Pacificans for a Scenic Coast et al v. Federal Highway Administration et al

Filing 47

Order by Hon. Vince Chhabria granting 46 Stipulation to Dismiss Defendants Federal Highway Administration and U.S. Army Corps of Engineers.(knm, COURT STAFF) (Filed on 9/4/2015)

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Christopher A. Sproul (Bar No. 126398)
Jodene Isaacs (Bar No. 226895)
ENVIRONMENTAL ADVOCATES
5135 Anza Street
San Francisco, California 94121
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Brian Gaffney (Bar No. 168778)
LAW OFFICES OF BRIAN GAFFNEY APC
446 Old County Road, Suite 100-310
Pacifica, CA 94044
Tel: [phone]
Fax: [phone]
[e-mail]

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Patricia Weisselberg (Bar No. 253015)
LAW OFFICE OF PATRICIA WEISSELBERG
115 Oakdale Avenue
Mill Valley, CA 94941
Tel: [phone]
[e-mail]
Attorneys for Plaintiffs
PACIFICANS FOR A SCENIC COAST,
PACIFICANS FOR HIGHWAY 1
ALTERNATIVES, and CENTER FOR
BIOLOGICAL DIVERSITY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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Case No. 3:15-cv-02090-VC

PACIFICANS FOR A SCENIC COAST, et al.,
Plaintiffs,

STIPULATION AND [PROPOSED] ORDER
TO DISMISS DEFENDANTS FEDERAL
HIGHWAY ADMINISTRATION AND U.S.
ARMY CORPS OF ENGINEERS
PURSUANT TO FED. R. CIV. P. 41(a)(2)

v.
FEDERAL HIGHWAY
ADMINISTRATION, et al.,
Defendants

Stipulation to Dismiss Federal Highway Administration
and U.S. Army Corps of Engineers

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Case No. 3:15-cv- 02090VC

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WHEREAS Claim 1 of the Amended Complaint (ECF No. 21) alleges, inter alia, that the United

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States Army Corps of Engineers (“the Corps”) violated its procedural obligation under Section 7 of the

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Endangered Species Act, 16 U.S.C. § 1536(a)(2), by failing to formally consult with the U.S. Fish and

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Wildlife Service (“FWS”) concerning the impacts of an application submitted by the City of Pacifica to

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the Corps for a permit under section 404 of the Clean Water Act;

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WHEREAS Claim 2 of the Amended Complaint alleges, inter alia, that the Corps violated its

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substantive obligation under Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), to ensure

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that the Project will not jeopardize the survival and recovery of listed species, by forgoing action on the

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City's application for a 404 permit and forgoing formal consultation with FWS concerning the impacts

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of the City of Pacifica’s permit application under section 404 of the Clean Water Act;

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WHEREAS Claim 8 of the Amended Complaint alleges, inter alia, that the Corps’ failure to act

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on the City of Pacifica’s February 2003 application to the Corps “for a [Clean Water Act (“CWA”)]

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permit for the Project” is arbitrary and capricious in violation of Administrative Procedure Act (“APA”),

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5 U.S.C. § 706(2)(A), and that the Corps’ inaction violates the APA, 5 U.S.C. § 706(2), because

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“action” has been “unlawfully withheld or unreasonably delayed”;

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WHEREAS on July 27, 2015, the City of Pacifica withdrew the 2003 Joint Aquatic Resources

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Permit Application upon which Plaintiffs base the portions of Claims 1, 2, and 8 against the Corps

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described above;

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WHEREAS, claims based upon the City of Pacifica’s withdrawn Application are now moot;

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WHEREAS Plaintiffs therefore withdraw Claims 1, 2, and 8 to the extent they are based on the

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Corps’ inaction on the City of Pacifica’s Application;

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WHEREAS Plaintiffs further voluntarily withdraw the remainder of Claim 8 against the Corps;
and

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WHEREAS there are no other pending allegations against the Corps,

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NOW THEREFORE the Parties hereby stipulate as follows:

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1.

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The Federal Highway Administration (FHWA) contends it is not a proper party to this

action under 23 U.S.C. § 327. For purposes of this Stipulation, Plaintiffs do not dispute that contention.

Stipulation to Dismiss Federal Highway Administration
and U.S. Army Corps of Engineers

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Case No. 3:15-cv- 02090VC

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2.

The United States Army Corps of Engineers (“Corps”) contends it is not a proper party to

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this action for the reasons provided above. For purposes of this Stipulation, Plaintiffs do not dispute that

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contention.

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3.

In view of the foregoing, Plaintiffs voluntarily dismiss, without prejudice, all of their

claims against the FHWA and the Corps, subject to the following terms:

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a.

The State Route 1/Calera Parkway/Highway 1 Widening Project is encompassed

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within the assignment and assumption of duties memorialized in the Memorandum of Understanding

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(“MOU”) between the FHWA and the California Department of Transportation (“Caltrans”), dated June

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2007 and renewed September 2012, which MOU is attached hereto as Exhibit A;

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b.

Pursuant to the MOU and 23 U.S.C. § 327(a)(2), Caltrans has assumed, subject to

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the terms and conditions set forth in 23 U.S.C. § 327 and the MOU, all of the U.S. Department of

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Transportation Secretary’s responsibilities for review, consultation, or other such action pertaining to the

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review or approval of the State Route 1/Calera Parkway/Highway 1 Widening Project under the

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National Environmental Policy Act and as required under the federal laws enumerated at Part 3.2 of the

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MOU;

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c.

No Party will argue in this proceeding that either the FHWA or the Corps is an

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indispensable party, or that either the FHWA or the Corps is necessary for the resolution of this matter;

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and

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d.

This Stipulation is not intended to limit the Court’s ability to retain jurisdiction

over the action or to accord complete relief in this action among the remaining parties.
4.

To the extent that Claims 1, 2, and 8 are based upon or otherwise rely upon the City of

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Pacifica’s 2003 CWA section 404 permit application, Plaintiffs hereby withdraw any such claims for

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relief against the Corps and also withdraw any remaining claims against the Corps in Claim 8.

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Stipulation to Dismiss Federal Highway Administration
and U.S. Army Corps of Engineers

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Case No. 3:15-cv- 02090VC

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Dated September 3, 2015
JOHN C. CRUDEN
Assistant Attorney General
U.S. Department of Justice
Environment & Natural Resources Division

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/s/Patricia Weisselberg
Christopher A. Sproul (Bar No. 126398)
Jodene Isaacs (Bar No. 226895)
ENVIRONMENTAL ADVOCATES
5135 Anza Street
San Francisco, California 94121
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/s/ Sean C. Duffy
SEAN C. DUFFY
Natural Resources Section
Tel: [phone]; Fax: [phone]
Email: [e-mail]
SETH M. BARSKY, Chief
S. JAY GOVINDAN, Assistant Chief
ALISON C. FINNEGAN, Trial Attorney
Wildlife & Marine Resources Section
Tel: [phone]; Fax: [phone]
Email: [e-mail]
LESLIE M. HILL
Environmental Defense Section
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Ben Franklin Station, P.O. Box 7611
Washington, DC 20044-7611

Brian Gaffney (Bar No. 168778)
LAW OFFICES OF BRIAN GAFFNEY APC
446 Old Country Road, Suite 100-310
Pacifica, CA 94044
Tel: [phone]
Fax: [phone]
[e-mail]
Patricia Weisselberg (Bar No. 253015)
LAW OFFICE OF PATRICIA WEISSELBERG
115 Oakdale Avenue
Mill Valley, CA 94941
Tel: [phone]
[e-mail]

Attorneys for the Federal Defendants

Attorneys for Plaintiffs
PACIFICANS FOR A SCENIC COAST,
PACIFICANS FOR HIGHWAY 1
ALTERNATIVES, and CENTER FOR
BIOLOGICAL DIVERSITY

/s/ Derek S. Van Hoften
JEANNE SCHERER
DAVID GOSSAGE
LUCILLE Y. BACA
DEREK S. VAN HOFTEN
STACY LAU

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Attorneys for Defendants
CALIFORNIA DEPARTMENT OF
TRANSPORTATION and Malcolm Dougherty

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Stipulation to Dismiss Federal Highway Administration
and U.S. Army Corps of Engineers

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Case No. 3:15-cv- 02090VC

[PROPOSED] ORDER

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Pursuant to stipulation, IT IS HEREBY ORDERED that:

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1.

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The Federal Highway Administration and the United States Army Corps of Engineers are

not indispensable parties and are not necessary for the resolution of this matter.
2.

The Federal Highway Administration and the United States Army Corps of Engineers are

dismissed as defendants in this matter.

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Dated: September 4, 2015

______________________________
Hon. Vince Chhabria
United States District Judge

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Stipulation to Dismiss Federal Highway Administration
and U.S. Army Corps of Engineers

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Case No. 3:15-cv- 02090VC

EXHIBIT A

MEMORANDUM OF UNDERSTANDING BETWEEN THE FEDERAL HIGHWAY
ADMINISTRATION AND THE CALIFORNIA DEPARTMENT OF
TRANSPORTATION CONCERNING THE STATE OF CALIFORNIA'S
PARTICIPATION IN THE

PROJECT DELIVERY PROGRAM PURSUANT TO 23 U.S.C. 327

THIS MEMORANDUM OF UNDERSTANDING (hereinafter "Project Delivery Program
MOU"), made and entered into by and between the FEDERAL HIGHWAY
ADMINISTRATION (hereinafter "FHWA"), an administration in the UNITED STATES
DEPARTMENT OF TRANSPORTATION (hereinafter "USDOT"), and the CALIFORNIA
DEPARTMENT OF TRANSPORTATION (hereinafter "Caltrans"), a department of the State
of California, hereby provides as follows:
WITNESSETH:

Whereas, Section 6005(a) of the Safe, Accountable, Flexible, Efficient Transportation

Equity Act: A Legacy for Users (Pub. L. 109-59 [Aug. 10,2005]) (hereinafter "SAFETEALU"), codified as Section 327 of amended Chapter 3 of Title 23, United States Code (23
U.S.C. 327), established a Surface Transportation Project Delivery Pilot Program
(hereinafter "Pilot Program") that allowed the Secretary of the United States Department of
Transportation (hereinafter "USDOTSecretary"), to assign, and a limited number of States,
including California, to assume the USDOT Secretary's responsibilities under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) (hereinafter "NEPA"),

and all or part of the USDOT Secretary's responsibilities for environmental review,
consultation, or other actions required under any Federal environmental law with respect to
one or more highway projects within the State; and
Whereas, 23 U.S.C. 327(b) required a State to submit an application to the USDOT Secretary
in order to participate in the Pilot Program; and

Whereas, on February 12, 2007, the FHWA published a final rule in the Federal Register,
72 Fed. Reg. 6464 (codified at 23 C.F.R. Part 773), establishing the requirements relating to
the information a State is required to provide to the USDOT Secretary in its application to
participate in the Pilot Program; and

Whereas, on May 21, 2007, Caltrans submitted its application to the FHWA for participation
in the Pilot Program; and

Whereas, the FHWA solicited the views of other appropriate Federal agencies concerning
Caltrans' application as required by 23 U.S.C. 327(b)(5); and
Whereas, the USDOT Secretary, acting by and through the FHWA, approved Caltrans'

application, finding that Caltrans met all of the requirements of 23 U.S.C. 327 and 23 C.F.R.
Part 773; and

Whereas, following FHWA's approval of Caltrans' application, on July 1,2007, FHWA and