Tollway Agency, Environmentalists Spar for Legal Edge : Court: Buoyed by recent Texas case, opponents of San Joaquin Hills corridor will ask federal judge to dismiss lawsuit filed against them in preemptive strike.

Environmentalists opposed to the controversial San Joaquin Hills tollway were biding their time, waiting for the right moment to take their case against the 15-mile, $793-million project before a federal judge.

But tollway officials, seeking to derail their longtime nemeses and speed construction, have hit upon an unusual but not unprecedented tactic. In a preemptive strike, the Transportation Corridor Agencies sued the environmentalists first--this to get the case to court faster, possibly saving the agency millions of dollars in rising construction costs.

Moreover, the tactic is aimed at precluding future environmental attacks on the tollway by persuading a judge to validate the very environmental documents opponents say are fatally flawed.

It forces tollway opponents, who have always claimed that the road would spoil views and ecologically sensitive canyons, to spend money on lawyers and court costs now instead of later, when they might be better prepared to do battle. And they could lose any advantage they might have gained by delaying their own lawsuit long enough to make the project too costly to build.

Tollway lawyers are banking on legal precedents that allow anyone in a dispute to ask a judge for a so-called declaratory judgment, without waiting for an adversary to sue. Many business disagreements are resolved this way.

And the tactic works. Indeed, county supervisors sued some of the same environmentalists in order to gain a 1985 settlement that allowed John Wayne Airport to greatly expand.

But outraged environmentalists have countered with their own legal maneuver. On Tuesday, lawyers for the Natural Resources Defense Council will ask a federal judge to dismiss the TCA’s lawsuit. And they believe a recent Texas case will provide the necessary ammunition.

Their legal papers also bristle with allegations that the tollway agency’s suit is “an extraordinary abuse of government resources” that will “chill” opposition to government actions.

In Texas, a federal court threw out a similar lawsuit, declaring that the plaintiffs lacked sufficient standing to sue.

Tollway agency officials, however, believe the Texas case cannot be easily applied here.

The plaintiff in Texas with insufficient standing was merely a group of highway proponents who didn’t want anything to stand in the way of their favorite road project. In Orange County, on the other hand, the tollway agency is the road builder, not just an interested bystander.

The dismissal motion will be heard Tuesday by U.S. District Judge David W. Williams in Los Angeles.

The Texas case, decided in 1990, involved Collin County and several other local jurisdictions that favored construction of a federally funded highway initiated by the Texas State Department of Highways and Public Transportation.

One day after the Federal Highway Administration had approved environmental documents for the new Texas highway, Collin County and other local governments sued the Homeowners Assn. for Values Essential to Neighborhoods. The group had threatened to challenge the project’s environmental clearances in court--as have members of Laguna Greenbelt Inc., the Laguna Canyon Conservancy and Save Our San Juan in Orange County.

But even though Collin County and other local governments spent some of their own funds to aid the Texas project, a federal court ruled that they had no right to sue for a quick declaratory judgment. The court said that only the Federal Highway Administration is legally responsible for the adequacy of the project’s environmental impact statement.

The court suggested that the homeowners association could not have carried through on its threats to sue unless it went after the Federal Highway Administration.

“The Texas case is right on point,” argues Norm Grossman, a Laguna Beach Planning Commission member, City Council candidate and Laguna Greenbelt board member who is fighting the tollway agency’s lawsuit. “We believe that the situations here and in Texas are virtually identical.”

But court arguments written by lawyers for the tollway agency tell another story.

In the Texas case, the local governments involved had favored the highway but had “no official responsibility for development of the highway.” The plaintiffs, according to the tollway agency’s legal briefs, “were simply interested bystanders.”

The court suggested that even though the Texas highway was federally funded, the state highway department could have sued road opponents because it was responsible for building the road and for seeking Federal Highway Administration approvals.

“I think we’ve taken care of the Collin County case in our briefs,” said Robert D. Thornton, one of the tollway agency’s lawyers.

As for opponents’ claims of intimidation, Thornton’s court brief argues that anyone has the right to court action that clarifies rights and legal relationships “without waiting for an adversary to file suit.”

The legal brief argues that tollway opponents will delay their own court challenge until the project is, “regardless of merit,” financially crippled.

Judge Williams could rule from the bench Tuesday, attorneys said.