely pathetic and an insult to ranchers and others who hold permits and pay their required fees to use the public lands.”

The Bundy ranch is not out of the woods yet. CBD and other environmentalists have also promised to hold the BLM to its court-mandated orders to round up Bundy’s cattle.

“[I]t’s clear that the BLM has a legal duty to remove trespass cattle for the land entrusted to it by the American people,” Mrowka said. “It has a moral responsibility to not let armed thugs and threats of violence seize hundreds of thousands of acres of public land for their own. We intend to hold the BLM accountable to the American people, fair play, and to justice.”

Glamis Dunes: Judge rejects lawsuit, opening new areas to off-roaders

Additional areas of the Imperial Sand Dunes Recreation Area, known as Glamis, will be opened to off-roaders this fall. (AP)

By Janet Zimmerman
Riverside Press-Enterprise

Ending a 14-year closure, about 40,000 acres of the popular Imperial Sand Dunes Recreation Area will be opened to off-road vehicles this fall after a federal court judge overruled environmentalists’ objections.

The land had been placed off limits to protect the Peirson’s milk vetch, a perennial herb listed as threatened under the federal Endangered Species Act.

The 250-square-mile recreation site in Imperial County is one of the most popular off-roading areas in Southern California, drawing an estimated 1.2 million visitors a year. It’s commonly known as Glamis for the small town there — the name popularized on T-shirts, decals and bumper stickers.

Off-road enthusiasts celebrated the decision by U.S. District Judge Susan Illston of the Northern District Court of California in San Francisco. Her ruling last week upholds a 2013 management plan adopted by the U.S. Bureau of Land Management that includes lifting most of the milk-vetch closure.

“It’s an excellent riding area,” said Jim Bramham, a board member of the American Sand Association, on Monday. “It’s been historically some of the best open dunes for people who like to do long, lineal rides and explore the desert.”

Bramham’s group was one of 10 that helped fight the lawsuit challenging the BLM’s plan. The American Sand Association’s website urges riders to stay out of closed areas until the BLM removes red off-limits stakes.

The largest area that will reopen is in the center of the dunes, with a small portion south of Interstate 8 and another in the northern section near Highway 78, Bramham said.

The dunes are the largest such formation in North America, covering almost 200,000 acres in southeast Imperial County, near the U.S.-Mexico border. The area also is known as the Algodones Dunes.

Officials with the Center for Biological Diversity, which filed the lawsuit, said they are considering whether to appeal the decision.

In her ruling, Illston found that the U.S. Fish and Wildlife Service is overdue in issuing a recovery plan for the Peirson’s milk vetch, and ordered one done by 2019.

The court order maintains closure of 9,261 acres of critical habitat deemed necessary for plant’s survival, as well as 26,000 acres of the North Algodones Dunes Wilderness that is permanently closed to vehicles.

The remainder, more than 127,000 acres, will be open to sand rails, motorcycles, four-wheelers and other off-highway vehicles.

Ileene Anderson, a biologist with the Center for Biological Diversity, worries about enforcement of the closures.

“The critical habitat follows the geography of the dunes. It looks like a big comb. I don’t know how they’ll be able to enforce keeping trespassing from happening in these areas that look like fingers going out from the backbone of the comb,” she said.

Terry Weiner, conservation coordinator for the Desert Protective Council in San Diego, said she has seen evidence of traffic in a closure area she regularly visits off Interstate 8 near the Buttercup Campground.

“People weren’t respecting that closure. They were riding through there,” said Weiner, who noticed many of the red stakes buried in sand or ridden over when she was there last month.

“That is the only place that the Peirson’s milk vetch lives on the entire planet,” she said. “The seeds can stay alive in sand for up to 20 years, but that requires the sand not being constantly turned up by tires, which dries them out.”

The Bureau of Land Management will work with off-roading groups to educate the public and develop new maps and signs to direct riders away from closures.


Imperial Sand Dunes Recreation Area

Size: Almost 200,000 acres, the largest mass of sand dunes in North America. The dune system extends for more than 40 miles in a band averaging 5 miles wide.

Where: In the southeast corner of California, on the U.S.-Mexico border.

Origin: The dunes were formed by windblown sands of ancient Lake Cahuilla.

Flora, fauna: Include Peirson’s milk vetch, a perennial herb, and desert tortoise, both listed as threatened under the Endangered Species Act.

Cool fact: The dunes are popular with moviemakers, who first filmed there in 1913. The list of credits includes “Star Wars,” “Jarhead” and “Scorpion King.”

Enviro Group Sues to Block New Desert Solar Projects Over Threat to Tortoises

Adult desert tortoise with four juveniles. (Lake Mead NRA/Flickr/Creative Commons License)

by Chris Clarke
KCET.org

The environmental activist group Defenders of Wildlife filed suit today to overturn the Interior Department's approval of two large solar projects planned for the Ivanpah Valley in the Mojave Desert south of Las Vegas, saying that the projects were approved without enough consideration of the damage they'd cause the federally Threatened desert tortoise.

The Stateline and Silver State South solar projects, which would straddle the California-Nevada line not far from the Mojave National Preserve, were approved by the Interior Department on February 19. Defenders of Wildlife had previously said it would sue Interior if the projects were approved.

According to the language in Defenders' complaint, the two projects "collectively threaten the survival of the tortoise in the Ivanpah Valley, which, in turn, poses grave risks to the survival and recovery of the entire Mojave population of the Tortoise."

The lawsuit was filed Thursday in the U.S. District Court for the Central District of California.

The Tempe-based firm First Solar would build each of the projects with its proprietary cadmium telluride photovoltaic panels. First Solar would operate Stateline, but it sold Silver State South to the Florida firm NextEra Energy Resources in October 2013. In 2013, the U.S. Fish and Wildlife Service estimated that the two projects would displace or kill as many as 2,115 desert tortoises, many of them hatchlings and juveniles.

Defenders' suit charges that the Interior Department failed to address the cumulative impacts to the tortoise of building both of the plants, with each project's Environmental Impact Statement omitting consideration of the other plant's impact. The group further points out that USFWS issued a Biological Opinion (BiOp) approving Silver State South despite the agency's earlier urging that the plant not be built because it would effectively seal off a critical genetic connectivity corridor for the tortoise.

The group is asking the court to vacate the projects' approval by the Interior Department and send agencies back to square one in the Environmental Impact Statement process.

The Stateline project would convert 1,651 acres of tortoise habitat in California, near the Ivanpah Solar Electric Generating System (ISEGS). Silver State South would occupy 2,388 acres on the Nevada side of the valley. Together with the nearly 4,000-acre ISEGS and the already existing Silver State North project, Stateline and Silver State South would create a band of industrial development across one of the most important migration and connectivity corridors for the desert tortoise, potentially affecting the species' survival into a warming 22nd Century.

"The combined Silver State South and Stateline Solar projects are examples of the kind of renewable energy development that does not take wildlife into account, or properly plan to have the least impact possible on imperiled wildlife," wrote Defenders' Courtney Sexton in a Thursday blog post. "They are a body blow to the threatened tortoises and habitat in the region. The result will essentially be an impenetrable wall of development cutting across the heart of the Ivanpah Valley."

"We don't have to choose between protecting imperiled wildlife and encouraging clean, renewable energy," added Defenders' California director Kim Delfino. "All we have to do is plan smart from the start and move proposed projects to low-conflict areas, something the BLM and the Service failed to do when they approved the Silver State South and Stateline Solar projects in the Ivanpah Valley."

Utah County Reaches Road Settlement with Federal Government

Alyssa Carducci
Heartland Institute

Utah state and local officials reached a landmark settlement with the federal government to open access to roadways once closed due to a federal wilderness study area. The agreement could serve as a model for claims on thousands of other roads Utah counties have presented against the government.

Juab County, the Utah Attorney General’s Office, and the federal Bureau of Land Management filed a joint consent decree in the U.S. District Court in Salt Lake City, which requires approval by a federal judge.

State Will Enforce Restrictions

The settlement gives Juab County ownership of three dirt roads accessing the Deep Creek Mountains. The three roads are Trout Creek, Granite, and Toms Creek roads.

The BLM agreed to remove fallen trees blocking the roads and turn them over to Juab County. State and local officials agreed to ban motorized vehicles between December and May each year and strictly enforce a ban on off-road motorized vehicle traffic in the wilderness study area. State and local officials can repair the dirt roads but must leave them in their “primitive” state. The agreement prohibits paving, improving, expanding, and performing routine maintenance on the roads.

Juab County also agreed to abandon some of its right-of-way claims in the wilderness study area as part of the settlement.

Model for Future Settlements

“Today’s agreement serves as a model for resolving road disputes going forward. We can find ways to agree, and I applaud the county and all stakeholders for proving this approach can work,” said Gov. Gary Herbert in a statement. “My hope is that we will continue to work to resolve RS2477 disputes.”

Utah counties have filed an additional 29 lawsuits against the federal government, encompassing more than 12,000 miles of roads. State officials plan on additional lawsuits regarding an additional 24,000 miles of roads.

Statute Recognized Rights of Way

A nineteenth century statute, known as R.S. 2477, granted the state ownership of roads crossing federal lands. The statute granted states and counties rights-of-way across federal lands to meet transportation needs during the 1800s. Congress repealed the law in 1976 but recognized state ownership of all roads the state could prove state residents regularly used for 10 years prior to repeal of the law. The federal government and environmental activist groups have vigorously challenged the state’s road-use claims.

Parties Express Support

Three environmental activist groups participated in the negotiations and signed on to the settlement agreement.

“Conservation groups have been permitted to intervene in several of these cases and are actively working to defend the United States’ title to these claims,” Southern Utah Wilderness Alliance legal director Stephen Bloch said in a statement.

State Rep. Roger Barrus (R- Centerville) told Environment & Climate News the road settlement will benefit Utah residents and protect their access to recreation areas.

“If Juab County leaders and our state public lands officials are comfortable that the agreement is in the best interest of the citizens of Juab County, our state and nation, then it's a good decision. It's the kind of decision that could be made more easily and pragmatically if the lands were under state ownership and management rather than burdened by red tape in a litigious federal system,” Barrus said.

Barrus sponsored H.B. 142, which he said is “designed to gather credible information in a report to reflect economic trends and management practices of public lands under federal control. With that information, Utah can better project how to best manage those lands for the benefit of the public and the citizens of our state.”

“The whole idea of transferring federal public lands to Utah is to improve how they are managed,” he added.

County supervisors have mishandled Cadiz project

Voice of the People
San Bernardino Sun

Regarding San Bernardino County increasing its legal fund to fight lawsuits over the Cadiz water project in Mojave, Board of Supervisors Chairwoman Janice Rutherford states, "We have scientists on all sides of the issue that have different views about how Cadiz's plans are going to affect the groundwater."

Well, no, Chairwoman, there are only two sides: that of Cadiz and the Santa Margarita Water District (SMWD) in Orange County (the former of which stands to make millions off the water sales), and that of everyone else, including independent scientists of the United States Geological Survey and the National Parks Service who have contested virtually every assertion made by the scientists hired by Cadiz and SMWD.

A prudent individual would be wise to question the motives of a company poised to make millions off a project on which it is seeking approval, but perhaps the tens of thousands that Cadiz has made in campaign contributions to some county supervisors has clouded their judgment.

Rutherford also states that the county will be "closely monitoring the project."

In May 2012, the San Bernardino County Board of Supervisors adopted a Memorandum of Understanding (MOU) in which they abdicated their "lead agency" rights to SMWD and also exempted the Cadiz water project from the San Bernardino Groundwater Management Ordinance. In doing so they also redefined the "annual overdraft" clause of the ordinance in which the county checks that the extraction of groundwater does not exceed the natural replenishment of such groundwater, from a yearly basis to a 10-year average. This means that the Cadiz project could operate with continual deficits (overdrafts) for at least a decade, creating an effective barrier to enforcement against harm to the aquifer. This is Rutherford's idea of "closely monitoring the project"?

The Board of Supervisors, whether through greed or ineptitude, has done the citizens of San Bernardino County a disservice in its handling of the Cadiz water project -- and for this we will pay dearly.

-- Paul Clement, Upland

Utah vs. feds: Preparing with road trips, cameras, interviews with old-timers

This road in Dry Canyon in Box Elder County is one of the 12,400 roads the state is seeking title to in its fight with the federal government over preserving access. (Public Lands Policy Coordination Office)

By Amy Joi O'Donoghue
Deseret News

SALT LAKE CITY — A legal team from Utah is traveling to remote areas throughout the state, recording testimony from aging witnesses and filming panoramic views of roads that snake through canyons or cross sagebrush-peppered lands.

The information is being compiled for the state's legal fight against the federal government in which it filed 22 lawsuits in 2012 that have since been consolidated into one case.

In a briefing recently given to a committee of lawmakers, Kathleen Clarke said there is some urgency in getting depositions from witnesses because they are aging.

"Some of these folks are our best witnesses," said Clarke, who is director of the Governor's Public Lands Policy Coordination Office. "Not knowing how long it will take or if any of these cases will ever be heard in court, we have an awfully long line of witnesses to get through."

Clarke said that as part of the requirement that the state prove that the roads existed and had 10 years of use prior to 1976, the legal team is also filming the roads.

"We are filming so the judge won't have to get into a Jeep and drive down these roads."

The roads in question are what's called RS2477 roads — named after a statute enacted in 1866 to promote settlement of the western United States by granting rights-of-way to states and counties for transportation.

The statute was repealed by the Federal Land Policy and Management Act, but that action was subject to "valid existing rights," giving rise to an interpretation by Utah and other Western states that the federal government can't forbid access.

Negotiations with the Department of Interior over title to the roads have lingered for years, finally propelling contentious legal battles in which Utah has alternately been victorious and suffered defeat.

One such loss was access to Salt Creek Road in Canyonlands National Park, which the state and San Juan County contend was illegally closed by the National Park Service.

Harry Souvall, public lands section chief for the Utah Attorney General's Office, said the case has been heard on appeal by the 10th Circuit Court of Appeals, with a decision to be released later this year.

The Salt Creek Road, he told lawmakers, is a good example of why many of the disputed roads are critical for economies of rural counties in Utah.

"Park service attendance and tourism in San Juan County were dropping and it's because people can no longer drive to see Angel Arch. It is now a nine-mile hike to get in there to see it. A lot of people can't do a nine-mile hike in sand to see anything, let alone this gem," he said.

The National Park Service has maintained the road was closed to motorized traffic because it was a streambed that was suffering from environmental degradation.

Souvall said the state has another RS2477 case stemming from a Kane County road dispute that is likely to be heard before the 10th Circuit as well. Together, the two cases have the potential to bring clarity and certainty to the issue.

"There's still that question on what we can or cannot obtain," he said.

The state's efforts have been resoundingly criticized by multiple environmental groups that argue its quest for title to the roads is a costly, irresponsible battle that will only lay waste to pristine landscapes.

"I am sort of shocked when I hear it is 12,500 roads and the largest litigation effort in the state," said Heather Bennett, with For Kids and Lands, an education coalition. "It comes back to the question of what is the best use of resources in this state."

The Southern Utah Wilderness Alliance in particular asserts the state wants "roads to nowhere" that are often narrow deer trails or traverse slick rock vistas.

But Souvall said nearly all the 12,400 roads that are part of the consolidated lawsuit have been vetted through a process that includes historical aerial imagery.

"A road that is closed is going to look like a deer trail," he said.

To support its documentation that the roads were used for a decade or more, Souvall said a legal team has been taking testimony from aging witnesses to preserve the historical record.

"In another case, we had taken a bunch of witness statements from 2000 to 2002. In 2009, when we were going through those statements, we found that approximately 40 percent of our witnesses were either dead or incapable of testifying. We lost almost half our witnesses."

The state struck an agreement with the Department of Justice to take 225 "preservation" depositions from witnesses who are 70 years or older who have health conditions and from witnesses age 80 and older.

"They may not be here to testify in live court," he said, adding that two of the witnesses are more than 100 years old.

To prepare the witnesses, Souvall's legal team takes them out on the road in question to see how much they remember. A Google Earth-style camera also captures a 360-degree view of the road as part of the state's documentation.

"Some of them know over 200 roads and some of them are over age 80," he said. "It is impossible to expect them to remember the details if we don't do this."

The process of gathering the preservation depositions is expected to take the full two years that make up the agreement, he added.

"It is a large effort," he said. "The process is designed to be as efficient as possible while still preserving the testimony of witnesses due to poor health or age."

One lawmaker questioned Souvall about that effort and why the state is pursuing claims to the roads in the wake of such criticism.

He mentioned a road in Uintah County that offered a breathtaking view of surrounding scenery.

"It's a stunning vista. You see people camped there. I don't know how you put a price on Scouting trips, family reunions and everyone being able to go there, from grandpa to infants," he said. "Once it is our right, our road, it is much more difficult to close that road. The fact that it is ours does not mean it will be abused."

San Bernardino County increases legal tab by $500,000 for Cadiz litigation

Joe Nelson, Staff Writer
San Bernardino Sun

The tab to defend San Bernardino County against nine lawsuits opposing a pipeline project environmentalists say will drain a swath of the Mojave Desert of precious groundwater grew to $1.5 million Tuesday after county supervisors approved an increase in legal costs.

The board authorized increasing its contract with the Sacramento law firm Downey Brand LLP by $500,000 - from $949,332 to $1.5 million.

The lawsuits allege, among other things, that the county violated state and federal environmental laws and San Bernardino County's own Desert Groundwater Management Plan by approving the Cadiz pipeline project.

The litigation is not costing taxpayers, as Cadiz Inc., the Santa Margarita Water District and the Fenner Valley Mutual Water Company are reimbursing the county for its costs.

Nearly a dozen lawsuits have been filed since the project was approved last October. Two lawsuits have been dismissed since then by judges in state and federal courts.

Los Angeles-based Cadiz, Inc. and the Santa Margarita Water District in Rancho Santa Margarita have teamed to pump groundwater from aquifers near the Mojave National Preserve over a 50-year period. The water would be diverted via a 43-mile pipeline to the Colorado River Aqueduct and stored, then sold to residents and businesses in south Orange County, and Rancho Santa Margarita.

The pipeline has yet to be built and would be constructed along an old railroad right of way.
"There's a lot of concern on the local level about this project, and I hope the county is going to be reimbursed for these costs because it's sad to think the county is actually spending a half a million dollars more of taxpayer money to give our water away," said David Lamfrom, California Desert Senior Program Manager for the National Parks Conservation Association, one of the agencies that has sued the county over the project.

Cadiz owns 45,000 acres in eastern San Bernardino County, most of which overlies the Cadiz and Bristol dry lake beds comprising the Fenner Valley aquifer system south of the Mojave National Preserve and northeast of Twentynine Palms. Cadiz and the Santa Margarita Water District plan to pump 50,000 acre feet of groundwater from the aquifers annually.

Delaware Tetra Technologies, a company that operates a brine mine in the Fenner Valley and depends on groundwater from the Bristol and Cadiz dry lake beds for its operations, argued in its lawsuit that the pipeline project would force the closure of its mine. Other organizations suing the county include the Center for Biological Diversity, the National Audubon Society and Sierra Club, and the International Union of North America Local Union No. 783.

Plaintiffs allege the county has relinquished most of the project's oversight to Cadiz, Inc. and the Santa Margarita Water District.

"San Bernardino County decided not to be the lead agency, and we believe they were derelict in their responsibilities to protect their own groundwater," Lamfrom said. "Santa Margarita became the lead agency, and they stand to benefit from this water. That's the fox guarding the henhouse."

Board of Supervisors Chairwoman Janice Rutherford said there are different schools of thought on the potential impacts the project will have on the environment and on county residents and businesses. She said the county will be closely monitoring the project.

"We have scientists on all sides of the issue that have different views about how Cadiz's plans are going to affect the groundwater," Rutherford said. "The county's plan is to monitor what happens as it moves forward and then adjust responses based on what turns out to be fact. We try to put in safety valves so that if something starts to go wrong, then we act to correct it but still allow for the drawing of that water for human use."

Sen. Dianne Feinstein has opposed the project since it was first introduced more than a decade ago. In a letter to the Board of Supervisors in October, Feinstein urged the supervisors to oppose the project. She said that even if the amount of groundwater extracted annually were reduced from 2.5 million acre feet over the project's 50-year life span to 1 million acre feet, it would still be too much.

"I remain concerned because even with a 1 million acre foot cap, which translates to 20,000 acre feet annually, this amount still far exceeds the USGS recharge estimate and those of other independent groups," Feinstein said in her letter.

Project opponents say Cadiz overestimated the amount of annual precipitation that would recharge the groundwater basins in the Bristol and Fenner valleys, and that natural springs within the Mojave National Preserve were threatened because they are linked to the aquifers.

Officials at the Santa Margarita Water District could not be reached for comment Tuesday.

Courtney Degener, vice president of investor relations for Cadiz, Inc., said in an e-mail that the company does not comment on pending litigation, but did say the company stands by the project, which is based on "the best science and a commitment to protecting the desert environment."

She also touched on the significance of the project.

"California water providers are currently engaged in serious efforts to identify new water supply options as a result of ongoing challenges to California's traditional water supplies and the Cadiz project offers a safe and sustainable supply that water providers throughout Southern California can rely on to meet their changing needs," Degener said.

Lawsuit Filed Against Wind Energy Project Near Mojave Preserve

Spirit Mountain from Wee Thump Wilderness. The Searchlight Wind project would fill the middle distance with wind turbines (Chris Clarke photo)

by Chris Clarke
KCET Rewire

The Bureau of Land Management (BLM) and the U.S. Fish and Wildlife Service (FWS) have been sued over the recently-approved Searchlight Wind Project in southern Nevada, with plaintiffs charging that the federal government conducted an inadequate review of the project's likely effects on desert wildlife. The project, which would generate a maximum of 200 megawatts of electrical power, would place 87 turbines on almost 19,000 acres of public lands within view of the Mojave National Preserve and the Lake Mead National Recreation Area.

The suit, which also names former Interior Secretary Ken Salazar as a defendant, was filed April 10 in the U.S. District Court in Nevada by the groups Basin and Range Watch and Friends of Searchlight Desert and Mountains, along with Searchlight, NV residents Judy Bundorf and Ellen Ross, and the Reverend Ron Van Fleet, an elder in the Fort Mohave tribe.

Plaintiffs charge that the project, to be built by Duke Energy, would (in the words of the suit) "pose significant adverse harm to a wide array of sensitive and protected species ... including desert tortoise, golden eagles, bald eagles, and residential and migratory birds and bats... through direct, indirect, and cumulative impacts" which weren't adequately addressed in the project's final environmental impact statement, nor in FWS's Biological Opinion on the project. The plaintiffs maintain that Secretary Salazar issued a positive Record of Decision for the project based on that inadequate review of the project's ecological impacts, and that mitigation plans for the ecological dmmage the project would cause have not been developed.

The suit also alleges that the project would cause irreparable damage to cultural resources important to local tribes, whose origin stories center on a prominent peak some miles south of the project's footprint.

The plaintiffs are asking the court to set aside Interior's Record of Decision on the project, as well as FWS's Biological Opinion and the BLM's Environmental Impact Statement, and to issue an injunction halting work on the project, which could start construction this year.

BLM approves Las Vegas water pipeline project

A planned pipeline would carry water from areas along the Nevada-Utah line into Las Vegas Valley. (JASON BEAN/LAS VEGAS REVIEW-JOURNAL FILE PHOTO)

by Sandra Chereb
Associated Press
Las Vegas Review-Journal

CARSON CITY - The federal Bureau of Land Management signed off Thursday on a massive pipeline project to carry billions of gallons of water to Las Vegas from rural counties along the Nevada-Utah line.

The record of decision, signed by Deputy Interior Secretary David Hayes, authorizes the BLM to issue a right of way to the Southern Nevada Water Authority for the 263-mile pipeline that would stretch from the rural areas to the desert gambling metropolis that is home to some 2 million people and attracts 40 million visitors annually.

"This is a huge milestone for Southern Nevada," said Pat Mulroy, the water authority's general manager.

She said being able to "draw upon a portion of our own state's renewable groundwater supplies reduces our dependence on the drought-prone Colorado River and provides a critical safety net."

The Colorado River flows into Lake Mead, Southern Nevada's main water source. A recent study projected moderate to severe water shortages over the next several decades.

Lake Mead's surface level has dropped about 100 feet since 2000 because of ongoing drought and increasing demand from the seven states and more than 25 million people sharing Colorado River water rights.

"What the study really told us was that we must prepare for a much drier future and that we can't count on the Colorado River to sustain our community in the way it once did," Mulroy said.

Environmentalists decried the decision, which comes two decades after the concept began to take shape and after years of litigation. More lawsuits are expected to follow.

Nevada's state engineer, Jason King, granted the water authority permission in March to pump up to 84,000 acre-feet of groundwater a year from four rural valleys in Lincoln and White Pine counties. One acre-foot is the volume of water needed to cover an acre of land with water 12 inches deep - about 326,000 gallons. An acre-foot is enough to supply two Las Vegas homes for a year.

King's rulings are being challenged in state court.

Simeon Herskovits, an attorney in Taos, N.M., representing a coalition of ranchers, farmers, rural local governments and environmentalists, said the BLM decision was being reviewed but added that unless "serious deficiencies" in an earlier environmental study have been corrected, the decision to approve the pipeline cannot "be scientifically, economically or legally sound."

The BLM's decision follows findings made in November by the U.S. Fish and Wildlife Service that the project would not significantly affect about a dozen threatened or endangered species.

Environmentalists say otherwise.

"Some of Nevada's rarest, most unique species rely on wetlands and springs," said Rob Mrowka with the Center for Biological Diversity. "The Las Vegas water grab could undo all that and drive them extinct in the blink of any eye."

BLM spokeswoman JoLynn Worley said the decision authorizes the "main conveyance and support facilities" to be built on federally owned land. It's the last administrative ruling by the federal agency, and further challenges will be handled by the courts.

She said environmental studies will be required on specific aspects of the project as it is built.

But Herskovits said smaller environmental studies are no consolation after the project as a whole is given a green light.

"We don't feel that offers an adequate safeguard," he said.

Critics also said that the BLM relied on outdated or faulty data and that the project's price tag, once estimated around $3 billion, probably would approach $16 billion. That expense, they said, should have been addressed in the agency's environmental report to determine whether the project was financially feasible.