Reversing Itself, Court Lifts Work Ban on San Joaquin Hills Tollway : Decision: Three-judge panel notes that area is not federally protected and cites money already spent on project.

In the latest legal zigzag over the San Joaquin Hills Transportation Corridor, a federal appeals court ruled Wednesday that construction may continue, lifting its own earlier ban on the work.

“This is wonderful news,” said Lisa Telles, spokeswoman for the Transportation Corridor Agencies. “I can tell you that the plan right now is to look at the decision (today) and, with the rain, see what we can do. Obviously, with the rain you can’t do a lot of work. Once it dries up, we will start working.”

On Dec. 23, a judge of the same U.S. 9th Circuit Court of Appeals temporarily stopped bulldozers from clearing a swath through Laguna Canyon, the final leg of the 17-mile tollway. Four days before that action, the 9th Circuit Court had dissolved yet another court order blocking construction work on the controversial tollway.

During the four days of construction, protesters tried unsuccessfully to block the bulldozers in the environmentally sensitive canyon. The 21 protesters who were arrested are scheduled to be arraigned in Orange County Municipal Court in Laguna Niguel today.

A key issue in the dispute, cited in the most recent decision by the 9th Circuit Court, is the fate of the coastal sage scrub habitat and its best-known resident, the gnatcatcher.

A three-judge panel of the court noted that the agreement brokered by U.S. Interior Secretary Bruce Babbitt essentially listing the gnatcatcher as a threatened species under the Endangered Species Act allows for the exclusion of Laguna Canyon from the protected area.

“Even if the U.S. Fish and Wildlife Service were to conclude that land used by the toll road is . . . critical habitat” to the gnatcatcher, the court wrote, “it would in all likelihood” exclude the area from any designation.

The bottom line, the court wrote, is that “close to a quarter of a billion dollars has been spent thus far on the toll road, a major addition to the region’s infrastructure whose utility will be significantly impaired if the middle section through the San Joaquin Hills can’t be completed.”

Mike Phillips, executive director of the Laguna Canyon Conservancy, called the ruling a disappointment and said: “My very short-term concern is that they might resume grading in the middle of the rainy season. We would have serious concerns about downstream flooding.”

He added that the battle against the toll road will continue.

“My sense is that people are not going to give up on fighting this project. . . . We will continue to look for legal avenues to continue our fight,” Phillips said. “Certainly, citizens will continue their protests.”

Joel R. Reynolds, attorney for the National Resources Defense Council, which brought the suit, said that further legal challenges are possible but declined to comment on the decision.

Tollway opponent Lida Lenney, a former Laguna Beach mayor and founder of the Laguna Canyon Conservancy, said: “I’m beyond comment. This is a heartbreaking situation. Everything points to the fact that this should be preserved in its natural state.”

Alluding to the never-ending legal battle, Lenney said: “We’ve been up and down so much on this. Maybe we’ll be up again. . . . Maybe the rain will keep this from doing too much damage for a time.”