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Coyote Valley Band of Pomo Indians of California v. United States Department of Transportation

United States District Court, N.D. California

April 2, 2018

COYOTE VALLEY BAND OF POMO INDIANS OF CALIFORNIA, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING, IN PART, AND DENYING, IN PART, CALTRANS DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 132, 138

          JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

         Now before the Court is the motion for summary judgment filed by Plaintiffs, Coyote Valley Band of Pomo Indians of California (“Coyote Valley”) and The Round Valley Indian Tribes of California (“Round Valley”) (collectively “Plaintiffs”).[1] Also before the Court is the cross-motion for summary judgment filed by the California Department of Transportation (“Caltrans”) and Caltrans's Director, Malcolm Dougherty, (collectively the “Caltrans Defendants”). The Court has considered the parties' papers, relevant legal authority, the record in this case, and the parties' arguments at the hearing on the motions.

         The Court HEREBY DENIES Plaintiffs' motion, and it GRANTS, IN PART, AND DENIES, IN PART, the Caltrans Defendants' motion.

         BACKGROUND

         A. Factual Background.

         This litigation arises out of the construction of 5.9-mile-long segment of U.S. Highway 101, which bypasses the City of Willits, California (the “Willits Bypass Project”), and post-construction mitigation projects in the area. (See, e.g., Caltrans Defendants' Administrative Record (“CT AR”), 000015-16, 000038-39; Caltrans Defendants' Supplemental Administrative Record (“CT Supp. AR) 001036-40.)[2] It is the second time this Court has considered an environmental challenge to the Willits Bypass Project. See, e.g., Ctr. for Biol. Diversity v. Cal. Dep't of Transp., No. 15-cv-2172-JSW, 2013 WL 6698740 (N.D. Cal. Dec. 19, 2013).

         It is undisputed that the FHWA and Caltrans issued a final Environmental Impact Statement (“EIS”) for the Willits Bypass Project in October 2006. In December 2006, the agencies issued a Record of Decision, which approved a variation of a four-lane freeway (“Modified Alternative J1T”). (CT AR 000001-1928 (Final EIS, Vols. 1-4); CT AR 001929-1949 (Record of Decision).) The Final EIS stated there would be no adverse effect on historic properties, if an environmentally sensitive area was established. The State Historic Property Officer (“SHPO”) concurred in that finding. (CT AR 000072-73, 000163-64.) The Final EIS also includes measures for relating to two forms of post-review discoveries: unanticipated archaeological discoveries (“ARCH-2”) and unanticipated discoveries of human remains (“ARCH-3”). (See CT AR 000072-73, 000117-118; see also CT AR 002297-2312 (NEPA/CEQA Re-Validation dated June 2016 (“2016 Re-Validation”).)

         In 2007, Caltrans decided to proceed with phased construction, because of funding constraints. “During the first phase of the project, …, Caltrans plan[ned] to complete a two-lane bypass, and it plans to complete the remaining two lanes as funding becomes available.” See Ctr. for Biol. Diversity, 2013 WL 6698740, at *2. This litigation focuses on the first phase. Construction on the first phase of the Willits Bypass Project is complete, and it was opened to traffic in November 2016. (CT Supp. AR 001036.) The second phase of the Willits Bypass Project remains unfunded. According to Plaintiffs, at the time the Final EIS was issued, “Caltrans had only identified one archaeological site eligible for registry on the National Register of Historic Places” (“NHRP”), and they claim that “[s]ince 2013, Caltrans has identified at least thirty additional archaeological sites eligible for registry on the” NRHP. (Second Amended Complaint (“SAC”) ¶¶ 17, 19.)

         On June 4, 2013, Coyote Valley's Tribal Chairman, Michael Hunter, wrote to Charles Felder, a director at Caltrans, and requested “government-to-government” consultation. (Federal Highway Administration Administrative Record (“FHWA AR”) 0007; CT AR 011681-82.)[3] On June 17, 2013, Mr. Felder responded to Mr. Hunter's letter. (CT AR 011694-95.) On June 25, 2013, Kendall Schinke, an Environmental Branch Chief at Caltrans, sent a letter to Coyote Valley, via Priscilla Hunter, enclosing copies of cultural resources documents prepared for the Willits Bypass Project. In that letter, Ms. Schinke stated that “[a]s we discussed on the phone, to request formal government-to-government consultation contact Vincent Mammano, Division Administrator at the [FHWA's] California Division[.]” (Id., 011698.)

         On February 18, 2015, representatives of Coyote Valley met with representatives of Caltrans, the FHWA, and the Army Corps of Engineers. (Id., 013217-18, 17527). On March 17, 2015, Chairman Hunter sent a letter to Mr. Felder, in which Coyote Valley continued to raise concerns about the Willits Bypass Project. (Id., 013217-18.) On the same day, Chairman Hunter wrote to Mr. Mammano acknowledging the government-to-government consultation meeting on February 18, 2015. (Id., 017305-07.) In that letter, Chairman Hunter stated that “[t]he primary and ongoing request we articulated at this meeting was the need for a Supplemental EIS to contend with the many ancestral archaeological sites that have been discovered subsequent to the approval” of the Final EIS “both in the Project Area and Mitigation parcels” of the Willits Bypass Project. (Id., 017305.) Chairman Hunter also asserted that “Caltrans failed to exercise due diligence in the initial archaeological survey efforts for the project, ” and “failed to adequately protect sites discovered subsequent to the EIS approval for the project.” (Id.)

         It is undisputed that, on July 1, 2007, the FHWA and Caltrans entered into a Memorandum of Understanding (“2007 MOU”) relating to the Surface Transportation Project Pilot Delivery Program (the “Pilot Program”), 23 U.S.C. section 327.[4] (See Glazer Decl., ¶ 2; Dkt. No. 32-1, Glazer Decl., Ex. A (2007 MOU §§ 1.1.1, 3.1.1).) Under the Pilot Program, the Secretary of Transportation could assign and a state could “assume, the responsibilities of the Secretary with respect to one or more highway projects within” that state under the National Environmental Policy Act (“NEPA”). 23 U.S.C. § 327(a)(2)(A). The Pilot Program also provided that, if a state assumed responsibility for a project under Section 327(a)(2)(A), “the Secretary may assign to the State, and the State may assume, all or part of the responsibilities of the Secretary for environmental review, consultation, or other action required under any Federal environmental law pertaining to the review or approval of a specific project.” Id. § 327(a)(2)(B)(i). If a state assumes “responsibility under subsection (a)(2) [it] shall be solely responsible and solely liable for carrying out, in lieu of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (i).” Id. § 327(e). “Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary.” Id. § 327(a)(2)(D).

         The Willits Bypass Project is covered by the terms of the 2007 MOU. Under that MOU, the FHWA assigned and Caltrans assumed “all of the USDOT Secretary's responsibilities under NEPA” and “all of the USDOT Secretary's responsibilities for environmental review, consultation, or other such action pertaining to the review or approval of a specific project as required under” Section 106 of the National Historic Preservation Act (“NHPA”) and 23 U.S.C. section 138 and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. section 303 (the “Federal Highway Statutes”). (2007 MOU §§ 3.1.1, 3.2.1.I, 3.2.1.Y.) The terms of the 2007 MOU also provide that “Caltrans shall be solely liable and solely responsible for carrying out all of the USDOT Secretary's responsibilities it has assumed under part 3 of this MOU subject to the limitations of the Eleventh Amendment waiver acknowledged in section 4.3.1 of this MOU. The FHWA and USDOT shall have no responsibility or liability for the performance of the responsibilities assumed by Caltrans, including any decision or approval made by Caltrans while participating in the Pilot Program.” (Id. § 6.1.) It is undisputed that the Federal Defendants retained their obligation to engage in government-to-government consultation with “federally recognized Indian tribes” under Section 106 of the NHPA. (See 2007 MOU § 3.2.3.)[5]

         It also is undisputed that the FHWA, Caltrans, California's SHPO, and the Advisory Council on Historic Preservation (the “Council”) entered into a Statewide Programmatic Agreement regarding compliance with Section 106 of the NHPA as it pertains to the administration of the Federal-aid Highway Program in California. That programmatic agreement had an effective date of January 1, 2004, and it was amended and extended with an effective date of January 1, 2014. (CT AR 17577-17630, First Amended Programmatic Agreement (“FAPA”).) The FAPA states that as a result of the 2007 MOU, among others, “Caltrans is deemed to be a federal agency for all Federal-aid Highway projects it has assumed[.]” (FAPA at 1.) It also notes that the FHWA as a federal agency has a “unique legal relationship with Indian tribes …, and while an Indian tribe may agree to work directly with Caltrans as part of the 36 CFR 800 compliance process, the FHWA … remain[s] legally responsible for government-to-government consultation with Indian tribes[.]” (FAPA at 2; see also id., Stipulations IV.B & VI.B-C.) The FAPA also accounts for “post-review” discoveries. (Id., Stipulation XV.) The parties to this lawsuit have not entered into a specific programmatic agreement or memorandum of agreement for the Willits Bypass Project.

         The Court shall address additional facts as necessary in the analysis.

         B. Procedural History.

         On October 30, 2015, Plaintiffs filed the original complaint in this case and alleged the Federal Defendants and the Caltrans Defendants each violated NEPA, the “Federal Highway Statutes”), and Section 106 of the NHPA. The Federal Defendants moved to dismiss. Before the Court resolved that motion, the parties attempted to, but could not, settle the matter. On August 2, 2016, the Court granted the Federal Defendants' motion to dismiss, with leave to amend. On August 26, 2016, Plaintiffs filed their first amended complaint, asserting the same claims for relief.

         On September 7, 2016, all Defendants moved to dismiss. In the interim, the parties continued to pursue settlement efforts but, again, were not successful. On January 23, 2017, the Court granted, in part, and denied, in part, the Caltrans Defendants' motion to dismiss. Round Valley Indian Tribes of Cal. v. U.S. Dep't of Transp., No. 15-cv-04987-JSW, 2017 WL 282980 (N.D. Cal. Jan. 31, 2017). On March 10, 2017, the Court granted, in part, and denied, in part, the Federal Defendants' motion to dismiss and gave Plaintiffs leave to amend. Round Valley Indian Tribes of Cal. v. U.S. Dep't of Transp., 15-cv-04987-JSW, 2017 WL 950956 (N.D. Cal. Mar. 10, 2017). On April 7, 2017, Plaintiffs filed their SAC, asserting the same claims for relief.

         C. Standard of Review Under the Administrative Procedures Act (“APA”).

         Plaintiffs bring their claims pursuant to the APA, which permits a court to “compel agency action unlawfully withheld or unreasonably delayed, ” or to “hold unlawful and set aside agency action, findings and conclusions found to be - arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §§ 706(1)-(2)(A). “A claim to compel action, ” under Section 706(1), “may proceed ‘only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.'” Grand Canyon Trust v. Williams, 98 F.Supp.3d 1044, 1051 (D. Ariz. 2015) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)) (emphasis in Norton).

         As part of their NEPA claim, Plaintiffs argue that the Caltrans Defendants failed to prepare a supplemental EIS. When a Court reviews an agency's decision not to supplement an EIS under the APA, it generally applies the “arbitrary and capricious” standard. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376 (1989); see also Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 (9th Cir. 2000) (“Dombeck”) (“The Forest Service's decision to forego an SEIS should not be set aside unless it was arbitrary or capricious.”). However, “[a]n action to compel an agency to prepare a [supplemental EIS] … is not a challenge to a final agency decision, but rather an action arising under 5 U.S.C. § 706(1).” Dombeck, 222 F.3d at 560.[6]

         In Native Songbird Care and Conservation v. LaHood, the plaintiffs argued the defendants should have prepared a supplemental EIS and invoked both sections of the APA to support their claim. No. 13-cv-02265-JST, 2013 WL 3355657, at *5-6 (N.D. Cal. July 2, 2013). The court viewed that decision to be prudent. “When the agency has prepared a written determination that a court can review, the distinction between” Sections 706(1) and 706(2) “makes little difference. Either the determination itself is a final agency action reviewable, ” under Section 706(2)(A), “or else the court reviews the [written determination] to determine whether the agency has ‘unlawfully withheld' the preparation of a Supplemental EIS pursuant to” Section 706(1). Id., 2013 WL 3355657, at *6; see also id., 2013 WL 3355657, at *6 n.6 (noting that “published authority on this issue generally demonstrates that in considering an agency's failure to prepare a Supplemental EIS, courts review a written determination or at least an expert determination”).

         The Court finds that this is a case where the distinction between Sections 706(1) and 706(2) is one without a difference. As discussed above, the Caltrans Defendants prepared a re-validation in 2016, which sets forth the Caltrans Defendants' reasoning as to why a supplemental EIS was not required. See Idaho Sporting Congress v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000) (“courts have upheld agency use of SIRs and similar procedures for the purpose of determining whether new information or changed circumstances require the preparation of a supplemental EA or EIS”); see also Price Road, 113 F.3d at 1510. Therefore, the Court will apply standard set forth Marsh:

[T]he … court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must be “searching and careful, ” but “the ultimate standard of review is a narrow one.” … When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. On the other hand, in the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance - or lack of significance - of the new information.

Marsh, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

         Under this standard, the Court will reverse the Caltrans Defendants' decision not to prepare a supplemental EIS “as arbitrary and capricious only if [they] relied on factors Congress did not intend [them] to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before [them] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overruled on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (internal quotations and citations omitted).

         D. Evidentiary Issues.

         The Caltrans Defendants move to strike the declarations submitted by Priscilla Henderson (Dkt. No. 134), Eddie Knight (Dkt. No. 135), and Mike Knight (Dkt. No. 136), on the basis that the declarations are extra-record evidence. The declarations include exhibits that come from the Caltrans Defendants' administrative record. Those exhibits, therefore, would not constitute extra-record evidence. However, the declarants do not simply attest that the exhibits are what they purport to be. Rather, Ms. Hunter sets forth her views of the consultation process. Mr. Eddie Knight discusses issues relating to tribal monitors and how they should be used during a project like the Willits Bypass Project. Mr. Mike Knight, who is Chairman of the Sherwood Valley Band of Pomo Indians (“Sherwood Valley”), discusses Sherwood Valley's decision to not sign a draft programmatic agreement.

         When a court is presented with a case brought under APA, its task “is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record” presented by the agency. Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). In the Ninth Circuit, a court may consider extra-record evidence “(1) if necessary to determine ‘whether the agency has considered all relevant factors and has explained its decision, ' (2) ‘when the agency has relied on documents not in the record, ' … (3) ‘when supplementing the record is necessary to explain technical terms or complex subject matter, '” or (4) when a plaintiff shows an agency has acted in bad faith. Sw. Ctr. for Bio. Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)).

         The Court finds Plaintiffs have not shown any of these exceptions apply. First, none of the declarants are employees of the Caltrans Defendants. See, e.g., Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993) (“[w]hen a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency's decisions”) (emphasis added). Plaintiffs also fail to show how the administrative record is insufficient to explain the Caltrans Defendants' decisions; they simply argue it is.[7] Plaintiffs do not suggest the Caltrans Defendants relied on any documents that are not in the administrative record, and they have not demonstrated the Caltrans Defendants acted in bad faith. Finally, Plaintiffs have not demonstrated how the declarations might explain any technical terms or complex subject matter. Accordingly, to the extent Plaintiffs' claims are premised upon actions the Caltrans Defendants are alleged to have taken, the Court sustains, in part, the objections to the substance of the declarations.

         Plaintiffs also argue that their claims are premised on the Caltrans Defendants' failure to act, specifically the failure to prepare a supplemental EIS and the failure to engage in consultation. In such cases, “review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record.” Dombeck, 222 F.3d at 560. To the extent that is true, the Court overrules, in part, the Caltrans Defendants' objections. While the Court will consider the declarations, it will do so only where Plaintiffs have cited to particular paragraphs of a declaration in their briefs. See, e.g., Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“As the Seventh Circuit observed in its now familiar maxim, ‘[j]udges are not like pigs, hunting for truffles buried in briefs.'”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (stating that it is not a court's task “to scour the record in search of a genuine issue of triable fact”) (quoting Richards v. Combined Ins. Co. of Amer., 55 F.3d 247, 251 (7th Cir. 1995)).[8]

         If the Court considers a particular paragraph of a declaration, and the Caltrans Defendants have objected on other grounds, such as hearsay or lack of foundation, the Court will address those objections on an individual basis.

         E. The Caltrans Defendants' Waiver Argument.

         The Caltrans Defendants argue the Court should refuse to consider Plaintiffs' motion and find that Plaintiffs waived all arguments by failing to cite to the record and to pertinent legal authority to support their argument. Prior to the hearing, the Court issued a notice of questions stating that it was inclined to deny that request in light of the fact that the parties filed cross-motions for summary judgment.

         In their opening brief, Plaintiffs fail to direct the Court to the factual support for their arguments. In their opposition and reply, they do cite to exhibits to the declarations on which they rely, including exhibits from the administrative records. Plaintiffs do not always explain how the cases they have cited are supportive of their position or fail to support their arguments with legal authority. However, the parties have cross-moved for summary judgment. Therefore, with the exception of the second claim for relief, the Court will stand by its tentative ruling on Plaintiffs' claims under NEPA and the NHPA and will evaluate those claims on the merits, even if it has to engage in some truffle hunting to do so. See Ind. Towers, 350 F.3d at 929.[9]

         Plaintiffs' second claim for relief alleges violations of the Federal Highway Statutes. Plaintiffs do not address the legal standards applicable to those claims and fail to show how the Caltrans Defendants violated those statutes. Accordingly, the Court concludes Plaintiffs have not met their burden to show a violation of those statutes and have ...


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