Gnatcatcher Taken Off Threatened Species List : Courts: Judge says failure to disclose data was improper. Ruling may open door to Orange County development.

In what environmentalists termed a significant setback to protection of imperiled species, a federal court in Washington Monday vacated the Department of the Interior’s listing of the California gnatcatcher as threatened.

The ruling, in a lawsuit filed in 1992 by the Southern California Building Industry Assn. and Orange County’s tollway agencies, leaves the habitat of the tiny songbird--mostly coastal sage scrub in Orange and San Diego counties--exposed to the plans of developers who are eager to build.

Both the developers who have fought the Department of the Interior’s decision to list the gnatcatcher as threatened and the environmentalists who have tried to ensure its protection agreed that the implications of the ruling by Judge Stanley Sporkin could be enormous.

“This is a huge victory,” said Rob Thornton, attorney for the Orange County Transportation Corridor Agencies. “The court obviously vindicated our position . . . which was that there was a significant question about the scientific merits of the study upon which the listing was based.”

Thornton said the ruling “effectively repudiates” what he called the efforts of environmentalists “to illegitimately twist the Endangered Species Act into a tool for stopping development in general, and specifically halting construction of the San Joaquin Hills Transportation Corridor” in the coastal hills of Orange County.

Joel Reynolds, senior attorney with the Natural Resources Defense Council, which had petitioned the Interior Department to list the gnatcatcher as threatened, disagreed.

“This is absolutely a step in the wrong direction, one that could have a devastating impact on the habitat planning program” to protect endangered species, Reynolds said. “The listing of the gnatcatcher is the foundation upon which the conservation efforts in Southern California have been based.”

In a brief statement, Interior Secretary Bruce Babbitt declined to comment in detail before studying the decision but suggested that an appeal was likely.

“All of the information we have indicates that the California gnatcatcher meets the criteria for listing under the Endangered Species Act,” Babbitt said. “We will therefore take the steps necessary to guarantee its protection.”

The judge’s decision centered narrowly on the openness of the process involved in the Interior Department’s March, 1993, decision to list the gnatcatcher as threatened under the Endangered Species Act.

In their lawsuit, the builders raised three issues: that they were denied access to the raw data for a report that the government used to conclude that the California gnatcatcher was a unique species whose declining population warranted a listing under the Endangered Species Act, that Babbitt acted with bias in reaching the listing decision, and that certain procedural requirements of the Endangered Species Act were not followed.

The judge ruled that the last two points lacked merit, but he agreed that the Interior Department was wrong when it declined to make the raw scientific data available to ornithologists hired by the builders to challenge the government’s decision.

What the builders had sought were the scientific notes and calculations of Jonathan L. Atwood, a Massachusetts ornithologist who had spent several years studying California gnatcatchers. He compared various characteristics of the tiny songbirds, such as the size of their bills and the lengths of their tails and toes.

In 1988, Atwood wrote a scientific paper in which he concluded that the California gnatcatchers were essentially no different from the gnatcatchers found in large portions of Mexico and the western United States.

After this paper was severely criticized by other scientists, Atwood went back to his data, and wrote in a 1990 report that his first conclusions were wrong and that the California gnatcatchers were indeed distinct from the Mexican birds. Atwoods’ 1990 report was the primary scientific evidence that the government relied upon in listing the gnatcatcher as a threatened species.

“In light of the fact that (Atwood) had analyzed the identical raw data in 1988 and 1990 and had come to different conclusions,” the court ruling said, the scientific validity of the second study was challenged.

The Building Industry Assn. demanded access to the raw data that Atwood used to reach his conclusions.

The Interior Department declined to provide the data, saying it did not have the information and that it had relied solely on the finished 1990 report.

The judge said the Interior Department was wrong. “Where an agency relies upon data to come to a rule-making decision, it generally has an obligation under the Administrative Procedures Act to provide such data for public inspection,” the ruling said.

California Gnatcatcher

The California gnatcatcher is found on sagebrush mesas and dry coastal slopes. It has a distinctive call, a rising and falling kitten-like mew. Only about 4.5 inches in length, the gnatcatcher is blue-gray on top, with lighter-colored feathers underneath, and has a longish black tail.