Judge Halts California Highway-Widening Plan

     SAN FRANCISCO (CN) – Pending proper handling of environmental concerns, a plan to widen highways near California’s Smith River cannot advance, a federal judge ruled.
     Philip Lawrence Gregory, a lawyer for challengers with Cotchett, Pitre & McCarthy, hailed the ruling.
     “This is a case of a road versus a river,” he said in a statement. “Caltrans plans to do major roadwork along the wild and scenic Smith River, in northwestern California; and neither Caltrans nor the National Marine Fisheries Service have come close to meeting their legal obligations to adequately analyze the proposed roadwork’s environmental impact.”
     Co-counsel and former Congressman Pete McCloskey agreed.
     “The Smith River, especially due to the salmon, is a profound natural resource,” McCloskey said in a statement. “The river should be preserved for the fish, not destroyed for big-box trucks.”
     Formed at the confluence of its north and south forks in Del Norte County, the Smith River flows 300 miles through scenic old-growth forests to empty into the Pacific Ocean just south of the Oregon border.
     As the last free-flowing river in the state, the Smith River has been designated as “wild and scenic” under state and federal law, and is considered “one of the ‘crown jewels’ of the National Wild and Scenic River System,” U.S. District Judge James Donato noted in a Friday ruling.
     It also serves as critical habitat under the Endangered Species Act (ESA) for the Coho salmon and an essential fish habitat for the Chinook salmon.
     The California Department of Transportation, or Caltrans, wanted to widen sections of Routes 197 and 199 and build a road system along the state’s northwest coast to make the routes safer for commercial trucks.
     After its environmental reviews found the project would have no significant impact on the river or the salmon, the department approved the plan in April 2013. Northern California resident Ted Souza, Friends of Del Norte, Environmental Protection Information Center and Center for Biological Diversity filed suit in September.
     Among other things, they claimed Caltrans did not prepare an environmental impact survey in violation of the National Environmental Protection Act (NEPA); that the environmental assessment evaluated potential environmental impacts on a site-by-site basis instead of analyzing the project as a whole; that Caltrans did not properly consult with the National Marine Fisheries Service; and that it failed to comply with the Magnuson-Stevens Fishery Conservation and Management Act.
     In dismissing some claims earlier this year, a different federal judge had found that the fish-habitat assessment Caltrans submitted to the service and used in its environmental analysis did not qualify as a final agency action.
     The amended complaint filed last month limited Magnuson-Stevens claims to the Fisheries Service, abbreviated as NMFS.
     Donato issued the temporary injunction Friday with the note that courts “cannot rubber-stamp a haphazard consultation process.”
     Caltrans failed to show that the plaintiffs waited too long to seek an injunction, according to the ruling, which notes that a successful laches argument must demonstrate that a party was not diligent in pursuing its rights.
     Unlike the plaintiffs in Apache Survival Coaliton v. U.S, who declined for years to participate in the environmental review process and waited eight months to move for an injunction, the plaintiffs here “were active participants in the environmental review process and have shown reasonable diligence in retaining experts and gathering facts for their case,” Donato wrote. “They have not slept on their rights.”
     Rejected claims that the Caltrans environmental review properly assessed impacts to Coho salmon and their habitat, Donato called the documents in the biological assessment “contradictory and unclear.”
     Though the court acknowledged agency efforts in preparing an initial biological assessment for the road-widening project, it found that subsequent assessments “pose material inconsistencies and fail to reasonably explain why Caltrans’ ESA conclusions were such that NMFS could properly concur in them.”
     The first biological assessment called for formal consultation with the Fisheries Service because the project would likely harm Coho salmon and their environment, but the conclusion stated that the project would not harm the fish, Donato noted.
     A biologist for the Fisheries Service then told Caltrans that informal consultation would suffice because the project would not threaten Coho salmon, despite numerous statements to the contrary in the biological assessment.
     A revised version of the biological assessment says the project would affect Coho salmon and their habitat, but not adversely, while simultaneously stating in several places that the project would adversely affect the fish and the Smith River, according to the ruling.
     Despite such inconsistencies, the Fisheries Service concluded in a letter of concurrence that the project would not adversely affect Coho salmon or their habitat.
     “The BAs [biological assessments] and the LOC [letter of concurrence] that are before this court show contradictions and critical gaps in reasoning that give rise to serious questions about whether NMFS has discharged its obligation to rationally identify potential impacts, reasonably explain the basis for its conclusions or concurrence, and evaluate all the relevant factors and evidence,” Donato wrote.
     Based on the documents, it is hard to determine what Caltrans’ conclusions were regarding potential effects to the Coho salmon and its habitat, and why the Fisheries Service concurred with the finding of no adverse impact, the ruling states.
     “This is not a case of excusable minor sloppiness, as defendants suggest,” Donato wrote.
     Though contradictory conclusions from Caltrans and the service riddle the administrative record, the plaintiffs showed that the project will irreparably harm the Coho salmon and its habitat, which merits an injunction, the ruling states.
     To expedite a final decision on the merits and “minimize the potential economic hardship to Caltrans in the interim,” Donato called for the case to proceed “on the fast-track schedule the court has already set.”
     The injunction bars Caltrans from doing any more work on the project until the plaintiffs resolve their claims on the merits. Caltrans can, however, “propose non-jeopardizing portions of the project it believes might be able to go forward that are outside the ESA issue discussed in this order,” according to the ruling.
     Motions for summary judgment by the plaintiffs are due July 9. They are limited to two 30-page briefs against the state defendants and federal defendants separately. The defendants have until Sept. 12 to file their opposition briefs, and the hearing for the case is scheduled for Nov. 19.
     Counsel for the defendants, Derek Scott van Hoften and Janet Wong, have not returned requests for comment.

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