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

In what environmentalists termed a significant setback to efforts to protect endangered species, a federal district court in Washington on Monday overturned the Interior Department’s listing of the California gnatcatcher as a threatened species.

The ruling in a 1992 lawsuit filed by the Southern California Building Industry Assn. and Orange County’s tollway agencies leaves the tiny songbird--prevalent in southern Orange and northern San Diego counties--exposed to the plans of builders eager to develop much of its coastal sage scrub habitat.

The decision, by U. S. District Judge Stanley Sporkin, represented a major victory for the Southern California building industry.

Both sides in the dispute--the developers who have fought against listing the gnatcatcher as threatened and the environmentalists who have tried to ensure its protection--agreed that the ruling could have enormous implications.

“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 in Southern California, said Joel Reynolds, a senior attorney with the Natural Resources Defense Council, which had successfully petitioned the Interior Department to list the gnatcatcher as threatened.

“The listing of the gnatcatcher is the foundation upon which the conservation efforts in Southern California have been based,” Reynolds said. “To remove that underpinning may throw the entire planning process into disarray.”

In a brief statement, Interior Secretary Bruce Babbitt declined to comment in detail before studying the decision, but he 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,” he said in a statement. “We will therefore take the steps necessary to guarantee its protection.”

California developers, meanwhile, expressed elation at the judge’s decision, which at least temporarily removes the 4 1/2-inch, gray-and-black songbird from protection under the Endangered Species Act, the nation’s most stringent environmental law.

“This is a huge victory,” said Rob Thornton, an attorney for the Orange County Transportation Corridor Agencies, which is planning a number of toll roads in Orange County. “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” tollway.

The judge’s decision centered narrowly on the openness of the process involved in the March, 1993, decision to list the gnatcatcher as a threatened species, which effectively halted all development plans in the areas where the birds nest--some of the most desirable ocean- and canyon-view land in Southern California.

In their lawsuit challenging the listing, the developers and tollway agencies raised three issues:

* That they were denied access to the raw scientific data supporting a report the government relied upon in deciding that an estimated 3,000 pairs of California gnatcatchers were part of a unique species whose declining population warranted a listing under the Endangered Species Act.

* That Interior Secretary Babbitt acted with bias in reaching the listing decision.

* That certain procedural requirements of the Endangered Species Act were not followed.

The judge ruled that the last two issues 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 notes and calculations of Jonathan L. Atwood, a Massachusetts ornithologist who had spent several years studying gnatcatchers, comparing various characteristics of the tiny songbirds, such as the size of their bills and the length of their tails and toes.

In 1988, Atwood wrote a scientific paper in which he concluded that the California gnatcatchers, which live in Orange, San Diego, Riverside and San Bernardino counties and on the Palos Verdes Peninsula in Los Angeles County, are essentially no different from the 2.5 million pairs of gnatcatchers that are found in large portions of Mexico and the western United States.

After the 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 are indeed distinct from their Mexican cousins. Atwood’s 1990 report was the primary scientific evidence that the government relied upon in deciding to list 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, and 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 that it did not have the data and had relied solely on the finished 1990 report.

In making that decision, 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.

The plaintiffs, the judge wrote, “were deprived of important and material information from which they could make meaningful analysis in order to provide their views” on the issue. He returned the matter to the Interior Department for “further proceedings not inconsistent with this opinion.”

Reached by telephone at his Massachusetts home Monday, Atwood declined to discuss the question of his willingness to release his raw scientific data regarding the gnatcatcher.

“If it was the end of the process, I would be disappointed,” Atwood said, adding that he would be surprised if efforts to preserve the bird and its habitat in the sagebrush mesas and coastal hills of Southern California would “just go away” as a result of the ruling.

Meanwhile, environmentalists and state and federal fish and wildlife officials expressed concern about the impact of the decision on the Natural Communities Conservation Program. The program, developed by Gov. Pete Wilson in 1991 and adopted last December by the federal government, encourages landowners to voluntarily set aside habitat for the gnatcatcher and other rare animals and plants.

In exchange, property owners can speed approval to develop the rest of their land without having to go through the time-consuming--and often litigious--endangered species process.

“This is a cooperative planning process that was years in the making and that was premised upon the protected status of the California gnatcatcher,” said Reynolds of the Natural Resources Defense Council.

Reynolds said the decision to list the gnatcatcher as threatened involved “the most open and searching rule-making on a listing that anyone can recall. To conclude that nevertheless it was inadequate is very disappointing.”

Dave Klinger, spokesman for the western regional office of the U.S. Fish and Wildlife Service, said Monday that federal wildlife officials continue to believe that the inclusion of the tiny bird on the list of threatened species is appropriate.

“We’ll have to look at the court’s decision to see where we go from this point on,” Klinger said. “We want to take some time with it and make certain we fully understand the court’s direction.”

Michael Mantell, the undersecretary of resources for the California Resources Agency, expressed concern about the immediate impact of the decision on the voluntary conservation program, questioning whether developers might choose not to participate in the wake of the ruling.

“This decision throws into question how you go about dealing with the interim controls and protection for threatened species,” Mantell said. “We hope they will stay at the table to complete plans” for Orange, Riverside and San Diego counties.

Mantell said his office plans to hold meetings within the next few weeks with all participants--environmentalists, developers and government officials--to decide how best to proceed with interim planning. “The real question is what happens to the habitat until these plans are completed,” he said.

Richard Jacobs, lead attorney for the Building Industry Assn., which includes some 1,800 developers, said he expects varied responses to the ruling among association members.

“Many people had been going through the process, trying to develop habitat areas on their properties,” he said. “A number of those people undoubtedly will say they don’t want to have any part of that in the wake of this ruling, while others will voluntarily decide to stay in.”

The ruling is expected to benefit large landowners, such as the Irvine Co., Orange County’s largest private landowner.

Larry Thomas, a company vice president, said top officials had not seen the ruling and had little comment, but he said the company continues to abide by the terms of the Natural Communities Conservation Program.

“We want to see the ruling and determine what, if any, impact it has,” he said. “Nobody feels comfortable commenting until we see what the ruling was based on and how broad or narrow it is.”

Diane Gaynor, a spokeswoman for the Santa Margarita Co., another of Orange County’s largest private landholders, also declined to comment on specifics of the ruling or its potential implications. Regardless of Monday’s decision or any future legal action, she said, the company remains committed to the Natural Communities Conservation Program.

Laer Pierce, a spokesman for a coalition of Orange and San Diego county developers involved in the conservation planning project, said he expects the program to go forward.

“We’re really glad we won this one. But in the long run, most developers will continue moving in the same direction--toward a new concept of voluntary habitat preservation,” he said.

“We’re working to identify the most critical habitats and preserve them, while at the same time identifying the less critical habitats and develop those, instead of just trying to preserve every beak and feather.”