Builders Fail to Block Gnatcatcher Decision : Environment: Legal maneuver by O.C. tollway agencies comes on eve of endangered status ruling.

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A federal judge on Tuesday cleared the way for Interior Secretary Bruce Babbitt to protect 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 hearing Tuesday in Washington, U.S. District Judge George H. Revercomb refused a last-minute request by Southern California builders and Orange County's tollway agencies to temporarily 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 could not show they would be "irreparably harmed" by allowing Babbitt's decision to go forward.

The builders' unsuccessful attempt came one day before the U.S. Interior Department's deadline for making the gnatcatcher decision as prescribed by the Endangered Species Act. 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 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."

The intense debate over the gnatcatcher is being eyed 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 since 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 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 altered 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 for Orange County.

The national wildlife agency is leaning toward declaring the bird a threatened species but simultaneously proposing some special 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.

"The secretary still has a number of questions he would like to have answered," Interior Department spokesman Jay Ziegler said. "He's at a point where he simply wants . . . input from field biologists and policy analysts working on this issue. . . . He really wants to contribute to that process in any way possible."

Babbitt "has strong ideas about how we should be managing endangered species issues across the country," 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."

Ziegler declined to specify Babbitt's concerns about the gnatcatcher issue. But several Interior officials said they center not on whether to list the bird, but on what happens afterward.

"His questions are not critical to the decision of whether to list the species or not; they have more to do with the sequel--what happens next--and there's a meeting (today) to try to get that cleared up," Fay said.

Babbitt has told Congress that he wants to find preventive ways to save entire ecosystems for wildlife without resorting to the Endangered Species Act, which often causes economic gridlock and long legal battles.

Federal wildlife officials say it is probably too late for such an approach to the gnatcatcher. The federal wildlife agency was petitioned by the Natural Resources Defense Council to list the bird 2 1/2 years ago.

If the agency misses the deadline, a lawsuit by environmentalists is likely to force a decision. Environmentalists say they are willing to give Babbitt some time past the legal deadline, but not much, before they would sue.

"We can certainly appreciate the position Secretary Babbitt finds himself in with an extremely important, high-profile decision like this at the very outset of his administration," said Joel Reynolds, a senior attorney with the Natural Resources Defense Council.

"But I cannot imagine that Babbitt will delay this any substantial period of time. With every day of delay, we lose more habitat. . . . The ones who benefit by delay are unscrupulous developers who are bent on destroying habitat before a decision is made."

Gnatcatchers nest only in coastal sage scrub--a blend of sagebrush and other native shrubs inhabited by about 75 other species also under consideration for federal protection.

The builders were not surprised they lost Tuesday's request for an injunction to block the decision. Such a preemptive legal strategy had never been tried before in the 20-year history of the Endangered Species Act.

"We knew we would have a problem because, fundamentally, you can't ask government not to hurt you until they actually hurt you. We have to wait until we're injured before we can plead for relief," said Laer Pearce, who represents a coalition of developers from Orange and San Diego counties.

Tuesday's legal wrangling centered on the narrow question of whether the estimated 3,000 pairs of gnatcatchers in Southern California are a subspecies distinct from 2.5 million pairs of similar gnatcatchers in Baja California.

Interior Department biologists have concluded that the birds are different, based largely on the research of Jonathan Atwood, a Massachusetts ornithologist who has studied gnatcatchers for more than 10 years. Atwood asserted in a 1988 report that the birds actually belong to the same subspecies, but two years later he declared that he had made an error and that the Mexico birds are different biologically in at least 31 ways, from tail size to color.

Falk argued that Babbitt should not be allowed to make his decision on whether to list the gnatcatcher until he examines Atwood's raw measurements and other data, which Babbitt's staff has not requested.

"It is a raging scientific argument," Falk told the judge. "When you have something that is central to a decision, you can't just take the expert's word for it. You have to have the data."

But Justice Department attorney Christiana P. Perry argued that Babbitt has no responsibility to examine Atwood's data before making a decision.

"The secretary has implicitly decided that the record before him contains the best scientific information available," Perry told the judge. "The standard practice is that you don't go beyond this level of inquiry."

Perry also argued that the judge could not consider what constitutes "the best scientific information" without getting into the nuts and bolts of the gnatcatcher case. Judges are not permitted to rule on the merits of a case when considering preliminary injunctions.

In the end, Revercomb agreed. Falk said his clients have not yet decided whether to appeal Revercomb's decision to a higher court.

Environmentalists on Tuesday called the suit frivolous.

"That's what I expected the judge to do, but I'm relieved to hear it," National Resources Defense Council attorney Reynolds said.

Stewart reported from Washington and Cone from Orange County.

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