Building Industry Legal Defense Foundation

For the past twenty years a small gray songbird has greatly affected the development and the conservation of the coastal real estate in California. A federal decision made recently to leave the coastal California gnatcatcher on the endangered species list has left Southern California developers stuck.

The gnatcatcher has been a cornerstone to conservation planning in San Diego, Riverside and Orange counties since it was listed as a threatened species in 1993. In 2014, the Pacific Legal Foundation petitioned the U.S. Fish and Wildlife Service to delist the bird, arguing that recent science casts doubt on its threatened status. The service rejected that petition last week, but debate over the gnatcatcher isn’t over. Building groups say they may sue over the decision, while conservation groups worry the bird remains at risk from wildfires, climate change and development pressure.

“We’re still in the process of analyzing the service’s decision,” said Robert Thornton, an attorney who represented the Building Industry Assn. of Southern California on the petition. “The next step is possibly a lawsuit. The issue here is, did the service comply with the Endangered Species Act, which requires it to use the best science available.”

The gnatcatcher is a blue-gray songbird that lives in coastal sage scrub from Santa Barbara to the Baja peninsula. Researchers say that urban sprawl has whittled away 90% of its habitat in California. By the 1990s, the birds were feeling the pinch. At that time, a 20-year-old environmentalist named David Hogan with the Center for Biological Diversity filed a petition to list the gnatcatcher under the Endangered Species Act.

“Back then, there were virtually zero measures in place anywhere in Southern California to protect the gnatcatcher or its critically endangered habitat,” Hogan said.

The listing ushered in complex systems for protecting ecosystems, known as habitat conservation plans or natural community conservation plans. The plans aimed to streamline environmental permitting, while preserving habitat for multiple species. And the gnatcatcher was at the center of it. By protecting the gnatcatcher, regulators also safeguarded animals such as the coastal whiptail lizard, coastal horned lizard and coastal cactus wren, said Ileene Anderson, a senior scientist for the Center for Biological Diversity. Developers, however, saw the bird, and its ensuing regulations, as a roadblock to the region’s construction boom.

“In general, species listing and the critical habitat designation that goes along with that listing takes areas out of consideration for building and development,” said Shanda Beltran, BILD general counsel for the Building Industry Assn. of Southern California. “That obviously would be a concern to the industry when developable area is reduced.”

The Pacific Legal Foundation said in a news release that the gnatcatcher listing took hundreds of thousands of acres in Southern California off the table for construction.

“In total, approximately 197,303 acres in San Diego, Orange, Riverside, San Bernardino, Los Angeles and Ventura counties have been designated as critical habitat for the coastal California gnatcatcher,” the foundation, a Sacramento watchdog agency for property rights and limited government, stated. “Federal officials estimate that the economic impact of these restrictions will total more $900 million by year 2025.”

In 2014 the foundation petitioned to remove the gnatcatcher from the list, on behalf of the Property Owners Assn. of Riverside County; the Center for Environmental Science, Accuracy & Reliability; and the Coalition of Labor, Agriculture and Business, along with the California Building Industry Assn. and the National Assn. of Home Builders.

They argued that new research showed that the Southern California gnatcatcher is genetically indistinguishable from its Mexican counterparts, and shouldn’t be protected as a separate species. The service, however, convened a panel of geneticists, ornithologists and statisticians, and determined that the original listing is still valid.

The Pacific Legal Foundation and its partners say they’re contemplating a lawsuit to challenge that decision. They hope to change the way the service reviews data and perhaps reset the bar for future endangered species listings.

Read the full story here from the LA Times.

This year is the Building Industry Legal Defense Foundation’s (BILD) 15th annual Law & Policy Conference. The event will take place June 2, 2016 from 1:00 pm o 5:00pm at the Executive Park Conference Center in Irvine, CA.

Attendees will hear a fast-paced discussion covering the key laws, regulations, court cases, and policy impacting the building and development industries before winding down with great food and refreshing drinks for a fun cocktail party.

This is the event for all BIASC members that will bring you in the know, give you practical advice that you and your business clients need to be prepared for in the immediate future. You’ll hear information concerning resource agency control over land use, ballot box planning, reigning in CEQA, transportation policy, affordable housing, and water supply constraints. Those seeking course credits will receive 3.5 hours of MCLE or APA CM credits.

For additional information on the conference or sponsorship, please visit bildfoundation.org, email BILD at info@bildfoundation.org, or call Maria at 949-777-3850. The deadline for sponsorship is Friday, May 31st.

Click here to learn more about or to register for the event.