Judge Restores State Protection for Rodent : Wildlife: The ruling on the Mohave ground squirrel is believed to be the first judicial action against an endangered species ‘delisting.’ Officials say 200 development projects have been affected by the animal’s status.

Rejecting the plans of Kern County developers in favor of a nine-inch-long burrowing rodent, a judge has issued a precedent-setting ruling that keeps the Mohave ground squirrel on the state’s endangered species list.

The ruling is believed by environmental experts to be the first by a California judge on the emerging issue of “delisting” plants or animals from the state list of endangered species. In contrast, the gray whale was delisted under federal law just last week.

But on the state level, San Francisco Superior Court Judge Thomas J. Mellon Jr. said last Thursday that the state Fish and Game Commission did not properly follow the law when it issued a controversial 1993 decision to take the cinnamon-colored squirrel off the threatened species list.

Siding with the rodent on a technicality, the judge said substantial evidence would appear to back the commission. But state law demands an extensive environmental review, he said, adding that there needs to be a far more thorough study of the impact of urbanization on the squirrel’s desert habitat, which includes stretches of the Antelope Valley.

The ruling has the practical effect of keeping the squirrel from becoming the first species in the 23-year history of the California Endangered Species Act to lose the protection of the list.

Advocates for environmental groups that brought suit after the commission’s May, 1993, delisting hailed the judge’s ruling.

“Once again the Fish and Game Commission is wrong and we’re right,” exulted Mark Palmer, executive director of the Sacramento-based Mountain Lion Foundation.

“The Mohave ground squirrels will sleep better tonight in their little burrows,” he said.

Roy Ashburn, the Kern County supervisor who spearheaded the bid to delist the squirrel, could not be reached for comment. Nor could lawyers at the county counsel’s office.

The fate of the squirrel, however, has long made for hot politics in arid Kern County, pitting conservationists against developers--with elected officials, at both the county and state levels, railing against the squirrel.

A Bakersfield assemblywoman once asserted in campaign speeches that people should violate the law and “barbecue the Mohave ground squirrel,” if necessary, to feed their families.

When the commission issued its May, 1993, delisting decision, Ashburn called it a victory. “This one is for the human species,” he said then. “People in Kern County have suffered under the most outrageous form of heavy-handed treatment over these last years.”

More than 200 development projects, including residential subdivisions, have died or languished because of state protection of the squirrel, Kern County officials have said repeatedly. No dollar estimate has been available for squirrel-related losses.

The squirrel lives among the Joshua trees and creosote of Kern, Los Angeles, San Bernardino and Inyo counties. It is found nowhere else on Earth.

It feeds on the fruit, leaves and seeds of the desert plants, which sustain it for the seven months--August to February--that it typically spends dormant in underground burrows.

There is no accurate count of the squirrel population, fish and game biologists say. The count can vary dramatically from year to year, depending on the weather, biologists said.

John Gustafson, a fish and game biologist, said the department believes that the count has declined in recent years as chunks of the squirrel’s desert habitat--particularly in the Antelope and Apple valleys--give way to houses, shopping malls and office complexes.

The squirrel is a charter member of the state’s endangered species list. It was designated as a “rare” animal when the first list came out in 1971. The designation was changed to “threatened” when the state act was amended in 1985.

To Kern County officials, however, the squirrel is but a fecund rodent in the way of progress. In late 1991, county planners asked the five-member Fish and Game Commission to take the squirrel off the list--the first time such a request had ever been made.

A fish was once removed from the list because it had died out. A plant was removed because it was found not to be a distinct and separate species.

On the federal level, authorities have delisted nearly two dozen species since the U.S. Endangered Species Act was enacted in 1973.

In May, 1993, after a debate dominated by economic questions, the Fish and Game Commission voted to delist the squirrel.

Alarmed, a coalition of environmental groups filed suit in August in San Francisco, where several of the groups are based. The Mountain Lion Foundation was joined in the suit by the Natural Resources Defense Council, the Sierra Club, the Desert Protective Council and Defenders of Wildlife.

In November, the state’s administrative law office overturned the Fish and Game Commission, citing another technicality--ruling that the commission did not adequately address public comments before a second vote in August, 1993, confirming its decision to delist the squirrel.

Because of that decision, the squirrel has never actually been taken off the list. The administrative law office regularly reviews the commission’s decisions.

Thursday, Mellon issued his ruling in the court case. The “whole of the administrative record” before the Fish and Game Commission, the judge noted, provided the panel with substantial evidence to delist. But without a complete environmental review, he said, the panel had acted prematurely.

The judge issued only a two-page ruling, calling it a notice of intended decision and saying he plans later to provide a lengthier opinion. An appeal, lawyers and environmental experts said, is almost certain.