Pacificans for a Scenic Coast et al v. Federal Highway Administration et al
Filing
114
ORDER granting in part and denying in part 99 motion for summary judgment; denying 101 cross-motion for summary judgment; granting in part and denying in part 102 cross-motion for summary judgment. (vclc3S, COURT STAFF) (Filed on 9/2/2016)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PACIFICANS FOR A SCENIC COAST, et
al.,
Plaintiffs,
Case No. 15-cv-02090-VC
ORDER ON SUMMARY JUDGMENT
v.
Re: Dkt. Nos. 99, 101, 102
CALIFORNIA DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.
INTRODUCTION
The California Department of Transportation has proposed widening part of Highway 1
in Pacifica, a coastal city south of San Francisco. The area in and around the proposed
construction site includes habitat for California red-legged frogs and San Francisco garter
snakes, both of which are listed species under the Endangered Species Act. Section 7 of the
Endangered Species Act thus required Caltrans to consult with the Fish and Wildlife Service to
ensure that the project would not jeopardize these listed species or their critical habitat. As part
of this consultation, Caltrans gave the Fish and Wildlife Service a Biological Assessment that
described the project. The Biological Assessment proposed preserving a 5.14-acre parcel owned
by the City of Pacifica, to offset negative effects that widening Highway 1 would have on snake
and frog habitat. Relying heavily on this mitigation measure, the Fish and Wildlife Service
issued a Biological Opinion signing off on Caltrans' project. The Biological Opinion also relied
on a related mitigation measure, in which Caltrans proposed enhancing a nearby 5.46-acre parcel
in the National Park Service's Golden Gate National Recreation Area.
Unfortunately, Caltrans gave bad information to the Fish and Wildlife Service. The
proposed project could not actually have included a commitment to preserve the City of
Pacifica's 5.14-acre parcel, because the City already had a legal obligation to preserve that same
parcel. As a result, the Fish and Wildlife Service's assessment of the net effects of the highwaywidening and its accompanying mitigation measures was inherently flawed. Moreover, the other
major mitigation measure on which the Fish and Wildlife Service's Biological Opinion relied
(enhancement of the 5.46-acre parcel) was too vague and speculative. For these reasons, the
Caltrans and the Fish and Wildlife Service violated the procedural requirements of Endangered
Species Act. Relatedly, because the revelation that the 5.14-acre parcel was already preserved
suggests Caltrans' project may affect listed species or their critical habitat to an extent not
previously considered by the Fish and Wildlife Service, Caltrans and the Fish and Wildlife
Service are required to reinitiate consultation under the Endangered Species Act.
BACKGROUND
First, a few more words about the area around the proposed construction site. The stretch
of Highway 1 to be widened sits, in part, between two units of the National Park Service's
Golden Gate National Recreation Area – Mori Point (on the coast to the west) and Sweeney
Ridge (inland to the east). To the north of the GGNRA property at Mori Point lies Sharp Park
Golf Course. Wetlands near Sharp Park are home to existing populations of California redlegged frogs and San Francisco garter snakes. The City of Pacifica has a wastewater treatment
plant south of the GGNRA property at Mori Point, just west of Highway 1. To the west of the
wastewater treatment plant lies a 5.14-acre parcel also owned by the City. This 5.14-acre parcel
will be relevant later, because Caltrans proposed preserving it to make up for harm that widening
Highway 1 would cause to snake and frog habitat. Caltrans also proposed enhancing a 5.46-acre
GGNRA parcel, stretching north in a narrow corridor from the 5.14-acre City property towards
Sharp Park, to make it more attractive snake and frog habitat. This would apparently encourage
snakes and frogs to move between the preserved 5.14-acre parcel and their habitat near Sharp
Park.
2
Caltrans plays two roles with respect to the proposed project. Most obviously, as a state
transportation agency, Caltrans is responsible for planning and implementing the actual widening
of Highway 1. But Caltrans has also assumed certain responsibilities of the Federal Highway
Administration, which is an entity of the federal Department of Transportation. Federal law
allows the Department of Transportation to assign its duties under federal environmental laws to
state agencies, 23 U.S.C. § 327(a)(2)(A)-(B), and accordingly the Federal Highway
Administration assigned its federal environmental-law duties to Caltrans. Because Caltrans
stands in the shoes of the Federal Highway Administration for purposes of federal environmental
law, Caltrans is subject to statutes – for example, section 7 of the Endangered Species Act and
the Administrative Procedure Act – that only apply to federal agencies. Caltrans' highway
widening project relies on funding or approval from the Department of Transportation, so the
Federal Highway Administration (that is, Caltrans performing the role of the Federal Highway
Administration) is required to certify that the project complies with relevant federal
3
environmental laws.
Consistent with the obligations it assumed from the Federal Highway Administration,
Caltrans evaluated whether widening Highway 1 was consistent with numerous federal
environmental laws. In particular, under section 7 of the Endangered Species Act, Caltrans
engaged in formal consultation with the Fish and Wildlife Service about the project's effects on
listed species and their critical habitat. After Caltrans gave the Fish and Wildlife Service a
Biological Assessment describing the project, the Fish and Wildlife Service produced a
Biological Opinion concluding that the project Caltrans had described would not jeopardize
listed species. Caltrans also prepared a separate Environmental Assessment and, consistent with
the National Environmental Policy Act, made a "Finding of No Significant Impact" – obviating
the need to prepare a full Environmental Impact Statement. Ultimately, Caltrans announced
(again, standing in the shoes of the Federal Highway Administration), that the project had been
approved under the Endangered Species Act, the National Environmental Policy Act, section 4(f)
of the Department of Transportation Act, and other environmental laws. Notice of Final Federal
Agency Actions on Proposed Highway in California, 79 Fed. Reg. 73,390, 73,391 (Dec. 10,
2014).
Three organizational plaintiffs – Pacificans for a Scenic Coast, Pacificans for Highway 1
Alternatives, and the Center for Biological Diversity – now oppose Caltrans' project in this
litigation. Pacificans for a Scenic Coast works "to protect, preserve, and restore the scenic
coastal environs within the City of Pacifica and beyond." Dkt. No. 99-2, Loeb decl., ¶9.
Pacificans for Highway 1 Alternatives exists specifically to oppose Caltrans' proposed widening
of Highway 1. Dkt. No. 99-3, Shoemaker decl., ¶7. The Center for Biological Diversity is an
environmentalist group that works "to protect endangered species and wild places through
science, policy, education, and environmental law." Complaint ¶15. Together, these plaintiffs
have brought seven claims against Caltrans and the Fish and Wildlife Service: three Endangered
Species Act claims against Caltrans (their first, second, and third claims), an Administrative
Procedure Act claim against the Fish and Wildlife Service that is predicated on alleged violations
4
of the Endangered Species Act (their fifth claim), and three Administrative Procedure Act claims
against Caltrans (their fourth, sixth and seventh claims). These last three APA claims against
Caltrans are predicated on violations of the National Environmental Policy Act, the Coastal Zone
Management Act, and section 4(f) of the Department of Transportation Act, respectively.1
The plaintiffs' Endangered Species Act claims against Caltrans and their APA claim
against the Fish and Wildlife Service are all conceptually related. In their first claim, the
plaintiffs allege that Caltrans breached its section 7 duty to consult adequately with the Fish and
Wildlife Service, because (among other things) Caltrans' Biological Assessment did not
accurately describe the proposed project. The plaintiffs' fifth claim alleges that, in part because
of these flaws in the information that Caltrans gave the Fish and Wildlife Service, the Service
produced an invalid Biological Opinion. Separately, the plaintiffs' third and fifth claims allege
that both Caltrans and the Fish and Wildlife Service are required to reinitiate section 7
consultation, because new information has come to light about the project and its net
environmental effects since the Biological Opinion was completed. And the plaintiffs' second
claim alleges that these procedural violations threaten to cause substantive harm to listed species
and their habitat.
LEGAL FRAMEWORK
I.
ENDANGERED SPECIES ACT-RELATED CLAIMS
Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), gives rise to two
separate obligations. Procedurally, section 7 requires federal agencies authorizing, funding, or
carrying out actions that may affect listed species or their critical habitat – so-called "action
agencies" – to engage in consultation with either the Fish and Wildlife Service (which
administers the Endangered Species Act with respect to terrestrial and freshwater species) or the
National Marine Fisheries Service (which administers the Endangered Species Act with respect
to marine species). Substantively, the action agency has an obligation to ensure that its action
1
Each of the plaintiffs' claims against Caltrans is also brought against its director, Malcolm
Dougherty. For convenience, this ruling will describe these claims as claims against "Caltrans."
5
will not jeopardize a listed species or its critical habitat. See Salmon Spawning & Recovery All.
v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008).
Since most of the plaintiffs' Endangered Species Act-related claims concern the
procedural duty to consult with the Fish and Wildlife Service, it is worth briefly outlining how
the section 7 consultation process works. Although consultation can sometimes be completed
informally, see 50 C.F.R. § 402.13, many proposed agency actions – like Caltrans' project in this
case – require "formal" consultation. In formal consultation, the action agency (here, Caltrans)
typically provides the Fish and Wildlife Service with a Biological Assessment, which
"evaluate[s] the potential effects of the action on listed and proposed species and designated and
proposed critical habitat." Id. § 402.12(a). In practice, the Biological Assessment typically also
includes a wide range of other information – for example, "[a] description of the action to be
considered" and "[a] description of the specific area that may be affected by the action" – that the
action agency is required to share with the Fish and Wildlife Service under 50 C.F.R. 402.14(c).
After reviewing the action agency's Biological Assessment, the Fish and Wildlife Service
prepares a Biological Opinion. The Biological Opinion is "a written statement setting forth the
[Fish and Wildlife Service's] opinion, and a summary of the information of the information on
which it is based, detailing how the agency action affects the species or its critical habitat." 16
U.S.C. § 1536(b)(3)(A). If the Biological Opinion concludes that the action agency's proposed
project will not jeopardize a listed species or adversely modify a listed species' habitat, no
modification of the project is necessary. Otherwise, the Biological Opinion will suggest
"reasonable and prudent alternatives" to the project that would be consistent with the action
agency's substantive obligation to avoid jeopardizing a listed species or adversely modifying
critical habitat. Id.
The Biological Opinion serves as the Fish and Wildlife Service's de facto approval of the
action agency's proposed project. "The action agency is technically free to disregard the
Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that
of its employees), for 'any person' who knowingly 'takes' an endangered or threatened species is
6
subject to substantial civil and criminal penalties, including imprisonment." Bennett v. Spear,
520 U.S. 154, 170 (1997) (citing 16 U.S.C. § 1540(a)-(b)). The Endangered Species Act's
prohibition on "take" of a listed species includes a wide range of conduct, including mere "harm"
to a listed species, 16 U.S.C. § 1532(19), so proceeding without the protection of a Biological
Opinion is a very risky proposition. Conversely, if the action agency proceeds in accordance
with a valid Biological Opinion (including an accompanying document called an Incidental Take
Statement), it is immunized from criminal and civil liability for "taking" listed species, because
"any taking that is in compliance with the terms and conditions specified in a [Biological
Opinion] shall not be considered to be a prohibited taking of the species concerned." 16 U.S.C.
§ 1536(o)(2) (emphasis added).
Formal consultation ends when the Fish and Wildlife Service issues its Biological
Opinion. 50 C.F.R. § 402.14(l)(1). Events after the issuance of a Biological Opinion, however,
can trigger a duty to reinitiate formal consultation. Id. § 402.16. Most relevant here, agencies
must reinitiate consultation "[i]f new information reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent not previously considered." Id.
§ 402.16(b).
Private plaintiffs can enforce the Endangered Species Act through a citizen-suit
provision. 16 U.S.C. § 1540(g)(1). Notwithstanding this provision, Endangered Species Act
claims challenging the Fish and Wildlife Service's enforcement of the Act must be brought under
the Administrative Procedure Act. Bennett, 520 U.S. at 174-77. But lawsuits to enforce the
Endangered Species Act can be brought directly "against regulated parties—both private entities
and Government agencies," id. at 173, so other government agencies can be sued directly under
the Act's citizen-suit provision, W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495–96
(9th Cir. 2011). In fact, because the Administrative Procedure Act applies only where "there is
no other adequate remedy in a court," 5 U.S.C. § 704, Endangered Species Act claims against
other government agencies must be brought directly under the Act's citizen-suit provision, rather
than the APA. Kraayenbrink, 632 F.3d at 497. Nevertheless, even when a claim is brought
7
directly under the Endangered Species Act's citizen-suit provision, the APA's "arbitrary and
capricious" standard of review applies. Id. at 496.
II.
OTHER CLAIMS
The plaintiffs also bring claims under the National Environmental Policy Act, the Coastal
Zone Management Act, and section 4(f) of the Department of Transportation Act. Unlike the
Endangered Species Act, these statutes do not contain their own citizen-suit provisions, so the
plaintiffs can only bring these claims under the APA.
"The National Environmental Policy Act has twin aims. First, it places upon a federal
agency the obligation to consider every significant aspect of the environmental impact of a
proposed action. Second, it ensures that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking process." Kern v. U.S. Bureau of Land
Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002). "NEPA does not contain substantive environmental
standards," but instead creates "procedures that require agencies to take a 'hard look' at
environmental consequences." Id. In particular, the agency must prepare a document called an
Environmental Assessment – "a concise public document" that, relevant here, "[b]riefly
provide[s] sufficient evidence and analysis for determining whether" a project will have
significant environmental impacts. 40 C.F.R. § 1508.9(a). If the Environmental Assessment
reveals that a project will have significant environmental impacts, the agency is required to
prepare a more elaborate document called an Environmental Impact Statement. Kern, 284 F.3d
at 1067; see 40 C.F.R. § 1501.4. "If the [Environmental Assessment] reveals no significant
effect, the agency may issue a Finding of No Significant Impact" instead. Kern, 284 F.3d at
1067.
The Coastal Zone Management Act requires federal agencies taking action that affects a
state's "coastal zone" to work to ensure that their actions are consistent with the state's own plan
for managing its coastal zone. Section 4(f) of the Department of Transportation Act prohibits the
Department of Transportation from approving most transportation projects that "use" public
parkland, unless the Secretary of Transportation certifies that "there is no prudent and feasible
8
alternative to using that land" and the project "includes all possible planning to minimize harm to
the park[land]." 49 U.S.C. § 303(c).
DISCUSSION
I. ENDANGERED SPECIES ACT-RELATED CLAIMS
A.
The Biological Assessment and Biological Opinion
The plaintiffs contend that the Biological Assessment that Caltrans submitted to the Fish
and Wildlife Service did not accurately describe Caltrans' proposed project. And they contend
that because Fish and Wildlife Service relied on the faulty Biological Assessment to craft its
Biological Opinion, the Biological Opinion is invalid.
1. Caltrans' Biological Assessment
a. Final Agency Action
Caltrans suggests in passing that its Biological Assessment is not reviewable because a
Biological Assessment is not final agency action. In making this argument, Caltrans assumes
that the APA's "final agency action" requirement applies to claims brought directly under the
Endangered Species Act's citizen-suit provision. Some courts have made the same assumption.
See, e.g., Or. Nat'l Desert Ass'n v. Tidwell, 716 F. Supp. 2d 982, 995 (D. Or. 2010). But there is
some reason to doubt whether this assumption is correct. The APA's "final agency action"
requirement is a product of that statute, 5 U.S.C. § 704, and claims brought under the
Endangered Species Act's citizen-suit provision are not subject to the APA, Kraayenbrink, 632
F.3d at 495–97, so there is no obvious reason that claims brought under the Endangered Species
Act's citizen-suit provision should be subject to the APA's "final agency action" requirement.
Therefore, it may be that the APA's "final agency action" requirement does not apply in
Endangered Species Act citizen-suit cases. See Forest Serv. Emps. for Envtl. Ethics v. U.S.
Forest Serv., 397 F. Supp. 2d 1241, 1255 (D. Mont. 2005); Nat'l Wildlife Fed'n v. Fed.
Emergency Mgmt. Agency, 345 F. Supp. 2d 1151, 1160 (W.D. Wash. 2004); Inst. For Wildlife
Prot. v. Norton, 303 F. Supp. 2d 1175, 1180 (W.D. Wash. 2003), aff'd, 149 F. App'x 627 (9th
Cir. 2005) (unpublished).
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But even if Endangered Species Act citizen suits were subject to the APA's "final agency
action" requirement, Caltrans' Biological Assessment would be reviewable. Under the APA's
"final agency action" requirement, "[a] preliminary, procedural, or intermediate agency action or
ruling not directly reviewable is subject to review on the review of the final agency action." 5
U.S.C. § 704. In other words, even under the APA's "final agency action" requirement, Caltrans'
Biological Assessment could be included in review of any final agency action stemming from it.
And for reasons that will become clear in a moment, Caltrans has taken final agency action
stemming from the Biological Assessment.
Recall that Caltrans plays two roles with respect to the proposed project. Caltrans, acting
on its own behalf as a state transportation agency, is responsible for widening Highway 1.
Separately, Caltrans – acting on behalf of the Federal Highway Administration – is responsible
for approving Caltrans' widening of Highway 1, for purposes of federal environmental laws. The
fact that Caltrans has assumed the role of the Federal Highway Administration (a federal agency)
is the reason that Caltrans is subject to Endangered Species Act section 7 (which applies only to
federal agencies) in the first place: having assumed the role of the Federal Highway
Administration, Caltrans has an obligation to ensure that any action "authorized" or "funded" by
the Federal Highway Administration complies with the Endangered Species Act. 16 U.S.C.
§ 1536(a)(2). When it comes to Caltrans' obligations under section 7, the relevant action agency
is Caltrans in its capacity as the Federal Highway Administration, not Caltrans in its capacity as
Caltrans.
In its capacity as the Federal Highway Administration, Caltrans has taken final agency
action stemming from the Biological Assessment: it gave final environmental approval to the
project. Notice of Final Federal Agency Actions on Proposed Highway in California, 79 Fed.
Reg. 73,390 (Dec. 10, 2014). This includes approval under the Endangered Species Act. Id. at
73,391. And consistent with the Federal Register notice's self-description as "final" agency
action, this environmental approval is undoubtedly "final" within the meaning of the APA. It
"mark[s] the consummation of the agency's decisionmaking process," Bennett, 520 U.S. at 178,
10
in that it marks the Federal Highway Administration's (that is, Caltrans-as-the-Federal Highway
Administration's) final decision that authorizing or funding the project is consistent with federal
environmental laws. And the environmental approval is obviously an act from which "legal
consequences will flow," id., because it allows the Federal Highway Administration (again,
Caltrans in the role of the Federal Highway Administration) to authorize and fund Caltrans'
project. In fact, if the plaintiffs had not challenged Caltrans' environmental approval by May 11,
2015, any challenge to the project under the relevant environmental laws would likely have been
time-barred. 79 Fed. Reg. at 73,391; see 23 C.F.R. § 771.139.
Of course, Caltrans still has other action it needs to take in its capacity as a state
transportation agency. In particular, Caltrans would need to obtain three permits (from the
California Coastal Commission, the Regional Water Quality Control Board, and the City of
Pacifica) and funding from two sources (the San Mateo County Transportation Authority and the
State Transportation Improvement Program) before it could widen Highway 1. Final
Environmental Impact Report/Environmental Assessment, vol. 1, lxxxiii (Caltrans AR 523). But
these contingencies don't detract from the finality of the Federal Highway Administration's (that
is, Caltrans-as-the-Federal Highway Administration's) approval of construction under federal
environmental laws. Caltrans, having granted environmental approval to the project, has already
done everything it needs to do in its capacity as the Federal Highway Administration.
b. Merits
The plaintiffs identify several alleged discrepancies between the project Caltrans
described in the Biological Assessment and the project Caltrans described in other documents
after the Biological Assessment was submitted. Not "every modification of or uncertainty in a
complex and lengthy project" implicates the Endangered Species Act. Conservation Cong. v.
Finley, 774 F.3d 611, 619 (9th Cir. 2014). And most of the discrepancies (to the extent they are
real at all) are inconsequential, and do not amount to a violation of the Endangered Species Act.
Nevertheless, one discrepancy – concerning whether Caltrans' project includes a proposed
mitigation measure to offset adverse effects on listed species and their habitat – is significant
11
enough to fatally undermine the Biological Assessment.
Caltrans' Biological Assessment recognized that widening Highway 1 would have
adverse impacts on habitat for California red-legged frogs and San Francisco garter snakes: 6.61
acres would be "permanently impacted" (and apparently destroyed), and an additional 2.95 acres
would "be temporarily impacted during construction activities." Biological Assessment at 73
(Caltrans AR 2888). "To offset these impacts," id., the Biological Assessment "propose[d]
compensatory mitigation." Id. at xvi (Caltrans AR 2799). It explained that, as part of the
project, "[a]n approximately 5.14-[acre] site owned by the City of Pacifica will be preserved in
perpetuity." Id. This 5.14-acre parcel, west of the City's wastewater treatment plant, is adjacent
to a 5.46-acre parcel in the National Park Service's Golden Gate National Recreation Area. The
5.46-acre GGNRA parcel, which forms a narrow corridor stretching north from the 5.14-acre
parcel, would be "enhanced" to make it more attractive habitat for frogs and snakes, and would
connect the frog and snake habitat on the preserved 5.14-acre parcel to other frog and snake
habitat – home to populations of snakes and frogs – near Sharp Park Golf Course to the north.
The Fish and Wildlife Service's Biological Opinion relied significantly on the Biological
Assessment's description of Caltrans' proposed mitigation. The Biological Opinion described
ways in which widening Highway 1 "will likely adversely affect the California red-legged frog
and San Francisco garter snake," Biological Opinion at 23 (FWS AR 515), and determined "that
the permanent and temporary loss and/or degradation of California red-legged frog and San
Francisco garter snake habitat is likely to result in take of individuals within the action area," id.
at 25 (FWS AR 517). Nevertheless, the Biological Opinion was satisfied that "Caltrans has
proposed a habitat compensation measure to minimize the effects of harm . . . by preserving 5.14
acres in a conservation easement and enhancing 5.46 acres of habitat adjacent to the action area."
Id.
But contrary to Caltrans' Biological Assessment, preservation of the 5.14-acre parcel
could not be considered a new mitigation measure that was part of the project: the City of
Pacifica, which owns the parcel, was already required to preserve it for reasons outside the scope
12
of Caltrans' project. In 1996, the City sought a permit from the California Coastal Commission
to build a wastewater treatment plant between the 5.14-acre parcel and Highway 1. The
California Coastal Commission issued the permit, but imposed a condition (in the form of a deed
restriction) that the City forever preserve an area that included the 5.14-acre parcel. Dkt. No. 869 at 1-7; Dkt. No. 86-5 at 5; see also Caltrans AR 9133.
Caltrans argues that this does not matter, because the 5.14-acre parcel will be preserved
no matter what – either as part of its own project, or under the City of Pacifica's prior obligation.
But, as the Fish and Wildlife Service (the expert agency) agreed at oral argument, a Biological
Opinion assesses the net effect of the overall project, which includes not only adverse effects but
also mitigation measures designed to offset them. If a mitigation measure is not actually part of
the project, the net effect of the project changes. If a benefit is not actually being provided to
offset a cost (because the benefit would exist regardless), then the overall cost of the project is
higher than assumed. In other words, the project description that Caltrans gave the Fish and
Wildlife Service would not be accurate unless the parcel were preserved as part of Caltrans' own
project, because "[the] description of the action to be considered," 50 C.F.R. § 402.14(c)(1),
"includes any conservation measures proposed as part of the action," U.S. FISH & WILDLIFE
SERV. & NAT'L MARINE FISHERIES SERV., ENDANGERED SPECIES CONSULTATION HANDBOOK:
PROCEDURES FOR CONDUCTING CONSULTATION AND CONFERENCE ACTIVITIES UNDER SECTION 7
OF THE ENDANGERED SPECIES ACT
4-19 (1998).
This is borne out by the language of the documents in this case. Both the Biological
Assessment and the Biological Opinion relied not only on the fact that the 5.14-acre parcel
would be preserved, but also on the assumption that preservation of the parcel would be a new
benefit. The Biological Assessment describes preservation of the parcel as "compensatory,"
Biological Assessment at xvi (Caltrans AR 2799), "[t]o offset" the project's other negative
effects, id. at 73 (Caltrans AR 2888). The Biological Opinion, likewise, described preservation
of the parcel as "compensation" for other adverse impacts. Biological Opinion at 25 (FWS AR
517). Preservation of the 5.14-acre parcel was supposed to be a new, positive effect that the
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project would have on listed species and their habitat, to make up for the project's other, negative
effects.
It bears repeating that these are procedural claims, not substantive ones. The purpose of a
procedural claim under the Endangered Species Act is not to measure the actual effect of a
proposed action on a species or its habitat, but to make sure that the agencies' decision-making
process on that question was not arbitrary and capricious. It may well be that the Fish and
Wildlife Service could re-analyze Caltrans' project with the understanding that the 5.14-acre
parcel is already preserved, and still come to a similar conclusion about the project's overall
effects on listed species. But Caltrans' project description was arbitrary and capricious because it
ignored "an important aspect of the problem" – the fact that the 5.14-acre parcel was already
preserved. Kraayenbrink, 632 F.3d at 493. This resulted in a faulty Biological Opinion, which
in turn resulted in an invalid approval of the project under the Endangered Species Act by
Caltrans (standing in the shoes of the Federal Highway Administration). The plaintiffs are
therefore entitled to a declaration that Caltrans breached its procedural obligations under section
7 of the Endangered Species Act.
2. The Fish and Wildlife Service's Biological Opinion
A harder question is whether the Fish and Wildlife Service's Biological Opinion also
violates the procedural requirements of the Endangered Species Act (and therefore the APA). In
other words, it is clear that the Biological Opinion has been rendered useless by the bad
information upon which it relied, but did the Fish and Wildlife Service also violate the
Endangered Species Act by issuing it? The Fish and Wildlife Service takes the position that "the
Service, as the consulting agency, is 'entitled to rely upon the official representations' of Caltrans
as set forth in its biological assessment," at least where Caltrans' description of its proposed
action is concerned. That makes some sense. Unlike the Fish and Wildlife Service, the action
agency has complete knowledge of and control over its proposed project. The action agency also
bears the risk of significant inaccuracies in its project description: if the action agency undertakes
a project other than the one described in the Biological Opinion, it exposes itself to significant
14
civil and criminal liability under the Endangered Species Act. See Bennett, 520 U.S. at 170.
Thus, as a general matter, it seems likely that Fish and Wildlife Service should be able to rely on
the action agency's description of its proposed project, including any proposed mitigation
measures, at least so long as the Service is not on clear notice that the information is wrong. See
Defs. of Wildlife v. U.S. Fish & Wildlife Serv., No. 16-cv-01993-LHK, 2016 WL 4382604, at *18
(N.D. Cal. Aug. 17, 2016).
But even if the Fish and Wildlife Service could rely on Caltrans' proposed preservation of
the 5.14-acre parcel, there is a separate problem with the mitigation measures the Biological
Opinion approved. A Biological Opinion may not rely on proposed mitigation measures "absent
specific and binding plans" for those mitigation measures. Nat'l Wildlife Fed'n v. Nat'l Marine
Fisheries Serv., 524 F.3d 917, 936 (9th Cir. 2008). This requires "a clear, definite commitment
of resources" toward those mitigation measures. Id. Mitigation measures that "are conceptual in
nature only" do not qualify. Ctr. for Biological Diversity v. Salazar, 804 F. Supp. 2d 987, 1002
(D. Ariz. 2011) (Tashima, J.). Here, the Biological Opinion relied on a proposed mitigation
measure – enhancement of the 5.46-acre GGNRA parcel – that was admittedly "conceptual."
Caltrans' Biological Assessment told the Fish and Wildlife Service that "GGNRA staff has
approved this mitigation proposal in concept" only, and that "details will need to be worked out
to reach an agreement on the mitigation plan with the [National Park Service] and develop an
enhancement plan." Biological Assessment at 73 (Caltrans AR 2888).
The Fish and Wildlife Service argues that the plans to enhance the 5.46-acre GGNRA
parcel were sufficiently "binding" because the Biological Opinion itself conditioned its approval
of Caltrans' project on the project's proposed mitigation measures. There are a few problems
with this argument. First, even if the plan to enhance the 5.46-acre parcel were "binding," it is
still not clear (given its conceptual nature and conceded lack of detail) that it could be
sufficiently "specific." Second, the purportedly "binding" nature of the proposed mitigation
measure stems from their inclusion in the terms and conditions implementing the "reasonable
and prudent alternatives" required by the Biological Opinion's Incidental Take Statement. See
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Biological Opinion at 29 (FWS AR 521). In fact, however, it is not clear that the Fish and
Wildlife Service should have included the proposed mitigation in the Incidental Take Statement
at all. "[O]nly those measures that minimize a project's incidental takings are properly included
in an Incidental Take Statement's terms and conditions." Ctr. for Biological Diversity v. U.S.
Bureau of Land Mgmt., 698 F.3d 1101, 1114 n.9 (9th Cir. 2012) (emphasis in original). "[T]he
objective of the incidental take analysis under section 7 is minimization, not mitigation," which
means that, "[i]f the conservation measure only protects off-site habitat and does not minimize
impacts to affected individuals in the action area, the beneficial effects of the conservation
measure are irrelevant to the incidental take analysis." ENDANGERED SPECIES CONSULTATION
HANDBOOK 4-19. Here, the point of enhancing the 5.46-acre GGNRA parcel was not to
minimize harm to snakes and frogs within Caltrans' construction site, but to compensate for harm
within Caltrans' construction site by creating a new benefit outside it.
Third, it seems doubtful that a Biological Opinion's Incidental Take Statement can create
"binding" commitments in the sense that the Ninth Circuit requires. The purpose of requiring
"binding plans" for mitigation measures is to ensure that they are "reasonably certain to occur."
Nat'l Wildlife Fed'n, 524 F.3d at 936 & n.17. This suggests that mitigation plans should be
"binding" on the agency that would actually need to implement them, not merely on the action
agency. The Ninth Circuit's decision in Sierra Club v. Marsh is instructive. In Marsh, as here,
the proposed mitigation was "one of several 'reasonable and prudent alternatives' that the FWS
found necessary to minimize the project's effects." 816 F.2d 1376, 1388 (9th Cir. 1987),
abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), and
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), as recognized in Cottonwood
Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088-91 (9th Cir. 2015). But this was not
enough to make a proposed mitigation measure reasonably certain to occur: the proposed
mitigation measure in Marsh did not, in fact, occur. See 816 F.2d at 1380-81, 1386-89.
Finally, even if the plan to enhance the 5.46-acre GGNRA parcel were otherwise
sufficiently "binding" and "specific," it would still have needed "a clear, definite commitment of
16
resources." Nat'l Wildlife Fed'n, 524 F.3d at 936. There is no evidence that the National Park
Service has committed any resources to enhancement of the 5.46-acre parcel. On the contrary,
Caltrans and the National Park Service still need to "reach an agreement on the mitigation plan"
and "develop an enhancement plan." Biological Assessment at 73 (Caltrans AR 2888). In the
absence of any concrete plan for the enhancement of the GGNRA parcel, it seems unlikely that
the National Park Service has secured the approval or funding that "a clear, definite commitment
of resources" requires.
If "agencies lack the power to guarantee the improvements in question," then "the proper
course is to exclude them from the analysis and consider only those actions that are in fact under
agency control or otherwise reasonably certain to occur." Nat'l Wildlife Fed'n, 524 F.3d at 936
n.17. Because the Biological Opinion relied on a vague and speculative mitigation measure that
was not under Caltrans' control, it violated the Endangered Species Act. The plaintiffs are
therefore entitled to a declaration that the Biological Opinion violated the Administrative
Procedure Act.
B.
Reinitiation of Consultation
1. Ripeness
Caltrans argues that the plaintiffs' claims concerning the reinitiation of section 7
consultation are not ripe, because Caltrans will decide whether to reinitiate consultation "before
final approvals are obtained and before construction can begin." But the idea that the plaintiffs
have to wait until Caltrans is ready to begin construction before seeking declaratory relief
"rest[s] on the false premise that [the plaintiffs are] pursuing a substantive ESA claim."
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1084 (9th Cir. 2015). The
plaintiffs' reinitiation-of-consultation claims are based not on substantive harm to the
environment, but on procedural injury – "that [Caltrans] failed to comply with the procedural
requirements of the ESA when it declined to reinitiate consultation." Id. "When a
party . . . suffers a procedural injury, it 'may complain of that failure at the time the failure takes
place, for the claim can never get riper.'" Id. (quoting Ohio Forestry Ass'n, Inc. v. Sierra Club,
17
523 U.S. 726, 737 (1998)). Cottonwood rejects Caltrans' theory that the plaintiffs cannot
challenge a procedural violation of the Endangered Species Act until the defendant begins
implementing a specific project: "The imminence of project-specific implementation is irrelevant
to the ripeness of an action raising a procedural injury." Id. As long as "the alleged procedural
violation—failure to reinitiate consultation—is complete, so too is the factual development
necessary to adjudicate the case." Id. Although Caltrans' arguments about the uncertain future
of the project are (as discussed later) relevant to the plaintiffs' ability to obtain a particular form
of relief (namely, injunctive relief), they not relevant to the overall justiciability of the plaintiffs'
claims.
If there were any doubt that the plaintiffs' reinitiation-of-consultation claims are ripe, it
would be resolved by the fact that Caltrans has engaged in final agency action on behalf of the
Federal Highway Administration by giving environmental approval to the project. Agency
action that is "final" within the meaning of the Administrative Procedure Act is necessarily ripe
in a constitutional and prudential sense. The ripeness inquiry considers "(1) whether delayed
review would cause hardship to the plaintiffs; (2) whether judicial intervention would
inappropriately interfere with further administrative action; and (3) whether the courts would
benefit from further factual development of the issues presented." Ohio Forestry Ass'n, 523 U.S.
at 733. Once final agency action has taken place, judicial intervention cannot inappropriately
interfere with further administrative action, because the relevant administrative action is over.
Likewise, there is no further factual development relevant to the final agency action that's being
challenged – the agency, having made a final decision, has closed the administrative record on
which that decision was based. And because final agency action typically (as in this case) starts
the clock on time bars to judicial review, delayed review would cause hardship to the plaintiffs.
2. Mootness
Caltrans' arguments about ripeness could also implicate mootness, a jurisdictional issue
that the Court must consider even though Caltrans has not explicitly raised it. Shell Offshore,
Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013). If it were clear that Caltrans'
18
proposed project will not occur, any procedural flaws underlying the project's approval would
probably be irrelevant. But that could only be the case if it were "absolutely clear" that the
project would not proceed, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000). Although Caltrans now states that the project is "on the shelf" and "may"
never go forward, there is no evidence Caltrans has made the kind of unequivocal decision to
scrap the project that could give rise to mootness, see Bell v. City of Boise, 709 F.3d 890, 899901 (9th Cir. 2013). For example, Caltrans has not sought to withdraw or vacate the Federal
Register notice announcing the project's environmental approvals. Nor has Caltrans formally
notified the Fish and Wildlife Service that the project it presented in its Biological Assessment
will not proceed. See 50 C.F.R. § 402.14(l)(2). Perhaps Caltrans could have mooted the case by
doing any of these things. Instead, however, Caltrans merely argues that the project's future is
uncertain, and mere uncertainty cannot render this case moot.
To the extent Caltrans means to argue that a declaratory judgment on reinitiating
consultation would require the agencies to waste resources continuing to consult on a project that
may not go forward, there are two responses. First, Caltrans would not necessarily be required to
reinitiate consultation immediately, without regard for the status of the rest of the project.
Section 7 prohibits federal agencies from "authoriz[ing], fund[ing], or carr[ying]" out relevant
actions without engaging in consultation, 16 U.S.C. § 1536(a)(2). This means Caltrans must
certainly reinitiate consultation before it moves to reissue any environmental approval for the
project on behalf of the Federal Highway Administration, but before then, new consultation
might "serve no purpose." Cf. Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon
Indians v. U.S. Dep't of Energy, 232 F.3d 1300, 1308 (9th Cir. 2000). Second, even if Caltrans
were to reinitiate consultation immediately, it could end that process just as quickly. If Caltrans'
project truly is not likely to occur, Caltrans may discharge its consultation duty by informing the
Fish and Wildlife Service of this fact in writing. See 50 C.F.R. § 402.14(l)(2). Of course, this
will mean Caltrans will not have completed a valid section 7 consultation for the project (and,
consequently, won't have obtained a valid Biological Opinion or issued a valid approval notice
19
on behalf of the Federal Highway Administration). But it would not need those things if it
decided to keep the project on the shelf.
3. Caltrans' Duty to Reinitiate Consultation
Where, as here, federal agencies' authority over a proposed action involves discretionary
rather than mandatory duties, reinitiation of section 7 consultation is required "[i]f new
information reveals effects of the action that may affect listed species or critical habitat in a
manner or to an extent not previously considered." 50 C.F.R. § 402.16(b). New information –
the revelation that the City of Pacifica's 5.14-acre parcel was already required to be preserved –
has indicated that widening Highway 1 may affect listed species and their habitat to an extent not
previously considered. Caltrans relied on preservation of the 5.14-acre parcel to compensate for
other adverse effects to listed species and their habitat. The loss of this benefit necessarily
implies that the project's net effect on listed species and their habitat will be greater than
previously thought. Cf. Marsh, 816 F.2d at 1388. The plaintiffs are therefore entitled to a
declaration that Caltrans has a duty to reinitiate consultation under section 7 of the Endangered
Species Act.2
Caltrans could have avoided this duty to reinitiate consultation, of course, by ensuring
that its initial consultation with the Fish and Wildlife Service was adequate. By August 2011,
when the Service's Biological Opinion was still in its draft stage, Caltrans was aware that the
5.14-acre City of Pacifica parcel "was already spoken for by the City for a previous
requirement." Caltrans AR 7516. Caltrans should have shared this information with the Fish
and Wildlife Service, to ensure that the Biological Opinion – which was not finalized until
January 2012 – accurately reflected the mitigation measures included in Caltrans' project.
Having caused the Fish and Wildlife Service to issue a flawed Biological Opinion, Caltrans has
2
The fact that Caltrans' project will not include its proposed preservation of the 5.14-acre parcel
might also implicate 50 C.F.R. § 402.16(c), which requires reinitiation of consultation "[i]f the
identified action is subsequently modified in a manner that causes an effect to the listed species
or critical habitat that was not considered in the biological opinion." See Ctr. for Biological
Diversity, 698 F.3d at 1114-15.
20
only itself to blame for the fact it must reinitiate consultation and obtain a new Biological
Opinion before approving the project again for the Federal Highway Administration. Cf. Or.
Nat. Desert Ass'n, 716 F. Supp. 2d at 1004.
4. The Fish and Wildlife Service's Duty to Reinitiate Consultation
Notwithstanding Caltrans' duty to reinitiate consultation, the Fish and Wildlife Service
argues it can have no duty to reinitiate consultation, because that duty lies solely with the action
agency. That's true of the duty to initiate formal consultation in the first place, Defs. of Wildlife
v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 2005), but it's not true of the duty to reinitiate
consultation. The regulation requiring reinitiation of consultation describes the Fish and Wildlife
Service's obligation in the same terms as the action agency's obligation: "Reinitiation of formal
consultation . . . shall be requested by the Federal agency or by the Service." 50 C.F.R. § 402.16.
Consistent with the plain text of the regulation, the Ninth Circuit has stated that "[t]he duty to
reinitiate consultation lies with both the action agency and the consulting agency." Salmon
Spawning, 545 F.3d at 1229.
The Fish and Wildlife Service also argues that "50 C.F.R. § 402.16 contains no temporal
requirement for reinitiation of consultation," so – given that it is unclear whether Caltrans'
project will go forward at all – the Service is not yet in violation of any duty to request the
reinitiation of consultation. Unlike Caltrans, the Fish and Wildlife Service seems to frame this as
an issue going to the merits rather than ripeness: under the Service's reading of section 402.16,
there is simply no duty to reinitiate consultation yet. It's true that the regulation is vague as to
time, but it is written using trigger language: "if" any one of four conditions listed in sections (a)
through (d) is satisfied, then "[r]einitiation of formal consultation is required." Confirming this
view, Cottonwood held that an agency "was required to reinitiate consultation when" one of the
four trigger conditions (there, the Fish and Wildlife Service's designation of new critical habitat)
was satisfied. 789 F.3d at 1088.
As with Caltrans, the Fish and Wildlife Service's compliance with this duty would not be
especially burdensome. For example, the Fish and Wildlife Service could presumably satisfy
21
this duty by simply requesting that Caltrans reinitiate consultation before reauthorizing or
funding the project on behalf of the Federal Highway Administration. The precise timing of new
consultation would then be up to Caltrans, because consultation could not move forward until
Caltrans sent the Service a new Biological Assessment.
C.
Injunctive Relief for the Procedural Violations
In addition to declaratory relief establishing that the defendants have violated the
Endangered Species Act and have a duty to reinitiate section 7 consultation, the plaintiffs seek
injunctive relief actually ordering the defendants to reinitiate consultation and prohibiting them
from moving forward with the project until they comply with the Endangered Species Act. The
mere fact that Caltrans and the Fish and Wildlife Service have violated the procedural
requirements of the Endangered Species Act, however, does not entitle the plaintiffs to an
injunction. In addition to prevailing on the merits of a claim, "[a] plaintiff seeking a permanent
injunction must" show "that it has suffered an irreparable injury" (that is, injury for which money
damages are an inadequate remedy) – or, at least, that it "will suffer irreparable injury" in the
absence of injunctive relief. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156, 162
(2010); see also Cottonwood, 789 F.3d at 1091. Mere violation of the Endangered Species Act's
procedural requirements, without actual environmental harm, is not irreparable injury. See
Cottonwood, 789 F.3d at 1088-92. Therefore, the procedural violations by Caltrans and the Fish
and Wildlife Service entitle the plaintiffs to declaratory relief, but they must show irreparable
injury to obtain injunctive relief.
The plaintiffs here allege that widening Highway 1 "would" cause irreparable injury if it
went forward, in the form of environmental harm. Complaint ¶119. They have not shown that
they will suffer irreparable injury in the absence of injunctive relief, however, because there is no
evidence that Caltrans will actually go forward with construction in the near future. On the
contrary, as of August 2013, Caltrans' project was not yet funded. Final Environmental Impact
Report/Environmental Assessment, vol. 1, lxxxiii (Caltrans AR 523). Caltrans represents that
the project remains unfunded, and thus cannot currently proceed. Because it is unclear whether
22
Caltrans will actually take any action that would affect the environment around the project site in
the near future, the plaintiffs cannot show irreparable injury in the form of environmental harm.
Cf. Cottonwood, 789 F.3d at 1092.
Of course, this analysis would change if Caltrans moved to begin construction without
remedying its violations of the Endangered Species Act. Environmental harm is typically
irreparable, All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011), and "[i]n
light of the stated purposes of the ESA in conserving endangered and threatened species and the
ecosystems that support them, establishing irreparable injury should not be an onerous task for
plaintiffs," Cottonwood, 789 F.3d at 1091. If Caltrans were to proceed with its project in ways
that would harm the environment without first remedying its violations of the Endangered
Species Act, the plaintiffs could seek an injunction preventing that from happening.
D.
Substantive Endangered Species Act Claim
In addition to the procedural claims discussed above, the plaintiffs have one substantive
claim under the Endangered Species Act. They allege that "Caltrans and Dougherty have
violated their ESA section 7(a)(2) substantive duty" – that is, the duty to ensure that an action
will not jeopardize a listed species or its critical habitat – "by approving the Project without
ensuring that the Project will not jeopardize the Listed Species' survival or recovery." Complaint
¶69. But nothing that Caltrans has done so far has actually jeopardized a listed species or its
critical habitat. Caltrans has approved the project on paper, but (as just noted in connection with
the plaintiffs' request for injunctive relief) it has not engaged in any concrete, on-the-ground
activity at the project site. There is no sign that this will change in the foreseeable future
(particularly now that Caltrans will need to go back and consult again with the Fish and Wildlife
Service if it wishes to comply with the Endangered Species Act).
"Whether the question is viewed as one of standing or ripeness," Article III's case-orcontroversy requirement demands the existence of actual or imminent injury – not the
"imaginary" or "speculative" possibility of future injury. Thomas v. Anchorage Equal Rights
Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000). Because the plaintiffs have no actual or imminent
23
injury underlying their substantive Endangered Species Act claim the Court lacks subject matter
jurisdiction over it.3
II.
OTHER CLAIMS
The plaintiffs' three other claims are all brought against Caltrans under the APA. Each is
predicated on the alleged violation of a different environmental statute: the National
Environmental Policy Act ("NEPA"), the Coastal Zone Management Act, and section 4(f) of the
Department of Transportation Act. None is meritorious.
A. National Environmental Policy Act
The plaintiffs argue that the Environmental Assessment was arbitrary and capricious
under NEPA, because it insufficiently described the project and its effect on the local
environment. In particular, they argue that the Environmental Assessment inadequately analyzed
the project's impacts on pedestrian safety, wildlife (including California red-legged frogs and San
Francisco garter snakes), archaeological and cultural resources, noise levels, and visual
aesthetics. They also argue that the Environmental Assessment did not do enough to analyze
construction impacts and cumulative impacts. Similarly, the plaintiffs contend that the
Environmental Assessment inadequately described the presence of public utilities, wetlands, and
California red-legged frogs in and around the project area. But the Environmental Assessment
3
The plaintiffs have Article III standing on their other claims, which are all procedural in nature.
"To demonstrate standing to bring a procedural claim . . . a plaintiff must show that the
procedures in question are designed to protect some threatened concrete interest of his that is the
ultimate basis of his standing." WildEarth Guardians v. U.S. Dep't of Agric., 795 F.3d 1148,
1154 (9th Cir. 2015). Members of all three plaintiff organizations have submitted declarations
establishing their concrete interests in the area's environment and coastal views, which are the
kinds of interests that the procedural environmental laws at issue here are designed to protect.
Because the plaintiffs' members have established these concrete interests, "the causation and
redressability requirements are relaxed," and it is sufficient for the members to show "that they
have a procedural right that, if exercised, could protect their concrete interests." Id. (emphasis in
original). This requirement is satisfied, because each of the procedural safeguards that the
plaintiffs invoke could cause Caltrans (or an agency on which Caltrans depends for approval) to
reassess the wisdom of proceeding with the project, and prevent the project from going forward.
Accordingly, the organizational plaintiffs' members would have standing. And because this
lawsuit is clearly germane to the plaintiff organizations' interests and nothing requires the
individual members' participation in the lawsuit, the organizational plaintiffs have standing too.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
24
discussed pedestrian safety, local wildlife (including California red-legged frogs and San
Francisco garter snakes), archaeological and cultural resources, noise impacts, visual impacts,
construction impacts, cumulative impacts, public utilities in the area, and local wetlands. Final
Environmental Impact Report/Environmental Assessment, vol. 1, 81-94, 182-204, 118-24, 15867, 95-117, 205-10, 211-17, 80, 174-76 (Caltrans AR 628-43, 757-84, 684-90, 727-37, 644-83,
785-90, 791-97, 627, 749-51). In each case, Caltrans' discussion was detailed – certainly
detailed enough for "a concise public document" that"[b]riefly provide[s] sufficient evidence and
analysis for determining whether" a project will have significant environmental impacts, 40
C.F.R. § 1508.9(a). It was also internally consistent and otherwise reasonable. And in the same
vein, although the plaintiffs argue that "Caltrans' decision to prepare a [Finding of No Significant
Impact] rather than an [Environmental Impact Statement] violated NEPA," the plaintiffs have not
shown that Caltrans' Finding of No Significant Impact (which was supported by the
Environmental Assessment) was arbitrary and capricious.
The plaintiffs also identify several places in which Caltrans refined its description of the
project between the public circulation of a Draft Environmental Assessment and publication of
the Final Environmental Assessment. They argue that "where project description details are
supplied only in the Final [Environmental Assessment], the public is impermissibly precluded
from commenting on the project approved." But, under NEPA, "the circulation of a draft
[Environmental Assessment] is not required in every case" to begin with. Bering Strait Citizens
for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 952 (9th Cir. 2008). If
NEPA does not, as a general matter, require circulation of a draft Environmental Assessment at
all, it can hardly require an agency to commit to a draft that matches the final version of the
document exactly. NEPA requires only that "[a]n agency, when preparing an [Environmental
Assessment], must provide the public with sufficient environmental information, considered in
the totality of circumstances, to permit members of the public to weigh in with their views and
thus inform the agency decision-making process." Id. at 953. The detailed Draft Environmental
Assessment that Caltrans circulated to the public easily satisfied that standard, and none of the
25
revisions that Caltrans made to the draft are substantial enough to have significantly affected the
public's ability to understand and comment on the project.
One potentially significant revision to the Draft Environmental Assessment concerns,
again, the 5.14-acre parcel owned by the City of Pacifica. The Draft Environment Assessment,
like Caltrans' Biological Assessment, referred to plans to "preserve" the 5.14-acre parcel as a
mitigation measure. Draft Environmental Impact Report/Environmental Assessment at xxxvi,
163 (Caltrans AR at 184, 363). The Final Environmental Assessment, recognizing that the 5.14acre parcel was already preserved, refers to plans to "enhance" the 5.14-acre parcel. Final
Environmental Impact Report/Environmental Assessment, vol. 1, at xlviii, 197 (Caltrans AR
488, 775). This distinction matters less for NEPA than it does for the Endangered Species Act,
however, because NEPA's mitigation requirements are much less strict than the Endangered
Species Act's. Whereas the Endangered Species Act requires "a clear, definite commitment of
resources for future improvements," Nat'l Wildlife Fed'n, 524 F.3d at 936, NEPA does not
require "that a complete mitigation plan be actually formulated and adopted," Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 352 (1989). Because NEPA allows proposed
mitigation measures to be general and tentative rather than specific and definite, it does not
matter that Caltrans' proposed mitigation could not occur exactly as described in the Draft
Environmental Assessment that it circulated to the public. NEPA requires only "that mitigation
be discussed in sufficient detail to ensure that environmental consequences have been fairly
evaluated," id., and both the Draft Environmental Assessment and the Final Environmental
Assessment adequately conveyed the basic thrust of Caltrans' proposed mitigation plan: the 5.14acre parcel would provide suitable snake and frog habitat, and would be connected via the 5.46acre GGNRA parcel to the frog and snake populations near Sharp Park.
B.
Coastal Zone Management Act
One provision of the Coastal Zone Management Act provides that "Federal agency
activity" affecting a state's coastal zone "shall be carried out in a manner which is consistent to
the maximum extent practicable with the enforceable policies of approved State management
26
programs." 16 U.S.C. § 1456(c)(1)(A). "Each Federal agency carrying out an activity subject
to" this provision "shall provide a consistency determination to the relevant State agency . . . in
no case later than 90 days before final approval of the Federal activity unless both the Federal
agency and the State agency agree to a different schedule." Id. § 1456(c)(1)(C). It is undisputed
that Caltrans has assumed the Federal Highway Administration's obligations under the Coastal
Zone Management Act, that Caltrans' project affects California's coastal zone, and that Caltrans
has not submitted a consistency determination to the relevant state agency (the California Coastal
Commission). This, the plaintiffs contend, means that Caltrans' approval of the project violates
the Coastal Zone Management Act.
But Caltrans has not violated this provision of the Coastal Zone Management Act,
because Caltrans' action is not subject to it in the first place. This provision applies only to
"Federal agency activity." Id. § 1456(c)(1)(A) . "'Federal agency activity' does not include the
issuance of a federal license or permit to an applicant or person . . . or the granting of federal
assistance to an applicant agency." 15 C.F.R. § 930.31(a). The plaintiffs have not shown that
the Federal Highway Administration was responsible for doing anything other than or issuing
licenses and permits or offering federal assistance to Caltrans. The Federal Highway
Administration's approval of the project under federal environmental laws is a "federal license or
permit," because that term is defined broadly as "any authorization that an applicant is required
by law to obtain in order to conduct activities affecting any land or water use or natural resource
of the coastal zone and that any Federal agency is empowered to issue to an applicant." 15
C.F.R. § 930.51(a). In fact, the Federal Register notice announcing the project's environmental
approval describes itself as announcing "licenses, permits, and approvals for the project." 79
Fed. Reg. at 73,391. Because neither federal assistance nor the issuance of federal licenses and
permits are "Federal agency activity" subject to 16 U.S.C. § 1456(c)(1), Caltrans has not violated
the Coastal Zone Management Act.
C.
Department of Transportation Act
Under section 4(f) of the Department of Transportation Act, transportation projects are
27
generally prohibited from "using" public parkland (for example, National Park Service land)
absent findings that "there is no prudent and feasible alternative to using that land" and the
project "includes all possible planning to minimize harm to the park[land]." 49 U.S.C. § 303(c).
The plaintiffs argue that Caltrans' project will "use" nearby National Park Service parkland at
Mori Point and Sweeney Ridge, and note that no section 4(f) findings were made with respect to
Mori Point or Sweeney Ridge. "Use" can include constructive use, 23 C.F.R. § 774.17, so the
undisputed fact that Caltrans' project will not physically occupy any land at Mori Point or
Sweeney Ridge does not conclusively refute the plaintiffs' argument.
But the evidence does not suggest that the project's effects on public parkland would rise
to the level of constructive use – and, more to the point, Caltrans' contrary determination was not
arbitrary and capricious. "A constructive use occurs when . . . the project's proximity impacts are
so severe that the protected activities, features, or attributes that qualify the property for
protection under Section 4(f) are substantially impaired." 23 C.F.R. § 774.15(a). "Substantial
impairment," in turn, "occurs only when the protected activities, features, or attributes of the
property are substantially diminished." Id. The plaintiffs argue that Caltrans' project will
"degrad[e] views" from Mori Point and Sweeney Ridge, "potentially harm[] wildlife (including
protected species) that move to and from this parkland" across the road, and "risk[] spreading
invasive plants into the parkland." But Caltrans examined the project's potential impacts on
views from Mori Point and Sweeney Ridge, wildlife (including protected species and animals
crossing the road), and invasive plant species, and reasonably determined that these impacts
would not be significant. See, e.g., Final Environmental Impact Report/Environmental
Assessment, vol. 1, at 111-14, 172, 182-202, 203-04 (Caltrans AR 673-79, 747, 757-82, 783-84).
It does not matter that Caltrans did not make these determinations in a part of the record
specifically devoted to its obligations under section 4(f) of the Department of Transportation Act.
The plaintiffs argue that "the Court must look only to [Caltrans'] Section 4(f) Findings," which
address the project's impact on a bike path on the parkland, Caltrans AR 948. But Caltrans was
only required to make section 4(f) findings regarding the bike path – that is, that "there is no
28
prudent and feasible alternative to using" the bike path and the project "includes all possible
planning to minimize harm to the" bike path, Caltrans AR 949-50; see 49 U.S.C. § 303(c) –
because it had already determined that the project's impacts on the bike path would constitute
"use" of public parkland. "[T]he [Federal Highway] Administration is not required to document
each determination that a project would not result in a constructive use of a nearby Section 4(f)
property," 23 C.F.R. § 774.15(c), so Caltrans (fulfilling the role of the Federal Highway
Administration) was not required to record any determination that the project's other impacts
would not rise to the level of constructive use. Because Caltrans was not required to create a
written record specifically addressing its non-use determination under the Department of
Transportation Act, it makes no sense to limit review of this claim to those parts of the record
that specifically address the Department of Transportation Act.
CONCLUSION
For all these reasons, summary judgment is granted to the plaintiffs on their first, third,
and fifth claims. The plaintiffs are entitled to declaratory relief on these claims – specifically, a
declaration that: (i) the Biological Assessment was arbitrary and capricious under Endangered
Species Act; (ii) the Biological Opinion, having violated the procedural requirements of the
Endangered Species Act, was arbitrary and capricious under the APA; (iii) the resulting final
environmental approval under the Endangered Species Act by Caltrans (acting as the Federal
Highway Administration) was invalid; and (iv) both Caltrans and the Fish and Wildlife Service
have a duty to reinitiate section 7 consultation. The plaintiffs are not, however, entitled to
injunctive relief. Summary judgment is granted to Caltrans on the plaintiffs' fourth, sixth, and
seventh claims. The plaintiffs' second claim is dismissed for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Dated: September 2, 2016
______________________________________
VINCE CHHABRIA
United States District Judge
29
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