Gag Order Remains as Tejon Project Moves Forward; Group Vows Lawsuit to Force Disclosure of Secret Condor Documents

The Center for Biological Diversity today informed the U.S. Fish and Wildlife Service of its intention to go to court over the agency's failure to make public important documents related to Tejon Ranch. The lawsuit, believed to be the first of its kind, will be filed under the Endangered Species Act, which requires the release of documents related to proposed Habitat Conservation Plans. Tejon Ranch has proposed such a plan for its Tejon Mountain Village project to obtain protection from the harm it will cause the California condor.

"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 agency," said Adam Keats, director of the Center's Urban Wildlands Program. "We're prepared to go to court to force the government to obey the law."

The Endangered Species Act requires that "information received by the [FWS] as a part of any application [for a "take permit"] shall be available to the public as a matter of public record at every state of the proceeding." Yet the Fish and Wildlife Service has so far refused to provide the Center with this information, citing a gag order in a lawsuit filed in 1997 by Tejon Ranch that sought to prevent the recovery of California condors.

The Center has filed numerous requests for the documents under the Freedom of Information Act and has appealed several agency denials. One of these appeals was recently upheld by the Department of the Interior, which found that the Service's "processing of the FOIA request was procedurally deficient," and ordered the agency to provide the documents within 20 days.

"This is a total validation of our claim: that documents are being illegally withheld from us," said Keats. "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 documents requested include any raw data that the Fish and Wildlife Service has received from Tejon regarding California condors on Tejon Ranch, as well as all communications between the company and the agency. The Center's request was made pursuant to the Freedom of Information Act by letter dated January 23, 2009. The Center is seeking the information to fill in gaps in data concerning condors' use of Tejon Ranch as well as shed light on exactly what promises the agency has made to Tejon concerning the company's request for a condor "incidental take permit" and a related Habitat Conservation Plan for its development plans.

The Fish and Wildlife Service is currently reviewing an application by Tejon Ranch for a habitat conservation plan and take permit for 26 endangered, threatened, or rare species on Tejon Ranch. The permits are essential to Tejon's plans to develop Tejon Mountain Village, the controversial luxury-home subdivision planned for the heart of designated critical habitat for the California condor.

In 1997, just as officials with the Condor Recovery Team were starting to release captive-reared California condors to the wild, 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 government, which instead settled the case for what is believed to be a sweetheart deal that has resulted in the current plan and take permit application.

In 1999, at Tejon's request, the entire record for the lawsuit was sealed by court order and the case indefinitely stayed, leaving the case (and the order) active for the past 10 years. The terms of the order are not limited to just court-filed documents, though, as the order includes all documents "related" to the settlement in any way, apparently including documents related to subject of the settlement: the proposed plan, condors, and Tejon's development plans. The Service has since demonstrated its willingness to give this language as expansive a definition as possible.