3-Judge Panel Hears Plea to Keep Tollway Construction at Standstill : Highways: Laguna Canyon should be a critical habitat for an endangered bird, appellants argue. Road agency attorney counters that gnatcatchers will survive.

The battle between environmentalists and a transportation agency building a tollway through Laguna Canyon continued Thursday when opponents of the road asked a federal appeals court to continue a construction ban to protect the habitat of an endangered bird.

A three-judge panel from the 9th U.S. Circuit Court of Appeals in Pasadena heard oral arguments on an emergency injunction issued by the court Dec. 23 that stopped construction on part of the 17-mile San Joaquin Hills tollway through Laguna Canyon.

The affected area covers 4 1/2 miles between Newport Coast Drive and El Toro Road.

Joel Reynolds, an attorney with the National Resources Defense Council in Los Angeles, asked the judges to issue a preliminary injunction against the road construction.

Reynolds said he argued that the U.S. Department of Interior violated the federal Endangered Species Act in 1983, when the agency failed to designate the canyon area as a critical habitat for the gnatcatcher, which is on the endangered species list.

“We believe the (Interior Department) should have designated it a critical habitat for the gnatcatcher,” Reynolds said. “The toll road affects the gnatcatcher’s habitat. We’re asking for an injunction until the violations of the Endangered Species Act are cured.”

Tollway agency attorney John Flynn said he countered that there was no violation of federal law, because the U.S. Fish and Wildlife Service determined the habitat that the project will destroy “is not essential for the survival and recovery of the gnatcatcher.”

Flynn said “our position is that the government didn’t act arbitrarily” when Interior Department officials declined to designate the canyon as a critical gnatcatcher habitat.

The small, dark blue bird is found in the canyon and other coastal sage scrub areas throughout Southern California.

A preliminary injunction would replace the emergency injunction and continue the construction ban. The judges took the matter under submission but gave no indication when they might issue a ruling.

The emergency injunction was issued three days after the same court had lifted a previous similar order Dec. 20 obtained by the environmental group.

With the exception of a single day in June, there was no work done on the road during the 15 months from September, 1993, to December, 1994. When the injunction was lifted last month, workers graded the land for three days before the appellate court issued its emergency injunction. When completed, the $1.1-billion tollway will extend from MacArthur Boulevard, at the end of the Corona del Mar Freeway, to Interstate 5 near San Juan Capistrano.