Judge Upholds Protection of Habitat for California Gnatcatcher (Polioptila californica)
- 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
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
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
Los Angeles, California