Appellate Ruling May Affect O.C. Toll Roads

In a decision that may have repercussions on toll-road construction in Orange County, a federal appeals court ruled Wednesday that the government violated the Endangered Species Act by failing to designate a protected area for the songbird known as the California gnatcatcher.

By a 2-1 vote, the U.S. 9th Circuit Court of Appeals in San Francisco overturned a 1995 decision by federal Judge Linda H. McLaughlin in Santa Ana in favor of the U.S. Fish and Wildlife Service. The service has 90 days to appeal to the U.S. Supreme Court.

“This was a great day for South County,” said Joel Reynolds, senior attorney for the Natural Resources Defense Council, which along with the National Audubon Society had sued to protect the gnatcatcher’s habitat. “This is a welcome ruling--one that affects hundreds of thousands of acres in California.”

Although the ruling will have no immediate effect, it requires the government to provide a protected area to enable the gnatcatcher to survive. At the least, it may require further environmental impact reports concerning a proposed toll road connecting south Orange County to Interstate 5 in northern San Diego County. It could also force toll-road developers to reroute the project away from areas where the gnatcatcher lives.

“I think it’s a major decision. It will have major impacts nationwide, and it will certainly have effects in Southern California, particularly on lands that are federal,” said Dan Silver, coordinator of the Endangered Habitats League, made up of about 20 Southern California conservation groups. Silver singled out Camp Pendleton, saying it has a wealth of endangered species.

Despite the contention of environmentalists that the ruling is a major victory, Stephanie Hanna, spokeswoman for Interior Secretary Bruce Babbitt, whose agency includes the wildlife service, predicted it would have a “negligible impact, at best” on Orange County.

Rob Thornton, attorney for the Transportation Corridor Agencies, which is constructing 67 miles of new tollways at a cost of $3.5 billion, also minimized the court’s ruling, saying it creates “merely another regulatory hurdle.”

The gnatcatcher itself is unique to coastal Southern California and northern Baja California. Its survival depends on living in coastal sage scrub that agricultural and urban development has severely depleted.

Environmental groups contend that 70% to 90% of all coastal sage scrub in California has been destroyed by development.

In 1993, the Fish and Wildlife Service listed the gnatcatcher under the Endangered Species Act as a “threatened” species. The act requires that listing of a threatened species be accompanied by the designation of a protected habitat to an extent that is “prudent and determinable.”

The Fish and Wildlife Service concluded that the habitat designation would not be “prudent” within the meaning of the statute, a decision the Court of Appeals found objectionable.

Attorney Reynolds predicted that Wednesday’s ruling would have a dramatic impact on the completion of California 241, one of several new tollways in the county. He termed the most serious consequence a possible rerouting of the tollway’s Foothill South extension, scheduled for completion in 2003.

The Foothill South corridor is designed to carry traffic east of Interstate 5 from Oso Parkway near Mission Viejo, through the Marine Corps base at Camp Pendleton and into San Diego County before reaching I-5 south of San Clemente.

Its current configuration would “strike at the heart” of some of Southern California’s most pristine wilderness areas, Reynolds contends, jeopardizing not only the gnatcatcher but dozens of other species.

Thornton said the ruling was anticlimactic because the Foothill Corridor and similar projects have long been subject to provisions of the Endangered Species Act, “so there’s nothing new about that.”

The Natural Resources Defense Council was involved in 12 suits opposing the San Joaquin Corridor, also known as California 73.

“Each time,” Thornton said, “they failed, we prevailed.”

In Reynolds’ view, the Foothill South extension is “precisely the kind of project” that Wednesday’s ruling aims to address. He said rerouting the proposed toll road is “a serious possibility,” should Babbitt designate critical habitat for the gnatcatcher that falls within the toll road’s boundaries.

Thornton said that rerouting wasn’t likely, and that even were it necessary it “wouldn’t change the route that much, nor is it likely to result in higher costs or even delays.”

Reynolds called Orange County’s system of toll roads “uniquely damaging” to the region’s ecosystem, citing in particular the San Joaquin Transportation Corridor that cuts through Laguna Canyon.

“It bisected one of the few remaining large tracts of wilderness in Orange County,” Reynolds said. “It tore the heart out of the Laguna greenbelt, where so much work had been done to preserve the environment. For such a sweeping mass of concrete to cut a swath through land like that was inexcusable.”

* MODEL PROGRAM CRITICIZED: Open space protection needs better science, report says. A16

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Roadway Takes Toll

The proposed southern section of the Foothill Transportation Corridor may have to be rerouted, because an appeals court has ruled that the federal government violated the Endangered Species Act by not designating habitat for the California gnatcatcher. Where the southern section of the corridor is currently planned:

Foothill Corridor North

Foothill Corridor South

San Onofre State Park

Source: Transportation Corridor Agencies