Most of you interested in reading this document will be familiar with the "CDCA Lawsuit" filed by the Center for Biological Diversity. Interest in this suit has risen again with the filing of a "new" stipulation on February 28, 2002, and a provision in that document indicating BLM's intent to institute an "emergency" closure on motorized access to the Western Rand ACEC. I am lead counsel representing the Desert Vipers Motorcycle Club, the San Diego Off-Road Coalition, the California Association of 4 Wheel Drive Clubs and the BlueRibbon Coalition in that suit. Our group is the only defendant-intervenor in the lawsuit. There has been a flurry of e-mail traffic and rumor about the status of the case, the "new" settlement, and the "intervenors" participation/wisdom, or lack thereof, in these latest developments. I am writing this document in response to a call by some in the OHV community for updated information.

A brief history of this litigation may help one better understand this case. The suit was filed on March 16, 2000. The lawsuit charged BLM with violations of the Endangered Species Act in managing the California Desert Conservation Area, and included in the prayer for relief a request for an order enjoining BLM from "authorizing, allowing, carrying out, or continuing any livestock grazing, road-building, off-road vehicle use, recreational use, water diversions, energy production, utility corridors, special use permits, land exchanges, mining, and other projects on the [CDCA] until the agency completes the required Section 7 consultations with [U.S. Fish and Wildlife Service]." BLM personnel provided BlueRibbon contacts with a copy of the complaint shortly after filing. After review by the BlueRibbon Legal Team, the BlueRibbon Legal Action Review Committee sent a letter addressed to "Southern California Multiple-Use Leadership" dated April 16, 2000. The letter, which was followed by personal appearances in Southern California by BlueRibbon Western Representative Don Amador, described the potential threats to OHV access and other CDCA activities, warned of the importance of promptly intervening in the case, and offered BlueRibbon's assistance in such an effort upon satisfaction of several conditions. Some organizations responded to this call, and many did not. We filed our motion to intervene on June 20, 2000, and the motion was granted in part on August 7, 2000.

The comments being circulated reflect confusion and inaccurate information regarding an intervenor's rights in this type of suit. An intervenor does not have "veto" power over a settlement between plaintiff and defendant. I have acted as counsel in several "access" lawsuits involving settlement. In my view, an intervenor may be involved in settlement negotiations, but is not guaranteed that right. For example, I represented BlueRibbon in a suit it joined with the International Snowmobile Manufacturers Association against the National Park Service challenging a decision to gradually eliminate all snowmobile access to Yellowstone National Park. The lawsuit was settled in the summer of 2001, and the process required by the settlement agreement is now underway. A variety of "ban supporters" successfully intervened in the case, but were not invited to and did not participate in any settlement discussions. Regardless of whether an intervenor participates in settlement negotiations or not, they will have a right, upon filing of the proposed settlement agreement, to file formal objections to the agreement with the Court. A reviewing judge has broad discretion to approve or reject the settlement, but my experience causes me to conclude both the law and practical reality favor adoption of a settlement. Thus, when settlement discussions began in the CDCA case in September of 2000, we faced the difficult choice of influencing the outcome from the "inside" of negotiations or objecting vociferously but ineffectively from the "outside." We chose to sit at the table. We were alone in this role. While other entities eventually filed motions to intervene, the judge assigned to the case determined these parties had waited too long and their motions were denied as untimely.

Settlement discussion continued for several months, and a series of agreements were reached. Our group, as recreational organizations, participated solely in the negotiations addressing recreation access to the CDCA. The original agreement involved several "interim" restrictions on access, but largely focused on "timetables" for BLM processes to evaluate long-term access issues. We were able to affect the substance of the settlement agreement, by reducing the area subject to interim "closure" and by adding additional terms mandating the BLM adhere to all applicable law and preserving our right, as well as the rights of non-parties to the suit, to challenge both the interim restrictions and the final outcome of the long-term processes.

BLM has missed nearly every deadline contained in the original agreements. In late 2001, some of the "big" deadlines were approaching and BLM realized it would not be able to meet these deadlines. In part, delays were necessary to accommodate additional public participation requested by the OHV community. Our communication, both with our client group and with other OHV leaders, indicated that we supported the extensions sought by BLM. As a result, renewed negotiations began to determine whether or how BLM might obtain its desired modifications to the deadlines in the original agreement. After a January 31, 2002, hearing, the Court issued an order stating that the parties would re-enter negotiations, to be concluded by February 28, 2002. Any agreement reached would be presented to the Court for approval. If the parties could not reach agreement, BLM was ordered to implement "emergency route designations "for NECO, NEMO in tortoise DWMAs, and on the West Colorado" on or before February 28, 2002.

Negotiations were conducted during February, 2002. I received and exchanged written proposals with counsel for the other parties, and participated in telephone discussions concerning the various issues. A primary issue, from our perspective, immediately emerged involving the Western Rand ACEC. In Center's view, the existing Biological Opinion for the area conditioned OHV access on compliance with route and other vehicle restrictions. According to the BiOp, failure to achieve such compliance would necessitate "clos[ing] the majority of off-road vehicle routes within the entire management area." As a result, Center insisted that BLM immediately close routes in the area. Rather than demand closure of "a majority of routes in the entire area" Center argued the closure should encompass all routes within the ACEC, purportedly because the ACEC contained more desirable tortoise habitat and because such a closure would be better defined and more easily implemented. Dialogue on this issue continued for several weeks. In the early stages of this dialogue in mid-February I forwarded the written proposals from Center and BLM to attorneys representing other interested OHV groups. Despite the fact that these organizations were not parties to the suit or the negotiations I invited input from them through their attorneys.

In addition to the Rands, Center requested interim closures in other areas. Through consultation with BLM and the negotiation process, we were able to move Center from some of these positions, but not on the Rands. In my opinion, BLM should conduct a public process prior to changing the on-the-ground access status, particularly where large land areas are involved. If BLM has any authority to immediately close routes, such authority exists only where BLM can document an emergency. We consistently made these points to both parties. Diligence, accuracy in fact and law, and good/bad looks and manners are only factors in the settlement process. Any negotiating process is necessarily an exercise in "horse trading" and concepts like "logic," "justice" and "fairness" do not always govern the process. One's "opponents" in negotiations do not always retreat in the face of inexorable logic or even profanity, and Center was sticking to its position on the Rands.

Given this status, we faced a difficult choice. Neither my legal opinion, the views of any of my clients, nor our outreach with the larger "access" community suggested we should agree to any of the proposed "emergency" closures. However, if our failure could somehow prevent any new agreement from being approved the result would be an immediate "emergency" route network for NECO, NEMO tortoise DWMAs and the West Colorado. As a result, and after consultation with and authorization from the designated representatives for my clients, I signed the agreement with the following qualifying language:

Defendant-Intervenors participated in negotiations and understand Plaintiffs and BLM have agreed to the above-stated terms. Defendant-Intervenors do not join in this agreement but understand that BLM will proceed to implement its terms should the agreement be approved by the Court, provided that, Defendant-Intervenors expressly reserve the right to challenge BLM management actions, including those implemented under this agreement, through appropriate administrative and/or judicial proceedings.

This may sound like a bunch of legal gobbledygook. The upshot is that we did NOT agree to any of the provisions of the agreement and have expressly reserved our right to challenge the Rands closure. I appeared at a hearing before the Court on March 14, 2002, and explained our objections to the emergency closure, and filed additional written objections on April 3, 2002. Accounts that I told the "interveners" they had "no choice but to agree" are untrue. My role as an attorney is to advise clients of the law governing an issue, their decision options, and the likely consequences of selecting each option. Clients, not lawyers, make decisions and that is what occurred in this case.

We are coordinating with other OHV groups and their attorneys to implement our gameplan concerning the Rands closure. It was not hard to see the direction this was heading, and our planning began in the third week of February. For obvious reasons I will not reveal further details. The point is work was underway to address this issue before the general OHV community was aware it existed.

Many public lands activities, including OHV access, are under attack. Some of us have been involved in these battles for many years. Many are just entering the fray. The issues are never as clear as they seem. Those who proclaim otherwise are lacking in experience or intelligence. We have varied personalities, experience, education, training and roles. The first question we all need to answer is whether we are on the same side. If you cannot answer that question affirmatively, neither I nor the organizations I represent can provide an answer you want to hear. If anything, I hope you learn from this suit that one's ability to participate in the administrative or judicial process is diminished with each day of inaction.

If you can agree we are on the same side, we need to work together to be part of a solution. I have a pretty thick skin and am more willing than many attorneys to listen to "constructive criticism" from others. However, I cannot take time to respond to every question or insult circulated via the worldwide web. We must efficiently utilize and improve upon established communication channels. Still, not every nuance of these complex issues can be explained to everyone's satisfaction. There are times when our world does not make perfect sense. When we are dissatisfied with this reality we need to avoid airing our frustrations and dirty laundry for our opponents and the agencies to see. Central to our collective mission is a commitment to work WITH and understand one another. We will continue toward that goal in the CDCA and other areas and hope you can join us.