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June 16, 1994

Endangered Species Committee of the Building Industry Association of Southern California, et al., Plaintiffs,
BRUCE BABBITT, Secretary of the Department of Interior, et al., Defendants.

The opinion of the court was delivered by: STANLEY SPORKIN


 Defendants have asked the Court to reconsider or in the alternative to amend its judgment of May 2, 1994. The Court has considered the motion, plaintiffs opposition thereto, and heard argument by the parties. For the following reasons, the Court will amend its judgment.

 I. Background

 Plaintiffs filed this case seeking review under the Administrative Procedure Act of the Secretary of the Interior's final rule, 58 Fed. Reg. 16,742, listing the songbird subspecies coastal California Gnatcatcher (Polioptila californica california)(P.c.c.) as a threatened species pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et seq. The parties filed cross motions for summary judgment. The Court heard argument on the motions on March 25, 1994. On May 2, 1994, the Court granted summary judgment for the plaintiffs and ordered that the Secretary's decision to list the P.c.c. be vacated.

 As described in the May 2, 1994 memorandum opinion, a fundamental dispute in this case centers around two papers, one from 1988 and a second from 1990, by an ornithologist with the Manomet Bird Observatory, Dr. Jonathan Atwood. Atwood in his two papers came to inconsistent conclusions about the P.c.c. 's southern range limit. The southern range of the tiny songbird is significant. The more southerly the range of the P.c.c. subspecies of the gnatcatcher, the greater the percentage of all gnatcatchers in California and Mexico that should be categorized as P.c.c., and the less likely it is that the P.c.c. subspecies of the bird should be considered threatened.

 Before publishing his first paper in 1988, Dr. Atwood had spent several years studying gnatcatcher specimens and tabulating the birds' various morphological characteristics. In his initial paper, Dr. Atwood analyzed his data and concluded, inter alia, that the P.c.c. subspecies of gnatcatcher exists in a geographic range from southern California down to 25 degrees North latitude in southern Baja California, Mexico. This particular conclusion of the 1988 report came under considerable criticism from Dr. Atwood's peers in the ornithological community. On the basis of this criticism, Dr. Atwood reanalyzed the same raw data of gnatcatcher characteristics and wrote a second report in 1990. In the second report, Atwood revised the southern range limit of the P.c.c. to be 30 degrees North latitude. Although the second report contained summary graphs and charts, it did not include Atwood's raw data--his specimen specific individual gnatcatcher measurements.

 On January 24, 1991 the Fish and Wildlife Service of the Department of the Interior issued a proposed rule listing P.c.c. as threatened. The Service relied on information contained in Atwood's 1990 report in coming to its conclusion. During the period for comment on the proposed rule, the plaintiffs submitted papers by two experts, Dr. George Barrowclough, chairman of the Department of Ornithology of the American Museum of Natural History, and Dr. Lyman McDonald, a biostatistician. Both experts in their submissions concluded that it was not possible to determine whether Atwood was correct in 1988 or in 1990 without having access to the raw gnatcatcher measurements.

 The Plaintiffs made numerous requests to the Secretary for access to the raw data used in Atwood's two papers. The Secretary stated that he relied on the Atwood Report and not on Atwood's underlying data. In fact, the Secretary reported he did not have the requested data, and thus was incapable of providing it. Dr. Atwood, too, was approached directly by plaintiffs for access to his raw data. The plaintiffs were unsuccessful in obtaining the information from Atwood despite plaintiffs repeated requests.

 Plaintiffs' argument in their motion for summary judgment related to Atwood's contradictory conclusions and plaintiffs' inability to properly evaluate those conclusions without access to the underlying data. At the hearing on plaintiffs' motion, oral argument focused substantially on this question. *fn1" The Court considered the arguments of counsel and found, pursuant to the Administrative Procedure Act, that the Secretary should have made Atwood's raw data available to interested parties. See Memorandum Opinion of May 2, 1994 at 13-14. The Court's decision to grant plaintiffs' motion for summary judgment was based squarely on this issue.

 II. The Instant Motion

 a. Motion to Reconsider

 On May 16, 1994, the federal defendants moved for reconsideration or in the alternative for an amendment of the Court's May 2, 1994 judgment. In their motion to reconsider, the federal defendants argue that since the Secretary did not have Atwood's raw data, he was under no legal obligation to turn over what he did not have. The Court rejected this argument when it was originally made and will reject it again at this time. The record demonstrates that the information was at all times available to the Secretary and clearly would have been provided had the Secretary chosen to ask for it. Where a reputable scientist has come to two inconsistent conclusions after analyzing one data set, and the Secretary relies on one of these contradictory conclusions, the interested parties should be allowed access to the underlying data.

 Further, the Court points out that if Dr. Atwood had denied the Secretary access to his data, such refusal would have been grounds for vacating the Secretary's decision. There could hardly be any greater abuse of discretion for an adjudicating official to rely on a report where the underlying data has been denied to that official.

 b. Motion to Amend the Judgment

 Federal defendants move in the alternative for an amendment of this Court's judgment of May 2, 1994. The Secretary has now agreed to obtain the data in question and make it available. Defendants propose that the Court permit the retention of the P.c.c. on the threatened species list while the Secretary makes Atwood's data available for public comment via publication in the Federal Register. *fn2" The Secretary will then complete a review of the data and all comments submitted thereon and will make a final determination within 100 days after the publication in the Federal Register.

 In support of their request for an amendment of this Court's judgment, defendants have submitted an affidavit by Mollie Beattie, Director of the United States Fish and Wildlife Service. Director Beattie's declaration places the listing of P.c.c. in a broader context. According to Director Beattie, the listing of the P.c.c. provides the regulatory underpinning for an innovative statutory program enacted by the State of California. In 1991, the State of California enacted the Natural Community Conservation Planning Act of 1991, Cal. Fish & Game Code §§ 2800 et seq. (N.C.C.P. Act). The purpose of the N.C.C.P. Act is to identify and provide for the regional protection and perpetuation of wildlife diversity, while allowing compatible and appropriate development and growth. The California Department of Fish and Game identified the coastal sage scrub natural community as a pilot conservation planning effort under the N.C.C.P. Act. Beattie Decl. P 6. The coastal sage scrub is the P.c.c. 's natural habitat.

 To implement the N.C.C.P. coastal sage scrub planning effort, local jurisdictions and private landowners were encouraged to voluntarily enroll in the N.C.C.P. by committing to protect coastal sage scrub areas under their control, pending completion of a regional N.C.C.P. plan that would provide permanent protection of coastal sage scrub habitat. Prior to listing of the P.c.c., many jurisdictions and landowners with control over P.c.c. habitat elected not to enroll in the program. Beattie Decl. P 8. According to Director Beattie, absent the legal protection afforded through the listing of the P.c.c., habitat loss and fragmentation can continue to occur prior to development and implementation of adequate conservation plans under the N.C.C.P. For example, between August of 1991 and March 30, 1993, over 4,600 acres of coastal sage scrub was destroyed within the P.c.c. 's range in Orange, Riverside, and San Diego Counties. Beattie Decl. P 10.

 The listing of the P.c.c. provides incentives for the voluntary enrollment of landowners in the N.C.C.P. program. On December 10, 1993, the Service published a final special rule for P.c.c. under Section 4(d) of the Endangered Species Act. Under the final special rule, "take" of the P.c.c. is not considered a violation of Section 9 of the Endangered Species Act, if the Service determines that the N.C.C.P. plan meets the criteria for issuance of an "incidental take" permit. Through the 4(d) rule, the P.c.c. listing supports and provides a regulatory foundation under the Endangered Species Act for the N.C.C.P.'s efforts to protect the gnatcatcher and other coastal sage scrub dependant species on an ecosystem scale. To this end, the final special rule offers tangible incentives to encourage participation in and development and implementation of N.C.C.P. plans. Beattie Decl. PP 13-14. According to Director Beattie, without listing of the P.c.c., the framework of incentives and compromise on which the N.C.C.P. is based is imperiled. Beattie Decl. P 15. *fn3"

  The Service has reason to believe that removal of the species from the threatened list, even for a short period while the Secretary reassesses his decision in light of any new comments being received on the Atwood data, could irreparably harm remaining coastal sage scrub habitat communities by spurring accelerated destruction of that habitat. Landowners may take advantage of what may be their only window of opportunity by plowing under coastal sage scrub on their land. Without the bird being listed, there is nothing to prevent this from occurring. As support for the likelihood of this possibility, Director Beattie cites a report in the Wall Street Journal, where counsel for plaintiffs in this case was quoted as saying, "A lot of landowners will look seriously at clearing their land of coastal sage brush to rid themselves of this problem." Charles McKay, Citing Regulatory Errors Judge Orders Songbird Off Endangered Species List, Wall St. J., May 3, 1994 at B5. Beattie Decl. P 16.

 Plaintiffs rebut the factual assertions of Director Beattie with the declarations of Boyd Gibbons, Director of the California Department of Fish and Game, and that of Thomas Matthews, Director of Planning for the County of Orange. Those declarations confirm the importance of the N.C.C.P. Act and attest to the fact that local jurisdictions and many landowners are participating in the N.C.C.P. voluntarily and much of the coastal sage scrub habitat remaining is protected under state and local provisions, without the additional protection of federal listing of the P.c.c..

 III. Decision

 The Court believes that the appropriate approach would be to permit the Secretary to continue the listing of the P.c.c. while he takes steps to rectify the procedural flaw in the original listing process. The usual remedy for a procedural violation of the A.P.A. is to set the regulation aside. Chrysler Corp. v. Brown, 441 U.S. 281, 313, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979). However, in unusual circumstances "an unlawfully promulgated regulation can be left in place while an agency provides the proper procedural remedy." Fertilizer Institute v. United States Environmental Protection Agency, 290 U.S. App. D.C. 184, 935 F.2d 1303, 1312 (D.C. Cir 1991); Chemical Manufacturers Assoc. v. Environmental Protection Agency, 870 F.2d 177, 236 (5th Cir. 1989), cert. denied 110 S. Ct. 1936 (1990); Western Oil & Gas Assoc. v. Environmental Protection Agency, 633 F.2d 803, 813 (9th Cir. 1980). In determining whether an agency's action should be vacated or not pending rectification of a procedural flaw, the Court must consider (1) the purposes of the substantive statute under which the agency was acting, (2) the consequences of invalidating or enjoining the agency action, and (3) and potential prejudice to those who will be affected by maintaining the status quo. Weinberger v. Romero-Barcelo, 456 U.S. 305, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982); Amoco Prod. Co. v. Village of Gamble, 480 U.S. 531, 542, 94 L. Ed. 2d 542, 107 S. Ct. 1396 (1987). In addition, the Court must consider the magnitude of the administrative error and how extensive and substantive it was. *fn4"

 At the crux of this case is the question whether the P.c.c. gnatcatcher subspecies exists in such small numbers that the bird and its fragile habitat should receive federal protection under the Endangered Species Act. If the bird meets the criteria for listing, it should receive all the protection accorded under the Act. The release of Dr. Atwood's research data, and the public comments thereon will permit a more informed debate, and provide a more complete record on which the Secretary will make his final decision. From the release of Dr. Atwood's data and the Secretary's evaluation of that data will come one of two outcomes: the bird will either be deemed threatened or not threatened.

 The Director of the U.S. Fish and Wildlife Service is of the opinion that removal of the P.c.c. from the threatened list during the relatively short reevaluation period would destabilize a delicate structure of regulations and incentives, designed by State and Federal officials to protect not just the P.c.c., but the entire coastal sage scrub habitat community. The Director argues persuasively that landowners fearful of an imminent relisting of the P.c.c. may well destroy the remaining coastal sage scrub habitat on their property, in order to preemptively free themselves from potential limits on development that may come if the bird is listed permanently.

 By contrast, if the bird listing is continued during the review period and the P.c.c. is not entitled to listing and the Secretary so finds after an evaluation of Atwood's data, then the southern California building industry and plaintiff Transportation Corridor Agencies would be delayed for but 100 days in their economic development and transportation construction plans. While the Court does not minimize the cost of such a delay to the plaintiffs, such delay does not outweigh the potential harm to the public interest if the Secretary's eventual decision is to continue the bird on the threatened species list.

 Both the Congress in writing the Endangered Species Act and the Supreme Court in interpreting the Act have emphasized the strong policy preference for protecting endangered species even when such protection may result in adverse economic consequences. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978) (holding that the presence of an endangered three-inch fish was enough to halt, pursuant to the Endangered Species Act, completion of a $ 100 million dam). In the findings section of the Act itself, Congress explained why protection of threatened species is important:

 The Congress finds and declares that


(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;


(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;


(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;


(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction. . . .

 16 U.S.C. § 1531(a). In interpreting this Act, the Supreme Court has stated "examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Tennessee Valley Authority, 437 U.S. at 175.

 In the instant case, of course, the initial decision to place the P.c.c. on the threatened species list was flawed due to procedural error. The Secretary has represented to the Court that he is rectifying that error. The only issue before the Court is whether the putatively threatened bird is entitled to protection while the Secretary reevaluates the listing in light of Atwood's data and the public comment thereon. The Court is impressed with the actions taken by the Secretary to conform his determination with this Court's prior decision. The Court believes that the Secretary's actions address the legitimate concerns raised by the plaintiffs and that the Secretary is well on his way toward completing his obligations under law. While this could and should have been done initially, it is being done now. In balancing the competing claims of injury, considering the underlying purposes of the statute at issue, as well as the public interest, and the fact that the listing of the P.c.c. was part of a larger scheme of interlinking Federal, state, and local efforts to protect a fragile ecosystem, the Court finds the equities weigh in favor of continued listing P.c.c. during the review period. See Amoco, 480 U.S. at 542. The Court will amend its prior judgment to permit the continued listing of the P.c.c. pending the Secretary's final determination.

 It must be emphasized that by leaving the Secretary's listing decision in place, the Court is not relieving the Secretary of his burden of conducting a fair notice and comment on the Atwood data without giving preference to the decision already made. See Fertilizer Institute v. Environmental Protection Agency, 290 U.S. App. D.C. 184, 935 F.2d 1303, 1312 (D.C. Cir. 1991). The Court will retain jurisdiction to assure the additional review procedure will be in accordance with the law.

 An appropriate order accompanies this opinion.

 Date 6/16/94

 Stanley Sporkin

 Federal District Judge


 The Court has considered the federal defendants' motion for reconsideration or amendment, all opposition thereto, and heard argument by the parties. For the reasons stated in the foregoing memorandum opinion, it is hereby

 ORDERED that this Court's prior order of May 2, 1994, setting aside the final rule listing the coastal California gnatcatcher as a threatened species is hereby amended as follows:


1) The Secretary shall conduct a new notice and comment procedure for the purpose of providing for public comment the data underlying the Atwood reports.


2) The final rule listing the gnatcatcher as threatened shall remain in place while the Secretary makes Atwood's data available for public comment and reviews the data and comments submitted thereon;


3) The Secretary shall publish in the Federal Register no later than one-hundred days following the Federal Register notice announcing the availability of the data, his determination whether the gnatcatcher listing should be revised or revoked in light of his review of the data and public comments thereon; and


4) This Court's order continuing the listing of the gnatcatcher shall remain in effect until the Secretary completes his new notice and comment proceeding and issues his final finding with respect thereto in the Federal Register, or until such other time as this Court shall order;


And it is further

 ORDERED that this Court shall retain jurisdiction in this matter and any of the parties may petition the Court for modification of this order for good cause.

 DATE : 6/16/94

 Stanley Sporkin

 United States District Court

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