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Judge Upholds Protection of Habitat for 2 Species

Environment: Despite a flawed study, land needed by gnatcatcher and fairy shrimp in the region will remain off limits to development.


More than half a million acres of Southern California land protected for two imperiled species will retain its special status even though federal officials failed to consider the economic impacts of labeling so much property "critical habitat," a federal judge in Los Angeles ruled earlier this week.

In making this decision, which was made public Thursday, Judge Stephen V. Wilson rejected the Bush administration's effort to leave the land unprotected and open to development while the U.S. Fish and Wildlife Service conducts a new analysis of the economic impact of protection on property owners.

The land, covered with sage scrub and shallow freshwater pools, was deemed essential two years ago by the agency for the survival of the coastal California gnatcatcher and the San Diego fairy shrimp.

Wilson also ordered the Fish and Wildlife Service to complete a new economic analysis in 10 months, less than half the time the agency had sought.

Federal wildlife officials declined comment, saying their attorneys had not had enough time to review the written ruling, which was filed Tuesday.

Environmentalists hailed the move, saying it will prevent wholesale habitat destruction by construction of a toll road by local transportation agencies and of 14,000 homes by a development company, Rancho Mission Viejo, in south Orange County.

"This is really good news," said Joel Reynolds, a senior attorney with the Natural Resources Defense Council, which has been involved in litigation with the agency over the gnatcatcher for nearly a decade.

"You've got major developers chomping at the bit to proceed with huge developments," he said. "Those developers are coming in here arguing that the elimination of protection would make no difference for the gnatcatcher. But the truth is they are here fighting the designation precisely because they know that it does make a difference and that's what the court recognized."

David Smith, legal counsel for the Building Industry Assn. of Southern California, said he felt the judge should have struck the rule since the government conceded that it was flawed. "But I don't think it has that much consequence either way," especially since new rules will be in place by next summer, he said.

One of the most controversial provisions of the Endangered Species Act, critical habitat is a category of protected land in which building and other activity can be limited or even barred to ensure the survival of rare plants and animals.

In 2000, the U.S. Fish and Wildlife Service declared more than 510,000 acres in Southern California essential to the survival of the gnatcatcher and the fairy shrimp. Responding to lawsuits by Rancho Mission Viejo, the Transportation Corridor Agencies, the Building Industry Assn. and others, the Bush administration asked Wilson to invalidate the designations.

The administration's request coincided with a slew of lawsuits, brought by landowners nationwide, challenging how the government conducted its financial analyses of the impact of designating critical habitat.

Before designating habitat, the service is legally required to analyze the economic consequences for developers, private property owners, cities and others with financial interests in the land. Until last year, nearly all those analyses had said creating critical habitat would have little to no effect.

Developers' attorneys said the court's underlying decision, which Wilson reached in February, recognizes that the wildlife service failed to take the economic impacts into account when mapping habitat.

"We hope this time around the government will do a serious, thorough analysis of all the economic impacts of the critical habitat designation," said lawyer Rob Thornton, who represents the TCA, which wants to build the toll road through gnatcatcher habitat in south Orange County.

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