California v. Gnatcatcher?

Not long after his firm bought more than 2,300 acres of prime southern-California real estate, John Barone learned that the property was full of gnatcatchers. A compactly built man with shaggy black hair, Barone has a confident, loquacious style that some people might describe in terms of the can-do optimism of the American West, which is where Barone has lived for more than 15 years. Others might describe his manner as exemplifying the smoothness of a real estate developer, which is what Barone has been during that time–he is a senior project manager for the Fieldstone Company, a large home builder based in Newport Beach, California, about 30 miles south of Los Angeles. In 1988, Fieldstone paid $180 million for one of the last large, undeveloped tracts of land in northern San Diego County, near the La Costa golf course and resort. Barone’s job was to convert the property into more than 3,000 upper-middle-class homes; in California’s overheated real estate environment, they would net about $1 billion.
Because transforming raw land into real estate is subject to many complicated environmental regulations, the Fieldstone Company pays cadres of biological consultants to look for potential trouble spots like wetlands, flood zones, and former dump sites. For the La Costa project, Barone met in early 1989 with the consultants in a conference room filled with charts and wall-size maps of the property. None of the findings seemed out of the ordinary, in Barone’s recollection, until one of the consultants said glumly, “There’s something you should know about.” He unrolled a map of the project with some red dots on it. Those dots, he said, were where they had seen gnatcatchers. Barone asked, “What’s a gnatcatcher?”

The California gnatcatcher (Polioptila californica californica) is a small, nondescript bird that is picky about its housing arrangements. It lives exclusively between Los Angeles and Northern Baja California, on land that is undeveloped, not too high, not too steeply pitched, and, for the most part near the ocean–which is to say that P. c. californica inhabits some of the most expensive real estate in the world. About 100 gnatcatchers lived on Fieldstone’s property. Sitting in the conference room Barone thought that a bunch of birds couldn’t pose much of a problem. Wrong, the consultants said. Sooner or later, P. c. californica would qualify for protection under the Endangered Species Act of 1973. Once that happened, the U.S. Fish and Wildlife Service would be empowered to fine or imprison anyone who tried, in the words of the law, to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” gnatcatchers. Wait a minute, Barone in effect said. How can we not harass or harm the birds if we’re going to build a subdivision on top of them? He was beginning to see what it meant to have gnatcatchers.

And not only gnatcatchers. In Southern California, the Endangered Species Act already protects 77 species. The Fish and Wildlife Service is considering protecting another 378. The San Diego banded gecko, the San Bernardino Merriam’s kangaroo rat, the southern California rufous- crowned sparrow, the flannel-mouth sucker, the coast patch-nosed snake, the cheese-weed moth lacewing–as each appears on the list, developers like John Barone may have to revamp their plans to safeguard it.

The implications are staggering. Gnatcatchers alone occupy about 54,000 acres, almost all of which will have to be preserved to ensure the species’ long-term survival. Much of that land is among the most valuable real estate in the country, transformable by developers into lots worth $200,000 an acre–or even $3 million an acre. Buying this land just to set it aside, a hugely expensive endeavor, would still protect only some of the species in trouble. Real estate people see these conflicts as costing billions, with a concomitant loss of jobs and tax revenues.

Environmentalists are undaunted. California real estate commands those prices, they say, because of the state’s natural assets. Drawn by its beauty, people have poured into the area at incredible rates. Southern California’s population has quintupled since 1940, to 17.5 million–a rate of expansion that is twice that of Bangladesh. Continuing this rampant growth, according to Dan Silver of the Endangered Habitats League, a consortium of 40 California conservation groups that agitates on behalf of coastal sage scrub, “means still more smog, still more traffic, still more pollution, still more cookie-cutter houses full of people who have to commute two hours to work.” Saving the gnatcatcher, Silver says, is “the first step to saving what’s left of southern California.”

“THE AMAZING THING,” SAYS JONATHAN Atwood, is that you can see right through to the skull.” He spits on the tip of his right index finger and gently rubs saliva on the head of the thunderstruck California gnatcatcher nestled in his left hand. This one is a fledgling; the pale- gray juvenal feathers atop its head are still little more than fluff. Its age can be estimated with some exactitude by inspecting the skull to determine the extent to which the bones have knitted together, a technique known simply as skulling. Atwood peers at the papery skin beneath the down. The bones haven’t even begun to knit together, but the feathers place the bird’s age at about three weeks–still a child in gnatcatcher terms.

The world’s expert on the California gnatcatcher, Atwood is tall and slim, with black hair and a wide black mustache that a political cartoonist might exaggerate to unkind effect. The notion that an ornithologist might become fodder for editorial caricature is not entirely unrealistic: More than anyone else, Atwood is responsible for placing P. c. californica on the endangered-species list–although as he notes, he is not responsible for the conditions that imperil the bird.

Those conditions are clearly evident as Atwood and his assistants clip two pairs of minute bands around the gnatcatcher’s legs. Their workplace is a hillside in Rancho Palos Verdes, an affluent coastal suburb of Los Angeles. The slope is covered with a low, dry, scratchy tangle of sagebrush, buckwheat, and cholla cactus that ecologists call coastal sage scrub. Frequently swept by fire and punctuated by steep valleys with unusual micro-climates, coastal sage scrub is the only place the gnatcatcher calls home. Once spread across as much as 2.5 million acres, the ecosystem shrank and fragmented to less than 400,000 acres as developers turned swaths of scrub into real estate, covering the dry landscape with a Californian carpet of winding suburban streets, red-tile roofs and two-car garages.

The hillside on which Atwood stands is one of the few remaining bits of scrub in Rancho Palo Verdes. It is surrounded by humankind. At the crest of the slope, 300 yards above, stands a line of executive mansions, each with its encompassing wall and patch of manicured lawn. Below, para-sailers hover over another open stretch of coastal sage scrub. Between them is a busy four- lane road.

Atwood is the first to admit that many people would not regard losing this, or any, coastal sage scrub as a problem. Growing up in Pasadena, he too paid little attention to scrub–it was just the grayish, weedy stuff he drove through on bird watching expeditions to more interesting marshy or mountainous places. Scrub was full of odd little creatures, he knew, but had none of the show eagles, herons, and butterflies that attract wildlife lovers. Only in 1979 did Atwood look at it carefully. Then a doctoral candidate at the University of California, Los Angeles (UCLA) he wanted a topic for his thesis that did not require too much travel. His attention lighted on the genus Polioptila, a clutch of small similar-looking birds in the Southwest that ornithologists had classified into several inconsistent schemes. Atwood decided to sort them out.

The work was not easy. Scrub gave Atwood terrible hay fever–one reason that he decided not to spend his life working on gnatcatchers. The birds were also hard to find. Just four inches long and weighing only a fifth of an ounce, gnatcatchers are nondescript birds (gray and brown, with a black cap on the males) that spend their lives flitting through vegetation that is almost the same color as they and equally unprepossessing. In the spring they build cuplike nests wedged in among the branches of sagebrush. Inside they place three or four blue-green eggs that have reddish-brown speckles. Capable of producing several rounds of offspring in a summer, gnatcatchers can breed rapidly; population explosions do not occur because eggs often fail to hatch and predators snatch young birds from the nest. Despite their name, they do not catch many gnats, feasting instead on the caterpillars, beetles, and other insects that crawl on sagebrush. For a tiny bird, P. c. californica has a loud cry: a mewing sound that resembles a synthesized version of a kitten.

Atwood’s thesis centered on this mewing sound. After tape-recording birdcalls for six years in California, Arizona, and Mexico, he determined that what scientists called the black-tailed gnatcatcher was really two separate species of bird: the black-tailed gnatcatcher proper, which lives in northern Mexico and the southwestern United States; and the California gnatcatcher, which resides primarily in Baja California, with an offshoot population in southern California. Although to humans the two species look almost identical, the birds themselves tell each other apart by their calls; a mewing California gnatcatcher will not mate with a black-tailed gnatcatcher, which cries jee–jee–jee. Atwood published his reclassification of the two species in the journal Ornithological Monographs in 1988.

No fanfare greeted the appearance of what Atwood calls a “very esoteric” study. A few bird- watchers wrote to express their gratitude for his “creation” of the California gnatcatcher, because it let them add a new species to their life list (the rally kept by birders of all the birds they have observed). “They would thank me for it,” Atwood says. “I thought that was pretty strange.” Meanwhile, he had kept his vow to eschew scrub, moving to what is now called the Manomet Observatory for Conservation Sciences, a small, private research institution near Plymouth, Massachusetts. There he intended to devote himself to eastern migratory songbirds.

Atwood might have fulfilled that intention if he had nor attended a joint meeting of the Cooper Ornithological Society and the American Ornithologists’ Union in June 1990. Held at UCLA, it attracted many of his classmates, some of whom had become consultants for developers concerned about complying with environmental regulations. Several quietly informed Atwood that they were surveying future construction sites in many places with “his” gnatcatchers. If these projects go on, they told him, this bird is in trouble. He really ought to do something about it.

What do you mean, me? Atwood asked. I live in Massachusetts! Why don’t you guys do something?

“They said,” he recalls, “that if they took any kind of stance construed by the development industry as raising red flags, they would be taken off their projects and become unhirable.” But Atwood, who worked for a research institution, could investigate without adverse consequences. Why not find out whether the bird could be listed under the Endangered Species Act?

Atwood had a notion of what the answer would be. Back in 1980 he had conducted a census of the gnatcatcher for the California Department of Fish and Game. Finding “little reason to estimate the statewide population at more than 2,000 pairs,” he had recommended adding the bird to state and federal endangered lists and halting development in coastal sage scrub. The question 10 years later was whether a second look would change those conclusions.

With help from the Los Angeles office of the Natural Resources Defense Council (NRDC), Atwood assembled data on future growth in the region between northern Los Angeles and the Mexican border. Discovering that “nearly all areas where California gnatcatchers are currently distributed are expected to be destroyed within 20 years as a result of intensive urban development,” he and an NRDC attorney asked the Fish and Wildlife Service in December 1990 to list the bird on an emergency basis. To back up this request, they included a 72-page status review of the bird from Atwood and letters of support from the American Ornithologists’ Union, the International Council for Bird Preservation (now Birdlife International), and four chapters of the National Audubon Society. They sent a similar packet of material to California, asking the state government to include the gnatcatcher on its endangered-species list.

Tucked into the back of Atwood’s status review was an appendix that slightly but crucially amended the conclusions of his doctoral thesis. In his dissertation Atwood had performed a complex statistical analysis to divide one of the two gnatcatcher species into two separate subspecies: P. c. californica, the California gnatcatcher proper, which lived only in southern California and much of Baja California; and P. c. margaritae. In the new paper’s appendix, though, Atwood reexamined this analysis and concluded that he had erred the first time around. In truth he said, the species had three subspecies: P. c. californica, P. c. rnargaritae, and P. c. abbreviata.

Developers and conservationists quickly realized that what might seem to be a bit of pedantry in fact had billion-dollar implications. If Atwood’s first taxonomic scheme was correct, P. c. californica’s range extended far down the Baja peninsula, a gnatcatcher haven, and the subspecies was too plentiful to be endangered. Under Atwood’s second scheme, the subspecies lost a substantial part of its range; P. c. californica now lived almost entirely in developer- thronged southern California, and it was in trouble.

To scientists, Atwood’s decision to switch from two to three subspecies was a return to tradition, because ornithologists had recognized three California gnatcatcher subspecies back when the bird was regarded as identical to the black-tailed gnatcatcher. To the nonscientists in the development community, though, it looked like Atwood had created an endangered species through statistical jiggery-pokery. Unlike birdwatchers, they did not feel like thanking Atwood for adding a new bird to their list. Instead, the real estate industry launched what would eventually become a campaign to de-create P. c. californica.

ONE PERSON WHO REFUSED TO PLUNGE INTO THE thickets of gnatcatcher taxonomy was John Barone. His employer, Fieldstone, planned to take 15 years to grade its land, lay roads, install sewage and utility lines, build 3,000 houses, and fix up the landscape afterward. If the gnatcatcher jumped onto the endangered list while the bulldozers were at work, Fieldstone would have to redesign the project in the middle of construction. The thought of scrambling to comply with Fish and Wildlife directives while loan costs piled up and union construction crews twiddled their thumbs appalled Barone. “It just couldn’t happen,” he says.

Equally anxious was the city of Carlsbad, whose boundaries encompassed the Fieldstone project. Running through the property was Rancho Santa Fe Road, a long, twisty, badly lit route that was the scene of numerous accidents, Carlsbad wanted to improve and widen the road before it became even more crowded and dangerous; indeed, changing Rancho Santa Fe into a six-lane highway was one of the city’s top public-facilities priorities. Unfortunately, the highway would cost as much as $60 million, and Carlsbad didn’t have the money. Like many Californians, the voters of Carlsbad hate new taxes and insist that developers pay for their access to public services. If adding the gnatcatcher to the endangered-species list stopped Fieldstone, the city would lose its source of funding, leaving the road in its hazardous state.

In a quandary, Barone turned to Lindell Marsh, one of the few people on earth who might be called a “visionary real estate lawyer.” A man whose conversation leaps effortlessly from the intricacies of land-use law to complexity theory and the need for spiritual awakening, Marsh had long worked at the confluence of private property and endangered species. Ten years before, he had encountered a similar situation on San Bruno Mountain, a hilltop near San Francisco that houses three rare species of butterfly, two of which were already on the endangered-species list. After much dickering, Marsh brokered what was in effect a swap. The developer would create a “habitat-conservation plan” detailing how he would offset any harm to the endangered species on the land–in this case, by carving out a preserve from part of the property. In return, the Fish and Wildlife Service would waive the flat ban on harming any member of an endangered species, allowing development to proceed outside the preserve. Nobody would go to jail if a bulldozer accidentally squashed the wrong bug.

The San Bruno plan, in Marsh’s view, was just an extension of the usual practice of having developers donate some of their land to the public in return for grading and building permits. But this time the donated property would not be used primarily by the public; instead, the land would be dedicated to the interests of its nonhuman inhabitants. Balancing the interests of people and endangered species, the San Bruno swap is now hailed as exactly the sort of visionary compromise needed to resolve the endangered-species conflicts wracking the nation.

At the time, though, there was one snag: Fish and Wildlife was unsure whether it had the legal authority to make these deals. Finding sympathetic ears on Capitol Hill, Marsh helped persuade Congress to amend the Endangered Species Act to authorize habitat-conservation plans. But the amendments did not lay out any standards for these plans; Fish and Wildlife never issued guidelines for prospective planners; and hiring consultants, drafting plans, and donating land was expensive. As a consequence, only five such bargains were struck anywhere in the nation between 1982, when Congress amended the law, and the end of 1990, when Atwood submitted his request. The whole program, Interior Secretary Bruce Babbitt says, “just lay there like a dead fish.”

Nonetheless, a habitat-conservation plan was exactly what Marsh recommended to Barone. Or rather, Marsh suggested that the Fieldstone Company try to pull off an ambitious new twist on the idea: Create a habitat-conservation plan before the species showed up on the endangered list, so that any later demands by Fish and Wildlife would be satisfied in advance. If Fieldstone signed an agreement prior to the listing of P. c. californica, Marsh argued, the bird would never be able to drag the company into turmoil, and the development could proceed on schedule. The process would be costly, but it would be worth the price.

Habitat-conservation plans, pre-listing agreements–how had 100 tiny birds gotten Barone into such deep water? It was like nothing he had ever encountered. But he tried to move forward in a businesslike fashion. An acre of Fieldstone’s property typically cost $150,000; farther inland, prices commonly ran to $10,000 an acre. The gnatcatcher didn’t care what an acre was worth, as long as it was full of scrub. The question was whether Fish and Wildlife cared: Did Barone have to create his bird preserve on the high-priced La Costa sire, or could he place it farther inland? Unable to get a definitive answer, Barone decided to find the perfect piece of land and force the agency to make a choice. He spent several months examining “at least a hundred properties, maybe more.” None fit the bill.

Late one Friday afternoon in the fall of 1991, Barone found what he was looking for. About 20 miles southeast of the Fieldstone project was a property in the San Diegito River valley, the entire length of which the county was trying to turn into a park. The 388-acre parcel would connect two stretches of parkland, creating a long, continuous preserve. And it was absolutely loaded with scrub. By the following Monday he had an option on the property. If Fish and Wildlife accepted his swap, he would pay about $5 million for the land–a lot of money, in his view, for some birds.

A while later, Barone drove a busload of consultants, environmentalists, city and county officials, and Fish and Wildlife biologists to the property. The activists and bureaucrats exclaimed at the perfection of the site. But on the ride back, Barone overheard the federal biologists discussing his offer. In their view, the land was far from perfect. Soon after, the agency delivered its official answer: No. Presented with more detailed surveys of the entire area, Fish and Wildlife had decided that the La Costa scrub had to be saved. It was the sole link between populations of inland and coastal gnatcatchers. Barone would have to carve out the preserve from his project.

Trying to win support for his next plan, he enlisted the aid of Dan Silver, head of the Endangered Habitats League. Silver, in turn, suggested that Barone consult with the world’s expert on P. c. californica–Jonathan Atwood.

Flying from Massachusetts in early 1992, Atwood joined a marathon series of negotiations. Day after day he met with Barone, Silver, Fish and Wildlife biologists, representatives of the city of Carlsbad, and a flock of civilian consultants. Talking and arguing, they worked at carving a preserve out of the La Costa project, drawing and redrawing its boundaries on a map of the property.

As each tentative plan emerged, Barone’s consultants outlined possible streets and lot lines, then cranked out financial projections, calculating whether Fieldstone could eke out a profit on the new configuration. Meanwhile, engineers outlined the proposal on the property by hammering in stakes with red flags, while Atwood refined the choices to include a patch of scrub over here, or to lose a clump of trees over there.

Discussions were civil but tense. Saving more than a few birds would cost Fieldstone millions of dollars for each pair. But saving only a few birds would never pass muster with Fish and Wildlife. In addition, Carlsbad intended to fund the expansion of Rancho Santa Fe Road by issuing bonds, with Fieldstone’s property as the collateral. Failing to reach agreement would leave the road unsafe. Given all the opposing pressures, it is a wonder the group managed to hammer out a proposal by late spring.

In principle, the plan was simple. The La Costa project consisted of two disjunct properties with a gap of about a mile between them. Fieldstone proposed setting aside about half of the eastern property, which had the most valuable habitat. In return, Fish and Wildlife would let the bulldozers roll almost unimpeded through the western property, which had the most valuable real estate. The whole package would cost Fieldstone about $12 million and block development on about 500 acres. On May 6, 1992, the parties signed a memorandum of agreement. Barone, Silver, and the other negotiators smiled as a camera captured the proceedings. Then everyone went out for a lavish dinner.

Meanwhile, Barone was having further conversations with Fish and Wildlife. The agency had always told him that it was concerned with species other than gnatcatchers. The constant flow of biological information from Barone now enabled it to make this concern more precise. Did Barone know, for instance, that the western piece of the project–the land that he was supposedly allowed to build on–was full of Del Mar manzanita? The plant would soon join the endangered- species list. What was Fieldstone going to do about the shrubs on its property? “What’s a Del Mar manzanita?” Barone asked. But he already knew the answer, more or less. Sighing, he set out to modify his habitat-conservation plan yet again. Thirty-six potentially listable species were known to live on the property; another 30 might someday decide to take up residence there. This time, Barone decided, he would deal with each and every one of them.

“WE CALL IT THE SPECIES-OF-THE-MONTH CLUB,” SAYS Monica Florian, describing the stream of listings that confronted Barone. “And we are trying our best nor to join it.” We in this case is Florian’s employer, the Irvine Company, a real estate empire that is among the principal actors in California politics. Descended from a Bonanza-like ranch 9 miles wide and 22 miles long, Irvine has built a considerable fraction of Orange County on its own land, including the eponymous city of Irvine. The company owns 2 hotels, 18 shopping centers, 43 apartment complexes, 5.2 million square feet of industrial property, a technology center that covers almost six square miles, and 62,000 acres of amazingly valuable real estate. In the nation’s biggest exercise in urban planning, it is fashioning a set of designer communities that by the next century will house as many as 300,000 people. A few years ago Florian, who is Irvine’s senior vice- president for corporate affairs, realized that this lucrative process would be considerably disturbed if Irvine were nor allowed to develop its 19,000 acres of coastal sage scrub.

Florian’s worries mounted when she considered that Irvine, for all its size, was only one of hundreds of developers with coastal sage scrub. If the Fish and Wildlife Service added the gnatcatcher to the endangered-species list, every one of those developers would have to stop construction, hire consultants, revamp projects, and assemble habitat-conservation plans–and then do it over and over again as new species came on the list. Worse, they would all be trying to shove these plans simultaneously through the local office of Fish and Wildlife. It would be like the lone, tangled process Fieldstone was undergoing, except multiplied a thousand times. Nightmare was the word Florian used to describe this prospect.

Hardly had Atwood dropped his petitions in the mail, at the end of 1990, when Florian was at the door of the Resources Agency of California, the state environmental watchdog. We’ve got endangered-species problems, she informed agency head Douglas P. Wheeler, a former executive director of the Sierra Club. She asked Wheeler if the state would resolve these problems by co-ordinating a set of habitat-conservation plans that would cover the whole coastal-sage-scrub ecosystem and all the species in it, an idea that had been floating around for quite some time.

Wheeler was ready to consider the proposal. The best way to avoid endangered-species debates, in his view, was with what he called “large-scale proactive planning” — a radically different way of doing business. Florian proposed that the state provide the leadership for “a comprehensive multi species conservation program for coastal sage scrub” –a sort of mega-habitat-conservation plan for much of southern California.

In many ways, Florian’s proposal looked like something that ecologists had been urging for years. Even in the best of circumstances, a series of individual habitat-conservation plans like Barone’s would create a crazy quilt of small, isolated preserves separated by developed land. Such fragmented landscapes are full of predators like house cats and foxes, which are willing to make forays into the scrub and snatch young gnatcatchers from their nests. In other words, the habitat-conservation plans would end up protecting habitat, but not the species on that habitat. As a result, ecologists have long pressed for ecosystem-wide plans that would build networks of large, unfragmented reserves.

Florian, of course, was more interested in the potential advantages to the real estate community of this approach. One was the opportunity to satisfy local, state, and federal environmental regulations all at the same time–one-stop shopping. Another was having all stages of the planning occur at once, enabling developers to avoid being whipsawed by different interest groups and levels of government.

By folding deals like Fieldstone’s into a region-wide ecosystem-management scheme, Florian hoped developers might be able to satisfy the Endangered Species Act once and for all, no matter which species ended up on the list. Indeed, by working pro-actively, developers could satisfy the law before it was invoked, which would allow everyone to avoid the disruption and acrimony created by the law. Thus, Florian proposed that the state and federal governments postpone deciding whether to list the gnatcatcher until after this ecosystem-based, proactive regional plan was up and running, at which point the bird might nor need to be listed at all.

On April 20, 1991, Governor Pete Wilson outlined in an Earth Day speech what would soon be called the Natural Communities Conservation Planning program (NCCP). Too long, the governor said, had environmental problems been stalled by the “tactic of confrontation.” The NCCP would inaugurate a “new era of consensus” based on “good-faith effort at mutual accommodation,” It would be a sweeping change in the way California conducted its affairs, he conceded, but the change was needed to give proper protection to the state’s natural heritage.

The Resources Agency of California intended to cover the entire state with numerous NCCP plans; but a doubting state legislature wanted proof that the program would produce anything but more trouble. The agency chose the coastal-sage-scrub ecosystem in southern California as a pilot project. A panel of five scientists was convened in June 1991 to lay out the guidelines. The group was led by Dennis Murphy, the director of the Center for Conservation Biology at Stanford University; notably absent was Atwood. The scientists were asked to collect data on dozens of scrub species, ascertain which ones needed protection, and provide a cookbook for assembling the preserve system envisioned by the NCCP.

The bulk of the coastal-sage-scrub ecosystem is scattered across 6,000 square miles in five counties: Los Angeles, Orange, Riverside, San Bernardino, and San Diego. These are big places: San Diego County alone is twice the size of Delaware. Recognizing the scope of the area, Murphy and his team divided it into what they called subregional focus areas (and sometimes sub-subregional focus areas). In this scheme Fieldstone’s property, for example. was at the western edge of Subregional Focus Area No. 8, in north-central San Diego County. The company’s plan would eventually meld with the subregional NCCP plan for that focus area, which in turn would be one of 13 subregional plans for the grand Coastal Sage Scrub NCCP, which was itself only the first of an intended stream of NCCP plans.

Next the scientists had to figure out how to create the subregional plans. One problem was dealing with the conservation efforts that were already under way. The city of San Diego, for instance, had just embarked on an effort to safeguard scores of species in the southwest corner of San Diego County. Its Multiple Species Conservation Program was intended to cover 12 major habitat types spread across almost 900 square miles, an area larger than all of Orange County.

To the north, Riverside County was still reeling from the 1988 listing of the Stephens’ kangaroo rat, which had brought development to a crashing halt in an area of almost the same size. Spurred by the “K-rat,” Riverside was struggling to put together a multiple-species planning effort of its own. And so on. All these schemes, the scientists realized, would somehow have to be incorporated.

To manage this complex situation, Murphy’s team hoped to collect enough data on coastal-sage-scrub species to develop plans for designing viable preserves. The team would then hand the guidelines over to the subregions, where the actual plans would be assembled. This hope, Murphy says, was quickly frustrated. Many developers refused to give the panel any data about the species on their land. Others had no data to give. The few who did cooperate had little idea of what the scientists needed. And almost none showed any interest in bridging the gap. “We were begging them for it, and we didn’t get a damn thing,” Murphy says. (State and federal biologists, in his view, were equally unhelpful. In their eyes, he says, the NCCP “was tainted from the get- go” by its ties to the Wilson administration, which they mistrusted.) The frustrated Scientific Review Panel could only cobble together a list of 96 scrub species that seemed in trouble and some general ideas about how to conserve them.

From the developers’ point of view, their actions were completely reasonable. Their reluctance to cooperate was directly tied to conservationists’ reluctance to accede to Florian’s other wish: Keep the gnatcatcher off state and federal endangered-species lists until developers could produce their voluntary proactive plan. “Don’t club us with the law,” they in effect said, “Let us work on our own, without having to jump through legal hoops, and we’ll take care of the gnatcatcher and other coastal-sage-scrub species.” Environmentalists thought this was absurd, “They were asking us to give up the one thing–the gnatcatcher listing– that was bringing them to the table,” says Joel Reynolds, the NRDC attorney who was spearheading the environmentalists’ fight for the bird. “I told Monica Florian there was no way we could accept this.”

The dispute left the developers with one foot in the NCCP and one foot dragging behind. Real estate interests had proposed the program because of the looming threat of the gnatcatcher. But until they were guaranteed that the NCCP would eliminate that threat, most developers wouldn’t wholeheartedly embrace it. “Dennis [Murphy] is a great guy and all, but tell me one landowner who has ever come out happy by being open with the government about this issue,” scoffs one prominent developer who refused to be identified. “We’re not fools, you know.”

Neither were the environmentalists. In the summer of 1991, the Wilson administration began touting the NCCP and the Scientific Review Panel as sufficient reasons to keep the gnatcatcher off the federal and stare endangered-species lists. Conservationists were furious–the program had not even been signed into law, and Murphy’s scientific team was floundering. The NCCP finally became law in October, but the criticisms didn’t stop. By the following spring, Dan Silver was dismissing the NCCP in the Los Angeles Times as a “joke.” An early supporter of the program, he now described it as “little more than a tactic to delay” listing the gnatcatcher as endangered. Stalled by confrontation, the new era of consensus seemed to have ended before it began.

CAUGHT IN THE CROSSFIRE, TO HIS horror, was Jonathan Atwood. Initially, he had imagined that writing the petitions would be his last involvement with P. c. californica. That hadn’t happened. On August 1, 1991, he was sitting in a Newport Beach hall that was packed with a raucous crowd of activists, some dressed in bird costumes, many brandishing signs and placards. Atwood had come to California to testify before the Fish and Game Commission, which would decide whether the gnatcatcher should become a candidate for the state’s endangered-species list. Although Atwood was the major witness in support of the listing, the sound of protesters screaming “Liar!” at the anti-listing witnesses made him cringe. Still, he was infuriated when one such witness asserted that the gnatcatcher was not in trouble, basing this notion on private data. “Why have the developers been so afraid to allow me or other independent biologists onto their property?” Atwood asked the state commission. “Why don’t they permit independent verification of their data? What are they hiding or hoping to obscure in this last-minute presentation of lengthy reports and beautiful maps?”

His pleas were ignored. On August 31 the state commission declared that Atwood’s research had not proven conclusively that the bird was endangered. But property owners did not celebrate for long. Fish and Wildlife announced just six days later that it was going to add P. c. californica to the federal endangered-species list. Refusing to back down, the development community vowed to fight what industry lawyer Hugh Hewitt had called “a no-growth agenda bordered in green.”

The chief target of its assault was Atwood–or more precisely, his command of statistics. Biostatisticians hired by the development community pored over what they referred to as “Atwood’s flip-flop” on the subspecies question. Atwood’s first analysis, in his thesis, had used one set of statistical methods and found two subspecies; his second, in the appendix to his petition, had used slightly different methods and found three. The statisticians argued that nobody could ascertain whether the first or second analysis was more credible because Atwood had never released enough of his original data to permit independent judgement.

Piously proclaiming their desire to settle the question, developers asked Atwood to send his data to the biologists they had hired, The request came in November 1991, just four months after the hearings in California. Atwood refused, saying he was acting in “the spirit of cooperation that has been modeled so well by the southern-California building industry over the last few months.”

The lawyers were scathing. “A guy changes his mind on a key issue and then says, ‘I am not going to let anybody see why I did it,'” scoffs Robert D. Thornton, an environmental attorney who works for what might be called the other side. “‘I won’t let the evil developers see it, because they’ll attack me.’ My reaction was, ‘What’s wrong with that? That’s what the scientific process is supposed to be about!’ What was he hiding? Why wouldn’t he let it be independently analyzed?”

“Their whole attitude was and is incredible to me,” Atwood says, “For a fraction of what they are paying their lawyers, they could commission the best ecological studies in the world and answer their questions themselves with impeccable science.” Instead of working with conservationists to preserve a threatened ecosystem, he says, the developers launched “a statistical witch-hunt,”

“We didn’t start a legal process with a petition,” says Thornton. “Atwood did. He can’t inject himself into the political process and then suddenly say, ‘Sorry, I’m exempt from the rules of public disclosure governing everyone else.’ If the big bad developers petitioned to delist some species, how would conservationists like it if we loftily informed them that they could commission their own expensive studies to find out if our science was correct?”

Thornton demanded that the Fish and Wildlife Service defer adding P. c. californica to the federal endangered-species list until Atwood provided his data. When the service refused, the inevitable lawsuit was filed, by a coalition of private builders and public transportation agencies, in November 1992. A federal judge dismissed the litigation as moot, because the bird was not actually listed. This deficit was finally remedied on March 25, 1993, when, more than two years after Atwood sent in his petition, P. c. californica was listed as threatened under the Endangered Species Act.

The listing breathed new life into the National Communities Conservation Planning program, because it was accompanied by a proposal that landowners who participated in the state ecosystem-management process not have to prepare federal habitat-conservation plans. Work with the NCCP, Uncle Sam was offering, and you will avoid gnatcatcher problems. As a further inducement, the rule told the building industry that it could build on 5 percent of the remaining coastal sage scrub while the NCCP agreements were being negotiated.

At the same time, the listing resurrected the building industry’s lawsuit, which conservationists feared would take the club of the Endangered Species Act away from the NCCP once and for all, reducing it to impotence. Their worst fears seemed to come true on May 2, 1994, when District Court Judge Stanley Sporkin vacated the Fish and Wildlife Service’s decision to list the gnatcatcher because Atwood had not provided his data. (Seventeen days later Atwood sent his computer disks to Fish and Wildlife, which then offered them to anyone who asked.)

The developers’ victory celebrations were strangely muted, They had always known that the gnatcatcher was only the first of hundreds of species heading for the endangered list, many of which could lead to exactly the same chaos and strife. Knocking P. c. californica from the list would not change this awful prospect. Even as their lawyers battled Fish and Wildlife, an increasing number of real estate firms began to participate in the NCCP–sometimes partially, always reluctantly. As a result, landowners did not use the court decision as an excuse to bulldoze coastal sage scrub. (Even if they had wanted to, they would have had to apply for bulldozing permits under other land-use regulations, which would have been the occasion for another battle with conservationists.) Instead they continued as before, dragging themselves toward a successful NCCP.

Of the five counties, San Diego was the furthest along. In addition to the 900-square-mile Multiple Species Conservation Plan in the southwest of the county, a second plan was rising in the northwest quarter, known by the confusingly similar title of North County Multiple Habitat Conservation Program. Taken together, the two plans will create a straggly chain of preserves at a cost that might go higher than $2 billion. Snaking through the western half of San Diego County, the preserves will branch to the east and join up with’s a third subplan in the eastern half of the county, the as-yet-undesigned Multiple Habitat Conservation and Open Space Program. Pseudopods of protected scrub will also stretch to the north, connecting with the military base at Camp Pendleton, home of much undisturbed scrubland arid a distinct NCCP sub-subregion of its own.

Looking at these plans last June, Atwood was amazed. Although the San Diego plans were months, perhaps years, from completion, they represented conservation on a larger and more meaningful scale than anything he had dreamed possible when he wrote his petition. So did the NCCP preserves in Orange County’ and the planning efforts it’s Los Angeles, San Bernardino, and Riverside counties.

At the same time, he and other conservationists were wary. Local governments were waffling, not least because nobody had explained who was going to pay for all this preservation. And the NCCP had done nothing for the penchant of conservationists and builders for suing each other one reason, Atwood explains, that his accomplishments have left a bittersweet taste. “I hardly have time to do any science anymore, he says. “All I do is talk to lawyers.”

JOHN BARONE REMEMBERS THE MOMENT when the mask dropped off. It was toward the end of yet another lengthy negotiating session with the Fish and Wildlife Service. Everyone was tired, and the discussion seemed to be getting nowhere. In a moment of exasperation, Barone asked, “Come on, now, what do you guys really want from me?”

“Ideally?” one of the biologists asked. Barone nodded. “All of your land,” the biologist said. Barone laughed, but he knew the larger question was serious. What would be best for the gnatcatcher would be for Fieldstone to donate every square inch of its La Costa project to an NCCP preserve. And what would be best for Fieldstone would be for the gnatcatcher to donate every square inch of its La Costa habitat to the company.

Fieldstone’s latest habitat-conservation plan became public last October. The company proposed transforming more than 600 acres of La Costa real estate back into habitat; it would also buy and set aside another 240 acres somewhere else. To keep the redesigned project economically viable, Barone made the lots smaller and clustered the houses more closely together. True, the eventual buyers will enjoy having the preserve nearby, but they may also wish that it had been turned into a lush public garden full of playgrounds instead of being left as weedy, cactus-choked scrub. Expand Fieldstone’s plan to cover the entire coastal-sage-scrub ecosystem, and the result is the NCCP–a “once-in-a-century opportunity” to preserve the landscape, in Babbitt’s words. But that opportunity will come at a price. Over the past 30 years, habitat destruction has followed explosive suburban sprawl, rivers of traffic-choked freeways, a hovering cloud of smog, and the now-familiar panoply of southern California ills. It has also threatened the survival of hundreds of species. Transforming huge swaths of real estate back into habitat will squeeze humans into much denser housing and force greater use of mass transit–exactly the sacrifices that many people came to California to avoid.

In Orange County, for instance, a coalition of local governments is building three tollways to relieve the area’s notorious traffic jams. Because the voters who detest congestion also object to having new highways in their backyard, the routes were designed years ago to cut through undeveloped land.

Unfortunately, says Dennis Murphy, much of that land is key gnatcatcher habitat. Even with NCCP plans in the works, Peter DeSimone, manager of Starr Ranch, a 4,000-acre National Audubon Society sanctuary in eastern Orange County, worries that reserve designs will be based upon development needs rather than good science.

In 1991 the Natural Resources Defense Council began a salvo of litigation that has blocked construction to this day. If the lawsuits are successful, they will help preserve the state’s priceless natural endowment. But the residents of Orange County will have to live with gridlock, construct mass transit, or build the highways in their own backyard. Because nobody has asked if Californians will accept the trade-off the struggle lurches on, with both sides hoping that they will somehow be rescued by the NCCP.

And even in San Diego County, the NCCP is not home free. The San Diego city council is moving rapidly toward outlining a set of nature preserves on a map–but has yet to grapple with the details of who will pay for all the land. “I wish to heck we had tested this someplace other than southern coastal California,” says Murphy. Though strongly supportive of the NCCP, he is guardedly pessimistic.

Barone says he is “guardedly optimistic.” In a few months, he hopes, his proposed habitat- conservation plan will pass muster with the Fish and Wildlife Service. Even if it does, though, that will not guarantee the success of the broader Carlsbad Habitat Management Plan to which the Fieldstone plan is crucial, nor the Multiple Habitat Conservation Plan to which the Carlsbad plan belongs, nor the complete coastal-sage-scrub plan to which they both belong, nor the other plans that will eventually spew forth from the NCCP.

Except for the size of the stakes, these conflicts are not peculiar to California. Large-scale battles over endangered species have erupted in San Francisco Bay, northern Florida, coastal and central Texas, the Chesapeake Bay, and the Pacific Northwest; others are approaching on the beaches of Connecticut, Massachusetts, and Maine. In Babbitt’s view, they can be resolved only with the type of regional planning exemplified by the NCCP. But that type of planning can be achieved only if the people whose lives will be affected choose to share this vision and accept the costs and tradeoffs of those great changes. Until they do, environmentalists and developers will remain at odds, each trying to foist the cost of change on the other.

The danger, Barone says, is that the planning will creep on, ever advancing but never reaching a satisfactory end. At some point, in his view, there will have to be a reckoning. “Scoreboard, baby’,” he says, using the phrase of basketball announcer Dick Vitale. That’s what it comes down to. What’s the deal, and who’s going to pay for it? I can’t bear it all myself, so who’s going to pick up the shack?”