September 15, 2011

PLF sues feds over unjustified, job-killing ESA listing of gnatcatcher

By PLF sues feds over unjustified, job-killing ESA listing of gnatcatcher

Sacramento, CA; September 15, 2011: Attorneys with Pacific Legal Foundation today sued the U.S. Fish and Wildlife Service over the agency's scientifically unjustified – and economically destructive – listing of the California gnatcatcher on the federal Endangered Species Act list.

"The California gnatcatcher isn't threatened or endangered," said PLF Senior Staff Attorney Damien M. Schiff. "What's endangered are California jobs. This state has the highest unemployment rate since the Depression era, but the federal government still insists on imposing unjustified, job-killing regulations for the California gnatcatcher. The scientific basis for those regulations is flimsy, but the economic harm they cause is real."

Filed on behalf of property and business owners who have been harmed by the unjustified listing, the lawsuit specifically targets the government's failure to respond in a timely manner to an April, 2010, petition filed by PLF and the plaintiffs, asking for removal of the gnatcatcher from ESA's list of threatened species.


Gnatcatcher listing worsens California recession

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 have been designated as critical habitat for the coastal California gnatcatcher. The Fish and Wildlife Service itself has estimated that the economic impact of these restrictions will costs over $900 million by year 2025.

The PLF petition that the feds have failed to act on seeks 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 verifiable sense, part of the same species of gnatcatcher that exists in abundance in Mexico.?

The California gnatcatcher is the same species that thrives south of the border

"The gnatcatcher listing kills jobs without saving a species – because the species isn't imperiled and doesn't need special protection," said Schiff.

The coastal California gnatcatcher is a small blue-gray songbird which measures 4.5 inches and weighs 0.2 ounces. The Fish and Wildlife Service put the California gnatcatcher on the ESA list in 1993, declaring it a threatened subspecies of gnatcatchers. 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 April, 2010, delisting petition. The report is prepared by Matthew A. Cronin, Ph.D., a noted biologist now with the Northwest Biological Company.

"The scientific problems with the gnatcatcher listing are so obvious that the Fish and Wildlife Service launched its own formal review of the listing several years ago," said Schiff. "But that process stalled, and now we're asking the courts to force federal regulators to finally get moving, so these unjustified, job-killing regulations can finally be lifted."

Pacific Legal Foundation: Watchdog for property rights,balanced regulations, and a healthy economy

PLF is the leading legal watchdog for limited government, property rights, free enterprise, and a balanced approach to environmental regulations. As part of its efforts to target unnecessary environmental regulations that don't provide clear environmental benefit but cause clear economic harm, PLF litigation has led to the withdrawal of the bald eagle from the ESA list, as well as significant cutbacks in federally designated habitat regions for various listed species in California.

Plaintiffs: Landowners harmed by unnecessary regulations

In filing today's lawsuit, PLF attorneys represent two groups of landowners and business owners, and one 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 environ-ments, 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 was 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: "This listing of a bird that is not truly endangered or threatened has contributed to the repeated denial of my right to subdivide my four-acre parcel into what should have been two beautiful ocean view properties. PLF is to be commended for filing this lawsuit on behalf of 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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