Gag Order on Secret Condor Documents Targeted by Lawsuit

By Patric Hedlund, The Mountain Enterprise | June 19, 2009

The Center for Biological Diversity (CBD) informed the U.S. Fish and Wildlife Service last week that it plans to file a lawsuit over the agency’s failure to reveal public documents related to Tejon Ranch and the California Condor. CBD has formally entered the 60-day notice period required prior to going to court in this matter.

In 1997 Tejon Ranch Company filed a lawsuit against the U.S. Fish and Wildlife Service (FWS) to prevent the re-release of North America’s largest land bird on or near its historic habitat on Tejon Ranch. In 1999 Tejon Ranch asked for and received a court-ordered gag ruling to suppress all documents related to their ongoing suit, now entering its 12th year.

CBD’s legal action to obtain records and data from the secret negotiations between FWS and Tejon Ranch Company is being filed under a section of the Endangered Species Act that requires the release of documents related to proposed Habitat Conservation Plans (HCP).

Tejon Ranch has proposed such an HCP plan for its Tejon Mountain Village development. The company seeks a legal shield for the harm its development activities may cause to the endangered California Condor. The public comment period for Tejon’s HCP plan closes on July 7, but all relevant data has not been disclosed, CBD alleges.

The developer is seeking 50- year “incidental take permits” (ITP) which allow the killing or disturbance of 27 endangered and threatened species. Tejon Mountain Village would be built almost completely within critical habitat of the California Condor.

Tejon Ranch officials have said in numerous public statements and interviews that they are seeking to balance their private property rights plus their fiduciary duty as a publicly traded company with stewardship of “California’s legacy.”

Sources in Washington D.C. indicate there is an effort to accelerate the regulatory process to obtain entitlements for Tejon Mountain Village during this economic downturn. The entitlements, whether building occurs soon or not, are expected to boost stock valuations for Tejon Ranch’s shareholders.

Meanwhile, CBD is preparing for legal action to slow the process: “We’ve been fighting for these documents for a long time, which we believe contain important scientific data concerning the condor on Tejon Ranch as well as possible evidence of back-room deals between Tejon and [the U.S. Fish and Wildlife Service],” Adam Keats, director of the CBD’s Urban Wildlands Program, said in a press release last week. “We’re prepared to go to court to force the government to obey the law.”

CBD has filed numerous requests for the documents under the Freedom of Information Act and has appealed several FWS denials. One of these appeals was recently upheld by the Department of the Interior, which ordered FWS to provide the documents within 20 days.

“This is a total validation of our claim that documents are being illegally withheld from us,” Keats said. “But this order, as good as it is, doesn’t cover everything. In this case, the Endangered Species Act is broader than the Freedom of Information Act, and the agency has to comply with both laws —it has to provide all of the documents.”

The Center is seeking data concerning condors’ use of Tejon Ranch and to “shed light on exactly what promises the agency has made to Tejon concerning the company’s request for a condor ‘incidental take permit.’”

Keats recites that “just as officials with the Condor Recovery Team were starting to release captive-reared California Condors back to the wild [in 1997], Tejon Ranch sued the Fish and Wildlife Service to curtail the condor recovery program and relegate the condors to a special status without protection under the Endangered Species Act.

“Tejon’s legal arguments, although arguably specious and at best very weak, were not seriously opposed by the [FWS], which instead settled the case for what is believed to be a sweetheart deal that has resulted in the current [HCP] plan and take permit application,” CBD said.