Coyote Valley Band of Pomo Indians of California, et al v. United States Department of Transportation et al

Filing 157

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING, IN PART, AND DENYING, IN PART, FEDERAL DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT by Judge Jeffrey S. White. (dtmS, COURT STAFF) (Filed on 3/30/2018)

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NOT FOR PUBLICATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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COYOTE VALLEY BAND OF POMO
INDIANS OF CALIFORNIA, et al.,

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Plaintiffs,
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v.

United States District Court
Northern District of California

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UNITED STATES DEPARTMENT OF
TRANSPORTATION, et al.,

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Defendants.

Case No. 15-cv-04987-JSW
ORDER DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
AND GRANTING, IN PART, AND
DENYING, IN PART, FEDERAL
DEFENDANTS’ CROSS-MOTIONS FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 130, 139

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Now before the Court is the motion for summary judgment filed by Plaintiffs Coyote

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Valley Band of Pomo Indians of California (“Coyote Valley”) and The Round Valley Indian

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Tribes of California (“Round Valley”) (collectively “Plaintiffs”).1 Also before the Court is the

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cross-motion for summary judgment filed by the United States Department of Transportation

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(“USDOT”), Secretary of the USDOT, Elaine Chao, the Federal Highway Administration

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(“FHWA”), and Brandye Hendrickson, Acting Administrator of the FHWA (collectively the

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“Federal Defendants”).2 The Court has considered the parties’ papers, relevant legal authority, the

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record in this case, and the parties’ arguments at the hearing on the motions.

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The Court HEREBY DENIES Plaintiffs’ motion and GRANTS, IN PART, AND DENIES,

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The parties address the Plaintiffs as a collective unit. The Court has made every effort to
distinguish between the Plaintiffs as it has evaluated their motion to determine whether they have
met their respective burdens to show they are entitled to relief.
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Secretary Chao and Acting Administrator Hendrickson are automatically substituted in as
defendants pursuant to Federal Rule of Civil Procedure 25(d).
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IN PART, the Federal Defendants’ motion.
BACKGROUND

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A.

Factual Background.
This litigation arises out of the construction of 5.9-mile-long segment of U.S. Highway

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101, which bypasses the City of Willits, California (the “Willits Bypass Project”), and post-

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construction mitigation projects in the area. (See, e.g., Caltrans Defendants’ Administrative

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Record (“CT AR”), 000015-16, 000038-39; Caltrans Supplemental Administrative Record (“CT

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Supp. AR) 001036-40.)3 It is the second time this Court has considered an environmental

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challenge to the Willits Bypass Project. See, e.g., Ctr. for Biol. Diversity v. Cal. Dep’t of Transp.,

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No. 15-cv-2172-JSW, 2013 WL 6698740 (N.D. Cal. Dec. 19, 2013).
It is undisputed that the FHWA and Caltrans issued a final Environmental Impact

United States District Court
Northern District of California

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Statement (“EIS”) for the Willits Bypass Project in October 2006. In December 2006, the

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agencies issued a Record of Decision, which approved a variation of a four-lane freeway

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(“Modified Alternative J1T”). (CT AR 000001-1928 (Final EIS, Vols. 1-4); CT AR 001929-1949

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(Record of Decision).) The Final EIS stated there would be no adverse effect on historic

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properties, if an environmentally sensitive area was established. The State Historic Property

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Officer (“SHPO”) concurred in that finding. (CT AR 000072-73, 000163-64.)

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In 2007, Caltrans decided to proceed with phased construction, because of funding

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constraints. “During the first phase of the project, …, Caltrans plan[ned] to complete a two-lane

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bypass, and it plans to complete the remaining two lanes as funding becomes available.” See Ctr.

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for Biol. Diversity, 2013 WL 6698740, at *2. This litigation focuses on the first phase.

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Construction on the first phase of the Willits Bypass Project is complete, and it was opened to

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traffic in November 2016. (CT Supp. AR 001036.) The second phase of the Willits Bypass

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Project remains unfunded.

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The Caltrans Defendants are the California Department of Transportation and Malcolm
Dougherty. When the Court cites to the Caltrans Defendants’ administrative record and their
supplemental administrative record, it has omitted the document number and cites only to page
numbers. Therefore, instead of citing the Caltrans Defendants’ AR as 1:000001-001928
(Document 1, pages 000001-001928), the Court simply cites it as “CT AR 0000001-1928.”
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According to Plaintiffs, at the time the final EIS was issued, “Caltrans had only identified

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one archaeological site eligible for registry on the National Register of Historic Places”

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(“NHRP”), and they claim that “[s]ince 2013, Caltrans has identified at least thirty additional

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archaeological sites eligible for registry on the” NRHP. (Second Amended Complaint (“SAC”)

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¶¶ 17, 19.)
On June 4, 2013, Coyote Valley’s Tribal Chairman, Michael Hunter, wrote to Charles

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Felder, a director at Caltrans, and requested “government-to-government” consultation. (Federal

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Highway Administration Administrative Record (“FHWA AR”) 0007; CT AR 011681-82.)4 On

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June 17, 2013, Mr. Felder responded to Mr. Hunter’s letter. (CT AR 011694-95.) On June 25,
2013, Kendall Schinke, an Environmental Branch Chief at Caltrans, sent a letter to Coyote Valley,

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United States District Court
Northern District of California

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via Priscilla Hunter, enclosing copies of cultural resources documents prepared for the Willits

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Bypass Project. In that letter, Ms. Schinke stated that “[a]s we discussed on the phone, to request

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formal government-to-government consultation contact Vincent Mammano, Division

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Administrator at the [FHWA’s] California Division[.]” (Id., 011698.)
On February 18, 2015, representatives of Coyote Valley met with representatives of

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Caltrans, the FHWA, and the Army Corps of Engineers. (Id., 013217-18, 17527). On March 17,

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2015, Chairman Hunter sent a letter to Mr. Felder, in which Coyote Valley continued to raise

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concerns about the Willits Bypass Project. (Id., 013217-18.) On the same day, Chairman Hunter

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wrote to Mr. Mammano acknowledging the government-to-government consultation meeting on

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February 18, 2015. (Id., 017305-07.) In that letter, Chairman Hunter stated that “[t]he primary

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and ongoing request we articulated at this meeting was the need for a Supplemental EIS to contend

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with the many ancestral archaeological sites that have been discovered subsequent to the

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approval” of the Final EIS “both in the Project Area and Mitigation parcels” of the Willits Bypass

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Project. (Id., 017305.)
Chairman Hunter also asserted that “Caltrans failed to exercise due diligence in the initial

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Both parties have submitted the administrative records on CD-ROMs. The June 4 letter is
attached to the email at FHWA AR 0007 by way of a hyperlink in the subject of the email “Coyote
Valley Bank of Pomo Indians ltr.pdf.”
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archaeological survey efforts for the project” and “failed to adequately protect sites discovered

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subsequent to the EIS approval for the project.” (Id.) Chairman Hunter asked that the “FHWA

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intervene to assist us in assuring that our ancestral archaeological sites in the project area and

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mitigation lands of the Willits Bypass are protected.” (Id.) Chairman Hunter also asked that

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“FHWA reassume the federal responsibility for environmental review of this project[.]”5 (Id.; see

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also id., 017307.)
It is undisputed that, on July 1, 2007, the FHWA and Caltrans entered into a Memorandum

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of Understanding (“2007 MOU”) relating to the Surface Transportation Project Pilot Delivery

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Program (the “Pilot Program”), 23 U.S.C. section 327.6 (See Glazer Decl., ¶ 2; Dkt. No. 32-1,
Glazer Decl., Ex. A (2007 MOU §§ 1.1.1, 3.1.1).) Under the Pilot Program, the Secretary of

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United States District Court
Northern District of California

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Transportation could assign and a state could “assume, the responsibilities of the Secretary with

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respect to one or more highway projects within” that state under the National Environmental

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Policy Act (“NEPA”). 23 U.S.C. § 327(a)(2)(A). The Pilot Program also provided that, if a state

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assumed responsibility for a project under Section 327(a)(2)(A), “the Secretary may assign to the

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State, and the State may assume, all or part of the responsibilities of the Secretary for

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environmental review, consultation, or other action required under any Federal environmental law

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pertaining to the review or approval of a specific project.” Id. § 327(a)(2)(B)(i).
If a state assumes “responsibility under subsection (a)(2) [it] shall be solely responsible

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and solely liable for carrying out, in lieu of the Secretary, the responsibilities assumed under

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subsection (a)(2), until the program is terminated as provided in subsection (i).” Id. § 327(e).

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Round Valley has directed the Court to any evidence that shows it made a similar request
to the Federal Defendants.
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The Pilot Program is now permanent. On September 25, 2012, the FHWA and Caltrans
entered into a MOU that extended the assignments and assumptions of responsibilities set forth in
the 2007 MOU. (See Dkt. No. 32, Declaration of David B. Glazer (“Glazer Decl.”), ¶ 2; Dkt. No.
32-2, Glazer Decl., Ex. A at ECF p. 26-31 (Memorandum of Understanding dated September 2012
and effective on October 1, 2012 (“2012 MOU”).) On December 23, 2016, the parties entered into
a MOU that renewed Caltrans’ participation in the program. That MOU took effect on January 1,
2017 (“2017 MOU”). (CT Supp. AR 2905-31.) The California Legislature did not renew the
State’s wavier of sovereign immunity under California Streets and Highways Code section 820.1
until March 30, 2017. As a result, the Caltrans Defendants’ assumption of responsibilities was
suspended under Section 12.3.2 of the 2017 MOU until that date.
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“Any responsibility of the Secretary not explicitly assumed by the State by written agreement

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under this section shall remain the responsibility of the Secretary.” Id. § 327(a)(2)(D).

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The Willits Bypass Project is covered by the terms of the 2007 MOU. Under that MOU,

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the FHWA assigned and Caltrans assumed “all of the USDOT Secretary’s responsibilities under

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NEPA …” and “all of the USDOT Secretary’s responsibilities for environmental review,

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consultation, or other such action pertaining to the review or approval of a specific project as

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required under” Section 106 of the National Historic Preservation Act (“NHPA”), and 23 U.S.C.

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section 138 and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. section

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303 (the “Federal Highway Statutes”). (See Glazer Decl., ¶ 2; Dkt. No. 32-1, Glazer Decl., Ex. A
(2007 MOU §§ 1.1.1, 3.1.1, 3.2.1.I, 3.2.1.Y).) The terms of the 2007 MOU also provide that

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United States District Court
Northern District of California

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“Caltrans shall be solely liable and solely responsible for carrying out all of the USDOT

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Secretary’s responsibilities it has assumed under part 3 of this MOU subject to the limitations of

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the Eleventh Amendment waiver acknowledged in section 4.3.1 of this MOU. The FHWA and

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USDOT shall have no responsibility or liability for the performance of the responsibilities

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assumed by Caltrans, including any decision or approval made by Caltrans while participating in

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the Pilot Program.” (Id. § 6.1.)

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However,
[t]he USDOT Secretary’s responsibilities for government-togovernment consultation with Indian Tribes … may not be assumed
by Caltrans under this MOU. FHWA remains responsible for all
government-to-government consultation, including initiation of
tribal consultation, unless otherwise agreed as described in this
section. A notice from Caltrans to an Indian tribe advising the tribe
of a proposed activity is not considered “government-to-government
consultation” within the meaning of this MOU. If FHWA
determines based on the consultation process that Caltrans has
adequately resolved any project specific tribal issues or concerns,
then the FHWA’s role in the environmental process shall be limited
to carrying out the government-to-government consultation process.
If a project related concern or issue is raised in a government-togovernment consultation process with an Indian tribe … and is
related to NEPA or another federal environmental law for which
Caltrans has assumed responsibilities under this MOU, and either
the Indian tribe or the FHWA determines that the issue or concern
will not be satisfactorily resolved by Caltrans, then the FHWA shall
reassume all or part of the responsibilities for processing the
project. In this case, the provisions of section 9.1 concerning
FHWA initiated reassumptions shall apply.
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(Id. § 3.2.3 (emphasis added).)7

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Section 9.1 of the MOU sets forth three circumstances that may warrant the FHWA

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reassuming responsibilities that had otherwise been assigned to Caltrans. (Id. § 9.1.1(A)-(C).) If

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the FHWA makes a determination to reassume responsibilities assigned to Caltrans, “the FHWA

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will informally notify Caltrans of the FHWA’s determination” and “will provide Caltrans written

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notice of its determination including the reasons for its determination.” (Id. § 9.1.2.) Caltrans has

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the opportunity to respond and to object. The FHWA then makes a final determination based on a

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number of factors, including any comments and objections submitted by Caltrans. (Id.)
It also is undisputed that the FHWA, Caltrans, California’s SHPO, and the Advisory

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Council on Historic Preservation (the “Council”) entered into a Statewide Programmatic

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United States District Court
Northern District of California

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Agreement regarding compliance with Section 106 of the NHPA as it pertains to the

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administration of the Federal-aid Highway Program in California. That programmatic agreement

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had an effective date of January 1, 2004, and it was amended and extended with an effective date

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of January 1, 2014. (CT AR 17577-17630, First Amended Programmatic Agreement (“FAPA”).)

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The FAPA states that as a result of the 2007 MOU, among others, “Caltrans is deemed to be a

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federal agency for all Federal-aid Highway projects it has assumed[.]” (FAPA at 1.) It also notes

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that the FHWA as a federal agency has a “unique legal relationship with Indian tribes …, and

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while an Indian tribe may agree to work directly with Caltrans as part of the 36 CFR 800

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compliance process, the FHWA … remain[s] legally responsible for government-to-government

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consultation with Indian tribes[.]” (FAPA at 2; see also FAPA, Stipulations IV.B & VI.B-C.) The

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FAPA also accounts for “post-review” discoveries. (Id., Stipulation XV.) The parties to this

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lawsuit have not entered into a specific programmatic agreement or memorandum of agreement

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It is evident from the record that the assignment of responsibilities has created confusion
regarding the nature and scope of “government-to-government consultation” and the nature and
scope of the Section 106 consultation process described below. Because the Federal Defendants
are not “decision maker[s]” on the Willits Bypass Project, Mr. Mammano stated that he viewed his
role as a “mediator” between Plaintiffs and the Caltrans Defendants and to make sure the “correct
process was being followed.” (CT AR 200547; see also id. 011681-82 (letter requesting
“government-to-government” consultation with Caltrans), 012565.)
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for the Willits Bypass Project.8
The Court shall address additional facts as necessary in the analysis.

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B.

Procedural History.
On October 30, 2015, Plaintiffs filed the original complaint in this case and alleged the

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Federal Defendants and the Caltrans Defendants each violated NEPA, the Federal Highway

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Statutes, and Section 106 of the NHPA. The Federal Defendants moved to dismiss. Before the

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Court resolved that motion, the parties attempted to, but could not, settle the matter.
On August 2, 2016, the Court granted the Federal Defendants’ motion to dismiss, with

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leave to amend. On August 26, 2016, Plaintiffs filed their first amended complaint, asserting the

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same claims for relief. On September 7, 2016, all Defendants moved to dismiss. In the interim,

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United States District Court
Northern District of California

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the parties continued to pursue settlement efforts but, again, were not successful. On January 23,

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2017, the Court granted, in part, and denied, in part, the Caltrans Defendants’ motion to dismiss.

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Round Valley Indian Tribes of Cal. v. U.S. Dep’t of Transp., No. 15-cv-04987-JSW, 2017 WL

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282980 (N.D. Cal. Jan. 31, 2017). On March 10, 2017, the Court granted, in part, and denied, in

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part, the Federal Defendants’ motion to dismiss and gave Plaintiffs leave to amend. Round Valley

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Indian Tribes of Cal. v. U.S. Dep’t of Transp., 15-cv-04987-JSW, 2017 WL 950956 (N.D. Cal.

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Mar. 10, 2017). On April 7, 2017, Plaintiffs filed their SAC, asserting the same claims for relief.
As a result of the Court’s rulings on the Federal Defendants’ motions to dismiss, Plaintiffs’

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claims against the Federal Defendants have been limited as follows: (1) the Federal Defendants

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violated Section 106 of the NHPA by failing to engage in government-to-government consultation

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with Plaintiffs (“the NHPA consultation claim”); and (2) after February 18, 2015, the date on

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which the Plaintiffs demanded that the Federal Defendants reassume responsibility for the Willits

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Bypass Project, the Federal Defendants directly violated the NHPA, NEPA, and the Federal

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Highway Statutes by failing to act in accordance with the requirements of those statutes.

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The terms of the FAPA also provide that “[i]f the FHWA determines that any projectspecific tribal issues or concerns will not be satisfactorily resolved by Caltrans when Caltrans is
deemed a federal agency, then FHWA may reassume all or part of the federal responsibilities for
environmental review pursuant to MOU’s.” (FAPA, Stipulation IV.E.3.)
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ANALYSIS

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A.

Standard of Review under the Administrative Procedure Act (“APA”).

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Plaintiffs contend that the Federal Defendants violated the NHPA, NEPA, and the Federal

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Highway Statutes “by failing to properly engage in government-to-government consultation with

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Plaintiffs on the [Willits Bypass] Project, by failing to identify or protect Plaintiffs’ cultural,

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sacred, and historical resources or attempt to mitigate the impact the [Willits Bypass] Project had

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on them, and by refusing to reassume the” Willits Bypass Project. (Dkt. No. 131, Plaintiffs’ Mot.

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at 12:8-11.) Plaintiffs bring these claims pursuant to the APA. The APA permits a court to

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“compel agency action unlawfully withheld or unreasonably delayed” or to “hold unlawful and set
aside agency action, findings and conclusions found to be - arbitrary, capricious, an abuse of

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United States District Court
Northern District of California

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discretion, or otherwise not in accordance with law.” 5 U.S.C. §§ 706(1)-(2)(A). “A claim to

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compel action,” under Section 706(1), “may proceed ‘only where a plaintiff asserts that an agency

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failed to take a discrete agency action that it is required to take.’” Grand Canyon Trust v.

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Williams, 98 F. Supp. 3d 1044, 1051 (D. Ariz. 2015) (quoting Norton v. S. Utah Wilderness

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Alliance, 542 U.S. 55, 64 (2004)) (emphasis in Norton).
A court “will reverse a decision as arbitrary and capricious only if the agency relied on

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factors Congress did not intend it to consider, entirely failed to consider an important aspect of the

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problem, or offered an explanation that runs counter to the evidence before the agency or is so

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implausible that it could not be ascribed to a difference in view or the product of agency

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expertise.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overruled on other

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grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).

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B.

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Evidentiary Issues.
The Federal Defendants move to strike declarations submitted by Priscilla Hunter (Dkt.

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No. 134), Eddie Knight (Dkt. No. 135), and Mike Knight (Dkt. No. 136), on the basis that the

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declarations are extra-record evidence. The declarations include exhibits that come from the

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Caltrans Defendants’ administrative record. Those exhibits, therefore, would not constitute extra-

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record evidence. However, the declarants do not simply attest that the exhibits are what they

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purport to be. Rather, Ms. Hunter sets forth her views of the consultation process. Mr. Eddie
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Knight discusses issues relating to tribal monitors and how they should be used during a project

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like the Willits Bypass Project. Mr. Mike Knight, who is Chairman of the Sherwood Valley Band

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of Pomo Indians (“Sherwood Valley”), discusses Sherwood Valley’s decision to not sign a draft

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programmatic agreement.
When a court is presented with a case brought under APA, its task “is to apply the

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appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record”

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presented by the agency. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). In

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the Ninth Circuit, a court may consider extra-record evidence “(1) if necessary to determine

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‘whether the agency has considered all relevant factors and has explained its decision,’ (2) ‘when

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the agency has relied on documents not in the record,’ … (3) ‘when supplementing the record is

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United States District Court
Northern District of California

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necessary to explain technical terms or complex subject matter,’” or (4) when a plaintiff shows an

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agency has acted in bad faith. Sw. Ctr. for Bio. Diversity v. U.S. Forest Serv., 100 F.3d 1443,

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1450 (9th Cir. 1996) (quoting Inland Empire Public Lands Council v. Glickman, 88 F.3d 697,

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703-04 (9th Cir. 1996)).

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The Court finds Plaintiffs have not shown any of these exceptions apply. First, none of the

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declarants are employees of the Federal Defendants. See, e.g., Friends of the Payette v. Horseshoe

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Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993) (“[w]hen a failure to explain action

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frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or

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testimony, additional explanations for the agency’s decisions”) (emphasis added). Plaintiffs also

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fail to show how the administrative record is insufficient to explain the Federal Defendants’

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decisions; they simply argue it is.9 Plaintiffs do not suggest the Federal Defendants relied on any

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documents that are not in the administrative record, and they have not demonstrated the Federal

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Defendants acted in bad faith. Finally, Plaintiffs have not demonstrated how the declarations

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might explain any technical terms or complex subject matter. Accordingly, to the extent

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In addition, the Court set deadlines for the parties to address any disputes about the
sufficiency of the administrative record, which were extended several times while the parties
attempted to settle this matter. The Caltrans Defendants lodged their administrative record on July
7, 2016. Plaintiffs did not challenge its content. The Federal Defendants lodged their
administrative record in May 2017. Again, Plaintiffs did not challenge its content.
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Plaintiffs’ claims are premised upon actions the Federal Defendants are alleged to have taken, the

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Court sustains, in part, the Federal Defendants’ objections to the substance of the declarations.
Plaintiffs also argue that their claims are premised on the Federal Defendants’ failure to

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act, under Section 706(1). In such cases, “review is not limited to the record as it existed at any

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single point in time, because there is no final agency action to demarcate the limits of the record.”

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Dombeck, 222 F.3d at 560. To the extent that is true, the Court overrules, in part, the Federal

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Defendants’ objections. While the Court will not strike the declarations, it will consider them only

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where Plaintiffs have cited to particular paragraphs of a declaration in their briefs and only if the

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cited paragraphs are necessary to resolve these motions. See, e.g., Indep. Towers of Wash. v.

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Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“As the Seventh Circuit observed in its now

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United States District Court
Northern District of California

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familiar maxim, ‘[j]udges are not like pigs, hunting for truffles buried in briefs.’”) (quoting United

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States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); Keenan v. Allen, 91 F.3d 1275, 1279 (9th

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Cir. 1996) (stating that it is not a court’s task “to scour the record in search of a genuine issue of

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triable fact”) (quoting Richards v. Combined Ins. Co. of Amer., 55 F.3d 247, 251 (7th Cir.

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1995)).10

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C.

The Court Concludes Plaintiffs Have Standing and the Case is Not Moot.
The Federal Defendants’ cross-motion focuses on the merits of the Plaintiffs’ claims, but

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they argue, in the alternative, that Plaintiffs do not have standing and that the claims are moot.

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Because those arguments relate to threshold jurisdictional issues, the Court addresses them at the

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outset.

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1.

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The requirements of Article III standing are well-established. “[A] plaintiff must show (1)

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it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent,

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not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the

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defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed

Standing.

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The Court’s rulings in this section also apply to the supplemental declarations of Eddie
Knight and Owen Knight (Dkt. Nos. 144-1, 144-14), which Plaintiffs submitted with their
combined opposition and reply brief.
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by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs (TOC), Inc., 528 U.S.

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167, 180-81 (2000) (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560-61 (1992)).

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The Federal Defendants do not challenge Plaintiffs’ ability to satisfy the first two prongs of
this test. Rather, they argue Plaintiffs cannot show their injuries can be redressed. The Federal

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Defendants do not dispute that some mitigation work remains to be done on the Willits Bypass

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Project. Therefore, if Plaintiffs do prevail and if the Court orders the Federal Defendants to

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comply with the Section 106 consultation requirements or the other procedural requirements of

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NEPA and the Federal Highway Statutes, the Court could redress the injuries Plaintiffs claim to

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have suffered. See, e.g., Grand Canyon Trust, 98 F. Supp. 3d at 1057 (holding that plaintiffs had

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satisfied redressability requirement where, assuming plaintiffs succeeded on the merits, the court

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United States District Court
Northern District of California

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would order the defendants to follow NEPA and NHPA procedures which “could certainly redress

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Plaintiffs’ procedural and aesthetic injuries”).

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Accordingly, the Court denies, in part, the Federal Defendants’ cross-motion for summary

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judgment.

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2.

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The Federal Defendants also argue that construction on the Willits Bypass Project is

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complete, rendering Plaintiffs’ claims moot. “A case becomes moot whenever it ‘los[es] its

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character as a present, live controversy of the kind that must exist if we are to avoid advisory

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opinions on abstract propositions of law.’” West v. Sec’y of the Dep’t of Transp., 206 F.3d 920,

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924 (9th Cir. 2000) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969) (alterations in West). In order

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for a case to be justiciable, the “controversy must be definite and concrete, touching the legal

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relations of parties having adverse legal interests. It must be a real and substantial controversy,

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admitting of a specific relief through a decree of a conclusive character, as distinguished from an

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opinion advising what the law would be upon a hypothetical set of facts.” Id. (quoting Aetna Life

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Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).

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Mootness.

In West, the plaintiff challenged the FHWA’s determination that a highway interchange

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project, which would be conducted in two phases, satisfied the criteria for a categorical exclusion

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under NEPA. 206 F.3d at 923-24. One of the defendants argued the case was moot, because
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construction had been completed on the first phase of the project, and the interchange had been

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opened to traffic. Id. at 924 & n.1. The court rejected this argument. It reasoned that the second

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stage of the project had not begun, and “upon finding that defendants failed to comply with

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NEPA, our remedial powers would include remanding for additional environmental review and,

5

conceivably, ordering the interchange closed or taken down. … The fact that Stage 1 of the

6

interchange has been constructed and is operational is insufficient to render the case moot.” Id. at

7

925-26; cf. Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir.

8

1981). The West court reached this conclusion, even though it did not order that the interchange

9

be taken down as a remedy. West, 206 F.3d at 929.
The Court finds the facts here are analogous to the facts in West. The construction of the

11
United States District Court
Northern District of California

10

first phase of the Willits Bypass is complete and open to traffic, and the second phase has not yet

12

begun, although it has not been funded. If the Court were to find the Federal Defendants violated

13

any of the statutes at issue, the Court could remand for additional environmental review and, as in

14

West, “however cumbersome or costly it might be” conceivably order the Willits Bypass closed or

15

taken down. 206 F.3d at 925 n.1.
Accordingly, the Court concludes that the Federal Defendants have not met their “heavy”

16
17

burden to show this case is moot, and it denies, in part, their cross-motion on that basis. Id. at 924.

18

D.

The NHPA Consultation Claim.

19

1.

20

Section 106 of the NHPA (“Section 106”) requires that a federal agency with the

Statutory and Regulatory Framework.

21

“authority to license any undertaking, prior to the approval or expenditure of any Federal funds on

22

the undertaking or prior to the issuance of any license, shall take into account the effect of the

23

undertaking on any historic property.” 54 U.S.C. § 306108. An “undertaking” is “a project,

24

activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal

25

agency, including those carried out by or on behalf of a Federal agency; those carried out with

26

Federal financial assistance; and those requiring a Federal permit, license or approval.” 36 C.F.R.

27

§ 800.16(y). Plaintiffs allege, and the Federal Defendants have not disputed, that the Willits

28

Bypass Project qualifies as an “undertaking.”
12

Section 106 requires an agency to “stop, look, and listen” to “the effects of its programs.”

1
2

Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999). Therefore, a

3

federal agency must

4

make a reasonable and good faith effort to identify historic
properties; determine whether identified properties are eligible for
listing on the National Register …; assess the effects of the
undertaking on any eligible historic properties found; determine
whether the effect will be adverse; and avoid or mitigate any adverse
effect. The [agency] must confer with the [SHPO] and seek the
approval of the [Council].

5
6
7

Muckleshoot, 177 F.3d at 805 (brackets in original); see also 36 C.F.R. §§ 800.3 (initiation of

9

process), 800.4 (identification of historic properties), 800.5 (assessment of adverse effects), and

10

800.6 (resolution of adverse effects). In addition, as part of this process, a federal agency must

11
United States District Court
Northern District of California

8

engage in consultation with a number of parties. See 36 C.F.R. § 800.2(c). “Consultation means

12

the process of seeking, discussing, and considering the views of other participants, and, where

13

feasible, seeking agreement with them regarding matters arising in the section 106 process. The

14

Secretary’s ‘Standards and Guidelines for Federal Agency Preservation Programs pursuant to the

15

National Historic Preservation Act’ provide further guidance on consultation.” 36 CFR §

16

300.16(f).
“When an undertaking may affect properties of historic value to an Indian tribe on non-

17
18

Indian lands, the consulting parties shall afford such tribe the opportunity to participate as

19

interested persons.” 36 C.F.R. § 800.1(c)(2)(iii); see also Te-Moak Tribe of Western Shoshone of

20

Nev. v. U.S. Dep’t of the Interior, 608 F.3d 592, 607 (9th Cir. 2010) (federal agencies required “to

21

consult with tribes that ‘attach[] religious and cultural significance to historic properties that may

22

be affected by an undertaking’”) (brackets in original). When an agency engages in consultation

23

with a tribe, it “must recognize the government-to-government relationship between the Federal

24

Government and Indian tribes.” Id. § 800.2(c)(2)(ii)(C). Thus, “the agency official shall consult

25

with representatives designated or identified by the tribal government or the governing body[.]”

26

Id.

27
28

A federal agency must provide a tribe with “a reasonable opportunity to identify its
concerns about historic properties, advise on the identification and evaluation of historic
13

1

properties, including those of traditional religious and cultural importance, articulate its views on

2

the undertaking’s effects on such properties, and participate in the resolution of adverse effects.”

3

36 C.F.R. § 800(c)(2)(ii)(A). A failure to engage in government-to-government consultation “may

4

be grounds for setting aside an agency action.” Colorado River Indian Tribes v. Dep’t of the

5

Interior, No. ED CV 14-02504 JAK (SPx), 2015 WL 12661945, at *13 (C.D. Cal. June 11, 2015)

6

(citing Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 797 (9th Cir. 2006)).
The Ninth Circuit recently held that “the current definition of ‘undertaking’” does not

7

encompass “a continuing obligation to evaluate previously approved projects.” Havasupai Tribe

9

v. Provencio, 876 F.3d 1242, 1251 (9th Cir. 2017). However, NHPA’s implementing regulations

10

do address post-review discoveries and an agency’s continuing obligations under the NHPA. Id.,

11
United States District Court
Northern District of California

8

(citing 36 C.F.R. § 800.13). “An agency official may develop a programmatic agreement pursuant

12

to § 800.14(b) to govern the actions to be taken when historic properties are discovered during the

13

implementation of an undertaking.” Id. § 800.13(a)(1).11 If there is no process in place under

14

Section 800.13(a) and “historic properties are discovered or unanticipated effects on historic

15

properties found after the agency official has completed the section 106 process … , the agency

16

official shall make reasonable efforts to avoid, minimize, or mitigate adverse effects to such

17

properties[.]” Id. § 800.13(b). If that occurs and construction has not commenced, the agency

18

official must “consult to resolve adverse effects pursuant to § 800.6[.]” Id. § 800.13(b)(1). If the

19

undertaking has been approved and construction has commenced, an agency official must

20

“determine actions that the agency official can take to resolve adverse effects, and notify the

21

SHPO/THPO [tribal historic preservation officer], any Indian tribe … that might attach religious

22

and cultural significance to the affected property, and the Council within 48 hours of the

23

discovery.” Id. § 800.13(b)(3).

24

//

25
26
27
28

11

Section 800.14(b) provides that the Council and a federal agency “may negotiate a
programmatic agreement to govern the implementation of a particular program or the resolution of
adverse effects from certain complex project situations or multiple undertakings.”
14

1

1.

2

The Federal Defendants’ Statute of Limitations and Laches Defenses.
a.

Statute of Limitations.

Plaintiffs allege that the Federal Defendants failed to engage in government-to-government

3
4

consultation “[a]t the Final EIS/EIR stage, when Caltrans and FHWA stated there would be ‘no

5

effect’ when they did not know what the effects would be[.]” (SAC ¶ 96.)12 The Federal

6

Defendants argue that a claim based on approval of the Final EIS and the subsequent Record of

7

Decision is barred by the relevant statute of limitations. “[E]very civil action commenced against

8

the United States shall be barred unless the complaint is filed within six years after the right of

9

action first accrues.” 28 U.S.C. § 2401(a). The record of decision for the Willits Bypass Project
was issued in 2007. At the hearing, Plaintiffs conceded that a claim based the Federal Defendants’

11
United States District Court
Northern District of California

10

conduct in connection with approval of the Final EIS would be barred.13 To the extent Plaintiffs’

12

premise the NHPA consultation claim on conduct prior to October 30, 2009, the Court finds the

13

claim is barred by Section 2401(a).
Accordingly, the Court grants, in part, the Federal Defendants’ cross-motion on that basis.

14
15

b.

Laches.

16

The Federal Defendants also argue that Plaintiffs’ NHPA consultation claim is barred by

17

laches. In order to prevail on this defense, the Federal Defendants must show that: (1) Plaintiffs

18

lacked diligence; and (2) the Federal Defendants suffered prejudice. See Apache Survival Coal. v.

19

United States, 21 F.3d 895, 905 (9th Cir. 1994). In environmental cases, including NHPA cases,

20

“these criteria must be applied in light of the principle that laches must be invoked sparingly in

21

suits brought to vindicate the public interest.” Id. (internal quotations and alterations omitted); see

22

also id. at 906 (determining this standard should apply in NHPA cases).

23
24
25
26
27
28

12

One document in the record suggests that, at some point, “all of the tribes in the Willits
area … deferred consultation to the Sherwood Valley Rancheria[.]” (FHWA AR 0007.)
However, the Federal Defendants have not directed the Court to a document that shows Plaintiffs
did, in fact, “defer” their interest in Section 106 consultation requirements to Sherwood Valley.
13

Any claims based on approval of the Final EIS also would be barred by 23 U.S.C. section
139(l)(1), which at the time the Final EIS was approved required a claim be filed within 180 days
of publication in the Federal Register of the final approval of a highway project. That limitations
period has been reduced to 150 days.
15

The Federal Defendants do not articulate at what point the Court should start evaluating

1
2

Plaintiffs’ alleged lack of diligence.14 Because the Court has determined that a claim based on

3

conduct prior to October 30, 2009 is barred by the statute of limitations, and because Plaintiffs

4

conceded that a claim based on the approval of the Final EIS would be barred, the Court will

5

evaluate the period between October 31, 2009 and October 30, 2015, when Plaintiffs filed suit.
The Federal Defendants direct the Court to Caltrans’ consultation log to support their

6

argument that Plaintiffs did not act diligently. That log reflects communications from Caltrans to

8

some members of Plaintiffs’ tribes, but it does not reflect any communication by the Federal

9

Defendants to Plaintiffs prior to June 2013. The Federal Defendants’ consultation log does not

10

reflect any communications from the Federal Defendants to Plaintiffs regarding government-to-

11
United States District Court
Northern District of California

7

government consultation prior to 2013. (See, e.g., FHWA AR 0001-06 (discussing Sherwood

12

Valley) and 0007 (forwarding June 4 letter from Coyote Valley).) Yet, with the exception of the

13

approval of the Final EIS, most of the events about which Plaintiffs complain relate to post-review

14

discoveries that occurred once construction started in 2013. Those events fall within the generally

15

applicable six year statute of limitations. The Court finds the Federal Defendants have not met

16

their burden to show inexcusable delay by the Plaintiffs, at least to the extent the NHPA

17

consultation claim does not relate to approval of the Final EIS.
Accordingly, the Court concludes that the Federal Defendants have not met their burden to

18
19
14

20
21
22
23
24
25
26
27
28

The record does show that Plaintiffs’ members were made of aware of the Willits Bypass
Project early in its development. For example, on December 7, 1987, Caltrans sent a letter
inviting a number of entities and individuals to a public meeting on December 15, 1987 to address
the feasibility of constructing a four-lane freeway bypass around the City of Willits. Ms. Hunter,
as Commissioner of Coyote Valley, was copied on that letter. (CT AR 017344, 17348.) Ms.
Hunter also is listed on a “Native American Notification List” dated December 22, 1997 as Chair
of Coyote Valley. (CT AR 043041; see also CT AR 043050.) Caltrans’ consultation logs for the
Willits Bypass Project also show that Caltrans’ representatives included Ms. Hunter in discussions
about the Willits Bypass Project, although in many entries Ms. Hunter is identified as a
representative of the Native American Heritage Commission (“NAHC”) rather than as a
representative of Coyote Valley. (See, e.g., CT AR at 011520 (entry dated 11/28/90); see also CT
AR 17362, 17365, 207286.) Caltrans’ representatives also included Norman Whipple, who in
2000 was listed as the President of Round Valley, in discussions about the Willits Bypass Project
as early as 1998. (CT AR at 011515, 011518, 011520, 043050; see generally 011515-79
(Consultation Log).)
16

1

show Plaintiffs’ NHPA consultation claim is barred by laches, and it denies, in part, their cross-

2

motion on that basis.

3

2.

4

Plaintiffs allege the Federal Defendants failed to engage in government-to-government

The Merits of the NHPA Consultation Claim.

5

consultation “[w]hen Caltrans, FHWA, and DOT commenced construction without taking

6

appropriate steps to protect Plaintiffs’ historic properties, cultural resources, and sacred sites

7

encountered during construction activities and on the mitigation lands of the Willits Bypass

8

Project; and … [w]hen Caltrans, FHWA, and DOT failed to correct these egregious errors once

9

they discovered additional archaeological sites eligible for registry on the NRHP.” (SAC ¶ 96.)

10

Plaintiffs do not identify any aspect of the Willits Bypass Project arising after the Final EIS

United States District Court
Northern District of California

11

and Record of Decision were issued, which would be considered a separate “undertaking” that

12

would require the Federal Defendants to initiate a new Section 106 consultation process. That is

13

not necessarily fatal to Plaintiffs’ claim, because as set forth above, the NHPA’s implementing

14

regulations contemplate post-review discoveries may occur. 36 C.F.R. § 800.13. It is undisputed

15

that there have been post-review discoveries. In addition, although the FAPA governs all highway

16

projects in California, it is undisputed that there is not a programmatic agreement specific to the

17

Willits Bypass Project in place. Further, according to the record, there was no plan in place for

18

post-review discoveries on the Willits Bypass Project, which implicates the provisions of

19

Stipulation XV.B of the FAPA. (See, e.g., FHWA AR 0008, hyperlink to “Notification of PRD #1

20

on the WBP.docx”.) Compliance with procedures set forth in a programmatic agreement will

21

“serve as a ‘substitute’ for the regulations that concerns consultation for purposes of the agency’s

22

compliance with Section 106.” Colorado River Indian Tribes, 2015 WL 12661945, at *13.

23

Stipulation XV.B does not clearly call for additional government-to-government consultation.

24

However, Coyote Valley did formally request government-to-government consultation

25

with the Federal Defendants, although the record does not show Round Valley made a similar

26

request. In order to satisfy their responsibility to engage in government-to-government

27

consultation, the Federal Defendants were required to ensure Plaintiffs had a “reasonable

28

opportunity” to, inter alia, identify their concerns about any such discoveries, articulate their
17

1

views on the Willits Bypass Project’s effects on those discoveries and participate in the resolution

2

of any adverse effects to those discoveries “with representatives designated or identified by the

3

tribal government[.]” See Te-Moak Tribe, 608 F.3d at 608; 36 C.F.R. § 800.2(c)(2)(ii)(C).
Plaintiffs argue the facts of this case are analogous to Pueblo of Sandia v. United States, 50

4
5

F.3d 856 (10th Cir. 1995). In that case, the court found that the Forest Service failed to follow up

6

on information from the plaintiffs, even though it knew the plaintiff tribes might be “hesitant to

7

divulge the type of information” it was seeking about the traditional cultural properties at issue. Id.

8

at 860-61. The court also found the Forest Service did not act in good faith, because it had

9

withheld information from the SHPO that, once disclosed, caused the SHPO to withdraw its initial
concurrence in the Forest Service’s determination that there was no evidence that traditional

11
United States District Court
Northern District of California

10

cultural properties were located in the relevant area. Id. at 858, 862-63. Plaintiffs have not

12

pointed the Court to any similar conduct by the Federal Defendants.
Rather, after Plaintiffs requested government-to-government consultation, the record

13
14

shows that the Federal Defendants and designated tribal representatives communicated by

15

telephone regarding the Plaintiffs’ concerns, attempted to negotiate a project specific

16

programmatic agreement, and attended face-to-face meetings about the post-review discoveries

17

and Plaintiffs’ concerns. (See, e.g., CT AR 017499, 024931, 200547-48; FHWA AR 0034-35,

18

0038, 0039, 0054, 0063-65, 0066 and 0069 (and embedded attachments); see also CT AR 011534

19

(entry dated 7/30/13), 011535 (entries dated 8/11/13, 10/23/13), 011536-38 (entries dated 12/5/13,

20

1/17/14, 1/30/14, 1/31/14, 3/26/14, 4/26/14, 4/29/14), 011546 (entry dated 2/18/15), 011551-52

21

(entries dated 4/10/15, 4/15/15, 4/16/15), 011556-57 (entries dated 5/11/15, 5/14/15, 5/15/15,

22

5/19/15), 011558 (entry dated 6/15/15); FHWA AR at 0018-19 (entries dated 10/23/13,

23

12/5/13,1/30/14, 3/26/14, 4/26/14, 4/29/14).) Those efforts apparently continued after Plaintiffs

24

filed this case. (See, e.g., FHWA AR 0394-98.)15 Plaintiffs also do not identify any new

25
15

26
27
28

The Court also notes that a letter from the Council acknowledges there were unanticipated
post-review discoveries, which “presented challenges to all consulting parties, particularly the
Indian tribes, as we attempted to develop an appropriate treatment plan to minimize harm to
historic properties, all the while seeing additional harm come to more and more properties as
construction continued.” (CT AR 014891.) The Council expressed its view that notwithstanding
these problems and the unsuccessful efforts to develop a project specific programmatic agreement,
18

1

information they would have provided to the Federal Defendants if they had been consulted earlier

2

in the construction process.
Accordingly, the Court concludes the record shows the Federal Defendants gave Plaintiffs

3
4

the reasonable opportunity to address their concerns about the post-review discoveries and worked

5

with them in an effort to resolve those concerns. The Court denies Plaintiffs’ motion for summary

6

judgment and grants the Federal Defendants’ cross-motion for summary judgment on the NHPA

7

consultation claim.

8

E.

9

The NHPA Non-Consultation Claim, the NEPA Claim, and the Federal Highway
Statutes Claim.
Plaintiffs also argue that once Plaintiffs advised the Federal Defendants that, in their view,

10

United States District Court
Northern District of California

11

the Caltrans Defendants were not satisfactorily resolving project related issues and concerns, the

12

Federal Defendants should have reassumed their responsibilities under the NHPA, NEPA, and the

13

Federal Highway Statutes. The Federal Defendants argue that Section 3.2.3 does not require them

14

to reassume responsibilities for the Willits Bypass Project; rather, the decision to do so is

15

discretionary.

16

“Interpretation of a contract is a matter of law,” as is the determination of whether a

17

contract is ambiguous. Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210

18

(9th Cir. 2000).16 The Court must read the 2007 MOU “as a whole” and must interpret every part

19

“with reference to the whole, with preference given to reasonable interpretations.” Id. The Court

20

gives terms of the 2007 MOU “their ordinary meaning,” and if those terms are clear, “the intent of

21

the parties must be ascertained from the” 2007 MOU itself. Id. The 2007 MOU states that “[i]f a

22

project-related concern or issue is raised in a government-to-government consultation process with

23

an Indian tribe, …, and is related to NEPA or another federal environmental law for which

24

Caltrans has assumed responsibilities under this MOU, and either the Indian tribe or the FHWA

25
26

“we concluded that Caltrans and the [FHWA] were negotiating in good faith and tried to
understand and respond to the tribal issues.” (Id.)

27

16

28

“Federal law controls the interpretation of a contract entered pursuant to federal law when
the United States is a party.” Klamath Waters, 204 F.3d at 1210.
19

1

determines that the issue or concern will not be satisfactorily resolved by Caltrans, then the

2

FHWA shall reassume all or part of the responsibilities for processing the project.” (2007 MOU,

3

§ 3.2.3 (emphasis added).)17
The parties’ dispute about the 2007 MOU focuses on the word “shall.” Although the

4

parties dispute the meaning of that term, that “does not establish that the [2007 MOU] is

6

ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than

7

one interpretation.” Klamath Waters, 204 F.3d at 1210. Plaintiffs are correct that the term “shall”

8

often connotes mandatory language. See, e.g., Black’s Law Dictionary at 1585 (10th ed. 2014).

9

In some instances, however, the term “shall” can mean “may,” i.e. it can be used in a permissive

10

sense. See id.; see also N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69

11
United States District Court
Northern District of California

5

F.3d 1034, 1037 (9th Cir. 1995) (finding that term “shall” as used in a forum selection clause was

12

permissive, rather than mandatory).
Section 3.2.3 states that when a tribe or the FHWA determines that Caltrans will not

13
14

satisfactorily resolve project related concerns raised during government-to-government

15

consultation, “the provisions of section 9.1 concerning FHWA initiated reassumptions shall

16

apply.” Section 9.1.1, in turn, permits the FHWA to reassume responsibility for a project “upon

17

the FHWA’s determination that … Caltrans cannot satisfactorily resolve an issue or concern raised

18

in a government-to-government consultation process[.]” Under Section 9.1.2, the FHWA is

19

required to “informally notify Caltrans” of that determination and provide “written notice” of the

20

determination and its reasons. Caltrans is provided with an opportunity to comment or object. In

21

order to make a final determination about whether it will reassume responsibilities for a given

22

project, the FHWA considers “Caltrans’ comments or objections, the effect the reassumption will

23

have on the Pilot Program, amount of disruption of the project concerned, the effect on other

24
25
26
27
28

17

The 2017 MOU provides that the Federal Defendants “may withdraw the assignment of all
or part of the responsibilities for processing the project.” (2017 MOU § 3.2.3.) Plaintiffs alleged
that the Defendants failed to properly renew the MOU and ask that the Court declare the 2017
MOU unlawful and set it aside. (SAC ¶¶ 213-227, 235-237.) The Federal Defendants argue this
claim is not viable, because their procedural argument focuses on the wrong Federal Register
notice. Plaintiffs do not respond to the Federal Defendants’ argument, and the Court concludes
they have failed to meet their burden to show they are entitled to relief on that basis.
20

1

pro
ojects, confu
usion the reas
ssumption may cause to the public, t potential burden to o
m
the
l
other Federal
l

2

age
encies, and the overall pu
t
ublic interes (2007 M
st.”
MOU § 9.1.2.)
“A writ contract must be rea as a whole and every part interpre with ref
tten
t
ad
e
eted
ference to the
e

3

wh
hole, with pre
eference giv to reason
ven
nable interpre
etations.” K
Klamath Wat
ters, 204 F.3d at 1210;

5

see also Nat’l Res. Def. Co
e
R
ouncil v. Cou of Los A
unty
Angeles, 725 F.3d 1194, 1206 (9th C 2013)
5
Cir.

6

(“[A court mu give effec to every word or term” in an NPD permit “
A]
ust
ct
w
”
DES
“and reject none as

7

me
eaningless or surplusage. (quotations and citati omitted). The Court must read S
r
.”)
ion
t
Section 3.2.3
3

8

tog
gether with Section 9.1.2 When the Court consi
S
2.
iders the fact that, under Section 9.1.2, the
t
r

9

FH
HWA must co
onsider a nu
umber of fact
tors, includin Caltrans’ responses a objection before it
ng
’
and
ns,

10

ma
akes a “final determinatio
on”, the Cou finds the term “shall” in Section 3.2.3 is perm
urt
e
missive and

11
United States District Court
Northern District of California

4

giv the Feder Defendan the discre
ves
ral
nts
etion to dete
ermine wheth they will or will not reassume
her
l

12

res
sponsibilities for the Willits Bypass Project.
s
P
Accord
dingly, the Court denies Plaintiffs’ m
P
motion for su
ummary judg
gment and gr
rants the

13
14

Fed
deral Defend
dants’ cross-motion for summary jud
s
dgment on th NHPA no
he
on-consultati claim,
ion

15

the NEPA claim and the Federal High
e
m,
F
hway Statute s claim.18
CONCLU
USION

16

For the foregoing re
easons, the Court DENIE Plaintiffs motion for summary j
C
ES
fs’
judgment,

17
18

d
TS,
T,
NIES, IN PA
ART, the Fed
deral Defend
dants’ cross-m
and it GRANT IN PART AND DEN
motion for

19

sum
mmary judgm
ment. The Court shall is
C
ssue a separa judgmen when it iss
ate
nt
sues its Orde on the
er

20

Pla
aintiffs’ and Caltrans’ De
efendants cr
ross-motions for summar judgment
s
ry
t.
IT IS SO ORDER
S
RED.

21
22

Da
ated: March 30, 2018
3
___
__________
___________
_____
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge

23
24
25
26
27
18

28

In light of this rulin the Court does not re
t
ng,
t
each the Fede Defenda
eral
ants’ alternat
tive
arg
gument that Plaintiffs are not third-party benefici
P
e
iaries of the 2007 MOU
U.
21