U.S. Agency Sued in Bid to Thwart Gnatcatcher Listing : Environment: Southland developers and county tollway officials claim the U.S. Fish and Wildlife Service’s review process has been secretive and unfair.

In an extraordinary, preemptive move, Southern California builders and Orange County tollway officials have sued the nation’s wildlife agency, seeking to dismiss efforts to protect the California gnatcatcher.

The lawsuit, filed in a Washington federal court almost two weeks ago but announced only Wednesday, alleges that the process has been secretive and unfair. It claims that the U.S. Fish and Wildlife Service failed to obtain and make public data about the songbird’s taxonomy and a map detailing its presence in Mexico.

The suit, filed by the Building Industry Assn. of Southern California and the Transportation Corridor Agencies, is unprecedented in that it comes before the wildlife agency has rendered a decision on whether the bird is endangered. The federal deadline for the decision is March 17, and the agency is expected to add the bird to the endangered species list.

Suits challenging an endangered species listing typically come after a final decision is made. But in a dramatic sign of how strongly builders fear an adverse decision regarding the gnatcatcher, they have adopted a unique strategy to stop the listing and avoid restrictions on development that would follow.

The builders asked the court to order the agency to reject the request to declare the bird endangered, or alternatively, force it to make certain information public.

They mainly want access to raw scientific data and calculations by Massachusetts ornithologist Jonathan Atwood, who concluded in 1990 that the gnatcatchers in Southern California are a distinct subspecies in danger of extinction.

The builders believe Atwood’s data is flawed, and that the birds in Southern California are the same as those found in abundance in Baja California. They argue, therefore, that the species is not at risk. A national group of ornithologists, however, has dismissed that argument, saying the two are clearly different genetically and that the Southern California birds are in peril.

John Hunter, executive vice president of the BIA, said his group is suing the agency because it believes the process has been unfair and that the economic consequences of a listing are great.

“This lawsuit was needed because the (wildlife agency) has ignored so many requests by the BIA, TCA and other interested parties to act responsibly and in accordance with the law,” Hunter said.

Jeff Opdycke, the wildlife agency’s Southern California field supervisor in Carlsbad, said he has no reason to believe that the two-year review has been unfair or illegal.

He added that the gnatcatcher “is certainly one of our more significant actions from the standpoint of effects on people. So this (lawsuit) doesn’t surprise me.”

The stakes are high because the gnatcatcher nests on some of the nation’s most valuable real estate--predominantly the low-lying coastal hills and canyons in south Orange County, San Diego County and western Riverside County. Many major proposed developments, as well as Orange County’s proposed San Joaquin Hills tollway, would cut through gnatcatcher nesting grounds.

“I just feel this whole thing has been a smoke screen, and it’s just a last-gasp effort to stall,” said Atwood, who teamed with a national environmental group to petition the federal government to list the gnatcatcher as endangered.

The suit will not necessarily delay the decision. But Richard Jacobs, a San Francisco attorney representing the BIA, said the group will not hesitate to seek an injunction to block the agency’s decision if the wildlife service does not react to the lawsuit.

In addition to Atwood’s data, the builders contend that Larry Salata, a federal biologist, refused last month to reveal a map and data showing distribution of gnatcatchers in Baja. According to the suit, Salata said the scientists who conducted the work wanted it kept confidential.

Atwood’s findings were reported in a scientific journal in 1990 and reviewed by his peers. But the developers are seeking the voluminous data that supports those findings--the detailed measurements of the characteristics of 189 gnatcatcher specimens.

“This is like asking a medical doctor who published his information on some new cure for cancer to see all the case histories of every single patient that was ever interviewed,” Atwood said. “That’s just not the way science is done. Instead, you provide results so that other scientists can try to duplicate the experiment and see if it was done properly. I’ve done that.”

Atwood said the gnatcatcher specimens he analyzed are in public museums--two of them in Los Angeles--so the builders could hire a researcher to test his findings. “They could have measured every gnatcatcher specimen five times for all the money and time they’ve spent seeking my work,” he said.