When Judge Stanley Sporkin of the U.S. District Court in Washington struck the California gnatcatcher from the threatened-species list, he preserved the integrity of the listing process incorporated in the Endangered Species Act. The decision sent a small temblor through the world of natural-resources law.
But for California politics, it was a huge shaker: The races for governor and for the U.S. Senate will surely feel the impact of the judge's ruling.
When Interior Secretary Bruce Babbitt announced his decision, in March, 1993, to list the gnatcatcher as threatened, Sen. Dianne Feinstein had been in her new job for two months. Gov. Pete Wilson was preoccupied with workers' compensation reform and a budget.
Babbitt's move sequestered up to 400,000 acres of sagebrush and coastal slopes in areas including Los Angeles, Orange, San Diego and Riverside counties to protect the songbird. Various home-construction and public-infrastructure projects took a beating, but Feinstein could safely distance herself from these effects because she had just arrived.
Wilson, as well, could afford to ignore the listing. His appointees embraced Babbitt's offer of a partnership to solve the problems generated by the listing. Quick action toward a compromise that would allow some projects to move forward was promised by all.
Right up until Sporkin's decision Monday, the feds and lower-level state officials were proclaiming progress. The reality, of course, was quite different. Paralysis had set in. Thousands of jobs that would have been created in the home-building industry did not materialize as layer after layer of complicated rules and regulations was piled upon proposed compromises.
The Natural Communities Conservation Planning program, as the fed-state effort is called, took on a life and momentum of its own. For example, the staff of the city of San Diego, urged on by federal and state regulators, proposed a conservation plan that would have set a goal of preserving more than 90 species in addition to the gnatcatcher. Computer models broke down estimating the cost of such an undertaking; the plan was sent back to the drawing board.
Riverside County officials, stung by the Interior Department's five-year record of failure to approve a Stephen's kangaroo rat recovery program, looked at the $30 million in "rat taxes" that had been extracted from landowners since 1989 and politely turned down a similar fed-state effort in the Inland Empire.
Meanwhile, the Interior Department's choices of species to list--the Delhi sands flower-loving fly in Ontario, for example--seemed ready-made for lampooning. When last autumn's fires destroyed homes that could not be protected by cutting fire breaks for fear of harming rats, public opinion began turning against the department.
Then came the Sporkin decision, which specifically rebuked Interior for relying on data it refused to share with the public. The withheld data had been used to support two contradictory conclusions, one that required protecting the bird, one that did not.
Interior will no doubt appeal to restore the gnatcatcher's protected status. Which brings us to politics: What will Wilson and Feinstein do this time around?
After two years of standing by as his staff was rolled again and again by the feds, Wilson's decision should be self-evident. Citing the 3 million gnatcatchers that live in Mexico and the huge tracts of open space already permanently set aside throughout the bird's range, the governor should oppose the bird's re-listing, even to the point of requesting Atty. Gen. Daniel E. Lungren to launch a preemptive strike at any such federal move. Should Interior pursue its campaign, he should demand that the federal government buy outright the land it deems critical to the bird's survival. And Wilson should press the attack in vote-rich Riverside County, where disgust with the millions spent on the Stephen's kangaroo rat has reached fever pitch.
Feinstein's choice is more difficult. Rep. Michael Huffington (R-Santa Barbara) is already talking up what he regards as the imbalance between economic sense and environmental extremism. With some recent research showing that the devastation of the state's timber industry was the result of faulty data on the spotted owl, Huffington's message may resonate in the north as well as in the south, should he win the primary.
Feinstein has already paid her dues to environmentalists by pushing through the gigantic Desert Protection Bill. She can afford to demand that Babbitt move slowly to re-list a bird so clearly abundant below the border. She would be especially accountable if Interior successfully urged Babbitt to use his "emergency" listing powers to bypass public review of any attempt to restore the bird's protection. Feinstein can--and should--at least demand a full and fair consideration of all the data, and feel no restraint in calling for Babbitt to resist invoking emergency procedures.
There is a huge reservoir of support in California for fair-minded conservation efforts--the purchase of private lands of environmental value for fair price. But the wheel has turned, and landowners and taxpayers are weary of environmental extremism and its use of regulatory terrorism. For Wilson, this shift presents an opportunity to reclaim his standing among key constituencies. For Feinstein, it's an unwelcome but unavoidable test of her claim to "moderate" credentials.*