LOS ANGELES -- Transportation officials in Orange County, Calif., won a round this week in one of the pending environmental lawsuits that could affect toll road construction, but a further appeal remains probable.
A federal judge in Washington, D.C., this week said the U.S. Department of the Interior erred during the process that led to the listing of the California gnatcatcher as threatened under the Endangered Species Act.
The Southern California Building Industry Association and the Transportation Corridor Agencies in Orange County challenged the handling of the listing in a 1992 lawsuit.
On Monday, Judge Stanley Sporkin found merit in the builders' claim that they were improperly denied access to raw scientific data that the government relied upon in reaching its decision on the threatened listing. According to the builders, the information should have been made available to ornithologists that they hired to challenge the government's decision.
"Where an agency relies upon data to come to a rule-making decision, it generally has an obligation under the Administrative Procedures Act to provide such data for public inspection," Sporkin's ruling said. Sporkin did not find merit in other issues raised by the builders, including a claim that other procedural requirements of the Endangered Species Act were ignored.
The case revolves around the California gnatcatcher, a small bird found in the dry coastal slopes and sagebrush of Orange County.
The Interior Department concluded that the bird is a unique species that deserves endangered species protection because of a declining population. But the building association and others have questioned that finding, arguing that the California gnatcatchers may in fact be no different from similar birds found in Mexico and other states.
Builders are concerned that the endangered listing could impede development efforts in prime parts of Orange County. Transportation officials became involved out of concern that the listing could be cited to fight construction of various toll roads, including the San Joaquin Hills Transportation Corridor, which was financed with municipal bonds.
But Mike Stockstill, director of intergovernmental affairs for the San Joaquin Hills Transportation Corridor Agency, stressed that a mitigation plan for the gnatcatcher was worked out with the U.S. Department of Fish and Wildlife before the bird was ever listed as threatened.
Accordingly, Stockstill says the decision does "not change anything" regarding construction plans for the San Joaquin Hills toll road.
The ruling could be beneficial, however, for planning on the Eastern Transportation Corridor, Stockstill said, adding that it is hoped the work on environmental documentation "can proceed more quickly" without a threatened listing for the gnatcatcher.
In a statement released by the Transportation Corridor Agencies, Robert Thornton, counsel to the agencies from the law firm of Nossaman, Guthner, Knox and Elliott, said Sporkin's ruling "effectively repudiates the efforts of the Natural Resources Defense Council to illegitimately twist the Endangered Species Act into a tool for stopping development in general" and the San Joaquin corridor specifically.
This week's ruling, however, is probably only a precursor to an appeal.
Interior Secretary Bruce Babbitt in a brief statement said the court decision must be studied further.
Nevertheless, "all of the information we have indicates that the California gnatcatcher meets the criteria for listing under the Endangered Species Act," Babbitt's statement said. "We will therefore take the steps necessary to guarantee its protection."
Lawyers for environmental groups disagreed with Sporkin's ruling, saying it is a backward step for habitat planning programs for endangered species.