April 13, 2010

PLF petitions for removal of California gnatcatcher from federal ESA list

By PLF petitions for removal of California gnatcatcher from federal ESA list

PLF today filed papers with the United States Fish and Wildlife Service, petitioning for the removal of the California gnatcatcher from the federal Endangered Species Act list.

The gnatcatcher’s listing as "threatened" on the ESA list has led to severe restrictions on land use across hundreds of thousands of acres in Southern California. In total, approximately 197,303 acres in San Diego, Orange, Riverside, San Bernardino, Los Angeles, and Ventura Counties are being designated as critical habitat for the coastal California gnatcatcher. The Service itself has estimated that the economic impact of these restrictions costs over $900 million by year 2025.

The PLF petition urges the removal of the gnatcatcher from the ESA list on the grounds that the species is not actually threatened. Rather, the gnatcatcher in Southern California is, in a scientifically verifiably sense, part of the same species of gnatcatcher that exists in abundance in Mexico.


"The gnatcatcher listing is economically destructive and scientifically unwarranted," said PLF attorney Damien Schiff. "It kills jobs without saving a species – because the species doesn’t need saving, it isn’t threatened or imperiled."

"When California is experiencing the highest unemployment since the late Depression Era, we can’t afford to impose job-killing environmental regulations when science says that they’re not needed," said Schiff.

The Fish and Wildlife Service put the California gnatcatcher on the ESA in 1993, declaring it a threatened subspecies of gnatcathcers. However, more recent biological studies have determined that the gnatcatcher in California is not separate, in a scientifically significant sense, from gnatcatchers in Mexico, where the species exists in abundance. These studies, as well as the rest of the broad range of scientific literature on the subject, are outlined in a report that PLF attorneys submitted with the delisting petition. The report is prepared by Matthew?A. Cronin, Ph.D., a noted biologist now with the Northwest Biological Company.

"In fact, the Fish and Wildlife Service itself has launched a formal review to determine whether its categorization of the California gnatcatcher is still valid, in light of new scientific inquiries and information," said Schiff. "Our petition essentially functions as a demand that the government get moving on that process – and withdraw an ESA listing that is not justified by science and is harmful to our economy."

In submitting the delisting petition, PLF attorneys represent two groups on individual vitally concerned with a balanced and scientifically sound approach to environmental regulations:

• Coalition of Labor, Agriculture, and Business (COLAB). Through educational outreach and issues advocacy, COLAB works to protect and improve the natural and business environments, with special emphasis on San Luis Obispo and Santa Barbara Counties, California. COLAB supports the protection of private property rights, fiscal responsibility, and environmental legislation based on sound principles of science, as well as cost-effective solutions to issues associated with business and job creation.

• Property Owners Association of Riverside County. This association is an advocate for Riverside County property owners to ensure that the interests and private property rights of landowners are protected in the formation and implementation of public policies. The association includes owners of real property in Riverside County whose interests are directly affected by government land use regulations, including numerous land use restrictions imposed by the ESA. Two dozen association members are within the Western Riverside County Multiple Species Habitat Conservation Plan area, which includes gnatcatcher habitat.


• M. Lou Marsh, M.D., resides in unincorporated San Diego County. Dr. Marsh wishes to subdivide her lot. In order to do so, Dr. Marsh must obtain a coastal development permit from the California Coastal Commission. However, the Commission has refused to grant a permit, in part because a pair of gnatcatchers were found on the property. If the gnatcatcher were delisted, the Commission could no longer use this excuse to deny Dr. Marsh’s permit application.

Said Dr. Marsh: "I believe that the Coastal Commission’s irrational fixation on a bird that is not truly endangered or threatened has resulted in the repeated denial of my right to subdivide my four-acre parcel into what should have been two beautiful ocean view properties. I am thrilled that PLF is submitting the petition, on my behalf and that of many other beleaguered property owners. It is time to delist this creature whose existence is anything but threatened just a few miles to the south of my property in Mexico."

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Center for Environmental Science, Accuracy & Reliability, et al. v. U.S. Department of Interior, et al.

The federal government has expanded its reach using the Endangered Species Act to cover spurious “subspecies.” The ESA does not define “subspecies” and the Fish and Wildlife Service has offered no definition of its own. Instead, it simply announces when it has determined a “subspecies” to exist and, relying on the subspecies’ smaller numbers relative to the entire species, imposes onerous regulations. The California gnatcatcher was listed as a threatened subspecies, but a 2013 study shows that, at a DNA level, the songbird is not meaningfully distinct from millions of gnatcatchers dwelling in Baja California. PLF represents a coalition of property owners, developers, and scientists in a challenge to the continued listing of this thriving species.

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