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ENDANGERED SPECIES COMM. OF THE BLDG. INDUS. ASSN.

May 2, 1994

ENDANGERED SPECIES COMMITTEE OF THE BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA, et al., Plaintiffs,
v.
BRUCE BABBITT, Secretary of the Department of Interior, et al., Defendants.



The opinion of the court was delivered by: STANLEY SPORKIN

 Plaintiffs here seek review of the Secretary of the Interior's final rule, 58 Fed. Reg. 16,742, listing the coastal California Gnatcatcher (Polioptila californica californica) (P.c.c.) as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531 et seq. Parties have filed cross motions for summary judgment.

 I. FACTUAL BACKGROUND

 This case involves a species of bird known as the California gnatcatcher (Polioptila californica) and a subspecies of that bird known as the coastal California gnatcatcher (Polioptila californica californica) (P.c.c.). At issue is whether the defendant United States Department of the Interior acted arbitrarily and capriciously, or contrary to law in listing the P.c.c. as threatened under the Endangered Species Act (ESA), 16 U.S.C. § 1533 et seq. 5 U.S.C. § 706 et seq.

 At the center of the dispute are two papers by Dr. Jonathan Atwood, an ornithologist with the Manomet Bird Observatory, one written in 1988 and a second written in 1990. These reports were based on the same data, but resulted in different conclusions. Jonathan L. Atwood, Status Review of the California Gnatcatcher app. I at 50 (1990). Before publishing the 1988 paper, Atwood spent several years studying 189 male California gnatcatchers comparing various morphological characteristics such as the size of bills, length of tails and toes, and brightness and purity of plumage. Id. at 51-52. The specimens were separated into nine sample areas along a latitudinal gradient stretching from southern California to the tip of Baja California. Id. at 51. Comparing the samples along the gradient, Atwood looked for the occurrence of a pronounced "step" in morphological characteristics, which would indicate the break between two species or subspecies. Id. at 52.

 Dr. Atwood's 1988 paper identified the California Gnatcatcher as a new species, distinct from the black-tailed gnatcatcher (Polioptila melanura) which is found in large portions of Mexico and the western United States. Administrative Record for Listing of the Coastal California Gnatcatcher (A.R.), Vol. I, Doc. 39, at 829. (I:39:829). The paper further concluded that within the California Gnatcatcher species existed two subspecies: a northern subspecies known as the coastal California Gnatcatcher (P.c.c.), and a southern subspecies known as the Polioptila californica margaritae. Id. at 863.

 It was vital in deciding whether the P.c.c. is threatened to locate the subspecies' southernmost limit. If the members of the gnatcatcher species existing as far south as 25 degrees North latitude were considered to be of the P.c.c. subspecies, then the bird likely existed in large enough numbers to stay off of the threatened list. Conversely, if the P.c.c. only existed as far south as 30 degree North latitude, then under the terms of the ESA, it could be considered threatened. Central to this case therefore, is whether the defendant acted arbitrarily and capriciously or contrary to law in deciding that the southernmost limit is 30 degrees North Latitude.

 Procedural History of the Rulemaking

 On September 21, 1990, the Fish and Wildlife Service received two petitions requesting that it list the P.c.c. as threatened species. On December 17, 1990, a third petition for the same action was received from Dr. Atwood, representing the Manomet Bird Observatory and the National Resources Defense Council. The petition included Dr. Atwood's 1990 report which found the southern range limit of the P.c.c. to be 30 degrees North latitude.

 On January 24, 1991, the Service found that the petitioners presented substantial information indicating that the petitioned action may be warranted. 56 Fed. Reg. 12146 (Mar. 22, 1991). On September 17, 1991, the Service issued a proposed rule listing the P.c.c. as threatened throughout southern California and northwestern Baja California, Mexico. 56 Fed. Reg. 47053 (Sept. 17, 1991). The Service considered several factors in determining that the P.c.c. should be listed as threatened. The primary factor was its conclusion that there was a present and threatened loss and fragmentation of gnatcatcher habitat occurring in conjunction with urban and agricultural development. Id. at 47055-56. In reaching this conclusion, the service relied on information contained in the three petitions, including Atwood's 1990 report.

 As required by statute, the Service announced a six-month period in which interested parties and the public could comment on the proposed rule. During that period, the Service received comments questioning the "scientific validity" of Atwood's 1990 study, in light of the fact that he had analyzed the identical raw data in 1988 and 1990, and had come to different conclusions.

 Some of those questions came from the plaintiffs, who submitted papers by Dr. George Barrowclough, Chairman of the Department of Ornithology of the American Museum of Natural History, and Dr. Lyman McDonald, a biostatistician. Both concluded that it was not possible to determine whether Atwood was correct in 1988 or 1990 without access to his raw data. A.R. II:615:4517-18, 4529-39. The papers also criticized Atwood's statistical presentation and analysis, and identified errors and inconsistencies in the 1990 Report.

 Plaintiffs made requests to the Secretary for Atwood's raw data. Since the Secretary had not reviewed the raw data in making his determination, he denied plaintiffs' requests. Plaintiffs also sought access to the data directly from Dr. Atwood himself. Atwood refused, claiming Plaintiffs' expert consultants been hired to help the building industry in "some sort of statistical 'witch hunt.'" AR I:61:7707; II:540:3438. He did offer to give the data to the Service or to any member of the American Ornithologists' Union (AOU) "checklist committee", but this never occurred.

 Partly in response to criticism from the plaintiffs, the Service extended the deadline for the final rule, pursuant to Section 4(b)(6)(B)(i) of the ESA, for a period of six months, or until March 17, 1993. A.R. I:438:5795; 57 Fed. Reg. 43686 (Sept. 22, 1992). In addition, the Service formally asked the AOU, through its Committee on Classification and Nomenclature (CCN), *fn1" to carry out a taxonomic study *fn2" of the P.c.c. A.R. I:609:7432. In the Service's Notice of Six Month Extension, it announced that ...


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