Federal Challenge

Richardson Grove Project Rescinded!

As of December 2014, there is no Project approval, no certified CEQA document, and no federal NEPA finding, determination, or action. Additional environmental analysis, which may affect the federal document or other environmental determinations or actions, is being undertaken. Caltrans has futhermore represented that it has not taken any “action” that “may affect” an Endangered Species Act listed species or habitat. A California Superior Court injunction prohibits all Project activity that could change or alter the physical environment until the legally-required environmental review is completed. (See Lotus v. Dept. of Transportation).

Without further environmental review, including, without limitation, a final NEPA determination, and Project approval, the Project cannot proceed.

Given these facts and actions by Caltrans and FHWA, there is no final agency action subject to judicial review, and no claims have yet accrued for statute of limitations purposes, and thus are not ripe for adjudication, concerning the review by Caltrans of the environmental effects and/or impacts of the Project. Plaintiffs shall be able to file another legal challenge after the final federal environmental determinations are made, and the Project be at issue.

As a result, the Parties hereby stipulate that this Bair II action may be dismissed without prejudice to the filing of a new action if and when new federal environmental determinations are made and the Project is approved.

Click here to read the order.

November 26, 2014, the FHWA, on behalf of Caltrans, published a “Notice of Rescission of Finding of No Significant Impact, stating, “it has rescinded the Finding of No Significant Impact (FONSI), which was issued on May 18, 2010, and published on December 19, 2011 in the Federal Register, for a proposed highway project on U.S. Route 101 in Humboldt County. The FONSI was also revalidated on January 24, 2014 in the Federal Register.” It further stated that “additional environmental analysis on the project” was required and ” (a) new NEPA finding and any other necessary Federal environmental determinations will be issued consistent with this additional analysis.”

November 19, 2014, Caltrans also submitted its formal rescission of the FONSI to FHWA for posting in the Federal Register.

Caltrans filed a Motion to Dismiss Plaintiffs’ First Amended Complaint.

November 17, 2014, Caltrans formally withdrew the existing FONSI and published notice of the withdrawal with the State Clearinghouse.

October 21, 2014, in the state Lotus v. California State Dept. of Transportation, action, Humboldt County Superior Court Case, the Court entered a Judgement and a Writ ordering Caltrans to set aside Project approval and certification of the state Environmental Impact Report, and enjoining all Project-related activities that could result in change or alteration of the physical environment until Caltrans performs additional environmental analysis.

October 8, 2014, Plaintiffs filed their First Amended Complaint.

July 28, 2014, Plaintiffs filed the subject action against Caltrans in Bair v. California Dept. of Transportation.

June 26, 2014, Caltrans rescinded its approval of the Project and posted public notice of the rescission with the California State Clearinghouse. Caltrans rescinded its FONSI and submitted formal notice of rescission for publication in the Federal Register later in November 2014.

February 26, 2014, following the Caltrans decision that the FONSI remained valid, the FHWA, on behalf of Caltrans, published a “Notice of Statute of Limitations on Claims; Notice of Final Federal Agency Actions on Proposed Highway in California,” providing a time period of 150 days in which claims relating to actions described in the Final EA, FONSI, Re-Validation, and other FHWA project records could be brought.

January 30, 2014, the California Court of Appeal reversed the Superior Court’s decision in the related State Court case, Lotus v. State of California Department of Transportation, granting Plaintiffs’ petition for writ of mandate.

January 24, 2014, Caltrans issued a NEPA/CEQA Re-validation/Re-evaluation finding that, upon consideration of the Supplement, the original May 18, 2010 FONSI remained valid.

September 18, 2013, Caltrans issued a Supplement to the Final EA. Caltrans took public comment on the Supplment from September to October, 2013. On January 23, 2014, Caltrans published responses to public comments concerning the Supplement.

April 4, 2012, Federal Judge Alsup unambiguously rebuked Caltrans for failing to take a hard look at the environmental impacts of its proposed project through Richardson Grove. He found that Caltrans’ analysis was “based off of false data,” and thus its results “so implausible that they could not be ascribed to a difference in view or the product of agency expertise.” Accordingly, he ordered Caltrans to “correct the data inaccuracies … and assess the impacts of the project through the lens of a corrected analysis.” In doing so, he specifically ordered Caltrans to “set forth the environmental issues to each one” the 79 old-growth redwoods in the project’s path. He further warned, “Caltrans should give serious consideration to the other significant arguments made by plaintiffs in their motion.” The court granted Plaintiffs’ Motion for Summary Judgement in part and remanded the action to Caltrans to “prepare a revised EA and record in accordance with the instructions (in the Court’s Order).

February 24, 2012, Judge Alsup ordered U.S. District Court Judge Nador Vadas, a federal judge who presides over cases in Eureka, to conduct a site visit and supervise the measuring of specific redwood trees. The findings of the site visit are to be submitted by noon on March 19, according to the order.

February 23, 2012, hearing for the Federal Summary Judgement at the San Francisco Federal Court, room #8, 19th floor, with the Honorable William Alsup, 2pm.

December 19, 2011, the FHWA, on behalf of Caltrans, published a “Notice of Final Federal Agency Actions on Proposed Highway in California,” stating that there was a time period of 180 days in which claims relating to the Final EA, the FONSI, and other approvals could be bought.

December 6, 2011, attorneys for EPIC and plaintiffs filed a motion for summary judgment in federal court.  This filing is an important step in the process that will lead to the summary judgment hearing in the federal court in San Francisco on February 23, 2012.

The motion and supporting memorandum explain the precise legal claims against Caltrans, and illuminates the failure of the agency to follow this nation’s bedrock environmental laws.  EPIC and the plaintiffs request that the court declare Caltrans in violation of laws, and direct the agency to re-examine the Highway 101 widening project through Richardson Grove State Park.  Caltrans’ project threatens irreplaceable and rare majestic old-growth redwoods at risk of significant and, in fact, mortal impacts, while also potentially causing several other significant environmental impacts within the state protected area. The law requires, and the people of California and the nation as a whole deserve, that Caltrans undertake a complete analysis of the Project’s impacts.

July 7, 2011, Federal Judge Alsup granted a preliminary injunction that stopped the project until legal proceedings are completed.

The court’s decision centers on the controversial project’s potentially fatal damage to the prized ancient trees, as well as harm to sensitive wildlife. The plaintiffs charged that Caltrans failed to evaluate impacts of the project in violation of environmental laws such as the National Environmental Policy Act. Those arguments were recognized as valid in the court’s decision granting the injunction. The federal lawsuit accompanies a California state action also filed by the coalition.

May 25, 2011, plaintiffs in the lawsuit asked a federal judge to stop Caltrans from moving ahead with the controversial highway project until legal proceedings are complete.

Joe McBride, a professor of forestry and landscape architecture at the University of California at Berkeley found, “Substantial, irreparable damage would occur to the trees in the project area. This would, in turn, cause negative impacts to the overall health of the forest.”

Click the links below to view the Original Documents:

September 27, 2010, some of the Plaintiffs filed an action against Caltrans in Bair v. California State Dept. of Transportation, challenging Caltrans’ May 18, 2010 Final EA, FONSI, and Project approvals.

June 17, 2010, a coalition of conservation groups, the Environmental Protection Information Center, the Center for Biological Diversity, and Californians Alternatives to Toxics, along with local residents filed a federal lawsuit to protect the ancient redwoods in Richardson Grove State Park from Caltrans’ ill-conceived plan to widen Highway 101. The Cotchett, Pitre & McCarthy law firm, including the inspiration of Pete McCloskey, former US Congressman and veteran environmental advocate are providing pro-bono services.

The legal challenge claims that Caltrans has failed to evaluate impacts of the project in violation of the National Environmental Policy Act and the Wild and Scenic Rivers Act.

May 18, 2010, Caltrans issued a Final Environmental Assessment (Final EA) and adopted a Finding of No Significant Impact (FONSI) for and approved the Richardson Grove Operational Improvement Project (the Project). Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and Caltrans assumed, environmental responsibility for the Project.

 

Click here to read the order.

 

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