With new DNA evidence, PLF petitions feds to drop gnatcatcher ESA listing
June 11, 2014
SACRAMENTO, CA; June 11, 2014: A formal petition filed today calls on federal officials to remove the California gnatcatcher from the Endangered Species Act (ESA) list, citing compelling new biological evidence that the California gnatcatcher is not a distinct subspecies as previously claimed, but a single, healthy, and abundant species that ranges from Southern California to the southern tip of Baja, Mexico.
The delisting petition was filed by attorneys with Pacific Legal Foundation (PLF) on behalf of the Property Owners Association of Riverside County, the Center for Environmental Science, Accuracy & Reliability (CESAR), and the Coalition of Labor, Agriculture, and Business (COLAB). Joining the petition are the California Building Industry Association (CBIA) and the National Association of Home Builders (NAHB), represented by Robert Thornton, a partner with Nossaman LLP.
Filed with the U.S. Fish and Wildlife Service (FWS), the petition is based on a peer-reviewed study of gnatcatcher DNA by Dr. Robert Zink of the University of Minnesota and several other scientists. The 2013 study, published in the respected ornithological journal The Auk, confirms earlier genetic studies of gnatcatcher DNA by Dr. Zink. The new study concludes that gnatcatchers in California are not genetically distinct from the abundant populations of gnatcatchers south of the border. The new DNA evidence is precisely the information that federal officials have suggested would warrant removing the ESA listing.
“The good news is that the government’s bad news about the gnatcatcher is wrong,” said PLF Principal Attorney Damien M. Schiff. “When the entire gnatcatcher population is taken into view, this species is soaring, not struggling. What’s really endangered is the government’s credibility if this healthy species is kept on the ESA list and unjustified, job-killing gnatcatcher regulations continue to be imposed on property owners, businesses, and the California economy.”
Robert Thornton stated: “This petition goes to the heart of the Endangered Species Act because objective, science-based decisions are central to the statute’s integrity. Dr. Zink’s genetic study confirms the conclusions of the 2000 genetic study and demonstrates that the continued listing of the California gnatcatcher as a subspecies is no longer appropriate.”
The gnatcatcher is a blue-gray bird in Mexico and Southern California. Because gnatcatchers are common and abundant in Mexico, the federal government’s 1993 decision to list gnatcatchers in California as “threatened” relied fundamentally on the claim that they are a distinct subspecies with a range that is limited to Southern California and northern Baja, Mexico.
PLF first petitioned to have the gnatcatcher removed from the ESA list in 2010, contending that the gnatcatcher in California is not a distinct “subspecies” of the larger, healthy gnatcatcher species. The petition cited DNA analysis of the mitochondria in gnatcatcher cells. Mitochondrial DNA is inherited from the mother. The FWS acknowledged that the evidence did indeed tend to show that the California gnatcatcher is not a separate subspecies. But the agency said further study was needed. In particular, the FWS indicated a need for DNA analysis of the nucleusof the gnatcatcher cell. Nuclear DNA is inherited from both parents. The FWS routinely relies on mitochondrial DNA and nuclear DNA evidence in making listing and delisting decisions under the ESA.
The new petition, filed today, provides the new evidence that the FWS suggested — specifically, a 2013 nuclear DNA analysis by Robert Zink (Ph.D., UC Berkeley), a professor at the University of Minnesota’s College of Biological Sciences, and several other nationally recognized scientists. The study confirms that the California gnatcatcher is not a separate subspecies and does not even exhibit ecological distinctiveness. At most, the data show that the species has fairly recently (in geologic time) expanded its range into Southern California.
“We already knew that the gnatcatcher listing is bad for jobs and the economy,” said PLF Principal Attorney Damien M. Schiff. “Now we know that the listing is also bad science. The gnatcatcher listing imposes steep economic costs without helping an imperiled species — because this species, viewed as a whole, is thriving, not threatened.”
The gnatcatcher listing 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. Federal officials estimate that the economic impact of these restrictions will total more $900 million by year 2025.
“This petition will help the Fish and Wildlife Service clarify its decision-making process on whether to list a species, so that the agency can use its limited resources effectively to protect species that are actually in need of protection,” said Bruce Colbert, executive director of the Property Owners Association of Riverside County. “We are grateful for Pacific Legal Foundation’s support in moving forward with this petition and the cause of sound science and responsible environmental regulations.”
The Property Owners Association of Riverside County is a nonprofit, public policy research, educational, and lobbying organization, founded to promote free enterprise and economic growth and to protect the interests and private property rights of landowners and businesses affected by land use regulation.
“This petition to delist the gnatcatcher is a plain example of CESAR’s commitment to ensure that the nation’s environmental laws are based on the best available scientific data,” said Craig Manson, executive director of the Center for Environmental Science, Accuracy and Reliability (CESAR). “In this case, following the science led to the conclusion that the species should not be listed.”
CESAR is a California nonprofit corporation whose primary purpose is to bring scientific rigor to environmental regulatory decisions, and to ensure consistent application of environmental statutes throughout all industries and sectors. CESAR believes this will generate additional support for environmental statutes, because regulatory actions will be transparent and supported by science.
“The threatened status of the California gnatcatcher under the ESA is based on the presumption that it is a distinct subspecies, a group with a distinct evolutionary history that would qualify it as a distinct segment of biodiversity,” said Dr. Robert Zink of the University of Minnesota, principal author of the new DNA study on which the delisting petition is based. “Typically, subspecies are based on morphological, behavioral, or genetic (e.g., DNA) information. Study of these attributes of the California gnatcatcher, along with new studies of its ecological niche, suggest it does not qualify as a subspecies based on any source of information. Therefore, it is incorrectly listed under the ESA.”
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Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country. PLF represents all clients free of charge.
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Pacific Legal Foundation is a national nonprofit legal organization that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 17 wins of 19 cases litigated at the U.S. Supreme Court.