Souza v. Cal. Dep't of Transp., C 13-4407 PJH
| Decision Date | 26 February 2014 |
| Docket Number | No. C 13-4407 PJH,C 13-4407 PJH |
| Court | U.S. District Court — Northern District of California |
| Parties | TED SOUZA, et al., Plaintiffs, v. CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al., Defendants. |
The motion of defendants California Department of Transportation and Malcolm Dougherty (collectively, "CalTrans") for an order dismissing the second and seventh causes of action came on for hearing before this court on January 29, 2014. Plaintiffs appeared by their counsel Stuart Gross, and CalTrans appeared by its counsel Derek Van Hoften. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion as follows.
This is a case brought under the Administrative Procedures Act, 5 U.S.C. § 701, et seq. ("APA"), challenging a proposal by CalTrans to widen and/or otherwise modify portions of U.S. Route 199 ("U.S. 199") and State Road 197, in an area bordering the Smith River and generally within the Smith River National Recreation Area.
Defendants are CalTrans; Malcolm Dougherty, the Director of CalTrans (in his official capacity); the National Marine Fisheries Service ("NMFS") - a division of the National Oceanic and Atmospheric Administration ("NOAA") and the United States Department of Commerce; and Samuel D. Rauch III, Acting Assistant Administrator forFisheries for NOAA (in his official capacity).
The Smith River, which is located in Del Norte County, is the last remaining undammed river in California. Approximately 300 miles of the river are designated "wild and scenic" under the Wild and Scenic Rivers Act, 16 U.S.C. § 1271, et seq. The Smith River has also been designated "critical habitat" under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., for the Southern Oregon Northern California Coast Evolutionary Significant Unit of coho salmon ("SONCC coho"), listed as a threatened species under the ESA; and designated essential fish habitat ("EFH") for both coho and Chinook salmon under the MSA.
Plaintiffs allege that CalTrans seeks to create a network of roads through coastal Northwestern California, along which large trucks would be given unrestricted access along rural roads from Oregon to the San Francisco Bay. Specifically, for purposes of the present action, what CalTrans has designated the "197/199 Safe STAA Access Project" ("197/199 Project" or "Project") calls for major roadwork at seven locations along U.S. 199 and SR 197. The five U.S. 199 locations are within the narrow and windy Smith River Canyon, right above the Smith River. The two SR 197 locations are on the Smith River's bank, as the river leaves the mountains and expands into its estuary, which is the spawning ground of the Smith River's population of SONCC coho.
The regulatory process employed by CalTrans and NMFS to assess the proposed Project and its potential impacts on the Smith River's salmon populations and their habitat is the consultation process established under the ESA and the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq. ("MSA").
Section 7 of the ESA, 16 U.S.C. § 1536, and § 305 of the MSA, 16 U.S.C. § 1855, establish a process through which an agency planning to engage in an action (referred to as the "action agency") that could impact, in the case of the ESA, listed species and their designated critical habitat, or, in the case of the MSA, designated EFH, is required to consult with NMFS (referred to as the "consulting agency") concerning such impacts.
In the case of the MSA, § 305(b)(2) and its enabling regulations require actionagencies to consult with the NMFS "with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat." 5 U.S.C. § 1855(b)(2); 50 C.F.R. § 600.920.
This consultation is initiated by preparation by the action agency of an EFH assessment which must contain 50 C.F.R. § 600.920(e)(3). An action agency can limit its EFH assessment to these minimum requirements and thus engage in what are known as the "abbreviated consultation procedures" with NMFS, but only if its action does not have the potential to cause a substantial adverse effect on EFH. 50 C.F.R. § 600.920(h).
However, if the action does have the potential to cause a substantial adverse effect on EFH, the action agency must engage in what is known as "expanded consultation procedures" with NMFS, which are intended to "allow[] maximum opportunity for NMFS and the [action] agency to work together to review the action's impacts on EFH and to develop EFH Conservation Recommendations." 50 C.F.R. § 600.920(i). These procedures involve (i) an on-site inspection to evaluate the habitat and the site-specific effects of the project; (ii) the views of recognized experts on the habitat or species that may be affected; (iii) a review of pertinent literature and related information; (iv) an analysis of alternatives to the action, including alternatives that could avoid or minimize adverse effects on EFH; and (v) analysis of other relevant information. See 50 C.F.R. § 600.920(e)(4).
If the action agency believes that its action would not result in substantial adverse impacts to EFH it may submit an EFH assessment meeting the minimal requirements discussed above. 50 C.F.R. § 600.920(h)(2). However, if NMFS determines that, in fact, "the action may result in substantial adverse effects on EFH, or that additional analysis is needed to assess the effects of the action," NMFS must request that the action agency engage in expanded consultation. 50 C.F.R. § 600.920(h)(3).
CalTrans and the Federal Highway Administration ("FHWA") executed a Memorandum of Understanding ("CalTrans/FHWA MOU"), under which the FHWA assigned to CalTrans, and CalTrans accepted, the delegation of authority pursuant to 23 U.S.C. § 327, to provide environmental review, consultation, or other such action pertaining to the review or approval of the Project, as required by federal laws including the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq.; § 7 of the ESA, 16 U.S.C. § 1536; § 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138 and 49 U.S.C. § 303; § 7 of the Wild and Scenic Rivers Act, 16 U.S.C. § 1278; and the implementing regulations of those statutes.
Plaintiffs assert that it was pursuant to the CalTrans/FHWA MOU that CalTrans prepared and adopted an environmental assessment ("EA"1), based on which it adopted a "finding of no significant impact" (or "FONSI") (collectively with the EA prepared regarding the 197/199 Project, referred to as "the EA/FONSI"), as well as the Revised Biological Assessment for Impacts to Coho Salmon, Designated Critical Habitat, and Essential Fish Habitat Assessment ("EFHA") for the 197/199 Project (the "Revised Coho BA/EFHA") under the ESA and the MSA.
Plaintiffs contend that CalTrans issued the Revised Coho BA/EFHA on March 29, 2012; that CalTrans approved the 197/199 Project and adopted a final EA/FONSI on April 10, 2013; that on April 24, 2013, the FHWA, on behalf of CalTrans, issued a Notice of Final Federal Agency Actions in the Federal Register, giving notice of its decisions; and that CalTrans issued a Project Report on June 6, 2013, purporting to be a Project Approval.
Plaintiffs assert that when CalTrans approved the Project on April 10, 2013, it did not first complete an environmental impact statement ("EIS") as required by NEPA, but rather only the EA/FONSI, which plaintiffs claim was inadequate. Plaintiffs also allege thatCalTrans' analysis of the Project's anticipated impact on the Smith River's SONCC coho, their critical habitat, and the EFH of coho and Chinook salmon ("Pacific Salmon EFH"), memorialized in the Revised Coho BA/EFHA was inadequate, in part because of CalTrans' failure to look at the anticipated impact of the Project as a whole, instead of on a location-by-location basis.
Plaintiffs contend that the "final actions" referred to in the FHWA's April 24, 2013 Notice of Final Agency Actions included, as to CalTrans, the issuance of the EA/FONSI, and the approval and authorization of the proposed Project based thereon, and as to NMFS, the issuance of the "letter of concurrence" concerning the Project's effects on listed SONCC coho, green sturgeon, and designated SONCC critical habitat, on May 7, 2012.
Plaintiffs filed the complaint in the present action on September 23, 2013, asserting seven causes of action, all under the APA - (1) failure to adequately engage in ESA consultation (against NMFS); (2) failure to adequately engage in consultation under § 305 of the MSA (against all defendants); (3) failure to adequately engage in Wild and Scenic Rivers Act consultation (against CalTrans); (4) failure to prepare an EIS as required by NEPA (against CalTrans); (5) failure to prepare an adequate EA as required by NEPA (against CalTrans); (6) failure to comply with the Department of Transportation Act as required by NEPA (against CalTrans); and (7) failure to comply with NEPA, the ESA, the MSA, the Wild and Scenic Rivers Act, and the Department of Transportation Act (against all defendants).
CalTrans now seeks an order dismissing two claims asserted against it - the second cause of action, for lack of subject matter jurisdiction, and the seventh cause of action, for failure to state a claim.
Federal courts are courts of limited jurisdiction, possessing only that power authorized by Article III of the United States Constitution and statutes enacted by Congresspursuant thereto. See Bender v. Williamsport Area Sch....
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