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Judge Trims Enviro Suit Over River Road Work

SAN FRANCISCO (CN) - A federal judge whittled two claims from an environmental lawsuit challenging major road work near California's Smith River, a spawning ground for salmon.

Named for the 19th century explorer Jedediah Smith, the Smith River is one of Northern California's major rivers. It forms at the confluence of its north and south forks in Del Norte County in the state's far northwest corner and flows through hundreds of miles of scenic old growth pine and redwood forests before emptying into the Pacific Ocean west of the Klamath Mountains, just south of the Oregon border.

Without a single dam along its 300-mile length, the Smith River is the state's only free-flowing river and one of the "crown jewels of the National Wild and Scenic River System," according to the National Park Service's website for the Smith River National Recreation Area.

The river has been designated a critical habitat under the Endangered Species Act for Coho salmon and an essential fish habitat for the Chinook salmon.

The California Department of Transportation, or CalTrans, wants to widen parts of Route 199 and State Road 197, and build a system of roads along California's northwestern coast.

The five Route 199 areas slated for roadwork are within the Smith River Canyon, and the two SR 197 locations are on the Smith River's bank, spawning ground for the river's Coho salmon population.

After conducting an environmental review, CalTrans determined that the road work would have "no significant impact" on the Coho salmon and the river, and approved the project in April 2013.

Last September, the Center for Biological Diversity and other environmental groups challenged the approval, claiming CalTrans' environmental assessment failed to look at the anticipated impact of the project as a whole, instead of on a site-by-site basis.

CalTrans moved to dismiss two of the groups' seven claims: that CalTrans failed to adequately consult with the National Marine Fisheries Service, and that it failed to comply with the Magnuson-Stevens Fishery Conservation and Management Act.

Those claims are based on the essential fish habitat assessment that CalTrans submitted to the National Marine Fisheries Service. CalTrans claims the submission was a "preliminary step" in the consultation process and not a final agency action reviewable under the Administrative Procedures Act (APA).

The environmental groups countered that because CalTrans relied heavily on the assessment to prepare its environmental analysis, the court can evaluate it as part of the final agency action.

U.S. District Judge Phyllis Hamilton sided with CalTrans and dismissed the two claims for lack of subject-matter jurisdiction.

CalTrans' submission of the essential fish habitat assessment "was not an 'agency action' under the definition of that term in the APA," Hamilton wrote. "Nor was it a 'final agency action."

Even if the submission "could be construed as a preliminary agency action reviewable as part of a final agency action," she wrote, "the APA contemplates that the preliminary and final actions be taken by the same agency within the same statutory scheme."

The five remaining claims are: that the National Marine Fisheries Service failed to adequately engage in Endangered Species Act consultation; that CalTrans failed to adequately engage in Wild and Scenic Rivers Act consultation; that CalTrans failed to prepare an environmental impact statement or an adequate environmental assessment as required by the National Environmental Policy Act; and that CalTrans failed to comply with the Department of Transportation Act.

The center's co-plaintiffs are the Environmental Protection Information Center, Friends of Del Norte and Ted Souza.

Defendants are CalTrans and its director, Malcolm Dougherty; the National Marine Fisheries Service; and Samuel Rauch III, acting assistant administrator of the National Oceanic and Atmospheric Administration.

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