Government species regulators can’t give science short shrift

Federal officials are sued for arbitrary rejection of new gnatcatcher data

Sacramento, CA; November 2, 2017: Southern California suffers from a severe shortage of affordable housing, in large part because land use regulations limit construction of new homes. For instance, nearly 200,000 acres from Ventura County to San Diego are off-limits to development because of regulations to protect a four-inch bird known as the coastal California gnatcatcher.

In 2014, federal officials were presented new biological data indicating that the gnatcatcher does not belong on the Endangered Species Act list, so these homebuilding restrictions are unwarranted. But they rejected the findings two years later after a cursory and biased review.

Submitted through a formal petition to the U.S. Fish and Wildlife Service, the DNA findings were produced by Dr. Robert Zink, now with the University of Nebraska, along with several other noted biologists. They concluded that the gnatcatcher is not an imperiled subspecies living only in Southern California, but part of a large and healthy species found from Southern California to the southern tip of Baja, Mexico.

Now, the homebuilders and advocates for sound science and property rights who submitted the gnatcatcher petition have sued to force officials to reconsider it—this time with a valid review. They are represented free of charge by Pacific Legal Foundation.

“Instead of giving Dr. Zink’s peer-reviewed findings the objective analysis required by law, federal bureaucrats used an agenda-driven process that lacked transparency,” said PLF Senior Attorney Damien Schiff.

“They relied on an outside committee of advisers that was created without public notice and operated without public input,” he noted. “Not even Dr. Zink was allowed to observe. These shadowy proceedings violated legal requirements for openness in decision-making.

“Officials also failed to define the key term that their decision relies on,” he continued. “They continued to insist that the gnatcatcher is a separate ‘subspecies.’ But they did not explain what precisely constitutes a ‘subspecies.’”

“We aren’t suing to compel the government to accept Dr. Zink’s findings, but to make sure they are reviewed fairly,” said Bruce Colbert, executive director of the Property Owners Association of Riverside County, one of PLF’s clients. “The gnatcatcher regulations cause significant social harm by blocking the development of needed homes and roadways in many areas of Southern California. They create uncertainty for development and reduced property values for landowners. When there is compelling evidence that these regulations are based on an arbitrary determination, the government has a legal duty to give the evidence a fair hearing.”

“Pacific Legal Foundation fights for balance and common sense in environmental policy, and a regulatory process that is fully reviewable and scientifically sound,” said PLF President and CEO Steven D. Anderson. “As this case shows, all of these goals require getting regulators to follow the law.”

In addition to the Property Owners Association of Riverside County, PLF filed the lawsuit on behalf of the Center for Environmental Science, Accuracy & Reliability; the Coalition of Labor, Agriculture, and Business; the California Building Industry Association; the National Association of Home Builders of the United States; and the Building Industry Legal Defense Foundation. More information can be found at: pacificlegal.org/gnatcatcher.