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

June 16, 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

 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. ยง 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


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