SAN FRANCISCO (CN) — The Ninth Circuit gave California a green light Wednesday to move forward with a contested highway project through a majestic grove of ancient redwood trees, reversing a lower court ruling that halted construction pending further environmental review.
The California Department of Transportation, Caltrans, has been trying for more than a decade to alter a 1.1-mile strip of Highway 101 through Richardson Grove State Park in Humboldt County, about a 3 ½-hour drive north from San Francisco. Established in 1922, the park is home to redwood trees as old as 3,000 years old and soaring up to 300 feet and with diameters as wide as 18 feet.
The goal of the project is to let larger trucks traverse the narrow strip of highway, which threads very close to old-growth trees, without a police escort. This would allow those trucks to avoid a 227-mile detour, which took almost twice as long before another highway between Redding and Eureka was opened to larger trucks in 2017.
Lead plaintiff Bess Bair has sued to block the project three times over the last 10 years, most recently in 2017, each time challenging the state’s findings of no significant impact on old-growth redwoods. Previous litigation required Caltrans to conduct further studies.
Last year, U.S. District Judge William Alsup again sided with environmentalists opposing the construction. He found Caltrans failed to fully consider the impact of paving and construction on trees’ root zones, potential tree damage from truck accidents and the effect of traffic noise on park enjoyment.
In a 22-page opinion issued Wednesday, a unanimous three-judge Ninth Circuit panel reversed that ruling.
“The district court’s rationale for requiring an [environmental impact statement] was predicated on its erroneous conclusions about the project’s effects on redwood tree health and possible increases in truck traffic and noise,” Senior U.S. Circuit Judge Ferdinand Fernandez, a George H.W. Bush appointee, wrote for the panel.
The latest version of the project requires the removal of 38 trees, none of which are old-growth. The construction is expected to affect the root zones of 78 old-growth redwoods.
The panel found Caltrans considered the effect of paving and construction on root zones and chose to narrow road shoulders, limit new asphalt and use a special paving material that will “promote air circulation” to minimize negative impacts.
Other proposed mitigation measures include increasing road height where possible and digging by hand to avoid severing tree roots, watering trees in the summer and removing invasive plants.
Although a state parks handbook recommends that no construction take place in the structural rootzones of protected trees, the National Environmental Policy Act “does not require an agency to follow all recommendations made by commentators, other agencies, or experts,” Fernandez wrote.
Addressing the finding that Caltrans did not fully assess the impact of traffic volume and noise on park visitors, the panel found the state already concluded the project would not increase truck traffic. That conclusion was based on a survey of business owners, traffic studies in nearby areas, and Caltrans’ opinion that most larger trucks will keep using the straighter and faster route of Interstate 5 to reach major coastal cities.
“Caltrans’ conclusion that traffic would not increase is entitled to deference,” Fernandez wrote.
Turning to potential tree collisions, the panel found an assumed increase in truck accidents ignored the fact that pavement will move farther from trees in some areas while moving closer to trees in other areas.
“The district court’s speculation that trees would suffer more severe damage from collisions because of the weight or shape of [larger] trucks is not supported by any evidence in the record,” Fernandez wrote.
In a 2-page concurring opinion, U.S. Circuit Judge Kim McLane Wardlaw emphasized that Caltrans acknowledged during oral arguments that more environmental review may be needed if “significant new information is discovered” during the construction process.
The Bill Clinton appointee added the project could provide valuable new data on the effects of construction on old-growth redwoods. Such data could “prove important to future decisions” related to the trees, including any decision on the pending highway project if a new environmental study becomes necessary, she wrote.
U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, joined Fernandez and Wardlaw on the panel.
In an emailed statement, plaintiffs’ attorney Stuart Gross, of Gross & Klein in San Francisco, said his clients are disappointed, “but it is a loss of one battle, not the war to protect Richardson Grove’s ancient redwoods from this misguided project.”
He said the plaintiffs are evaluating their options for further appeal but look forward to pursuing their remaining claims against Caltrans in Alsup’s court regardless. One of those remaining claims is that “Caltrans violated Section 4(f) of the Department of Transportation Act, a law enacted to protect the nation’s parks from exactly the type of haphazardly conceived and analyzed road projects as challenged here,” Gross said.
Caltrans spokesman Myles Cochran said the agency is still reviewing the decision to determine its next steps.