ELR Citation: ELR 20934
No(s). 92-2610 (SS) (D.D.C. May 2, 1994)

The court holds that the Department of the Interior's (DOI's) decision to list the coastal California gnatcatcher as a threatened species under the Endangered Species Act (ESA) violated the Administrative Procedure Act (APA). In listing the coastal California gnatcatcher, DOI relied on an ornithologist's 1990 paper that concluded the southernmost range limit of the bird was 30 degrees north latitude. In a 1988 paper, the ornithologist had concluded that the southernmost limit was 25 degrees north latitude. When plaintiffs requested DOI to supply the ornithologist's raw data, the U.S. Environmental Protection Agency (EPA) refused because it had not reviewed the data in making its determination. The court holds that DOI erred by not making the data available to those interested parties from whom DOI sought comment. The parties, by not having the data underlying the report, were deprived of important and material information from which they could make meaningful analysis in order to provide their views. The court rejects plaintiffs' claims that DOI acted with bias and that it failed to meet certain procedural requirements of the APA and the ESA. The court notes, however, that in analyzing the ornithologist's report and accompanying data, DOI should avoid the appearance of conflict of interest by not assigning to the task a scientist who had previously provided editorial advice to the ornithologist on that paper. The court vacates the listing decision and remands it to EPA.

Counsel for Plaintiffs
Robert D. Thorton
Nossaman, Guthner, Knox & Elliott
18101 Von Karman Ave., Ste. 1800, Irvine CA 92715
(714) 833-7800

Counsel for Defendants
Christiana T. Perry
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000