A federal judge on Tuesday cleared the way for Interior Secretary Bruce Babbitt to grant protection to the California gnatcatcher, but federal wildlife officials still must address lingering questions before meeting today's deadline for deciding the bird's fate.
At a Tuesday morning hearing in Washington, U.S. District Judge George H. Revercomb threw out a last-minute request by Southern California builders and Orange County's tollway agency to block Babbitt from listing the bird as an endangered or threatened species.
Revercomb ruled that the builders do not qualify for an injunction because they cannot show they have been "irreparably harmed" before a decision has been made.
The builders' unsuccessful attempt came one day before the U.S. Interior Department's deadline for making a decision on the gnatcatcher. They say they will continue their lawsuit if the bird is protected.
"We're disappointed, but the case isn't over," said Jerome B. Falk, an attorney representing the Building Industry Assn. of Southern California and the Orange County Transportation Corridor Agencies.
Culmination of the long-simmering debate over whether to declare the tiny Southern California bird a federally protected species is still possible today, but it could take a few more weeks, said John Fay, chief of endangered species listing at the U.S. Fish and Wildlife Service in Washington.
The fate of the gnatcatcher is being viewed nationally as a test of the Clinton Administration's promise to balance protection of the nation's environment with its economy.
The 4 1/2-inch gray songbird poses an unusual quandary for the new Administration because it nests on valuable, privately owned real estate, some already earmarked for major housing developments and roads. About 3,000 pairs of the Southern California birds remain in the counties of Orange, San Diego, Riverside and San Bernardino, and on the Palos Verdes Peninsula in Los Angeles County.
California builders have been fighting for almost three years to keep the gnatcatcher off the list of animals protected under the Endangered Species Act.
If the bird is listed, development plans for its nesting grounds in sagebrush mesas and coastal hills would be delayed or changed while national wildlife officials review each project individually. Officials of the transportation corridor agencies fear that listing the bird would affect construction of two of three toll roads planned in Orange County.
The national wildlife agency is leaning toward declaring the bird a threatened species, but simultaneously proposing some tailor-made conditions, department sources said.
Under that scenario, landowners could be exempt from rigorous, time-consuming federal reviews of their development projects if they voluntarily preserve large tracts of the bird's habitat in advance.
Babbitt, however, still was reviewing some points with his staff, and pieces of the final rule were being revised Tuesday at the wildlife service's regional office in Portland, Ore.
Babbitt "has strong ideas about how we should be managing endangered species issues across the country," Interior Department spokesman Jay Ziegler said. "He is very interested in the gnatcatcher issue because of its unique economic and environmental situations, and the high values placed upon both of those here."
The final ruling could still be signed by a top-ranking official of the wildlife service today, Fay said.
"The odds that there will be a decision (today) are at least even, and probably a little bit above," Fay said. "We feel we have this pretty much in place."