Gnatcatcher Wins Court Reprieve : Environment: Judge orders Fish and Game Commission to offer evidence as to why the rare songbird was denied endangered-species protection.

In an apparent victory for environmentalists, a Superior Court judge has ruled that the state Fish and Game Commission failed to cite good enough reasons for denying endangered-species protection to a rare Southern California songbird.

Sacramento County Superior Court Judge William R. Ridgeway ordered the state wildlife board to come up with legally defensible evidence why the California gnatcatcher was not declared a candidate for the state’s endangered species list.

The commission gave “no hint of the reasoning used or the evidence relied upon” when it voted down the gnatcatcher request last year and must now “prepare and adopt (new) findings,” Ridgeway wrote.

The decision, issued Friday but reaching attorneys in the case on Monday, is the latest twist in a battle of wills between environmentalists and powerful Southern California builders over the fate of a tiny bird that nests in sagebrush in San Diego, Orange, and western Riverside counties, as well as in Palos Verdes.

In San Diego County, the sagebrush habitat runs from Camp Pendleton to the border, but can be found predominantly on the western edge. The bird lives on the site of several proposed building projects, most notably the Baldwin Co.’s massive Otay Ranch development in the south-central part of the county.

The ruling does not overturn the Fish and Game Commission’s controversial decision, made almost exactly a year ago after an emotion-packed hearing. But an attorney for the Natural Resources Defense Council, the national environmental group that sued the commission, hailed it as a major victory and predicted it would ultimately force the panel to change its mind.

“If the commission is determined to be an outlaw, it will reach the same decision again,” said NRDC senior attorney Joel Reynolds. “But if it intends to comply with this order, it’s my view that it will have to accept the petition to list the gnatcatcher.”

Reynolds said the judge’s criticism shows “the commission wasn’t concerned with the evidence in this case. At least three members of the commission knew what outcome they wanted to reach and they didn’t want to be bothered by the evidence.”

But officials from the building industry said they didn’t necessarily consider the ruling bad news.

“This decision is not a blow to us. I would have loved them to tell the NRDC to go packing, but this ruling is the next best thing,” said Laer Pearce, executive director of a coalition of 10 major Orange County and San Diego County developers involved in gnatcatcher issues, including the Irvine Co., Santa Margarita Co. and the Baldwin Co.

Pearce said the developers are confident the state commission will stick with its decision, and simply file new, better-documented findings to support it. The Building Industry Assn. of Southern California and the Orange County Transportation Corridor Agencies had joined the lawsuit on behalf of the commission.

“The court did not say the commission made the wrong decision; it just said they did not have good documentation,” Pearce said. “The court wanted to see more documentation. . . . Given the strengths of our arguments, very strong findings can be written to justify it.”

Bob Treanor, the commission’s executive director, offered no comment Monday. He said he wouldn’t know until next week whether the commission, which next meets on Oct. 1, will schedule a new gnatcatcher hearing and vote.

Reynolds, however, said he believes the commission is virtually forced now to hold another hearing to collect evidence and vote again.

Environmentalists and wildlife biologists argue that rampant development has destroyed nearly all of the bird’s nesting grounds, a depleted mix of vegetation called coastal sage scrub. They have petitioned both the state and the U.S. Department of Interior for endangered species protection.

But Southern California’s building industry has been fighting to prevent such a listing at either level of government, and has enlisted the aid of the Wilson Administration. Developers say a listing could cost billions of dollars in delays or ruin plans for hundreds of roads and housing developments.

The builders maintain that the bird is not endangered since large swaths of coastal sage scrub--about 100 square miles--remain protected as parkland, especially in Orange County. They also say Baja California contains large numbers of gnatcatchers, although most ornithologists say the Mexican ones are not the same sub-species as the variety found in Southern California.

Because the economic stakes are so high, the decision over the 5-inch, blue-gray bird was the most controversial one that the state wildlife commission has made in years.

The gnatcatcher fight came to a head last August, when the commission considered whether to accept it as a candidate for the endangered list. Such a ruling would have extended immediate, one-year protection to the bird’s habitat. The director of the state Department of Fish and Game and his staff of biologists recommended listing.

Yet the wildlife commission rejected its staff’s advice and voted 3 to 1 to reject the gnatcatcher as a candidate. The vote came after a top Wilson Administration official pleaded with the panel to hold off and allow them to create a new program that would encourage developers to set aside preserves of coastal sage scrub voluntarily.

If the board changes its vote, the gnatcatcher’s nesting grounds would be protected for at least one year while state officials review the data for a final decision. Such protection could delay major development projects, including the San Joaquin tollway in Orange County and the Otay Ranch project.

Meanwhile, U.S. wildlife officials face a Sept. 17 deadline to decide whether federal listing of the bird is warranted. If the bird is added to the national list, federal protection would be immediate and the state debate would be rendered mostly moot.

The state Fish and Game Commission gave six reasons for its denial of the gnatcatcher request last year. But in his ruling, Judge Ridgeway said he was left to “guess” and “speculate” how the commission arrived at those six findings, which he characterized as little more than the opinions of individual commissioners.

The judge said the commission’s cited reasons did not meet with the legal requirements established in another case, which required findings supported by evidence.

“The court is left to wonder whether and on what basis the commission rejected the documentation in the petition, and the record indicating that the gnatcatcher’s coastal sage scrub community habitat would be lost within 20 years,” Ridgeway wrote.

“The court is left to search in the record for evidence that conservation planning and regulatory mechanisms are in existence and are effective in protecting the habitat against loss,” he wrote.

Reynolds said Ridgeway’s ruling was important because it was the first time a judge articulated a legal standard to guide the wildlife commission in considering this and future petitions for endangered species protection.

The judge said the commission could not turn down a petition if it contained “relevant and credible evidence, which . . . a reasonable mind might accept as adequate to support a conclusion that listing was necessary.”

Pearce, speaking for some of Southern California’s largest developers, said they were pleased that the judge did not order an immediate listing of the bird, and denied a request that all petitions be granted whenever they seek temporary protection of a species.

He called the lawsuit “just a delaying tactic” by environmental groups, “a strategy to keep the pressure on us and do what they can to stop growth.”

The commissioners, most of them wealthy businessmen, were appointed by former Gov. George Deukmejian and Gov. Pete Wilson. Since last year’s gnatcatcher vote, commission President Everett McCracken resigned and Wilson appointed Gus Owen, a prominent real estate investor, former builder and Republican fund-raiser. The five-member board still has one vacancy.

The Fish and Game Commission also was sued in 1987 when it denied protection for a species of chinook salmon found in Northern California rivers. The commissioners settled out of court with the stipulation that they would reconsider, and they then voted unanimously to list the fish as endangered.

California’s Assistant Secretary of Resources, Carol Whiteside, said the ruling won’t change the Wilson Administration’s efforts to get developers to enroll their lands in a new program aimed at setting aside land for the bird.

So far, developers such as the Irvine Co. and the Santa Margarita Co., have imposed voluntary building moratoriums on between 300,000 to 700,000 acres of coastal lands.

On the other hand, over 2,000 acres of coastal sage scrub have been destroyed by development since the commission’s decision, according to the U.S. Fish and Wildlife Service. An estimated 55,000 acres inhabited by the birds remain, the federal agency says.

The California Gnatcatcher

The California gnatcatcher is found on sagebrush mesas and dry coastal slopes from Southern California to northern Baja California. It has a distinctive call, a rising and falling kitten-like mew. Only about 4 1/2 inches in length, the gnatcatcher is brown on top, with lighter-colored feathers underneath and a long black tail. It has been considered for listing as an endangered species.

Source: County of Orange