Highway 101 Bypass Project Looking Inevitable

OAKLAND, Calif. (CN) — A federal judge indicated Friday he would dismiss without prejudice a lawsuit from two Native American Tribes who say California and the United States destroyed sacred sites, artifacts and wetlands building the controversial four-lane Willits Bypass through a sleepy town in Northern California.

U.S. District Judge Jeffrey White signaled at the hearing that he would grant the tribes leave to amend their complaint to ask that the federal government take the highway project away from Caltrans and consult with the tribes on it.

Few people dispute the need for the bypass on Highway 101. Rush-hour traffic can be delayed for nearly an hour through the town of 5,000 in Mendocino County, halfway between Santa Rosa and Eureka. The original dispute, brought by the Center for Biological Diversity and others in 2012, centered on whether the bypass should be two or four lanes.

The Coyote Valley Band of Pomo Indians and Round Valley Indian Tribes of California in October 2015 accused the Federal Highway Administration, the U.S. Department of Transportation and Caltrans of failing to consult with them before starting work on the $300 million Willits Bypass, in violation of environmental, historic preservation and highway laws and the Administrative Procedure Act. Caltrans is the California Department of Transportation.

In an August 2016 amended complaint, the tribes said the defendants failed to implement a process for identifying historic and sacred sites that could be discovered during construction, which led to the demolition of the ancestral Yami Village site at the northern end of the project known.

A Caltrans official said shortly after the suit was filed that the state had been consulting with the Sherwood Valley Band of Pomo Indians all along, and the suing tribes are latecomers to the process.

On Friday, oral argument centered around whether the federal defendants have the responsibility to take back the project from Caltrans, and whether they failed to do so.

The tribes say that the federal defendants were required under the Statewide Programmatic Agreement to take back the project once they complained about the way Caltrans was handling it.

In their motion to dismiss, the federal defendants contend that the Statewide Programmatic Agreement does not require them to reassume responsibility for it, and the tribes have no basis under it to sue them.

They also say that the tribes failed to ask in their amended complaint that they “reassume” responsibility for the project.

“They haven’t pled it, they haven’t asked for it. They have not asked us to take the project back,” Department of Justice attorney David Glazer told Judge White. “The word ‘reassume’ does not appear anywhere in their prayer for relief.”

The tribes’ attorney Philip Gregory responded: “The federal defendants say, ‘We don’t necessarily have that obligation,’ but that could be a finding of this court.” Gregory is with Cotchett, Pitre & McCarthy in Burlingame.

White twice asked Gregory to name the tribes’ redressable injury.

Gregory said the project has two phases, and the work to be done in the second phase, which has not yet begun, will pose an injury unless the federal defendants take back the project, consult with the tribes on it and conduct an environmental review. He said that mitigation work still undone in the first phase, which is nearly complete, also constitutes an injury.

“This court could issue an order protecting the tribes’ cultural resources,” Gregory said.

Glazer countered that the Phase 2 injury is speculative because that part of the project may never be funded. And, he said, the only work left in Phase 1 is “limited to some planting and involves minimal ground disturbance.”

“It’s not a thing that will impact cultural resources, and there is some work Caltrans is doing to compensate for environmental impacts,” he said of Phase 1.

At the end of the hearing, White signaled that he was inclined to dismiss the tribes’ complaint with leave to amend, before asking Glazer whether there were any additional arguments he could make that amendment would be futile.

“I suppose they could plead that they asked us to take back the project under the MOU [Memorandum of Understanding],” Glazer responded. But, he said, “there are very limited things the agency can take back at this moment.”

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