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Souza v. California Department of Transportation

United States District Court, N.D. California

May 2, 2014

TED SOUZA, et al., Plaintiffs,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION Re: Dkt. No. 48

JAMES DONATO, District Judge.

INTRODUCTION

This case arises out of a project proposed by defendant California Department of Transportation ("Caltrans") to modify U.S. Route 199 and State Route 197 at seven sites in Del Norte County, California, near the Smith River. Caltrans consulted with Defendant National Marine Fisheries Service ("NMFS") about the potential environmental impacts of the project. Plaintiffs have challenged the adequacy of Defendants' environmental review documents and consultation process. They ask this Court to issue a preliminary injunction freezing the project pending an expedited review of their claims on the merits. The Court finds that plaintiffs are entitled to an injunction to preserve the status quo while the parties litigate the merits on a fast-track schedule.

BACKGROUND

I. The Project and Setting

The project at issue is Caltrans' 197/199 Safe STAA Access Project (the "Project"). Caltrans seeks to widen and realign sections of Routes 197 and 199 to accommodate trucks under the federal Surface Transportation Assistance Act ("STAA"). STAA trucks are oversize vehicles, and Caltrans has concluded that the Project is necessary to allow safer use of these trucks along Routes 197 and 199.

The Project contemplates construction and road work at seven sites. They are denominated Ruby 1; Ruby 2; Patrick Creek Narrows Locations 1, 2, and 3; the Narrows; and Washington Curve. The Project will be funded and constructed in four stages, beginning with the Patrick Creek Narrows ("PCN") locations. The contract for the PCN locations was advertised on August 12, 2013, awarded on December 10, 2013, and approved on January 3, 2014. Initial work on the PCN locations began in early January 2014 with vegetation removal. Caltrans advised the Court at oral argument and in a follow-up letter that construction work in earnest will not begin at Patrick Creek Narrows Location 2 ("PCN-2") prior to May 8, 2014, but could start at any time after that date.

The PCN-2 site is where the construction work will occur closest to the Smith River. This site has a bridge that Caltrans plans to tear down and replace with a new structure. The roadways connecting to the bridge will be widened and other related work will be done. Caltrans estimates that the PCN-2 work will disturb an area of 3 acres, excavate 20, 000 cubic yards of soil, remove 84 trees, and add 0.25 acres of additional impervious surface such as roadway and concrete. (Pollak Decl., Ex. B (Revised Biological Assessment ("Rev. BA")) at 55.) The work will involve blasting and night shifts, and is expected to take 300 working days spread over three years of construction seasons. ( Id. at 20, 21.)

The Smith River is designated under state and federal law as Wild and Scenic, and Caltrans acknowledges that it is considered one of the "crown jewels" of the National Wild and Scenic River System. (Rev. BA at 4.) It is the last remaining undammed major river in California. Dkt. No. 33 at 2. The Smith River also hosts a population of a federally-listed threatened fish species, the Southern Oregon Northern California Coast Evolutionary Significant Unit of the threatened coho salmon ("SONCC coho"). The Smith River has been designated "critical habitat" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1533 et seq., for the SONCC coho, and is also classified as "essential fish habitat" for coho and chinook salmon under the Magnuson-Stevens Fishery Conservation Act ("MSA"), 16 U.S.C. §§ 1801 et seq. See Dkt. No. 33 at 2. Caltrans describes the PCN-2 work as occurring at a distance of 0 (zero) feet from the river channel (Rev. BA at 55), but also states that no in-stream work will occur ( id. at v ).

II. Plaintiffs' Lawsuit

Plaintiffs are three environmental organizations and a resident of Del Norte County who uses and enjoys the Smith River for recreational purposes. On September 23, 2013, Plaintiffs filed a complaint against Caltrans and NMFS, and certain named individuals at these agencies acting in their official capacities, alleging seven causes of action, all under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq.: (1) failure to adequately engage in ESA consultation (against NMFS); (2) failure to adequately engage in consultation under § 305 of the MSA (against all defendants); (3) failure to adequately engage in Wild and Scenic Rivers Act consultation (against Caltrans); (4) failure to prepare an environmental impact statement ("EIS") as required by the National Environmental Policy Act ("NEPA") (against Caltrans); (5) failure to prepare an adequate environmental assessment ("EA") as required by NEPA (against Caltrans); (6) failure to comply with the Department of Transportation Act as required by NEPA (against Caltrans); and (7) failure to comply with NEPA, ESA, MSA, the Wild and Scenic Rivers Act, and the Department of Transportation Act (against all defendants). Dkt. No. 1.

Defendant Caltrans challenged portions of the complaint in a motion to dismiss. On February 26, 2014, the Court dismissed the second and seventh causes of action against Caltrans under the MSA for lack of subject matter jurisdiction. Dkt. No. 33. Plaintiffs filed an amended complaint on April 16, 2014, limiting their MSA claim to only Defendant NMFS, but otherwise keeping intact the allegations in the original complaint. Dkt. No. 74.

On March 19, 2014, Plaintiffs filed this motion for a preliminary injunction pending a hearing on the merits. Dkt. No. 48. Plaintiffs raised a number of grounds for an injunction based on NMFS's alleged failure to comply with the ESA, and Caltrans' alleged failure to comply with the NEPA. At this stage, the Court does not have the administrative record, which Defendants are expected to provide on May 5, 2014.

As detailed below, the Court finds that Plaintiffs are entitled to an injunction on the basis of the ESA claim against NMFS. The Court defers consideration of the NEPA and other claims to the hearing on the merits.

DISCUSSION

I. Laches

As an initial matter, Defendants claim Plaintiffs waited too long to seek an injunction and that laches should bar this motion. Plaintiffs filed this action in September 2013, have known since August 2013 that construction was set to begin in May 2014, and were informed by Caltrans in advance of the key dates in the contracting and initial work stages, but did not file this motion until March 19, 2014. In Defendants' view, this amounts to delay that is fatal to the preliminary injunction request.

The Court is unpersuaded by Defendants' laches argument. Laches "is to be invoked sparingly in environmental cases because the plaintiff is not the only party to suffer harm by alleged environmental damage." Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 (9th Cir. 1998). To establish a laches bar, a party must demonstrate both a "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Apache Survival Coal. v. U.S., 21 F.3d 895, 905 (9th Cir. 1994) (quoting Lathan v. Brinegar, 506 F.2d 677, 692) (9th Cir. 1974) (en banc) (emphasis in original, further citations omitted)).

In Apache, which Defendants rely on here, plaintiffs were barred by laches because they ignored for several years the environmental review process leading up to commencement of the project, even though they had been invited to participate in the review, and then waited another eight months before seeking an injunction. See id. at 907-10. This case lacks such an extended period of neglect by the plaintiffs. Plaintiffs here were active participants in the environmental review process (Dkt. No. 61 at 19 n.9), and have shown reasonable diligence in retaining experts and gathering facts for their case. They have not slept on their rights. Moreover, in Apache, there was "no reason to believe that other parties will experience the sort of harm claimed by the San Carlos Apache" because their challenge was based on a religious interest specific to that tribe. Apache, 21 F.3d at ...


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