This week a group of property owners and developers filed suit against the U.S. Department of Interior, alleging that the U.S. Fish and Wildlife Service (USFWS) violated federal procedure rules when it repeatedly found that the coastal California gnatcatcher is protected under the Endangered Species Act (ESA). Filed in a D.C. federal court by the Pacific Legal Foundation on behalf of pro-development interest groups, the suit argues that the USFWS violated federal laws when it refused to delist the gnatcatcher, contrary to “the best scientific and commercial data” showing that the bird is not endangered. The suit claims property owners and developers have faced undue hardships when developing almost 200,000 acres of Southern California properties, which are designated as critical habitats for the gnatcatcher. They argue the current designation has increased the burden of federal permitting and reduced overall property values.

The gnatcatcher was initially listed as a threatened subspecies by the federal government in March 1993. However, a coalition of homebuilders successfully challenged the listing on the grounds that the bird is not a valid subspecies protected by the ESA. Just two years later on remand, the USFWS reaffirmed its position that the gnatcatcher is a subspecies. The issue reemerged in 2010 when another coalition of property owners (which included most of the plaintiffs named in the current suit) petitioned to USFWS to delist the gnatcatcher, citing new evidence. The USFWS denied the 2010 petition and denied yet another petition by the same group in August 2016, rejecting additional studies after forming a panel to review the information.

The coalition’s attorney, Damien Schiff of the Pacific Legal Foundation, stated that the agency has failed to articulate what definition it is using for the birds to obtain a subspecies status. He also believes the USFWS unfairly formed a panel to discuss the studies without properly notifying the public. Mr. Schiff argues that the agency should at least give the public an opportunity to comment and define the subspecies standard.

The suit specifically asserts a claim alleging the agency filed to define the “subspecies” standard, which violates the ESA and Administrative Procedures Act. Additionally, the suit also alleges that the agency failed to notify and allow the public to comment on advisory committee meetings, which violates the Federal Advisory Committee Act. The suit seeks declaratory relief and an injunction, in addition to attorneys’ fees and costs. The named plaintiffs include Property Owners Association of Riverside County, 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.

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