ELR Citation: ELR 21588
No(s). 92-2610 (SS) (D.D.C. Jun 16, 1994)

The court holds on reconsideration that the U.S. Department of the Interior (DOI) was required to make available to the public the raw data underlying the scientific report on which the agency relied in determining that the coastal California gnatcatcher was threatened within the meaning of the Endangered Species Act, even though the agency does not have the data. In 1991, DOI issued a proposed rule listing the gnatcatcher as threatened. In making this decision, the agency relied on a 1990 scientific report that was prepared by an individual who, in 1988, prepared a report, based on the same data, that stated significantly different findings. The agency never saw the data supporting the 1990 report, and never had it in its possession. The court holds that DOI must turn over to plaintiffs the underlying data for the 1990 report, even though it never saw the data and does not have it, because the information was at all times available to DOI and would have been provided had the agency asked for it. The court next holds that DOI may continue to list the gnatcatcher while it takes steps to rectify the procedural flaw in the listing process. There is reason to believe that removal of the species from the threatened list, even for a short period while the agency reassesses its decision in light of any new comments it receives on the underlying data, could irreparably harm the gnatcatcher's remaining habitat by spurring accelerated destruction of that habitat. Landowners might take advantage of what may be their only window of opportunity by plowing under the sage scrub that comprises the species' habitat. The court finds that while the cost of such a delay to plaintiffs is not insignificant, the delay does not outweigh the potential harm to the public interest if DOI's eventual determination is to continue listing the bird as threatened.

[The district court's previous decision is published at 24 ELR 20934.]

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

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