Lawsuit Pits Tribe Against U.S. and Endangered Bighorn Sheep

Peninsular bighorn sheep have lived in this sun-drenched oasis and the parched mountains looming above as long as Native Americans have been here.

It is an ancient relationship enshrined in the bighorn statue chained securely in front of the Agua Caliente band of Cahuilla Indians’ downtown administrative offices.

But now, the tribe is suing the U.S. Fish and Wildlife Service seeking to withdraw special protection of 844,000 acres for the endangered sheep. Tribal officials contend that the “critical habitat” designation could cost them “hundreds of millions of dollars” in future development revenues -- even though only 17,000 of the protected acres are on reservation land.

An attorney for the tribe said that to challenge the habitat designation on the reservation land, the lawsuit had to target all 844,000 acres.

The tribe, which owns half of downtown Palm Springs, says it has no immediate plans to develop the lands, but wants to preserve its right to do so. Agua Caliente officials say they have already done much to protect the sheep and have other conservation plans in the works that the Fish and Wildlife Service is discounting.

“What more do you want? They’ve done this for thousands of years,” said Tom Davis, tribal chief planning officer, waving toward a 2,000-acre park set aside by the tribe at one end of town that includes habitat favored by the shy sheep. He said the park was one of several examples of the tribe’s efforts to help the animals. “They don’t have a legal obligation to do it, but they do it because it’s the right thing to do.”

Noting that in the last 150 years California tribes gave up “millions of acres of land,” Davis said the principle behind reservations was “that the U.S. government, for the full protection and service of the tribes, cedes a territory to us.

“Now the same body, the U.S. government, has come back in and arbitrarily designated a portion of these properties as restricted for the benefit of a particular animal. Which we do not object to, we are all for the protection of the sheep. But we feel we have the proper protection and recovery measures in place.”

Davis said a proposed conservation plan for the reservation would enhance sheep habitat by adding mountain and canyon terrain while eliminating other large swaths of less valuable habitat within the tribally owned 17,000 acres.

But environmentalists say the sheep, which traditionally roamed in large, sociable herds from Palm Springs south through Baja California, need every bit of the hundreds of thousands of acres now protected if they are to survive.

The 2,000 acres of the park that have been set aside “is a tiny amount of land,” said Kieran Suckling, director of the Center for Biological Diversity environmental group, which sued in 1998 to have critical habitat designated, and plans to intervene in the tribe’s current lawsuit.

“It’s very clear that animals, plants and Native Americans have all suffered from the occupation of California,” Suckling said, adding, however, “I think Native Americans are just like the rest of us. Sometimes we protect the environment, and sometimes we harm the environment. Nobody has a predetermined cultural exemption on that.”

The lawsuit is set against a backdrop of fierce local fights over development of the rugged hillsides ringing this resort town, much of it part of the designated habitat for the sheep.

Critical habitat does not ban development outright but can add an extra layer of often costly and lengthy government scrutiny to building projects.

Jane Hendron, a spokeswoman for the Fish and Wildlife Service in Carlsbad, said her office, which prepared the critical habitat plan, could not comment on the suit.

The peninsular bighorn, so named because its range extends through the Baja peninsula, was declared endangered in 1998 after its population in the U.S. sank to just 280, as a result of habitat lost to development and disease from domestic sheep. Since then, its numbers have risen to an estimated 700 animals. Supporters say designation of critical habitat is a primary reason for the resurgence.

Biologist Jim Deforge, head of the Bighorn Institute in Palm Desert, says the animals are the only bighorn sheep uniquely adapted to trot nimbly across both lowlands and on slopes up to 4,000 feet.

“They’re very agile, just a beautifully graceful little animal,” he said.

There are only 32 sheep in the mountains above Palm Springs, and they tend to cluster in just two canyons.

As recently as 15 years ago, Deforge said, the sheep ranged over a much broader area, under the Palm Springs Aerial Tramway and across the Chino cone, a swath of land fanning out at the base of the San Jacinto Mountains at the entrance to town.

Much of the Chino cone has been designated critical habitat, including land that the tribe is suing over.

The tribe isn’t the only landowner pushing to develop in sheep habitat on the Chino cone or elsewhere.

In nearby foothills, a real estate firm is advertising future custom homes “from the low $2 millions,” according to a sales billboard.

Jeff Morgan of the Palm Springs Sierra Club group says none of the Chino cone should be developed because it is a priceless piece of habitat for wildlife, in addition to being “a beautiful gateway to the city.”

Palm Springs residents are sharply divided about development in and around their compact city of about 45,000. In November, voters narrowly approved large downtown redevelopment plans by the Agua Caliente tribe. In March, they rejected a ballot measure that would have limited development along the base of the San Jacinto and Santa Rosa mountains, but also blocked a golf resort in the foothills.

In its suit, the tribe says the Fish and Wildlife Service did not evaluate the economic impact of the critical habitat when it was designated in 2001.

In a precedent-setting case that year, the U.S. 10th Circuit Court of Appeals ruled that the service had not adequately considered economic impacts in designating critical habitat for a small, rare owl in New Mexico. Since then, courts have ordered the service to redo critical habitat for four species in Southern California, saying it had not adequately examined the costs to homebuilders, water agencies and others.

Davis, the Agua Caliente planning officer, said the tribe’s attorneys were negotiating with federal attorneys, and he was hopeful a settlement could be reached.

Ecologist David Patterson of the Center for Biological Diversity said environmentalists were concerned those negotiations could lead to a “sweetheart settlement” between the tribe and Bush administration officials to remove critical habitat all the way to the Mexican border.

“The peninsular bighorn has shown definite improvement, they’re on the right trajectory, but if you eliminate critical habitat, you probably lose that,” he said. “This law is about bringing the species back fully, not about keeping them hanging on to their deathbed for years and years.”