3 on Commission Hold Key to Bird’s Future : Ecology: Gnatcatcher in hands of men who in past contested cases have denied endangered-species status.

The fate of the California gnatcatcher--a songbird at the center of a fierce environmental debate--will be decided by three state Fish and Game commissioners who consistently vote against declaring species as endangered when powerful interests protest.

A Times analysis of Fish and Game Commission records shows that on eight occasions during the last four years the commission rejected the advice of state biologists and voted against protecting a plant or animal. In all eight cases, various interest groups, many of them developers and businesses, had mounted protests.

While environmentalists complain that the commission often buckles under pressure from attorneys and consultants hired by developers or other businesses, Commissioner Albert C. Taucher denies the accusation.

“That’s a lie,” Taucher said. “We do not take big business or the monetary aspects into consideration. . . . We’re supposed to weigh in with whether the critter is endangered or not. That’s it, pure and simple.”

Debate over the 5-inch, bluish-gray gnatcatcher has triggered more aggressive lobbying than any other species in recent years, Fish and Game officials say. Biologists say the bird, found only in Southern California and Baja California, is in danger of extinction within 20 years because 70% to 90% of its habitat has been bulldozed.

Developers, leading the opposition to listing the bird as endangered, contend that there is insufficient proof that the bird is at risk and say that enough land already has been set aside to protect it. If the bird is declared endangered, they argue, it could delay or alter future development in Orange, San Diego and western Riverside counties.

The three commissioners who will determine the gnatcatcher’s status at an Aug. 1 hearing are all Republican businessmen and outdoorsmen appointed by former Gov. George Deukmejian.

Certain to participate in the decision are Commissioners Benjamin F. Biaggini, a retired chief executive of Southern Pacific and a wealthy GOP contributor, and Taucher, a retired Long Beach sporting-goods store owner who holds more than two dozen lots or houses in Palm Springs and Long Beach, records show.

Commission President Everett M. McCracken, a retired Shell Oil executive who was a top government lobbyist for the company, will vote only if there is a tie.

The commission’s fourth member, Frank Boren, has announced that he will abstain from the vote because he was formerly president of an environmental group that is helping the Irvine Co. manage wildlife areas. And a fifth commission seat is vacant.

According to state financial disclosure records, Biaggini also has a connection with a local developer. His financial holdings include from $10,000 to $100,000 worth of stock in Philip Morris Cos., which owns the Mission Viejo Co. As one of Orange County’s largest developers, the Mission Viejo Co. is among the firms fighting the gnatcatcher proposal because it could delay construction of the San Joaquin Hills tollway, a 15-mile highway that would help funnel traffic at the developer’s Aliso Viejo project.

If the commissioners determine that the gnatcatcher may be in danger, the bird would immediately be protected for one year while more information is gathered. If they decide it is not endangered, the case is closed as far as the state is concerned. (A petition for federal protection is pending, with a decision expected in September.)

The state Endangered Species Act requires that commissioners consider only the “best available scientific data.” The commission may not consider economic issues.

The commissioners deny that any business bias influences their decisions, saying instead that they have refused to designate species as endangered because the science was unconvincing or they had too many unanswered questions.

“We’re just human beings,” McCracken said last week. “We have certain biases, I suppose, but I try to make my decisions on the evidence submitted. Whatever way I go, I make 50% of the people mad. We get criticized for everything we do. But we make an honest effort, and our intentions are honorable.”

Biaggini was in Iceland on a fishing trip last week and could not be reached for comment.

In fact, the commission grants the vast majority of requests to have species listed as endangered--45 out of 54 in the past four years, according to commission records. There was little if any opposition in all but two of those 45 cases.

When protests arise, however, records indicate that the commission behaves differently:

* Ten of the 54 species considered since 1987 stirred up major controversies, and the commissioners approved only two of those. One was the desert tortoise, which was delayed a year, then listed after a 3-2 vote. The other was a winter-run salmon in the Sacramento River, which was originally rejected. The commissioners reversed field after they were sued by an environmental group and agreed to rehear the issue as part of an out-of-court settlement.

* In the cases of eight of the nine species that the commission has rejected since 1987, biologists of the state Fish and Game Department strongly supported the listing and concluded that the scientific evidence was sufficient, in some cases overwhelming. But developers, duck hunters, cattle ranchers, farmers, the water industry or other groups registered strong objections.

* Despite the recommendations of Fish and Game biologists, the commission unanimously decided against listing two Orange County plants--the Tecate cypress in 1989 and the Turkish rugging in 1988. The Irvine Co. opposed the cypress designation, while both it and the Mission Viejo Co. opposed listing the rugging.

Of the eight controversial species designations that the commission rejected, McCracken opposed all eight; Biaggini rejected five, favored one, was absent for one and wasn’t serving on the Commission for one. Taucher voted against seven and supported one.

“Their decisions have severely jeopardized valuable natural resources in California,” said Paul Kelly, who was the Fish and Game Department’s endangered species coordinator for four years until he was promoted in March. “They have denied the protection of several plants and animals whose decline could have been halted, and now their situations have only worsened.”

While state law requires that commissioners consider only scientific information, some biologists and environmentalists charge that the commission often ignores that evidence or seems to be swayed or confused by biologists and attorneys hired by developers or other opponents. None of the commissioners have any scientific background.

In one 1989 case involving a request to protect the Suisun song sparrow, researchers presented data showing that nearly 90% of the birds had vanished, said Michael Rigney, director of the Coyote Creek Riparian Station near San Jose, which collected that evidence. Duck hunters opposed designation, and the commission, which heard no testimony on the issue other than that presented by the biologists, sided with the hunters.

“It was obvious that they didn’t make their ruling based on the evidence presented,” Rigney said. “They have an attitude that if they don’t think a species is something of value, they will not support it, despite what the biologists say and despite the impact it might have on the ecosystem at large.”

When told that Biaggini, Taucher and McCracken would be deciding whether to list the gnatcatcher, environmentalist Richard Spotts said, “That’s scary.”

“They tend to give the benefit of the doubt to commercial interests,” said Spotts, who is the California representative of Defenders of Wildlife and is well-acquainted with the three commissioners’ votes on controversial endangered-species issues. “They all came from business backgrounds, and they are part of the Deukmejian legacy.”

McCracken said that economic concerns do not play a role in his decisions, and in the cases where he has voted against listing a species, it was because he believed that the scientific data was incomplete or didn’t adequately prove the plant or animal was at risk.

“We certainly take into account what our biologists say and what other biologists say,” he said. “ . . . Our job is to try to determine whether the data that is before us is sufficient to make the decision to list.”

An investor in many major industries, Biaggini owns hundreds of thousands of dollars worth of stock in top California companies, including Unocal, Chevron and Southern California Edison, according to disclosure forms.

Included are holdings in the Philip Morris Cos., parent of the Mission Viejo Co. The development arm constitutes 2% of Philip Morris, one of the world’s largest food and tobacco companies.

If the commission approves the gnatcatcher as a candidate, it could delay construction of the San Joaquin tollway, which the Mission Viejo Co., the Irvine Co. and the Santa Margarita Co. strongly support to provide traffic relief to new developments.

John Wallace, an attorney with the state Fair Political Practices Commission, said the link between Biaggini’s stock and the gnatcatcher is so remote that it puts the question of conflict in a “gray area” of the law.

If the gnatcatcher was listed, “this is one where there is that possibility that the dominoes could fall” so it would hurt the Mission Viejo Co. and Biaggini could be materially affected, Wallace said. He cautioned that the case is “unusual,” and not one that “jumps out at you” as a conflict.

Norm Grossman, a board member of Laguna Greenbelt, a local environmental group that supports listing the gnatcatcher, said Biaggini should abstain on the vote even though his holdings are “infinitesimal.”

Other environmentalists said Biaggini has longtime connections with business that go far beyond his Philip Morris stock.

“He may not be consciously realizing there is a conflict when he votes, that it might hurt his own investments,” said Spotts, of Defenders of Wildlife. “But it’s his whole mind set. He has a kinship, an affinity with business interests.”

Wendy Wetzel, a spokeswoman for the Mission Viejo Co., said the company had no idea Biaggini owns stock in Philip Morris and has had no contact with him.

Although it is less actively involved in the gnatcatcher issue than are some other local developers, the Mission Viejo Co. has hired a consultant to handle the lobbying against the gnatcatcher listing, and it does have a large stake in whether the toll road is constructed quickly. When the company undertook its Aliso Viejo community, which is almost completed, it promised the county that it would provide major roads.

Potential and previous buyers have been promised that traffic relief is near, with the tollway part of the sales pitch.

“We certainly favor the San Joaquin corridor because it would be important traffic relief to the entire region. It should have been built 10 years ago,” Wetzel said. “But our development is not conditioned upon it. . . . We would simply do alternative roads in the area.”

How Fish and Game Commission Voted

In the past four years, the California Fish and Game Commission has considered 10 requests for endangered species designation that generated significant opposition. The commission approved two of those petitions for protection under the state Endangered Species Act and rejected eight others. The following list shows how the commission voted in all 10 cases. In cases where there was not a unanimous vote, the votes of the three commissioners deciding the gnatcatcher issue--Benjamin F. Biaggini, Everett M. McCracken and Albert C. Taucher--are included.

PETITIONS REJECTED

* Delta Smelt

Aug. 30, 1990

3-1 vote against (Taucher, McCracken voted against, Biaggini voted in favor)

Opposing or affected parties: State water industry

* Scotts Valley Spineflower

Aug. 30, 1990

5-0 vote against

Opposing or affected parties: Santa Cruz-area developers

* Suisun Song Sparrow

Oct. 5, 1989

3-1 against (Taucher, McCracken and Biaggini voted against)

Opposing or affected parties: Duck-hunting clubs and oil industries

* Tecate Cypress

Oct. 5, 1989

5-0 vote against

Opposing or affected parties: Orange County developers.

* Nevada Orcytes

Oct. 5, 1989

5-0 vote against

Opposing or affected party: Los Angeles Department of Water and Power.

* Ramshaw Meadows Abronia

Oct. 5, 1989

5-0 vote against

Opposing or affected parties: Cattle ranchers

* Flat-Tailed Horned Lizard

June 22, 1989

2-1 vote against (Biaggini, McCracken voted against, Taucher voted in favor)

Opposing or affected parties: Recreational vehicle users, geothermal-energy producing companies

* Orange County Turkish Rugging

Oct. 7, 1988

4-0 vote against (Biaggini was absent)

Opposing or affected parties: Orange County developers.

PETITIONS APPROVED

* Desert Tortoise

June 22, 23, 1989

3-2 vote in favor. (Taucher voted in favor of listing, McCracken and Biaggini voted against)

Opposing or affected parties: Off-road vehicle owners, mining and energy companies, agriculture and cattle ranching.

* Winter-Run Chinook Salmon

June 24, 1987

3-0 vote against. (Biaggini wasn’t on commission yet)

The commission subsequently was sued by an environmental group and settled out of court with the stipulation that it reconsider. On Feb. 4, 1988, there was an unanimous vote to consider as a candidate, followed by a May, 1989, unanimous vote to list.

Opposing or affected parties: Agricultural interests and federal officials who provide them water.

Source: Fish and Game Commission records and Fish and Game biologists