Gnatcatcher Is Denied Protection in 3-1 Vote : Environment: Fish and Game panel refuses to make the songbird a candidate for the endangered species list.

In a hard-fought victory for Southern California developers, the state Fish and Game Commission on Friday denied endangered species protection for the California gnatcatcher, saying they were not convinced that the bird is seriously threatened.

Before the vote, a top official from the Wilson Administration took the unprecedented step of urging the commission to withhold protection so the governor’s office can negotiate voluntary agreements with landowners to preserve land for the songbird.

The Fish and Game Commission, rejecting the advice of the state’s wildlife agency, voted 3 to 1 against declaring the gnatcatcher a candidate for the endangered species list. The commissioners also were warned by their executive director that they may encounter legal problems if the governor’s proposal influenced their decision, since state law requires them to consider only scientific data.

If the petition had been granted, the songbird’s habitat, a vanishing mix of vegetation called coastal sage scrub, would have been protected for one year while state officials decided whether full listing was warranted. The habitat is found only in Orange, San Diego and Riverside counties, and a small area of the Palos Verdes Peninsula.

Builders throughout Southern California aggressively fought the gnatcatcher petition, arguing that its approval could kill, delay or alter hundreds of planned roads and housing developments and cause billions of dollars in lost business.

Joel Reynolds, a senior attorney with the Natural Resources Defense Council, said the national environmental group would sue the state commission next week. He called the decision “blatantly illegal” because the Endangered Species Act requires a species to be declared a candidate if scientific data shows it “may be” endangered. The overwhelming consensus of biologists is that the gnatcatcher is severely threatened, he said.

“This virtually guarantees that the California gnatcatcher will continue toward extinction,” said Reynolds, who filed the petition seeking the listing.

“Every day there is not a listing, we will continue to lose gnatcatcher habitat,” he said. “There was a broad coalition of property owners who pulled out all the stops to prevent this listing today.”

The 4-inch, blue-gray birds once thrived throughout the Southland, but fewer than 1,800 pairs now exist because two-thirds to 90% of their habitat has been developed, wildlife biologists say.

But commission president Everett McCracken said that he did not believe the “degree or immediacy of the threat was sufficient to warrant listing.” He and other commissioners criticized the petition for failing to show clear population trends and said local governments are doing a good job of setting aside land favored by the bird.

The commissioners said that they would reconsider protecting the bird if Gov. Pete Wilson’s plan fails.

Hugh Hewitt, an attorney for the Building Industry Assn., said a lawsuit would be “unfortunate” because landowners are agreeable to working with the governor’s office to find ways to conserve the bird’s habitat.

“Why can’t they take yes for an answer? We’re doing what they want,” Hewitt said. “But we’re doing it rationally. The protections are there, and it has got to go forward because the industry heard quite clearly that we’ll be right back here if they don’t do it.”

Gnatcatchers have been sighted on or near land earmarked for Orange County’s San Joaquin and Foothill tollways, the Las Flores development by the Santa Margarita Co. and large Irvine Co. planned communities, including East Orange, Newport Ridge and Mountain Park in Gypsum Canyon. In San Diego County, projects that would affect the gnatcatcher’s habitat include the Otay Ranch, a massive Baldwin Co. proposal in the south-central part of the county.

Developers in Orange and San Diego counties have said they plan to build on about 3,000 acres of coastal sage scrub in the next two years. Federal officials say about 50,000 acres of viable habitat for the birds is left.

The battle over the gnatcatcher has been exceptionally passionate and political because the bird can survive only on some of the nation’s most valuable land--the same flat, low-lying coastal canyons coveted by developers.

“My sense is (the vote) was pretty obviously motivated much more by political and economic considerations than by science,” said Jonathan Atwood, an ornithologist who has studied the gnatcatchers for more than 10 years and was behind the petition to protect it.

“I suspect that this decision will be overturned in a court of law and I have high confidence that at the federal level, they won’t make this same mistake,” he said.

The U.S. Interior Department is due to decide by Sept. 21 whether the gnatcatcher warrants listing as a national endangered species. Federal protection of the bird, however, would still be about a year away unless the agency invokes a rare emergency listing.

Environmentalists and biologists said they were not surprised by the commission’s decision, given the high economic stakes and the political clout of the construction industry. But they said they were alarmed by Wilson’s last-minute appeal, saying it was an apparent attempt to circumvent the law’s mandate that the commissioners cannot consider political or economic issues.

Michael Mantell, Wilson’s undersecretary of resources, told the commissioners that he was delivering a message from the governor when he urged them not to protect the bird.

Mantell told the commission that listing is “premature” because a building lull caused by the recession “is working to the favor of minimal habitat loss.” He said his office intends to have developers’ agreements in place in the next few months.

“Some will see this as an attempt to help landowners. We ask for it to be seen for what it really is. This is a genuine attempt to do ecosystem planning that has never been done before. . . . We want to make clear this is not a way out for the landowners. It is not a panacea for landowners,” Mantell insisted.

After Mantell’s speech, the commission’s executive director, Robert Treanor, warned the members that they have to base their decision only on the existing law and the scientific evidence, ignoring any promised programs.

Treanor reminded them that they recently lost a similar lawsuit filed by environmentalists when they rejected the Sacramento winter-run Chinook salmon as a candidate in 1987. At that time, the commission heard testimony that the state was preparing a 10-step program to help the salmon. The commissioners settled the lawsuit, and voted again six months later to list the salmon, although its population had declined rapidly during the delay, Treanor said.

But McCracken said he had made his decision before the meeting began and was not influenced by the governor’s request.

If the governor’s program falters, Mantell said, the commission can then list the bird. But at this point, he said, listing would not help, but hinder the cause with “continued polarization and confrontation.”

State wildlife biologists say the threat to the bird is so serious that listing is the only way to ensure its survival. They said they fear that if the Wilson plan fails, it will be too late to save the bird even with endangered species listing.

“The Mantell plan is a great idea, but it’s only a voluntary experiment. It’s not a substitute for listing the gnatcatcher,” said Paul Beier, a UC wildlife biologist who has studied cougars and other animals in Orange County.

The governor’s plan to reach voluntary conservation agreements was originally proposed by the Irvine Co., the major landowner in Orange County, and was endorsed by most of the region’s major developers and builders.

Donald Steffensen, executive vice president of the Lusk Co., an Irvine-based national builder, said developers have made no promises yet to the governor’s office, but they will have to reach agreements concerning preservation of habitat.

“We heard today a much bigger challenge to the industry,” said Steffensen, representing the Building Industry Assn. “It’s going to be a tremendous challenge, and we heard the commission say today that you better not fail.”

He added that landowners who agree to preserve developable land should be paid by the state or private parties for the property.

Times staff writer Eric Bailey contributed to this report