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Bair v. California Department of Transportation

United States District Court, N.D. California

June 27, 2019

BESS BAIR, et al., Plaintiffs,
v.
CALIFORNIA STATE DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          ORDER ON REMEDY

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         This order requires Caltrans to prepare an EIS if it still wishes to proceed with the road project through Richardson Grove State Park.

         A previous order detailed the long history of this action (Dkt. No. 107). In brief, various local residents and environmental groups object to a California Department of Transportation proposal aimed at widening Highway 101 where it curves through the Richardson Grove of ancient old-growth redwoods. The project sought to provide extra-long trucks more direct access to Humboldt county.

         The National Environmental Policy Act requires agencies undertaking “major” projects to take a hard look at the project's environmental consequences. 42 U.S.C. § 4332(C). To satisfy this “hard look, ” as our court of appeals has called it, the agency must develop an environmental impact statement, a comprehensive study that rigorously assesses the environmental effects of the project. The underlying regulations, however, permit the agency to delete this requirement if, based on a preliminary “environmental assessment, ” the agency determines that the project would have “no significant impact” on the environment. 40 C.F.R. § 1508.9.

         For the road project in question, after many years of litigation, the Court finds that Caltrans has bent over backwards to fudge the facts to avoid an EIS. In eight years, Caltrans has issued three FONSIs based on three separate EAs. Not one EA or FONSI has withstood scrutiny. Caltrans has never issued an EIS.

         Most recently, in May 2019, an order granted summary judgment in favor of plaintiffs and against Caltrans, finding that the third EA/FONSI had not been fully informed or well-considered (Dkt. No. 107). Specifically, the EA/FONSI glossed over four items. First, Caltrans had not considered the impact of added cement paving directly over the root health zones on the redwoods' oxygen intake. Second, Caltrans had not adequately explained why it defied the California State Parks Handbook not to construct in the root zones of the redwoods. Third, the impact of the noise from the extra long trucks and added traffic on visitor enjoyment of the park remained a mystery. Fourth, no consideration had been given as to the potency of direct strikes to roadside redwoods from these more massive trucks. These issues rendered the agency decision not to prepare an EIS arbitrary and capricious.

         The order requested further briefing to determine the remedy, namely whether to remand for a fourth EA versus order an EIS. Having received this supplemental briefing (Dkt. Nos. 110, 111, 113, 114), this order follows.

         An agency must be required to produce an EIS when there are “substantial questions whether [the] project may have a significant effect.” Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 864-65 (9th Cir. 2005) (citations omitted). The Council on Environmental Quality regulations define significance by context and intensity. 40 C.F.R. 1508.27. To evaluate context, an agency must address the long-term and short-term interests of the locality and society as a whole. 40 C.F.R. § 1508.27(a). To evaluate intensity, an agency must look at the severity of the impact.

         Ten factors define intensity. In some circumstances, the presence of just one factor necessitates an EIS. Ocean Advocates, 402 F.3d at 865. Here, substantial questions exist as to four of these factors. This order therefore holds Caltrans must prepare an EIS.

         1. 40 C.F.R. § 1508.27(b)(3).

         Substantial questions have been raised as to “unique characteristics of the geographic area such as proximity to historic or cultural resources.” 40 C.F.R. § 1508.27(b)(3). Richardson Grove State Park is a unique geographic area. Coastal old-growth redwood trees are exceedingly scarce and the grove is designated as a park because of its unique features. The park hosts some of the last remaining old-growth redwoods in the world. To quote Professor Edward Sturgeon:

One of the most unique tree species in the world, redwood (Sequoia sempervirens (D.Don) (Endl.), is impressive because of the great size and age attained at maturity. The redwood trees are found in a narrow strip of land along this Northern California coast from Monterey County to Oregon. These trees attract tourists and visitors from all the states of the nation and from foreign countries.

(Sturgeon 1964) (2017 AR 1146) (internal citation omitted). These old-growth redwoods can be thousands of years old and 300 feet tall (ibid.). Moreover, “the name ‘Richardson Grove' became synonymous with the redwoods” (Hawk 2004) (2017 AR 1763).

         The project will subject 72 old-growth trees in the park to cuts and fills to their roots in their structural root zones (and 103 old-growth trees in the park in their root health zones). At least two old-growth trees in the park will have over half their root health zones paved over (a third old-growth tree outside the park will also have over half its root health zone paved over). The administrative record establishes there is a substantial question as to whether these two old-growth redwoods can survive such a high percentage of root-zone paving. A ...


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