United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
PHYLLIS J. HAMILTON, District Judge.
The motion of defendants California Department of Transportation and Malcolm Dougherty (collectively, "CalTrans") for an order dismissing the second and seventh causes of action came on for hearing before this court on January 29, 2014. Plaintiffs appeared by their counsel Stuart Gross, and CalTrans appeared by its counsel Derek Van Hoften. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion as follows.
This is a case brought under the Administrative Procedures Act, 5 U.S.C. § 701, et seq. ("APA"), challenging a proposal by CalTrans to widen and/or otherwise modify portions of U.S. Route 199 ("U.S. 199") and State Road 197, in an area bordering the Smith River and generally within the Smith River National Recreation Area.
Defendants are CalTrans; Malcolm Dougherty, the Director of CalTrans (in his official capacity); the National Marine Fisheries Service ("NMFS") - a division of the National Oceanic and Atmospheric Administration ("NOAA") and the United States Department of Commerce; and Samuel D. Rauch III, Acting Assistant Administrator for Fisheries for NOAA (in his official capacity).
The Smith River, which is located in Del Norte County, is the last remaining undammed river in California. Approximately 300 miles of the river are designated "wild and scenic" under the Wild and Scenic Rivers Act, 16 U.S.C. § 1271, et seq. The Smith River has also been designated "critical habitat" under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., for the Southern Oregon Northern California Coast Evolutionary Significant Unit of coho salmon ("SONCC coho"), listed as a threatened species under the ESA; and designated essential fish habitat ("EFH") for both coho and Chinook salmon under the MSA.
Plaintiffs allege that CalTrans seeks to create a network of roads through coastal Northwestern California, along which large trucks would be given unrestricted access along rural roads from Oregon to the San Francisco Bay. Specifically, for purposes of the present action, what CalTrans has designated the "197/199 Safe STAA Access Project" ("197/199 Project" or "Project") calls for major roadwork at seven locations along U.S. 199 and SR 197. The five U.S. 199 locations are within the narrow and windy Smith River Canyon, right above the Smith River. The two SR 197 locations are on the Smith River's bank, as the river leaves the mountains and expands into its estuary, which is the spawning ground of the Smith River's population of SONCC coho.
The regulatory process employed by CalTrans and NMFS to assess the proposed Project and its potential impacts on the Smith River's salmon populations and their habitat is the consultation process established under the ESA and the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq. ("MSA").
Section 7 of the ESA, 16 U.S.C. § 1536, and § 305 of the MSA, 16 U.S.C. § 1855, establish a process through which an agency planning to engage in an action (referred to as the "action agency") that could impact, in the case of the ESA, listed species and their designated critical habitat, or, in the case of the MSA, designated EFH, is required to consult with NMFS (referred to as the "consulting agency") concerning such impacts.
In the case of the MSA, § 305(b)(2) and its enabling regulations require action agencies to consult with the NMFS "with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat." 5 U.S.C. § 1855(b)(2); 50 C.F.R. § 600.920.
This consultation is initiated by preparation by the action agency of an EFH assessment which must contain "(i) A description of the action. (ii) An analysis of the potential adverse effects of the action on EFH and the managed species. (iii) The Federal agency's conclusions regarding the effects of the action on EFH. (iv) Proposed mitigation, if applicable." 50 C.F.R. § 600.920(e)(3). An action agency can limit its EFH assessment to these minimum requirements and thus engage in what are known as the "abbreviated consultation procedures" with NMFS, but only if its action does not have the potential to cause a substantial adverse effect on EFH. 50 C.F.R. § 600.920(h).
However, if the action does have the potential to cause a substantial adverse effect on EFH, the action agency must engage in what is known as "expanded consultation procedures" with NMFS, which are intended to "allow maximum opportunity for NMFS and the [action] agency to work together to review the action's impacts on EFH and to develop EFH Conservation Recommendations." 50 C.F.R. § 600.920(i). These procedures involve (i) an on-site inspection to evaluate the habitat and the site-specific effects of the project; (ii) the views of recognized experts on the habitat or species that may be affected; (iii) a review of pertinent literature and related information; (iv) an analysis of alternatives to the action, including alternatives that could avoid or minimize adverse effects on EFH; and (v) analysis of other relevant information. See 50 C.F.R. § 600.920(e)(4).
If the action agency believes that its action would not result in substantial adverse impacts to EFH it may submit an EFH assessment meeting the minimal requirements discussed above. 50 C.F.R. § 600.920(h)(2). However, if NMFS determines that, in fact, "the action may result in substantial adverse effects on EFH, or that additional analysis is needed to assess the effects of the action, " NMFS must request that the action agency engage in expanded consultation. 50 C.F.R. § 600.920(h)(3).
CalTrans and the Federal Highway Administration ("FHWA") executed a Memorandum of Understanding ("CalTrans/FHWA MOU"), under which the FHWA assigned to CalTrans, and CalTrans accepted, the delegation of authority pursuant to 23 U.S.C. § 327, to provide environmental review, consultation, or other such action pertaining to the review or approval of the Project, as required by federal laws including the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.; § 7 of the ESA, 16 U.S.C. § 1536; § 4(f) of the Department of Transportation Act of 1966, ...