U.S. Broke Law on Fish Habitat, Judge Rules

A federal judge has ruled that the U.S. Fish and Wildlife Service violated the Endangered Species Act by refusing to designate critical habitats for the endangered tidewater goby.

The tidewater goby is a small fish, found only in California, that lives in salt marshes, coastal lagoons and wetlands from the Mexican border to Oregon.

Acting in a lawsuit by the Natural Resources Defense Council, U.S. District Judge Carlos Moreno in Los Angeles rejected the government’s argument that it should not be required to designate protected habitats for the tidewater goby.

Government lawyers said the designations are not warranted because the Fish and Wildlife Service may soon seek to remove the tidewater goby from the endangered species list.

They also contended that the Fish and Wildlife Service lacks funds to establish critical habitats for the fish. But Moreno disagreed and gave the agency 120 days to designate the habitats.

He cited the Fish and Wildlife Service’s preliminary draft recovery plan for the goby, prepared in 1996, which recommended that the fish not be removed from the endangered species list for at least 10 years. The tidewater goby was declared an endangered species in 1994.

The Endangered Species Act provides for the protection not just of species but of their habitats as well. Once a habitat is designated as critical, the federal government is barred from carrying out or permitting any activities that could harm the area.

Private landowners are not affected by Moreno’s ruling unless they need to seek a federal permit to alter their property. For example, filling in a wetlands area requires a permit from the Army Corps of Engineers. An applicant also would have to comply with regulations protecting the tidewater goby.

Jane Hendron, a Fish and Wildlife spokeswoman, said, “We haven’t seen the ruling, so we can’t comment on it.”

Joel Reynolds, senior attorney at the Natural Resources Defense Council, hailed Moreno’s ruling Monday, saying that it provides added protection from “unrelenting development pressures” that threaten the California coast.

The council said it would wage a court fight to block any attempt by the Fish and Wildlife Service to remove the goby from the endangered species list.

“We don’t believe there is any biological basis for removing the tidewater goby from the endangered species list at this time,” said Andrew Wetzler, an attorney for the Natural Resources Defense Council. “The federal government ought to be spending its limited resources protecting species, not taking their protection away.”

Tidewater gobies once populated 110 places along the coast but are now found in only 45. The goby is just three inches long and semitransparent. It lives one year and spends much of its life preparing to produce the next generation.

Coastal development and water pollution contributed to its decline, said Camm Swift, a biologist at Mt. San Antonio College and emeritus associate curator at the Natural History Museum of Los Angeles County.

Swift said that designation of critical habitats could affect human activities far upstream. Development, water flows and pollution that affect estuaries and the fish could become targets for regulation, he said.

Times staff writers Deborah Schoch in Orange County and Gary Polakovic in Ventura County contributed to this story.