Bird Defenders Advance in Highway Project Suit

SAN FRANCISCO (CN) - Migratory bird deaths prompted changes to netting around a highway-widening project, but agencies must still face environmental claims, a federal judge ruled.

The Federal Highway Administration and California's Department of Transportation - known as CalTrans - approved an extensive improvement project of U.S. 101 through Marin and Sonoma counties in 2009. The final environmental report called for contractors to install netting throughout the construction zone to protect unspecified nesting birds.

The report failed to mention, however, that a large colony of cliff swallows arrives each spring and nests near two bridges that will be demolished and rebuilt over the course of the project. CalTrans contractors installed the netting earlier this year, and cliff swallows that returned in the spring became entangled in the so-called "exclusionary" nets and died.

Officially, CalTrans reported 65 cliff swallow deaths, though environmentalists suspect many more birds died in the netting. After consulting with federal and state wildlife agencies, CalTrans modified the netting and installed other bird deterrents at both bridges.

Rather than halt construction, remove the netting and prepare another environmental report, federal and state transportation agencies said they had solved the problem and that the original report included the use of netting.

The Native Songbird Care & Conservation filed suit this past May, joined by Audubon Society branches in Madrone, Marin and San Francisco, the Center for Biological Diversity and Veronica Bowers.

Though it is undisputed that no more swallows have died since installation of the modifications, the plaintiffs nevertheless allege violations of the National Environmental Protection Act and Administrative Procedures Act in failing to, at the very least, provide an environmental impact report supplement in light of new environmental impact information - the deaths of cliff swallows.

In their August reply, the federal and state agencies said it would take six months for them to determine the need for a supplemental report.

They asked U.S. District Judge Jon Tigar for a 120-day stay, while the environmentalists agreed to give the agencies not more than two months to make their determination.

Tigar scheduled hearings on the matter twice, but the federal government shutdown, which grounded lawyers from the Justice Department, pre-empted both attempts so the judge took the matter into his own hands and denied any stay.

"The groups note persuasively that it is unclear why the agencies are only beginning their reevaluation now and not much earlier," Tigar wrote. "The agencies respond that 'this argument has no logical connection to how much time is required to complete the analysis currently underway.' Such a response suggests that the court should close its eyes to the fact that they propose to complete their initial determination of whether to prepare a supplemental environmental impact statement nine months after problems at the bridges first came to their attention."

Tigar noted that the risks of depriving environmentalists of their day in court before the swallows return again in spring outweighed wasting the court's time ordering a report that transportation agencies claim they are already working on.

The groups must nevertheless file for summary judgment to test the merits of their case, he added.

Among other things, the environmentalists "must identify the relief they will request, when that relief would likely be granted, and why that relief is not likely to be mooted shortly thereafter by the issuance of a reevaluation," Tigar wrote. "For example, if they are entitled to summary judgment that the reevaluation has been unlawfully withheld or unreasonably delayed, what relief could the court order that would not be mooted by the issuance of a reevaluation?"

He continued: "The focus of the court's inquiry is whether there is good cause to entertain a summary judgment at this time, and not whether the motion will ultimately be successful. However, the parties are encouraged to provide limited citation to authority where necessary to explain the basis of their positions."

In a footnote to the order, Tigar took issue with what he called an "implied threat" by the agencies to delay completion of the supplemental report if they didn't get the stay they wanted.

"That portion of defendants' argument is not well taken," Tigar wrote.

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