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Judge Upholds Protection of Habitat for California Gnatcatcher (Polioptila californica)

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  • Garry George
    Los Angeles Times Friday, June 14, 2002 By Seema Mehta: More than half a million acres of Southern California land protected for two imperiled species will
    Message 1 of 1 , Jun 14, 2002
      Los Angeles Times
      Friday, June 14, 2002
      By Seema Mehta:

      More than half a million acres of Southern California land protected for
      two imperiled species will retain its special status even though federal
      officials failed to consider the economic impacts of labeling so much
      property "critical habitat," a federal judge in Los Angeles ruled
      earlier this week.
      In making this decision, which was made public Thursday, Judge Stephen
      V. Wilson rejected the Bush administration's effort to leave the land
      unprotected and open to development while the U.S. Fish and Wildlife
      Service conducts a new analysis of the economic impact of protection on
      property owners.
      The land, covered with sage scrub and shallow freshwater pools, was
      deemed essential two years ago by the agency for the survival of the
      coastal California gnatcatcher and the San Diego fairy shrimp. Wilson
      also ordered the Fish and Wildlife Service to complete a new economic
      analysis in 10 months, less than half the time the agency had sought.
      Federal wildlife officials declined comment, saying their attorneys had
      not had enough time to review the written ruling, which was filed
      Tuesday.
      Environmentalists hailed the move, saying it will prevent wholesale
      habitat destruction by construction of a toll road by local
      transportation agencies and of 14,000 homes by a development company,
      Rancho Mission Viejo, in south Orange County.
      "This is really good news," said Joel Reynolds, a senior attorney with
      the Natural Resources Defense Council, which has been involved in
      litigation with the agency over the gnatcatcher for nearly a decade.
      "You've got major developers chomping at the bit to proceed with huge
      developments," he said. "Those developers are coming in here arguing
      that the elimination of protection would make no difference for the
      gnatcatcher. But the truth is they are here fighting the designation
      precisely because they know that it does make a difference and that's
      what the court recognized."
      David Smith, legal counsel for the Building Industry Assn. of Southern
      California, said he felt the judge should have struck the rule since the
      government conceded that it was flawed. "But I don't think it has that
      much consequence either way," especially since new rules will be in
      place by next summer, he said.
      One of the most controversial provisions of the Endangered Species Act,
      critical habitat is a category of protected land in which building and
      other activity can be limited or even barred to ensure the survival of
      rare plants and animals.
      In 2000, the U.S. Fish and Wildlife Service declared more than 510,000
      acres in Southern California essential to the survival of the
      gnatcatcher and the fairy shrimp. Responding to lawsuits by Rancho
      Mission Viejo, the Transportation Corridor Agencies, the Building
      Industry Assn. and others, the Bush administration asked Wilson to
      invalidate the designations.
      The administration's request coincided with a slew of lawsuits, brought
      by landowners nationwide, challenging how the government conducted its
      financial analyses of the impact of designating critical habitat.
      Before designating habitat, the service is legally required to analyze
      the economic consequences for developers, private property owners,
      cities and others with financial interests in the land. Until last year,
      nearly all those analyses had said creating critical habitat would have
      little to no effect.

      Developers' attorneys said the court's underlying decision, which Wilson
      reached in February, recognizes that the wildlife service failed to take
      the economic impacts into account when mapping habitat.
      "We hope this time around the government will do a serious, thorough
      analysis of all the economic impacts of the critical habitat
      designation," said lawyer Rob Thornton, who represents the TCA, which
      wants to build the toll road through gnatcatcher habitat in south Orange
      County.

      Garry George
      Los Angeles, California
      garrygeorge@...
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