Suit Targets Campaign to Protect Bird

In a rare move, Southern California builders and Orange County tollway officials have sued the nation’s wildlife agency, seeking to derail efforts to protect the California gnatcatcher on the grounds that the process has been secretive and unfair.

The lawsuit, filed in a Washington federal court almost two weeks ago but announced only Wednesday, alleges that the U.S. Fish and Wildlife Service failed to obtain and publicize data about the songbirds’ taxonomy and provide a map describing its presence in Mexico.

The suit, filed by the Building Industry Assn. of Southern California and Orange County’s toll road agency, is unprecedented because it comes before the wildlife agency has rendered its 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 decision is made. But in a dramatic sign of how strongly builders fear an adverse gnatcatcher decision, the builders adopted a strategy of halting the listing and avoiding the restrictions on development that would follow.

The builders asked the court to order the agency to reject the bird as an endangered species or to force it to make certain information public.

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

The builders believe Atwood’s data is flawed and that the Southern California birds 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 the argument, saying that the two are clearly different genetically and that the Southern California subspecies is in peril.

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

Jeff Opdycke, the wildlife agency’s Southern California field supervisor in Carlsbad, declined to comment Wednesday, except to say 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 collaborated with a national environmental group to petition the federal government to list the gnatcatcher as being endangered.