Following is an update on some of the recent legal activities in which ORBA has been involved:

OHMVR Complaint: EcoLogic Partners—and five off-highway advocacy groups, including ORBA—sued the California Off-Highway Motor Vehicle Recreation Commission in January for violating OHV grant regulations and open meeting laws by having illegal closed session meetings and denying grants.

PMV Delisting: The public comment period on our updated delisting petition for the PMV closes at the end of January, 2006. FWS will then have until Mid-July to render a decision and publish a final rule in the Federal Register. Art Phillips, on behalf of ASA has provided (or will be providing) FWS with his latest research data on the plant so that the information becomes part of the administrative record.

Riverside County OHV Ordinance: For approximately eight months, we have doggedly worked over Riverside County staff to improve the proposed OHV Ordinance and Noise Ordinance. We fought off the radical demands of the anti-OHV lobby and were able to get the Planning Commission to approve and recommend an ordinance that we could live with. Unfortunately, however, the Board of Supervisors, at a public meeting held on Tuesday, January 24, 2006, elected to reject the Planning Commission's recommendation and the draft Ordinances that were presented. The supervisors were swayed by the testimony of residents claiming that OHV use (primarily motorcycles) create so much noise and dust as to render their lives ruined and miserable. They brought videos (with sound) to prove their points. The fact that the riding activity that created these problems is already illegal didn't seem to matter. The County Board has pushed the matter back until March, and has asked staff to bring back a new ordinance, one that includes either a total ban on OHV use on private property, or a very rigid and expensive permitting requirement. We will be meeting with the supervisors to explain that such a radical departure from what was earlier discussed only hurts the innocent, and that we need to find a more balanced solution.

San Bernardino OHV Ordinance: Better news to report here. Because we got out in front and offered to negotiate with the other side, we actually have a solid ordinance that works for both the OHV user and the non-OHV user. It goes to the San Bernardino Board in February, 2006, and since it is a compromise deal, with no real opposition, it should pass without difficulty.

NECO and NEMO Litigation: Things on the settlement front are still moving forward. We sent to BLM our list of routes and areas to be considered for reopening, and now the ball is in the government's court. The BLM's lawyer said he will get back to us with a proposed procedure and evaluation criteria in February, 2006. Meanwhile, the court has continued to give us time to work this out.

WEMO Plan Biological Opinion (BO): In January, 2006, FWS issued a 198-page BO on the WEMO plan. We are in the process of reviewing it to determine whether we want to challenge it.

Coyote Canyon Litigation: We filed our lawsuit to reopen Coyote Canyon in November, 2005. State Parks has asked to have until January 30, 2006 to respond. The court granted this request.

National Forests: We filed a timely protest of the Forest Plans, alleging that the introduction of a new zone (back country motorized restricted) at the last minute violates the law.

ASA, ORBA, et al. v. DOI (interim closure of Imperial Sand Dunes): This was an action brought under the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA) to overturn the interim closures at Imperial Sand Dunes. The District Court recently denied our motion for summary judgment, finding that BLM had the right to issue the interim closures pending completion of an ESA section 7 consultation. We do not plan to appeal.

AMA District 37, ORBA, et al. v. DOI (interim closures in other parts of CDCA): This suit, also brought in the Southern District Federal Court, challenges the interim closures in the various subregions of the WEMO, NECO, WECO and NEMO. In many respects this case has been mooted by the adoption of permanent land management plans for NECO, NEMO, and WECO, and by the adoption of an OHV trail plan for WEMO. This case was decided against us in April, 2004.

ASA, ORBA, et al. v. USFWS (PMV Delisting Petition): We filed suit against USFWS for its failure to timely respond to our petition to remove the Peirson's Milk-Vetch (PMV) from the list of threatened and endangered species. We have a settlement agreement according to which USFWS will: (1) issue preliminary findings on the delisting petition by August 29, 2003; (2) consider in its deliberations the recent seed bank study and plant surveys conducted by Art Phillips, Ph.D; (3) issue a final rule on the proposed delisting (if such a rule proves necessary) by May 31, 2004; and (4) pay the petitioners' attorneys fees and costs, which amount to approximately $12,000. Since then, USFWS has issued a preliminary finding in our favor; i.e. they have agreed that there is sufficient data to consider delisting. Also, the OHV organizations involved in the suit have recently received a check from USFWS in the amount of $12,000 for reimbursement of attorney fees and costs.

On June 3, 2004, USFWS announced its final decision that the PMV continues to require protection and will remain on the list. This is a huge blow to the OHV community, which will need to determine its next course of action.

ORBA, et al. v. DOI, et al. (WECO): We have filed an action in federal court (Southern District of California) challenging the WECO management plan and Environmental Assessment. We have brought these claims under NEPA. The DOI has filed an answer to the complaint and now we are scheduling a case management conference with the court.

ORBA, et al. v. DOI, et al. (NEMO/NECO): We have filed an action in federal court (Southern District of California) challenging the NEMO and NECO management plans and Environmental Impact Statements. We have brought these claims under NEPA. During the settlement conference on October 20 it was agreed that there was no real possibility of settling the suit, as BLM feels compelled to go forward with the NEMO and NECO Plans as part of their duties under their agreement with CBD. So we have developed a briefing schedule to have the matter decided by cross-motions for summary judgment, which is the standard procedure. Hearing on this case is scheduled for December, 2004.

AMA District 37, ORBA, et al. v. DOI, et al. (WEMO OHV Route Designation Project): We have brought an action in federal court (Southern District of California) challenging the WEMO OHV Trail Plan and EA. These claims have been brought under NEPA. DOI has answered and we are scheduling a case management conference with the court.

AMA District 37, ORBA, et al. v. USFWS (Desert Tortoise): In April 2003, we filed suit in the federal district court of Utah, alleging that USFWS, in its implementation of the desert tortoise Recovery Plan, was violating key provisions of the ESA. We later amended the complaint to (1) challenge the Biological Opinions issued by USFWS regarding the desert tortoise, and (2) bolster our claim that USFWS and BLM, through their land management policies, were actually "taking" tortoises in violation of Section 9. The major thrust of our argument is that USFWS and BLM have failed to address the Upper Respiratory Disease epidemic that is driving the tortoises to extinction, and have actually taken steps that accelerate the spread of the disease. In May, the CBD filed a similar lawsuit in the federal court of the Northern District of California (although it focuses not on URTD but on OHV and grazing impacts). Because both suits arise out of the earlier litigation filed by CBD in March 2000 in the Northern District, we and the DOJ decided to transfer our case from Utah to San Francisco for consolidation with the new CBD matter. All activity on the case is suspended until the consolidation is completed.

Imperial Sand Dunes RAMP: CBD has challenged the Biological Opinion that provides the technical basis for the ISDRA RAMP. To protect ourselves and give ourselves standing, we have issued a 60-day notice which also challenges the BO. Our plan is to file suit as soon as the 60-days pass (around Labor Day) and seek consolidation with the CBD litigation. The point to this exercise is to get into the same courtroom as CBD and counter-balance their misrepresentation of the data regarding threats to the PMV. On a different front, Paul Turcke is preparing a motion to intervene in the CBD case on behalf of SDORC (and others who were intervenors in the original CBD lawsuit). It also appears that CBD may sue over the RAMP itself. If this happens, we are well-positioned, as we have also filed a formal protest of the RAMP, which is a necessary prerequisite for filing our own legal action in federal court. If this were to happen, the two cases -- ours and CBD's -- would likely be consolidated.

In October, an order issued in U.S. District Court in San Francisco requires that the BLM must wait for more input from the U.S. Fish and Wildlife Department before issuing a final plan for the Algodones Dunes that would reopen 49,300 acres of desert to off-road vehicle traffic. The ruling comes in the wake of a Sept. 12 federal court hearing prompted by the Center for Biological Diversity, which filed for a preliminary injunction blocking the implementation of the BLM's proposed dunes management plan, claiming the plan's biological opinion from Fish and Wildlife was flawed. At the hearing, the BLM told the court and CBD that it had requested clarification from Fish and Wildlife concerning the scope of the biological opinion. In the order, U.S. District Judge Susan Illston said that the BLM could not implement any management plan until a court hears of the new plan with its clarified biological opinion.

Flat-tailed Horned Lizard (FTHL): We provided extensive comments to USFWS explaining why there was no reason to list the FTHL as threatened or endangered. To our surprise, USFWS agreed with us (and many others) and published a Final Rule indicating that the species would not be listed. CBD has since brought suit over this decision. We are now exploring the possibility of intervening in this case.

Andrews Dune Scarab Beetle: CBD has filed a petition to list this beetle as threatened or endangered. It is endemic to the Imperial Sand Dunes, and if it were listed, we can expect additional closures and controls. We have submitted to USFWS a comment letter explaining why the beetle does not warrant listing. So far, USFWS has issued no preliminary finding as to whether CBD's petition presents sufficient technical evidence to suggest that listing is required.

Sunset Crater/Cinder Hills, AZ: Last year, the United States Forest Service and the National Park Service were contemplating a project which would have pulled the Cinder Hills OHV area (or at least a portion of it) into the jurisdiction of the National Parks Service. This would have resulted in a shut-down of the OHV area. We issued pointed comments in opposition to this plan. Thankfully, the plan was subsequently abandoned. However, we remain vigilant, as there is a strong contingent of people, both in and outside the government, that would like to close Cinder Hills.

National Forests in Arizona: The USFS recently devised a plan for eliminating cross-country OHV travel in five National Forests in Arizona. We recently filed detailed objections to this plan and its accompanying EIS. No final action has yet been taken.

Sand Mountain, NV: ORBA, through its attorney Joshua Mackenroth, opposed a proposed closure by the BLM of 1,000 acres of the Sand Mt. OHV area. The BLM has since relented, and is working with Friends of Sand Mountain to implements a "limited use" route system instead of a complete closure.

WEMO Plan: Also, recently the OHV community submitted our comments on the proposed WEMO Plan. When the final plan is adopted, we must decide among ourselves whether we want to challenge it in court. We expect BLM to approve the final plan sometime in the Spring of 2004.