Developers sue to overturn wildlife habitat protections

0 Comments | Oakland Tribune, Nov 16, 2004 | by Douglas Fischer, STAFF WRITER

The Pacific Legal Foundation, representing California businesses and builders, launched a sweeping lawsuit Monday to overturn federal land protections for 48 species of California plants and animals.

The lawsuit seeks wholesale change in the way federal government issues so-called critical habitat designations for species threatened by development.

Such designations have considerable impact in the Bay Area, said Paul Campos, general counsel for the Home Builders Association of Northern California.

"That is due to an environmental and regulatory process probably without parallel anywhere in the country, just in terms of how difficult it is to get new housing projects approved."

The suit seeks to force biologists at the U.S. Fish and Wildlife Service to carefully map creeks and dales necessary for species recovery, rather than paint protections over broad swathes of land, tying up subdivisions, ranch land, water works, even strip malls with unnecessary restrictions.

At stake is the habitat designation for every threatened species in California not protected by the statute of limitations or subject to another court case.

The lawsuit, to be filed after a 60-day notice period required by law, seeks to extend the foundation's May 2003 success in federal district court with the Alameda whipsnake.

In that case, the judge ordered the agency to redraw the snake's protected lands with a finer pen and with an eye to the economic costs of such a designation.

"That Alameda whipsnake designation is the most comprehensive federal court decision interpreting critical habitat in the nation," said Pacific Legal Foundation principal attorney M. Reed Hopper.

But that case remains under appeal, and environmental groups called Monday's notice "much ado about nothing."

"If they try to file this case now ... the court would put their case on hold until the whipsnake decision is finalized," said Kieran Suckling, policy director for the Center for Biological Diversity, the environmental group that has sued to create many of the designations the foundation seeks to void.

Should builders succeed, Suckling added, the results could be particularly dire in the region.

"Critical habitat in the Bay Area helps to control sprawl and preserve open space," he said. "There could be no greater calamity for the people in the Bay Area than to have this open space of critical habitat wiped away by a frivolous lawsuit."

Nearly 15 million acres of the state's 100 million acres are subject to some form of critical habitat protection, according to environmental groups.

Such designations protect breeding grounds and other lands used by the threatened species from some types of development. The plant or animal need not be present, either -- potential breeding grounds are also protected.

In the Bay Area, species with habitat designations threatened by the suit include the Bay Checkeredspot butterfly in San Mateo County; the longhorn fairy shrimp and Contra Costa goldfields in Alameda and Contra Costa counties; and the yellow larkspur in Marin and Sonoma counties.

More recently, however, habitat status has become a courtroom tug- of-war between environmentalists and developers, with the Fish and Wildlife Service scrambling to obey conflicting court orders. In some cases, the agency hasn't even made it to the courtroom: the whipsnake appeal, for example, was filed by the Center for Biological Diversity, not by Interior Department lawyers.

Contact Douglas Fischer at dfischer@angnewspapers.com .