204 F.Supp.3d 1075
N.D. Cal.2016Background
- Caltrans proposed widening Highway 1 in Pacifica, a project affecting habitat for federally listed California red-legged frogs and San Francisco garter snakes, and sought federal-level environmental approval by standing in for the Federal Highway Administration.
- Caltrans submitted a Biological Assessment (BA) and an Environmental Assessment (EA); the Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) concluding no jeopardy, relying heavily on mitigation: preservation of a 5.14-acre City-owned parcel and enhancement of an adjacent 5.46-acre GGNRA parcel.
- The 5.14-acre parcel was already subject to a prior deed restriction requiring its preservation, so Caltrans could not credibly treat its preservation as a new compensatory mitigation measure.
- The proposed enhancement of the 5.46-acre GGNRA parcel remained conceptual, lacking specific, binding plans or a demonstrated commitment of resources by the National Park Service.
- Plaintiffs (three environmental organizations) sued under the ESA and APA, asserting procedural ESA violations (faulty BA and BiOp), a duty to reinitiate consultation, and various NEPA/CZMA/Section 4(f) claims; the court reviewed administrative records and cross-motions for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability/finality of Caltrans' BA | BA is reviewable as it underlies final federal approval; Caltrans breached ESA §7 by misdescribing project | BA not final agency action or unreviewable pre-decisional material | BA reviewable because Caltrans (as FHWA) issued final environmental approval; BA was arbitrary and capricious |
| Misdescription of mitigation (5.14-acre parcel) | Caltrans misrepresented preservation as project mitigation though parcel was already preserved, invalidating BiOp's net-effects analysis | Preservation would occur regardless; no practical change to species protection | Caltrans' omission of the prior preservation obligation was an important, arbitrary gap — BA and resulting approvals invalid |
| Reliance on speculative mitigation (5.46-acre GGNRA enhancement) | BiOp unlawfully relied on conceptual mitigation lacking specific, binding plans and resource commitments | FWS may rely on agency representations and conditioned approvals can make mitigation binding | BiOp unlawfully relied on speculative mitigation; mitigation lacked required specificity, binding plans, and committed resources — BiOp arbitrary under APA |
| Duty to reinitiate ESA §7 consultation | Revelation that 5.14-acre parcel was not new information requiring reinitiation | Reinitiation premature until project is certain or duty lies only with action agency | Both Caltrans and FWS must reinitiate consultation because new information may affect listed species to an extent not previously considered; duty attaches now despite project uncertainty |
| Injunctive relief to halt project | Plaintiffs seek injunction preventing project until ESA compliance | Defendants argue project unfunded/likely not imminent so injunction unnecessary | Plaintiffs entitled to declaratory relief but not injunctive relief because they failed to show imminent irreparable harm; injunction possible if defendants proceed without remedying ESA violations |
| NEPA / CZMA / §4(f) claims | EA inadequately described project and impacts; CZMA consistency missing; project constructively uses parkland | EA and FONSI were adequate; FHWA approval is a license/permit not a "Federal activity" under CZMA; no constructive use of 4(f) properties | Summary judgment for Caltrans on NEPA, CZMA, and §4(f) claims: EA and FONSI adequate; CZMA provision inapplicable to this form of federal approval; no arbitrary finding of constructive use of parkland |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (establishes role of BiOp and effect of compliance with its terms)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (duty to consult and reinitiation obligations under ESA §7)
- National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (mitigation must be specific, binding, and reasonably certain to occur)
- Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (procedural ESA claims ripe; reinitiation when new information arises)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (requirements for injunctive relief in environmental cases)
- Sierra Club v. Marsh, 816 F.2d 1376 (mitigation relied upon in BiOp may not be reasonably certain and failure to occur undermines approval)
- W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (ESA citizen-suit principles and APA review standard)