Right Wing Group sues so it can kill the songbird that has saved thousands of acres of land from Ventura to San Deigo County
Developer Group's Lawsuit calls for removal of federal protection of gnatcatcher habitat
By Melissa Pamer Staff WriterPosted: 09/20/2011
A small songbird that makes its home in sage scrub habitat on the Palos Verdes Peninsula and elsewhere on the Southern California coast should no longer be protected by federal law, a new lawsuit argues.
The California gnatcatcher, which was named a threatened subspecies by the federal government in 1993, is the subject of litigation from the Pacific Legal Foundation, a Sacramento law group that successfully sued several years ago to remove Endangered Species Act protections for the bald eagle.
In a lawsuit filed last week in U.S. District Court in San Diego, the group seeks to force the U.S. Fish and Wildlife Service to respond to the law firm's 2010 request to "delist" the gnatcatcher. The 4-inch bird lives only in coastal sage scrub, a type of California plant community that has been reduced by up to 90 percent by development, according to some estimates.
Pacific Legal Foundation - which files litigation in pursuit of "limited government, property rights, free enterprise, and a balanced approach to environmental regulations," according to its website - argues that the California gnatcatcher is not a separate subspecies in need of protection, and that a healthy population of its genetic relatives in Mexico ensure the bird's survival.
"If you look at the entire gnatcatcher population across the border, it's clear the population is doing fine and the entire species is not threatened with extinction," said Damien Schiff, the lead attorney on the case.
Protections for the bird - and for about 197,000 acres of its federally designated critical habitat across six Southern California counties - are an example of "unjustified, job-killing regulations," the foundation said in a news release.
The bird's listing causes environmental mitigation and permitting costs for developers and homeowners, along with limitations to building on desirable land, Schiff said.
He pointed to a 2007 federal analysis predicting the bird's status will cause an economic impact of $915 million through 2025.
On the Palos Verdes Peninsula, the gnatcatcher's federally protected status has had a wide impact, forcing developments - including the predecessor of Trump National Golf Club and the luxury homes of Oceanfront Estates - to set aside habitat and change plans to accommodate the bird, said the city's community development director, Joel Rojas.
Homeowners working in their own backyards have been affected too, he said.
"It's not uncommon for people to go out and start removing what they think is vegetation and they find out it's federally protected habitat," Rojas said.
Even the city's own public works projects have been impacted by habitat protections, Rojas said. Those concerns in part prompted Rancho Palos Verdes to create its celebrated 1,400-acre Palos Verdes Nature Preserve under a state program - Natural Community Conservation Planning, or NCCP - designed to encourage jurisdictions to create large-scale conservation plans to coordinate development and habitat protection.
The most recent gnatcatcher survey, done in 2009 before a fire burned coastal sage scrub habitat, showed about 40 "territories" for mating pairs within the city's preserve, according to Danielle LeFer, conservation director for the Palos Verdes Peninsula Land Conservancy, which manages the acreage. With offspring, that could mean there are about 100 California gnatcatchers in the preserve.
Increasing the bird's numbers is one of the main goals of the conservancy's ongoing habitat restoration projects.
The local gnatcatcher population appears to be relatively stable, LeFer said. The black and blue-gray songbird, which calls with a sound like a kitten's mew, is popular with bird-watchers.
"People love to see it because it's so rare still. They're secretive. They're not that easy to see and they're a little bit hard to recognize so people love it when they have a chance to see it or hear it," LeFer said.
he Pacific Legal Foundation argues that new science shows that the coastal California gnatcatcher should be considered part of one species that ranges from Ventura County into Baja California, where the bird is more widespread.
A 2000 scientific paper that looked at the gnatcatcher's genetic makeup found no basis for labeling the northernmost population a subspecies, in contrast to previous studies. The service's scientists said that study was not sufficient reason to disregard the classification, according to a review of the bird's status issued last year.
"It's clear the service has a different understanding of the science than we do," Schiff said.
Schiff and his foundation are representing a San Diego County homeowner who could not subdivide her land because of gnatcatcher protections, a group of landowners in Riverside County, and a Santa Barbara County coalition of business, agriculture and labor interests.
The scientific substance of that disagreement would be at issue in a future lawsuit if the gnatcatcher is not delisted, Schiff said; the current lawsuit seeks simply to get the Fish and Wildlife Service to respond to the foundation's request for delisting.
Jane Hendron, a spokeswoman for the service's office in Carlsbad, said her agency could not comment on specifics of the lawsuit.
She said the service has been crafting a response to the foundation's April 2010 request to have the gnatcatcher delisted but was overwhelmed with other lawsuits.
"We are working on responding to that petition, but what we're up against is that we still have to address high-priority court-ordered items," Hendron said. "Our ability to set our own priorities has largely been taken over by litigation-driven actions."
The agency's overdue response to the legal group's petition - required within 90 days - is what prompted the new lawsuit.
Hendron could not give a date when the response would be issued.