Center for Biol. Diver. v. Federal Highway Admin.

Decision Date10 March 2003
Docket NumberNo. 01CV1876JM(POR).,01CV1876JM(POR).
Citation290 F.Supp.2d 1175
PartiesCENTER FOR BIOLOGICAL DIVERSITY; et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION; et al., Defendants. California Transportation Ventures, Inc; San Diego Expressway, L.P. Intervenor-Defendants.
CourtU.S. District Court — Southern District of California

Everett L. DeLano, III, Law Offices of Everett L. DeLano, III, Escondido, CA, for Plaintiffs.

Thomas Stahl, US Attorney CV, US Attorneys Office, San Diego, CA, Barry A. Weiner, US Dept. of Justice, General Litigation Section, Martha C. Mann, US Dept. of Justice, Environmental Defense Section, Washington, DC, for Defendant.

Robert D. Thornton, Law Offices of Robert D. Thornton, Irvine, CA, for Intervenor-Defendant.


MILLER, District Judge.

Plaintiffs Center for Biological Diversity, Preserve South Bay, San Diego Audubon Society, Sierra Club and Preserve Wild Santee (collectively "Plaintiffs") move for summary judgment on grounds that defendants Federal Highway Administration, U.S. Fish & Wildlife Service, and the U.S. Army Corps of Engineers (collectively "Federal Defendants") failed to comply with federal environmental laws. Plaintiffs also seek to enjoin the developers of the project, California Transportation Venture, Inc. and San Diego Expressway, L.P. (collectively "Intervenors"), from continuing with any construction related activities. The Federal Defendants and Intervenors oppose the motion and have filed crossmotions for summary judgment. Having carefully considered the record before the court, pertinent legal authorities, and the arguments of counsel, the court, for the reasons set forth below, denies Plaintiffs' motion for summary judgment; grants Defendants' and Intervenors' motion for summary judgment; denies Plaintiffs' motion for injunctive relief; denies Plaintiffs' objections to Magistrate Judge Porter's discovery order; grants Defendants' and Intervenors' motion to strike; and grants in part and denies in part Plaintiffs' motion to strike. The Clerk of Court is instructed to close the file.

General Overview

Plaintiffs commenced this action to challenge the Federal Defendants' actions in approving and issuing permits for a new toll road located in Southeastern San Diego County known as State Route 125 South (hereinafter "SR 125"). Plaintiffs allege that the alignment of the 11.2 mile toll road cuts across the habitat of many endangered and threatened species, and would bisect and fragment one of Southern California's largest remaining intact vernal pool complexes. The toll road will also allegedly facilitate and induce commercial and residential development in an imperiled ecosystem. Plaintiffs seek injunctive and declaratory relief asserting that the permit approvals violate the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Department of Transportation Act ("DOTA"), 49 U.S.C. § 303(c), and the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.

This case aptly illustrates the unassailable reality that Congress has vested authority in several federal agencies for the balancing of factors relevant for review and approval of proposed highway projects. The voluminous record, in excess of 47,000 pages, has been created over an expanse of many years and addresses a myriad of substantive areas including but not limited to socioeconomic factors, air quality, noise, water issues, traffic, erosion, flood plain considerations, visual assessments, population growth and consequences to plant and animal species.

In 1959, the State of California added SR 125 to the State freeway system and in 1984 SR 125 was added to the Regional Transportation Plan as a part of a federally approved twenty year plan for transportation improvements. In 1991, the State of California selected California Transportation Ventures, Inc. ("CTV") to design, build, operate and maintain the SR 125 project.1 Pursuant to the franchise agreement, CTV is responsible for identifying and obtaining all permits required to construct the project. To date, Intervenors have invested approximately $30 million in the project, including costs associated with obtaining regulatory approvals.

The environmental documentation prepared for SR 125 was a joint effort of FHWA, FWS, the Corps, California Department of Transportation ("Caltrans"), with assistance from CTV as well as involvement of other state, federal and local agencies, and the public. Before the Draft Environmental Impact Statement ("DEIS") was issued for public comment in 1996, numerous technical and other studies were prepared between 1993 and 1995. FHWA 16172-813.2 After consideration of the comments received on the DEIS and coordination with federal and state resource/regulatory agencies, local jurisdictions, the public and affected communities, a preferred alternative for the SR 125 was identified on March 4, 1997.

On February 26, 1999, the FWS issued a Biological Opinion ("BiOp") on the effects of the preferred alternative on several threatened and endangered species concluding that SR 125 is not likely to jeopardize the continued existence of the species, and is not likely to destroy or adversely modify critical habitats. On March 10, 1999 the Corps identified the preferred alternative as the Least Environmentally Damaging Practicable Alternative ("LEDPA") in accordance with the CWA.

Upon discovery of a Quino checkerspot butterfly within the alignment area of SR 125, in April 1999 a Supplemental Draft Environmental Impact Statement ("SDEIS") was circulated for public comment. FHWA 22381-472. After consideration of the SDEIS, on January 21, 2000 the FHWA released the Final Environmental Impact Statement ("FEIS"). FHWA 27855-29238.

On April 19, 2000 Caltrans and CTV applied to the Corps for a permit seeking to fill 10.58 acres of "waters of the United States" in connection with the SR 125 project. After the Corps evaluated and reviewed the FEIS, the Corps elected to adopt the FEIS and further determined that additional analysis was necessary to document compliance with NEPA Section 404(b)(1) Guidelines. Following additional public notice and comments, on July 30, 2001 the Corps issued its Environmental Assessment ("EA") and Record of Decision ("ROD"). COE 6058-96.

The FWS issued a second BiOp on June 11, 2002 addressing the effects of SR 125 on the California gnatcatcher and the Quino checkerspot butterfly. FWS 7404. This was the final permit required before CTV could commenced construction of SR 125.

Brief Description of the Project

The selected alternative for SR 125 spans approximately 11 miles, from Route 54 in Bonita/Spring Valley to Route 905 on Otay Mesa. FWHA 31146. SR 125 includes a maximum of eight mixed flow lanes in the northern segment and six mixed flow lanes from Olympic Parkway to Otay Mesa Road in the southern segment. The median is wide enough to accommodate two possible HOV lanes or transit facilities in the future.

The project will be built in stages. The initial stage includes four lanes with at least five local interchanges, including the freeway to freeway interchange with Route 54. FHWA 31146-47. SR 125 will be widened progressively to six lanes and later to eight lanes north of East "H" Street, including the construction of additional interchanges, to meet growing traffic needs, as required under Section 3.2(e) of the Franchise Agreement. FHWA 27967.

SR 125 will be operated as a toll facility until construction bonds are repaid. FHWA 27934. The project also includes mainline and interchange toll collection plazas, including electronic transponders that will allow regular toll users to bypass the toll plazas. FHWA 27935.

The Challenged Permits

Plaintiffs challenge the issuance of the following permits:

— The Final EIS and Record of Decision ("ROD") issued under NEPA by Federal Highway Administration ("FHWA").

— The Final Section 4(f) Analysis and Record of Decision issued by FHWA under Section 4(f) of the DOTA.

— The 1999 and 2001 biological Opinions ("BiOps") issued by the U.S. Fish & Wildlife Service ("FWS") under Section 7 of the ESA.

— The Permit issued on July 20, 2001 under Section 404 of the CWA by the U.S. Army Corps of Engineers ("Corps").

In September 2002 Plaintiffs learned that CTV intended to commence pre-construction activities. On October 18, 2002 the court denied Plaintiffs' motion for a temporary restraining order and on December 23, 2002 the court denied Plaintiffs' motion to preliminarily enjoin the presently ongoing activities.

The parties have filed cross-motions for summary judgment. In the event Plaintiffs prevail on their motion, they also seek to enjoin any further construction activities.

Legal Standards
Summary Judgment Standard

A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). There is "no express or implied requirement in Rule 56 that the moving p...

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