Larisa Epatko, Environment & Energy Daily editor The Center for Biological Diversity is turning to the Endangered Species Act in its fight to limit off-road vehicles (ORVs) from part of the Imperial Sand Dunes Recreation Area -- the Algodones Dunes, straddling the California-Mexico border. The environmental organization says an upcoming final Bureau of Land Management plan for the area would open sections to ORVs that would send the Andrew's dune scarab beetle population into steep decline. But ORV users are confident the beetle population will be no worse for the wear, and say environmentalists are using the ESA more and more not to save species, but to limit uses on public lands that they do not like. The Algodones Dunes sweep across 159,000 acres of southeastern California and contain such species as the flat-tailed horned lizard, Colorado Desert fringe-toed lizard, Algodones Dunes sunflower and Peirson's milkvetch. A lawsuit over the threatened Peirson's milkvetch required BLM to close part of the Algodones Dunes to ORVs about two years ago until the agency finished its management plan for the Imperial dunes area and determined there was no correlation between motorized vehicles and the plant's survival. BLM currenly is in the process of reopening the areas to ORVs. A final resource management plan for the Imperial dunes is coming in mid-to-late January, according to Robert Bower, resource information specialist with BLM's El Centro, Calif., office. The plan BLM backs -- as outlined in the draft version -- would open non-wilderness parts of the Algodones Dunes to ORV use, but limit vehicles through a permitting process in 33,000 acres, said Bower. About 26,000 acres are designated wilderness and are off-limits to ORVs, he said. Daniel Patterson, desert ecologist for CBD, said the prospect of allowing ORVs back into the area gave environmentalists "no choice but to move for legal protection" for the beetle. "That plan is a one-sided disaster that maximizes off-roading at the expense of conservation," he said. CBD petitioned the Fish and Wildlife Service on Dec. 12 to list the species as threatened or endangered under the ESA; FWS has 90 days to respond. According to CBD's petition, FWS proposed listing the beetle under ESA in 1978, and during that process, the agency wrote that "the continued disruption of dune troughs by off-road vehicles prevents the accumulation of dead organic matter upon which the immature stages of this beetle feed." FWS eventually withdrew the listing proposal once it passed the rulemaking's two-year deadline. The petition also cited studies that said about 80 percent of desert animals exist underground during the day and can be crushed by ORVs. Bill Dart, public lands director for the BlueRibbon Coalition, a motorized recreation advocacy group, said biologists will likely discover that ORVs will not significantly impact the beetle population as a whole because other large tracts in the area do not allow any vehicular use. Dart also noted that when the milkvetch studies failed to yield results environmentalists were seeking, they turned to the beetle. And in the case of the beetles, it will take federal agencies more time to review their numbers since they are not as easy to see as a stationary plant that lives above ground, he said. "It's not about protecting the species, it's about using the Endangered Species Act as a tool to eliminate or control uses [environmentalists] don't agree with," Dart said. Under the ESA, "FWS has to assume the worst before proving otherwise." Instead, there should be an indicator that a species has a problem before steps are taken to list it, he said. ESA should not be used to "shut down public use or uses people don't agree with," added FWS spokesman Chris Tollefson. "The act should be used for its intended purpose -- to protect species and recover listed species, rather than a means for manipulating land-use activities. ... It undermines the public's support for the act when it's manipulated to do those types of activities, rather than focusing on the species themselves." But Don Barry, executive vice president of the Wilderness Society, who helped develop the endangered species law when he worked for FWS, said the blame lies with the federal agencies for failing to manage lands in a stewardship-oriented way. If species were listed that didn't need it, Barry said he'd be more inclined to give weight to the argument that groups are using the law to stop certain public land uses, but when species are finally listed, "they're the walking dead." Tollefson said FWS will act on the beetle petition as soon as it can, but the listing program is overwhelmed, and limited staff and funding make it difficult for the agency to respond to listing petitions by statutory deadlines. "Virtually all of our listing budget for the coming year is already accounted for," he said. Last month, FWS said it could not list the Yosemite toad under ESA despite its declining population due to a lack of funding (Land Letter, Dec. 19). Patterson said Congress, when authorizing the ESA, intended for citizens to be able to petition for a species' listing. "The only way species have been listed is through petitions and follow-up lawsuits," he said. According to Bower, BLM starts informal consultations with FWS after a species is proposed for listing and begins adjusting its management strategy to try to keep the species off the list. For example, the Algodones Dunes' flat-tailed horned lizard, which is the subject of litigation, has been proposed for listing. In response, said Bower, BLM has restricted ORVs in some areas in certain seasons. And the agency will do the same informal consultation if the Andrew's dunes scarab beetle makes it that far in the listing process, he said.