Builders, Tollway Agency Ask Judge to Block Gnatcatcher Decision

Southern California developers and Orange County’s tollway agency asked a federal judge Wednesday to block the imminent federal decision on the California gnatcatcher because two “independent and prominent” scientists dispute crucial scientific data on the bird.

The Building Industry Assn. of Southern California and the Orange County Transportation Corridor Agencies are seeking a preliminary injunction from a U.S. District Court in Washington. If granted, the injunction would forestall Interior Secretary Bruce Babbitt’s decision, due March 17, on whether to list the songbird as endangered.

Wednesday’s action escalates the already intense battle by Southern California developers, who have fought to keep the gnatcatcher off the nation’s endangered species list for more than two years. The bird nests in sagebrush found mostly in Orange, San Diego and western Riverside counties, including undeveloped land earmarked for housing development and tollways.

The battle over the bird has focused mainly on one narrow scientific point raised by the building industry: whether the gnatcatchers found in Southern California are the same as those in northern Mexico. Builders say that point is crucial because Baja California has about 2.5 million pairs of gnatcatchers, while Southern California has only about 2,000.

Top officials with the U.S. Fish and Wildlife Service had previously rejected that argument as scientifically invalid, but on Wednesday the building industry rolled out two new guns in its battle against endangered species listing for the tiny songbird. In lengthy, signed declarations filed in court, an ornithologist and a biological statistician questioned whether the Southern California birds are really distinct from their Mexican counterparts.

The two scientists are George F. Barrowclough, chair of the ornithology department at the American Museum of Natural History in New York, and Lyman L. McDonald, a biological statistician in Wyoming who has done studies for the Interior Department and Environmental Protection Agency, including some at the Exxon Valdez oil spill in Alaska.

“Two highly respected scientists have confirmed our assessment, and in the process have painted a picture of overwhelming bias by the U.S. Fish and Wildlife Service,” said John Hunter, executive vice president of the Building Industry Assn.

Joel Reynolds, a senior attorney with the Natural Resources Defense Council, the environmental group seeking federal protection of the bird, called it a “frivolous” move.

“It’s a last-ditch effort by the building industry to block a listing decision that should have been issued years ago,” he said.

Reynolds was unfamiliar with the two scientists, but he said that even if they are found to be qualified and unbiased, their opinions are in the minority.

“There has simply been no question raised by the ornithological community to date. The overwhelming weight of expert opinion is that the California gnatcatcher is a separate subspecies. . . . Enough is enough, the bird should be listed,” Reynolds said.

The judge will consider the request for an injunction March 16--one day before the department’s decision is due.

The builders and tollway agency, seeking to forestall any special protection for the gnatcatcher, filed a civil suit against the Interior Department in November. Such a preemptive move is unprecedented in the 20-year history of the Endangered Species Act, and points to the industry’s determination to prevent the listing.

The American Ornithologists Union, a national group of bird scientists, and Interior Department biologists have already rejected the builders’ arguments and concluded that the Southern California birds are distinct. Their decision is based on research by Jonathan Atwood, a Massachusetts ornithologist who studied gnatcatchers for over a decade and found 31 biological differences between the California birds and those in Mexico.

The building industry, however, says Atwood’s conclusions are flawed, and argue that his raw measurements and notes should be made public. The U.S. Fish and Wildlife Service has refused to seek his raw data, saying there was no legitimate scientific dispute.

Barrowclough, in his declaration, agreed with the builders and concluded that Atwood’s report is incomplete and his data should be reanalyzed. “My professional conclusion is that it is not possible to determine . . . whether his conclusions are valid,” he said.

In his statement, McDonald, the biological statistician, said Atwood may have misused statistics. “He has used a method of presenting his data which maximizes the visual impression of differences (between the birds) rather than presenting them completely and fairly,” he said.

According to Laer Pearce, a spokesman for a coalition of Orange and San Diego county developers, the builders “have said all along that this science is horrible. And now, here are two people who say, ‘Yes, it is horrible.’ This is the peer review that people have been screaming for.”

Atwood and other ornithologists who disagree were unavailable Wednesday for comment. A spokesman for the Interior Department said he could not comment, but that any new data would be evaluated because the decision had not yet been made.

Pearce said the two scientists were first contacted by Chevron Land and Development Co. Richard C. Jacobs, the BIA’s attorney, said the tollway agency “made most of the arrangements” to hire them. The county agency is fighting the listing because it plans to build three tollways that cut through the gnatcatcher’s nesting grounds.

“I’m sure (the two scientists) were paid some incidental fee, but that’s customarily done. You can’t get someone like this to read the studies and do all this work without it,” Pearce said. “These two guys are truly independent. They are not in one camp or another.”

Builders say that, if the bird is protected, billions of dollars worth of private and public development would be delayed or halted and perhaps as many as 200,000 jobs lost. Local economists, however, call the figures exaggerated.