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By: Robert Janis

California ORV Association

Center for Biological Diversity (CBD) Vs. California Off-Road Vehicle Association (CORVA)

We have all heard talk of natural enemies -- oil and water, dogs and cats, cats and mice, the Hatfields and McCoys. When it comes to the issue of off-road riding it seems that the off-road riding enthusiasts and some conservation groups can also be categorized as natural enemies. And this fight between cultures can become rather heated.

Take the situation that led to a lawsuit between the Center for Biological Diversity (CBD), a non-profit conservation organization with more than 32,000 members that is involved in the protection of endangered species and habitat, and the California Off-Road Vehicle Association (CORVA), an organization that serves to protect the rights of off-road vehicle riders and enthusiasts.

In a few days in January, 2007 the CBD tried to prevent an off-road vehicle event, the Truckhaven Challenge, a poker run for off-highway recreationists, from taking place. The environmental group filed a lawsuit to obtain a Temporary Restraining Order to stop the event from the Superior Court of California in the County of Sacramento. The California Off-Road Vehicle Association and the California Department of Parks and Recreation Off-Highway Motor Vehicle Recreation Division (OHMVR) were identified as defendants in the suit.

In a few short days the suit was filed, evidence was presented to the court and the court made a judgment -- it refused to issue the temporary restraining order.

So, what happen? How was CORVA and OHMVR able to fight off the CBD? Is there something that can be learned here for other off-road/off-highway vehicle state associations if they are ever confronted with a similar situation?

History
For about a period of 12 years CORVA has produced a poker run called the Truckhaven Challenge on land known as the “Freeman Properties.” The California Department of Parks and Recreation Off-Highway Motor Vehicle Recreation Division had purchased about 4,000 acres of the private land in 2006 at the request of CORVA. Adjacent to the land, which is referred to as the Truckhaven Hills area, is the Ocotillo Wells State Vehicular Recreation Area (OWSVRA), an off-road riders park created by the OHMVR.

The event was scheduled to take place on January 20-21, 2007. On January 17 the California State Lands Commission, pushed by CBD, sent a letter to CORVA notifying them that it had “...no authorization to use state-owned school lands” for the event and requested CORVA to “advise members and any other event participants that permission to cross State lands ... has not been granted, and make every effort to assure that such trespassing will not occur.”

The next day, January 18, CBD filed its lawsuit. They reasoned that the site was a Big Horn Sheep Critical Habitat and the temporary restraining order that it sought was done so to protect the area from any damage that might occur during the Truckhaven Challenge. CORVA attorney David Hubbard received word of the suit on January 18 and flew to Sacramento, California in order to participate in a court hearing scheduled for the next day. After researching the suit, Hubbard suggested to CORVA president Ed Waldheim, the event be canceled to avoid a possible adverse decision by the court.

In the meantime, volunteers from CORVA had been working at the Truckhaven site since Monday, January 15 setting up the course for the event with ribbons and stakes. The volunteers were working with representatives from the State Parks Department that included an archaeologist and a biologist to re-route the course so that the event would not run on the Big Horn Sheep Critical Habitat. The re-route was complete on Friday, January 19 one hour before Waldheim notified CORVA board members that the event had been canceled. In addition, Waldheim told Hubbard to notify the court and all parties of the lawsuit that CORVA officially withdrew its permit from the State Parks Department giving them permission to run the event.

As a result of the decision to cancel the event, CORVA volunteers removed the course markings, CORVA board members sent e-mail notifications to pre-registered participants that the event had been canceled and a cancellation notice was posted on the CORVA website. Moreover, the volunteers on the site canceled registration that was taking place there and also removed signs from the site.

CORVA expected that the affair was finished and that CBD would drop the suit. Instead, on the following Monday, CBD filed another Temporary Restraining Order to shut down all off-highway vehicle use at Truckhaven Hills and it accused CORVA of going on with the event. The court scheduled a hearing for the new Temporary Restraining Order for Friday, January 26 and CORVA had to submit a brief and evidence to answer the order by Wednesday, January 24.

Arguments
In their briefs, the attorneys for the CBD argued that the OHMVR Division of State Parks and Recreation had originally purchased the property as an add on to the Anza Borrego Desert State Park. But later changed that into a jointly managed area by Anza Borrego Desert State Park and the Ocotillo Wells State Recreational Area. CBD lawyers argued that this was “bait and switch” on the part of State Parks. They further argued that State Parks got an exemption to conduct a environmental review of the property in accordance to the California Environmental Quality Act.

The CBD lawyers added that the property includes critical habitat for endangered Peninsular Bighorn Sheep, rare geological formations, rare and threatened plants and was an archeological and cultural resource area because it includes “Sleeping Circles” and fish traps used by Native Americans for hundreds of thousands of years. They argued that the area could be and was being damaged by the off--highway motor vehicle recreational park and they asked for relief via a temporary restraining order. They added to the suit that CORVA had not canceled the Truckhaven Challenge, but had gone on with the event.

The attorney for CORVA countered that the Truckhaven Challenge was canceled and submitted evidence including depositions to prove the point. He further argued that State Parks didn’t do anything wrong when it exempted the property from an environmental review. CBD had 35 days from the filing of the exemption to file a suit against it but did not. In other words, there was a statute of limitations involved.

On Friday, January 26, the Superior Court of California ruled against the CBD’s request.

Conclusion
So, what can be learned by this affair? First, it is essential that the personnel of an off-road or all terrain vehicle state association be well informed of the issues that are of concern to the off-road vehicle community. In this case, David Hubbard, the attorney for CORVA, already had a general understanding of the issues and needed to only take time to research and review the CBD petition. Second, a state association needs to be prepared to act quickly. In this case, upon learning of the suit, CORVA quickly canceled the Truckhaven Challenge Event taking a good faith action toward the court. Cancellation of the event was meant to end the case but when the Center for Biological Diversity continued on, then the fact that CORVA canceled the event gave time for the court to proceed with hearings and make its decision. Moreover, evidence that was needed to challenge CBD was obtained quickly including depositions from the various CORVA members and officers who were involved. Meanwhile, the Center for Biological Diversity falsely accused CORVA of continuing on with the event when the evidence clearly showed that it was not. Thus CBD had taken a bad faith action toward the court. In short, the major lesson learned here is, third, cooperate with the court.



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