Two prominent environmental groups filed a lawsuit against U.S. Interior Secretary Bruce Babbitt on Wednesday over his determination last March that the San Joaquin Hills tollway wouldn’t by itself kill off the California gnatcatcher, a rare songbird, in Orange County.
The long-anticipated lawsuit is unusual because environmentalists are generally pleased with Babbitt’s performance, said Joel Reynolds, attorney for the Natural Resources Defense Council, which brought the legal action along with the National Audubon Society.
But Reynolds said Babbitt failed to take the action required under endangered species laws to protect the bird, which Babbitt in March listed as “threatened” instead of “endangered.”
As part of that action, Babbitt designed an innovative compromise that largely defused the debate over how to protect the gnatcatcher. He proposed special conditions that made the tiny songbird the centerpiece of an experiment to create preserves for many species and whole ecosystems, instead of deciding whether to safeguard one species at a time.
“The ultimate success or failure of Secretary Babbitt’s potential ‘national model’ depends on the strict compliance with the Endangered Species Act and sound biological principles,” Reynolds said. “Approval of a superhighway through prime habitat only months after listing the gnatcatcher as threatened makes a mockery of both.”
The new highway would run through the heart of the Laguna Greenbelt, which the environmental group argues is the last remaining contiguous parcel of gnatcatcher habitat in coastal Orange County.
In June, Babbitt visited Orange County to assure developers and environmentalists that he is personally committed to ensuring the success of the effort to protect the gnatcatcher’s nesting grounds.
But environmentalists opposed to the $1.1-billion tollway, which would run from MacArthur Boulevard in Newport Beach to Interstate 5 in San Juan Capistrano, have been disappointed with the results. Reynolds said expert advice on gnatcatcher habitats was ignored in this case.
Babbitt’s staff and officials at the San Joaquin Hills Transportation Corridor Agency said Wednesday they would not comment until they have had time to study the lawsuit, which was filed in U.S. District Court in Los Angeles.
The lawsuit seeks a court order barring alteration of the gnatcatcher’s habitat until the Interior Department, through the Fish and Wildlife Service, designates specific sites as “critical habitats,” a step that was missing in previous federal decisions, Reynolds said.
The lawsuit also challenges the approval by the Fish and Wildlife Service and the Federal Highway Administration of the tollway itself, a 17.5-mile road now under construction and scheduled to open in 1997.
The road’s approval on June 11 was the first by the Wildlife Service since the gnatcatcher was listed as threatened in March, and the first since Babbitt endorsed Gov. Pete Wilson’s voluntary habitat conservation efforts for the gnatcatcher as a “national model” that could prevent all-or-nothing crises in the protection of endangered species.
If the environmental groups’ challenge is successful, no gnatcatcher habitat could be altered until certain areas are designated as “critical” to the bird’s survival. After that, a special federal panel would have to approve construction if that critical habitat would be affected.
Earlier this month, a federal judge ruled that construction of the tollway could begin only in certain areas, but not through the Laguna Greenbelt because of numerous environmental concerns. A full hearing on that legal challenge is scheduled for January.