Countywide : 2 Sides Argue Case in Gnatcatcher Suit

Attorneys for a major environmental organization argued in Sacramento Superior Court Friday that the state's Fish and Game Commission ignored its legal duty when it failed to list the gnatcatcher as a "candidate" for the California endangered species list.

But lawyers for Southern California builders, Orange County toll roads and the state said the commission followed the law when it made the controversial decision after weighing all arguments, including the fear that such a listing could halt development on approximately 250,000 acres of prime land.

Superior Court Judge William R. Ridgeway listened to both sides for nearly an hour and a half before taking the matter under consideration and telling the attorneys he may call them for more verbal jousting on May 29.

The Sacramento court action stems from a lawsuit filed here by the Natural Resources Defense Council (NRDC) seeking to overturn the Aug. 30 decision by the commission not to list the songbird as an endangered species candidate.

The NRDC is seeking endangered species status for the bird because fewer than 1,800 pairs of the four-inch, blue-gray gnatcatcher exist in the Southland.

Wildlife biologists say the numbers are dwindling because development has gobbled up as much as 90% of its habitat--coastal sage scrub, found only on prime developable land in Orange, San Diego and Riverside counties.

After a preliminary review of scientific evidence, the state's Fish and Game Department recommended that the five-member commission list the bird as an endangered species candidate. That move would have given the bird and its habitat interim protection while state scientists took a year to investigate whether full listing was warranted.

But the commission voted 3 to 1 to reject the candidate listing after a top official from the Wilson Administration, in an unprecedented step, asked for more time to negotiate agreements with landowners such as the Irvine Co. to voluntarily set aside land to save the bird.

The NRDC filed suit in April.

On Friday, attorneys J. William Yates and Donna R. Harvey asked Ridgeway to overturn the commission's decision based on a reading of California law that requires a "low threshold" for candidate status based only on scientific data, and not on political or economic factors.

They said the commissioners were improperly concerned about what the interim environmental protections would have done to developers, who have opposed endangered species listing for the bird.

And they said the commission improperly took under consideration the likelihood it would ever grant a permanent listing for the bird--the second and ultimate step of the process--before making up its mind on whether the bird should be a candidate for listing--the first step of the process.

"Not only does the bird suffer if these findings are upheld but the process suffers," said Yates.

Jerry Falk, an attorney representing Southern California builders, countered by saying the California Endangered Species Act does not prevent the commission from properly weighing all evidence presented in a public hearing, including the "highly significant consequence" of halting development on 250,000 acres through interim environmental controls.

"What would be the point of such a hearing?" Falk said. "Why go through such a charade if the commission has to listen to the evidence but can't consider it in using a decision?"

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