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Building Industry Allowed to Defend Suit Over San Diego Plan

The Ninth Circuit Court of Appeals has allowed members of the building industry to intervene in a lawsuit that environmentalists filed regarding the San Diego Multi-Species Conservation Program (MSCP). In overturning a district court ruling, the Ninth Circuit held that Pardee Construction, the Building Industry Legal Defense Foundation, the National Association of Home Builders, the California Building Industry Association and the Building Industry Association of San Diego adequately demonstrated that their interests were at stake in the lawsuit and that the government agencies that had been sued would not necessarily represent the builders' interests. The San Diego MSCP is possibly the broadest plan of its type in the country. Drafted to meet the dictates of habitat conservation planning under federal law, and natural communities conservation planning under state law, the plan addresses scores of species and about 900 square miles in unincorporated San Diego County, the City of San Diego and other cities. It sets aside 171,000 acres for permanent habitat protection. The plan also provides a basis for jurisdictions to adopt subarea plans. After adopting the MSCP and a subarea plan, San Diego signed an "implementation agreement" with the U.S. Fish & Wildlife Service and the California Department of Fish & Game. The implementation agreement gives the city the power for 50 years to allow "incidental take" of endangered and threatened species to accommodate a development project that meets the requirements of the various plans. In December 1998, the Southwest Center for Biological Diversity and 30 other environmental groups sued federal and city officials. The environmentalists challenged the formulation, approval and implementation of the MSCP, San Diego's subarea plan, the implementation agreement and San Diego's incidental take permit. Environmentalists took specific issue with the treatment of vernal pools seasonal puddles that provide habitat for five endangered plant species and two species of endangered fairy shrimp. In June 1999, Pardee and the building trade groups filed a request to intervene in defense of the lawsuit. The environmentalists opposed the request while the government remained neutral. Federal Circuit Judge Irma Gonzalez denied the request for a variety of reasons. But the unanimous three-judge panel of the Ninth Circuit reversed Gonzalez and allowed the builders to help defend the suit. In arguing to become intervenors, Pardee said that it had five projects that rely on the plans, and members of the organizations said they have developed land based on the plans. The prima facie showing of an interest was enough for the builders to be allowed into a lawsuit, the Ninth Circuit held. "There is no doubt that the central goal of this action is the protection of the vernal pool species," Judge Ronald Gould wrote for the court. "Given the scope of the action, Applicants' projects that are in the pipeline for design and mitigation assurances and approval under the [implementation agreement] may be affected whether or not they impacted vernal pool species." Furthermore, the city and federal governments have different interests than do the builders, the court ruled. "Just as the City could not successfully negotiate the Plans without some private sector participation from Applicants, so too the City in this case cannot be expected successfully to safeguard Applicants' legally protectable interests," Gould wrote. The case heads back to the trial court level for further proceedings. The Case: Southwest Center for Biological Diversity v. Ken Berg, No. 99-56627, 01 C.D.O.S. 8453, 2001 DJDAR 10457. Filed September 27, 2001. The Lawyers: For Southwest Center: Neil Levine, Earthlaw, (303) 623-9466. For the builders: John C. Eastman, Claremont Institute Center for Constitutional Jurisprudence, (714) 628-2587.
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