5/22/1997 200

COURT ORDERS PROTECTION OF GNATCATCHER HABITAT- ANOTHER BLOW TO CLINTON ADMIN. USE OF VOLUNTARY AGREEMENTS TO CIRCUMVENT ESA

In a 2-1 vote, the 9th Circuit Court of Appeals has ruled that the U.S. Fish and Wildlife Service must designate critical habitat for the threatened California gnatcatcher. It rejected an argument by the Service that the Natural Communities Conservation Program is a substitute for formally protected critical habitat under the ESA. According to the court:

"The NCCP alternative cannot be viewed as a functional substitute for critical habitat designation. CH designation triggers mandatory consultation requirements for federal agency actions involving CH. The NCCP alternative, in contrast is purely a voluntary program that applies only to non-federal land-use activities. The Service itself recognized at the time of its final listing decision that æno substantive protection of the coastal Cali gnatcatcher is currently provided by city/county enrollments in the NCCP."

The designation of critical habitat has the potential to alter the recently completed San Diego Multi-Species Conservation Plan.

The lawsuit was brought by the Natural Resources Defense Council (NRDC). Separate petitions to list the California gnatcatcher under the ESA were filed by Dave Hogan, Desert Rivers Coordinator for the Southwest Center and by NRDC.