Builders Threaten Suit Over Gnatcatcher Status : Development: They say a U.S. proposal to list the songbird as an endangered species violates their constitutional rights.

Southern California’s building industry has warned the federal government that it intends to file suit unless the Interior Department reverses its proposal to list the California gnatcatcher as an endangered species.

In a letter to Interior Secretary Manuel Lujan Jr., the Building Industry Assn. of Southern California said the federal agency’s proposal to list the bird violates the builders’ constitutional rights as well as the federal Endangered Species Act.

“We will hold our suit for a period of time to provide you with an opportunity to review our request to withdraw the proposed rule,” BIA attorney Hugh Hewitt said in the letter.

Jeffrey Opdycke, Southern California field supervisor of the U.S. Fish and Wildlife Service, said the threat does not alarm him and it is “very unlikely” the agency will change its mind. He said the decision to propose the bird for federal protection was made after “an exhaustive review” and more than usual scrutiny by the agency’s legal staff.

“Generally, the allegations are laughable,” he said. “There were no errors or misjudgment revealed in the allegations and we’re confident we complied with the act. I’m not worried about any part of this process appearing before a judge.”

In September, the U.S. Fish and Wildlife Service proposed to add the songbird to the national endangered species list. That proposal triggers a one-year review that could culminate in protection of the bird’s habitat in Orange, San Diego and Riverside counties.

Hewitt in his letter said the proposed federal rule contains numerous “unconstitutional acts and statutory irregularities.” Included, he said, was the agency’s failure to review studies performed by consultants hired by the BIA.

The BIA also alleges that the constitutional rights of landowners to use their property would be infringed. Builders maintain that the listing would delay or block many public and private development projects, including construction of Orange County toll roads.

The BIA represents the Irvine Co., Santa Margarita Co., the Lusk Co. and other major Orange County and San Diego County developers and builders.

Opdycke said the agency will continue to work with landowners and builders on a way to protect the gnatcatcher.

“Right now (a lawsuit is) just a threat,” Opdycke said, “but they apparently want to spend money on this, and if that’s how they want the Fish and Wildlife Service to spend its time, that’s what we will do. It does take time to defend yourself and takes time away from crafting solutions for problems.”

The builders also recently filed a court motion seeking to intervene on behalf of the California Fish and Game Commission in a gnatcatcher lawsuit filed by environmentalists.

The commission rejected a request to grant the bird state protection on Aug. 30. Two weeks later, the Natural Resources Defense Council filed suit against the state, saying the commissioners ignored the law.

“This is basically a case of defending good rule-making and challenging bad rule-making,” Hewitt said. “The state carefully evaluated all the evidence, made the appropriate decision and should be defended. The federal government ignored all the evidence . . . and must be challenged.”