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Court Approves Consent Decree that Requires the Fish and Wildlife Service to Replace its Existing Rule Designating Critical Habitat for the Peninsular Bighorn Sheep

By: Paul S. Weiland

On July 31, 2006, the United States District Court for the Central District of California approved a consent decree that requires the Fish and Wildlife Service to replace its existing rule designating critical habitat for the Peninsular bighorn sheep with a new rule by September 30, 2008.  Agua Caliente Band of Cahuilla Indians v. Kempthorne, C.D. Cal. Case No. 05-187 (July 31, 2006).  The existing rule designates over 840,000 acres of land in Riverside, San Diego, and Imperial Counties as critical habitat.

Plaintiff, the Agua Caliente Band of Cahuilla Indians, filed a lawsuit against the Fish and Wildlife Service challenging the existing rule after the Service designated tribal lands as critical habitat.  The Agua Caliente alleged, among other things, that the Service failed to properly consider the impacts of the rule on the tribe consistent with the Endangered Species Act and the federal government’s tribal trust responsibilities.

A number of parties intervened in the lawsuit.  The parties to the suit other than the Center for Biological Diversity (CBD) and Sierra Club agreed to resolve the matter by entering into a consent decree subject to court oversight.  The decree requires the Service to issue a proposed rule by September 30, 2007, and a final rule by September 30, 2008, that would replace the existing rule.  In the interim, the existing rule will no longer apply on tribal lands though it will remain in effect on over 95 percent of the lands that are now covered by that rule.

CBD and Sierra Club opposed court approval of the consent decree.  But the Court issued a 34-page order approving the consent decree and dismissing the suit.  The Court held that the decree is reasonable, fair, and equitable and rejected every argument advanced by CBD and Sierra Club.

This is one of a number of critical habitat lawsuits litigated to a successful outcome by Nossaman on behalf of firm clients.  Others include Building Industry Legal Defense Foundation v. Norton, D.D.C. Case No. 01-2311 (vacating and remanding critical habitat for the Riverside fairy shrimp and arroyo southwestern toad) and Building Industry Association of Southern California v. Norton, C.D. Cal. Case No. 01-7028 (remanding critical habitat for the coastal California gnatcatcher and San Diego fairy shrimp).

Paul Weiland was lead counsel for the Agua Caliente Band of Cahuilla Indians in the above-described matter.  He litigates environmental matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  Formerly, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or

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