Gnatcatcher Will Stay Off State List : Environment: Fish and Game Commission decides the rare songbird already is adequately protected.

In a setback to environmentalists, the California Fish and Game Commission Friday decided not to list the controversial gnatcatcher as a candidate for protection under the state Endangered Species Act, saying the tiny songbird already is adequately protected.

However, commissioners meeting in Bishop agreed to reconsider if existing federal protections for the gnatcatcher are reduced or repealed by Congress.

“I believe the environmental community has made a scientifically valid presentation that this bird is in serious danger,” said Commissioner Richard T. Thieriot. “Therefore, if the federal protections fall away, I think the state has the responsibility to step in immediately and automatically to provide the protection.”

An emergency listing could be adopted within 60 days, commissioners said.

“If this bird’s in jeopardy, we’re going to move--fast,” said commission President Frank Boren. “The commission is not going to tolerate the wipeout of the California gnatcatcher.”

The decision comes after a four-year battle fought by the Natural Resources Defense Council to obtain protection for the 4 1/2-inch gray songbird under both the federal and state endangered species acts.

The federal government listed the bird as a threatened species in 1993, but the state Fish and Game Commission opted not to, sparking a legal battle that led to Friday’s review.

In opting again not to list the bird, the commission upheld a recommendation made Wednesday by state Department of Fish and Game officials.

“We’re compelled to go back to court,” Michael Fitts, an attorney for the Natural Resources Defense Council said Friday night.

“The California Endangered Species Act was enacted after the federal act. It’s intended to compliment the federal act,” he said. “It’s just not permitted under the state act to punt to the federal government.”

Environmentalists have squared off on the issue with developers, whose ability to build on 300,000 acres of gnatcatcher habitat that lie between Newport Beach and San Diego has been curtailed by the bird’s decline.

The gnatcatcher lives only in coastal sage scrub, much of which exists on valuable real estate already earmarked for major housing developments and roads that have been postponed.

After the commission first rejected the environmentalists’ petition in 1991, the Natural Resources Defense Council sued the commission and won. In 1994 the state’s 3rd District Court of Appeal ordered the commission to reconsider its decision.

State Fish and Game officials say the bird is adequately protected under federal law and under the Natural Community Conservation Planning Program.

The new planning program, designed to protect large areas of ecologically sensitive habitat, is administered by the state Fish and Game Department and is a cooperative effort with the U.S. Department of the Interior, developers and local governments.

The commission based its 4-0 vote Friday on scientific assurances from the agency that there is no immediate threat to the bird under the current umbrella of federal protections and the Natural Community Conservation Planning Program.

But Fitts said Friday that the planning program is too new to be properly evaluated.