Builders Seek Role in Habitat

Stealing a page from its longtime environmental foes, a Southern California builders group has filed notice that it will sue federal officials to force them to set aside critical habitat for 98 endangered plant species.

The Building Industry Legal Defense Foundation says its potential lawsuit would be a counterpunch to a planned lawsuit by an environmental group that has won scores of similar suits.

Developers and environmentalists alike said they could not recall a builders group employing such a strategy.

But the group’s lawyer said the unprecedented move was necessary, not to save species, but to assure it a role in crafting any potential legal settlements.

“If these critical habitat designations are going to be rolling out, we want a seat at the table,” said David Smith, general counsel for the foundation and the Building Industry Assn. of Southern California.

In late September the foundation filed 60-day notices to sue the Department of the Interior and Fish and Wildlife Service. Federal officials declined to comment. The two agencies, led by Interior Secretary Bruce Babbitt, have long been reluctant to designate critical habitat, saying it is a costly and time-consuming effort that offers little if any extra protection.

The letter mirrors a notice filed by the environmental group Center for Biological Diversity in August seeking habitat protection for the same species, including the Santa Monica Mountains dudleya, a rare rock-clinging succulent found in Orange County.

The center and other environmental groups have successfully sued Fish and Wildlife scores of times for failing to designate critical habitat--land considered crucial to the survival of an imperiled species. Bulldozing or other potentially harmful activities on federally regulated land designated as critical habitat must be specially approved.

Environmentalists’ lawsuits have led to court orders on behalf of 282 species in Fish and Wildlife’s Pacific region alone, including the gnatcatcher and fairy shrimp.

In a related matter, several developers and business advocacy groups have also served notice that they will sue Fish and Wildlife and the Interior department, charging that recent habitat protections for the tiny songbird and shrimp grossly violate federal law.

In addition to the builders legal foundation, the Transportation Corridor Agencies, Rancho Mission Viejo Co., the California Chamber of Commerce and several others filed a notice of intent late last month to sue the two agencies.

The Interior department announced critical habitat decisions for the two species last month. The coastal California gnatcatcher designation includes 513,650 acres in Los Angeles, Orange, San Diego, San Bernardino and Riverside counties. A decision for the San Diego fairy shrimp, a tiny freshwater crustacean that lives in seasonal wetlands, includes 4,025 acres in Orange and San Diego counties.

The gnatcatcher designation could affect the proposed Foothill South toll road, as well as ranching on and future development of 23,000 acres of Rancho Mission Viejo Co. land in South County.

The builders group says the federal agencies violated several provisions of the Endangered Species Act by creating overly broad critical habitat decisions that don’t consider egregious economic effects, the most recent scientific information and other mitigating factors.

“The [Fish and Wildlife] Service did not listen to any of the cases we made, so we really had no choice but to consider turning to the courts,” said Laer Pearce, executive director of the Coalition for Habitat Conservation, which represents the Irvine Co., Rancho Mission Viejo Co. and others.