JEFFREY S. WHITE, District Judge.
Now before the Court is the motion for summary judgment filed by Plaintiffs, Coyote Valley Band of Pomo Indians of California ("Coyote Valley") and The Round Valley Indian Tribes of California ("Round Valley") (collectively "Plaintiffs").
The Court HEREBY DENIES Plaintiffs' motion, and it GRANTS, IN PART, AND DENIES, IN PART, the Caltrans Defendants' motion.
This litigation arises out of the construction of 5. 9-mile-long segment of U. S. Highway 101, which bypasses the City of Willits, California (the "Willits Bypass Project"), and post-construction mitigation projects in the area. (See, e.g., Caltrans Defendants' Administrative Record ("CT AR"), 000015-16, 000038-39; Caltrans Defendants' Supplemental Administrative Record ("CT Supp. AR) 001036-40.)
It is undisputed that the FHWA and Caltrans issued a final Environmental Impact Statement ("EIS") for the Willits Bypass Project in October 2006. In December 2006, the agencies issued a Record of Decision, which approved a variation of a four-lane freeway ("Modified Alternative J1T"). (CT AR 000001-1928 (Final EIS, Vols. 1-4); CT AR 001929-1949 (Record of Decision).)The Final EIS stated there would be no adverse effect on historic properties, if an environmentally sensitive area was established. The State Historic Property Officer ("SHPO") concurred in that finding. (CT AR 000072-73, 000163-64.)The Final EIS also includes measures for relating to two forms of post-review discoveries: unanticipated archaeological discoveries ("ARCH-2") and unanticipated discoveries of human remains ("ARCH-3"). (See CT AR 000072-73, 000117-118; see also CT AR 002297-2312 (NEPA/CEQA Re-Validation dated June 2016 ("2016 Re-Validation").)
In 2007, Caltrans decided to proceed with phased construction, because of funding constraints." During the first phase of the project, . . ., Caltrans plan[ned] to complete a two-lane bypass, and it plans to complete the remaining two lanes as funding becomes available." See Ctr. for Biol. Diversity, 2013 WL 6698740, at *2. This litigation focuses on the first phase. Construction on the first phase of the Willits Bypass Project is complete, and it was opened to traffic in November 2016. (CT Supp. AR 001036.)The second phase of the Willits Bypass Project remains unfunded. According to Plaintiffs, at the time the Final EIS was issued, "Caltrans had only identified one archaeological site eligible for registry on the National Register of Historic Places" ("NHRP"), and they claim that "[s]ince 2013, Caltrans has identified at least thirty additional archaeological sites eligible for registry on the" NRHP. (Second Amended Complaint ("SAC") ¶¶ 17, 19.)
On June 4, 2013, Coyote Valley's Tribal Chairman, Michael Hunter, wrote to Charles Felder, a director at Caltrans, and requested "government-to-government" consultation. (Federal Highway Administration Administrative Record ("FHWA AR") 0007; CT AR 011681-82.)
On February 18, 2015, representatives of Coyote Valley met with representatives of Caltrans, the FHWA, and the Army Corps of Engineers. (Id., 013217-18, 17527). On March 17, 2015, Chairman Hunter sent a letter to Mr. Felder, in which Coyote Valley continued to raise concerns about the Willits Bypass Project. (Id., 013217-18.)On the same day, Chairman Hunter wrote to Mr. Mammano acknowledging the government-to-government consultation meeting on February 18, 2015. (Id., 017305-07.)In that letter, Chairman Hunter stated that "[t]he primary and ongoing request we articulated at this meeting was the need for a Supplemental EIS to contend with the many ancestral archaeological sites that have been discovered subsequent to the approval" of the Final EIS "both in the Project Area and Mitigation parcels" of the Willits Bypass Project. (Id., 017305.) Chairman Hunter also asserted that "Caltrans failed to exercise due diligence in the initial archaeological survey efforts for the project," and "failed to adequately protect sites discovered subsequent to the EIS approval for the project." (Id.)
It is undisputed that, on July 1, 2007, the FHWA and Caltrans entered into a Memorandum of Understanding ("2007 MOU") relating to the Surface Transportation Project Pilot Delivery Program (the "Pilot Program"), 23 U. S. C. section 327.
The Willits Bypass Project is covered by the terms of the 2007 MOU. Under that MOU, the FHWA assigned and Caltrans assumed "all of the USDOT Secretary's responsibilities under NEPA" and "all of the USDOT Secretary's responsibilities for environmental review, consultation, or other such action pertaining to the review or approval of a specific project as required under" Section 106 of the National Historic Preservation Act ("NHPA") and 23 U. S. C. section 138 and Section 4(f) of the Department of Transportation Act of 1966, 49 U. S. C. section 303 (the "Federal Highway Statutes"). (2007 MOU §§ 3. 1. 1, 3. 2. 1. I, 3. 2. 1. Y.)The terms of the 2007 MOU also provide that "Caltrans shall be solely liable and solely responsible for carrying out all of the USDOT Secretary's responsibilities it has assumed under part 3 of this MOU subject to the limitations of the Eleventh Amendment waiver acknowledged in section 4. 3. 1 of this MOU. The FHWA and USDOT shall have no responsibility or liability for the performance of the responsibilities assumed by Caltrans, including any decision or approval made by Caltrans while participating in the Pilot Program." (Id. § 6. 1.) It is undisputed that the Federal Defendants retained their obligation to engage in government-to-government consultation with "federally recognized Indian tribes" under Section 106 of the NHPA. (See 2007 MOU § 3. 2. 3.)
It also is undisputed that the FHWA, Caltrans, California's SHPO, and the Advisory Council on Historic Preservation (the "Council") entered into a Statewide Programmatic Agreement regarding compliance with Section 106 of the NHPA as it pertains to the administration of the Federal-aid Highway Program in California. That programmatic agreement had an effective date of January 1, 2004, and it was amended and extended with an effective date of January 1, 2014. (CT AR 17577-17630, First Amended Programmatic Agreement ("FAPA").) The FAPA states that as a result of the 2007 MOU, among others, "Caltrans is deemed to be a federal agency for all Federal-aid Highway projects it has assumed[. ]"(FAPA at 1.)It also notes that the FHWA as a federal agency has a "unique legal relationship with Indian tribes . . ., and while an Indian tribe may agree to work directly with Caltrans as part of the 36 CFR 800 compliance process, the FHWA . . . remain[s] legally responsible for government-to-government consultation with Indian tribes[. ]"(FAPA at 2; see also id., Stipulations IV. B & VI. B-C.)The FAPA also accounts for "post-review" discoveries. (Id., Stipulation XV.)The parties to this lawsuit have not entered into a specific programmatic agreement or memorandum of agreement for the Willits Bypass Project.
The Court shall address additional facts as necessary in the analysis.
On October 30, 2015, Plaintiffs filed the original complaint in this case and alleged the Federal Defendants and the Caltrans Defendants each violated NEPA, the "Federal Highway Statutes"), and Section 106 of the NHPA. The Federal Defendants moved to dismiss. Before the 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 leave to amend. On August 26, 2016, Plaintiffs filed their first amended complaint, asserting the same claims for relief.
On September 7, 2016, all Defendants moved to dismiss. In the interim, the parties continued to pursue settlement efforts but, again, were not successful. On January 23, 2017, the Court granted, in part, and denied, in part, the Caltrans Defendants' motion to dismiss. Round Valley Indian Tribes of Cal. v. U. S. Dep't of Transp., No. 15-cv-04987-JSW, 2017 WL 282980 (N. D. Cal. Jan. 31, 2017). On March 10, 2017, the Court granted, in part, and denied, in part, the Federal Defendants' motion to dismiss and gave Plaintiffs leave to amend. Round Valley Indian Tribes of Cal. v. U. S. Dep't of Transp., 15-cv-04987-JSW, 2017 WL 950956 (N. D. Cal. Mar. 10, 2017). On April 7, 2017, Plaintiffs filed their SAC, asserting the same claims for relief.
Plaintiffs bring their claims pursuant to the APA, which permits a court to "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 discretion, or otherwise not in accordance with law." 5 U. S. C. §§ 706(1)-(2)(A)." A claim to compel action," under Section 706(1), "may proceed `only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.'" Grand Canyon Trust v. Williams, 98 F.Supp.3d 1044, 1051 (D. Ariz. 2015) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)) (emphasis in Norton).
As part of their NEPA claim, Plaintiffs argue that the Caltrans Defendants failed to prepare a supplemental EIS. When a Court reviews an agency's decision not to supplement an EIS under the APA, it generally applies the "arbitrary and capricious" standard. See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376 (1989); see also Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 (9th Cir. 2000) ("Dombeck") ("The Forest Service's decision to forego an SEIS should not be set aside unless it was arbitrary or capricious."). However, "[a]n action to compel an agency to prepare a [supplemental EIS] . . . is not a challenge to a final agency decision, but rather an action arising under 5 U. S. C. § 706(1)." Dombeck, 222 F. 3d at 560.
In Native Songbird Care and Conservation v. LaHood, the plaintiffs argued the defendants should have prepared a supplemental EIS and invoked both sections of the APA to support their claim. No. 13-cv-02265-JST, 2013 WL 3355657, at *5-6 (N. D. Cal. July 2, 2013). The court viewed that decision to be prudent." When the agency has prepared a written determination that a court can review, the distinction between" Sections 706(1) and 706(2) "makes little difference. Either the determination itself is a final agency action reviewable," under Section 706(2)(A), "or else the court reviews the [written determination] to determine whether the agency has `unlawfully withheld' the preparation of a Supplemental EIS pursuant to" Section 706(1). Id., 2013 WL 3355657, at *6; see also id., 2013 WL 3355657, at *6 n. 6 (noting that "published authority on this issue generally demonstrates that in considering an agency's failure to prepare a Supplemental EIS, courts review a written determination or at least an expert determination").
The Court finds that this is a case where the distinction between Sections 706(1) and 706(2) is one without a difference. As discussed above, the Caltrans Defendants prepared a re-validation in 2016, which sets forth the Caltrans Defendants' reasoning as to why a supplemental EIS was not required. See Idaho Sporting Congress v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000) ("courts have upheld agency use of SIRs and similar procedures for the purpose of determining whether new information or changed circumstances require the preparation of a supplemental EA or EIS"); see also Price Road, 113 F. 3d at 1510. Therefore, the Court will apply standard set forth Marsh:
Marsh, 490 U. S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
Under this standard, the Court will reverse the Caltrans Defendants' decision not to prepare a supplemental EIS "as arbitrary and capricious only if [they] relied on factors Congress did not intend [them] to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before [them] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overruled on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (internal quotations and citations omitted).
The Caltrans Defendants move to strike the declarations submitted by Priscilla Henderson (Dkt. No. 134), Eddie Knight (Dkt. No. 135), and Mike Knight (Dkt. No. 136), on the basis that the declarations are extra-record evidence. The declarations include exhibits that come from the Caltrans Defendants' administrative record. Those exhibits, therefore, would not constitute extra-record evidence. However, the declarants do not simply attest that the exhibits are what they purport to be. Rather, Ms. Hunter sets forth her views of the consultation process. Mr. Eddie Knight discusses issues relating to tribal monitors and how they should be used during a project like the Willits Bypass Project. Mr. Mike Knight, who is Chairman of the Sherwood Valley Band of Pomo Indians ("Sherwood Valley"), discusses Sherwood Valley's decision to not sign a draft programmatic agreement.
When a court is presented with a case brought under APA, its task "is to apply the appropriate APA standard of review, 5 U. S. C. § 706, to the agency decision based on the record" presented by the agency. Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). In the Ninth Circuit, a court may consider extra-record evidence "(1) if necessary to determine `whether the agency has considered all relevant factors and has explained its decision,' (2) `when the agency has relied on documents not in the record,' . . . (3) `when supplementing the record is necessary to explain technical terms or complex subject matter,'" or (4) when a plaintiff shows an agency has acted in bad faith. Sw. Ctr. for Bio. Diversity v. U. S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)).
The Court finds Plaintiffs have not shown any of these exceptions apply. First, none of the declarants are employees of the Caltrans Defendants. See, e.g., Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993) ("[w]hen a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency's decisions") (emphasis added). Plaintiffs also fail to show how the administrative record is insufficient to explain the Caltrans Defendants' decisions; they simply argue it is.
Plaintiffs also argue that their claims are premised on the Caltrans Defendants' failure to act, specifically the failure to prepare a supplemental EIS and the failure to engage in consultation. In such cases, "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Dombeck, 222 F. 3d at 560. To the extent that is true, the Court overrules, in part, the Caltrans Defendants' objections. While the Court will consider the declarations, it will do so only where Plaintiffs have cited to particular paragraphs of a declaration in their briefs. See, e.g., Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) ("As the Seventh Circuit observed in its now familiar maxim, `[j]udges are not like pigs, hunting for truffles buried in briefs.'") (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (stating that it is not a court's task "to scour the record in search of a genuine issue of triable fact") (quoting Richards v. Combined Ins. Co. of Amer., 55 F.3d 247, 251 (7th Cir. 1995)).
If the Court considers a particular paragraph of a declaration, and the Caltrans Defendants have objected on other grounds, such as hearsay or lack of foundation, the Court will address those objections on an individual basis.
The Caltrans Defendants argue the Court should refuse to consider Plaintiffs' motion and find that Plaintiffs waived all arguments by failing to cite to the record and to pertinent legal authority to support their argument. Prior to the hearing, the Court issued a notice of questions stating that it was inclined to deny that request in light of the fact that the parties filed cross-motions for summary judgment.
In their opening brief, Plaintiffs fail to direct the Court to the factual support for their arguments. In their opposition and reply, they do cite to exhibits to the declarations on which they rely, including exhibits from the administrative records. Plaintiffs do not always explain how the cases they have cited are supportive of their position or fail to support their arguments with legal authority. However, the parties have cross-moved for summary judgment. Therefore, with the exception of the second claim for relief, the Court will stand by its tentative ruling on Plaintiffs' claims under NEPA and the NHPA and will evaluate those claims on the merits, even if it has to engage in some truffle hunting to do so. See Ind. Towers, 350 F. 3d at 929.
Plaintiffs' second claim for relief alleges violations of the Federal Highway Statutes. Plaintiffs do not address the legal standards applicable to those claims and fail to show how the Caltrans Defendants violated those statutes. Accordingly, the Court concludes Plaintiffs have not met their burden to show a violation of those statutes and have waived any argument in support of their second claim for relief. Cf. Greenwood, 28 F. 3d at 977.
Accordingly, the Court grants, in part, and denies, in part, the Caltrans Defendants' cross-motion on this basis.
The Caltrans Defendants' cross-motion focuses on the merits of the Plaintiffs' claims. They also argue, in the alternative, that Plaintiffs' claims are moot, because construction on the Willits Bypass Project is complete and because mitigation efforts are nearly complete. Because that argument relates to a threshold jurisdictional issue, i. e., is there a case or controversy for the Court to adjudicate, the Court addresses it at the outset.
"A case becomes moot whenever it `los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.'" West v. Sec'y of the Dep't of Transp., 206 F.3d 920, 924 (9th Cir. 2000) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969) (alterations in West). In order for a case to be justiciable, the "controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy, admitting of a specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts." Id. (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).
In West, the plaintiff challenged the FHWA's determination that a highway interchange project, which would be conducted in two phases, satisfied the criteria for a categorical exclusion under NEPA. 206 F. 3d at 923-24. One of the defendants argued the case was moot, because construction had been completed on the first phase of the project, and the interchange had been opened to traffic. Id. at 924 & n. 1. The court rejected this argument. It reasoned that the second stage of the project had not begun, and "upon finding that defendants failed to comply with NEPA, our remedial powers would include remanding for additional environmental review and, conceivably, ordering the interchange closed or taken down. . . . The fact that Stage 1 of the interchange has been constructed and is operational is insufficient to render the case moot." Id. at 925-26; cf. Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir. 1981). The West court reached this conclusion, even though it did not order that the interchange be taken down as a remedy. 206 F. 3d at 929.
The Court finds the facts here are analogous to the facts in West.The construction of the first phase of the Willits Bypass is complete and open to traffic, and the second phase has not yet begun, although it has not been funded. If the Court were to find the Caltrans Defendants violated NEPA or the NHPA, the Court could remand for additional environmental review and, as in West, "however cumbersome or costly it might be" conceivably order the Willits Bypass closed or taken down. 206 F. 3d at 925 n. 1.
Accordingly, the Court concludes that the Caltrans Defendants have not met their "heavy" burden to show this case is moot, and it denies, in part, their cross-motion on that basis. Id. at 924.
The Caltrans Defendants also argue that Plaintiffs' claims are barred by the statute of limitations and by laches.
"[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U. S. C. § 2401(a). The Record of Decision for the Willits Bypass Project was issued in December 2006 and published in the Federal Register in January 2007.
Plaintiffs allege that the Caltrans Defendants violated NEPA by failing to prepare a supplemental EIS and by failing to engage in consultation under the NHPA, both of which Plaintiffs argue were warranted based on developments that occurred after the Final EIS was approved. The Caltrans Defendants have stated that "five developments . . . occurred that warranted additional consideration of cultural resources for the Willits Bypass Project." (2016 Re-Validation at 4.)
According to that document, the relevant developments were:
(2016 Re-Validation at 4; see also id. at 5-11 (describing developments in more detail).)Thus, the record demonstrates that certain events occurred within the limitations period that could support Plaintiffs' claims.
The Court grants, in part, and denies, in part, the Caltrans Defendants' cross-motion to the extent it rests on a statute of limitations defense. The Court shall only evaluate events that occurred on or after October 31, 2009 and that would not be barred by the limitations period set forth in 23 U. S. C. section 239(l)(1).
The Caltrans Defendants also argue that Plaintiffs' NHPA and NEPA claims are barred by laches. In order to prevail on this defense, the Caltrans Defendants must show that: (1) Plaintiffs lacked diligence; and (2) the Caltrans Defendants suffered prejudice. See Apache Survival Coal. v. United States, 21 F.3d 895, 905 (9th Cir. 1994). In environmental cases, "these criteria must be applied in light of the principle that laches must be invoked sparingly in suits brought to vindicate the public interest." Id. (internal quotations and alterations omitted). Because the Court has determined that claims prior to October 30, 2009 would be barred by the statute of limitations, and because Plaintiffs conceded that claims based on the approval of the Final EIS would be barred, the Court will evaluate the period between October 31, 2009 and October 30, 2015, when Plaintiffs filed suit.
Prior to 2013, the record reflects one meeting between the Caltrans Defendants and Sherwood Valley where a member of Round Valley was present. (CT AR 011528 (entry dated 6/2/11).)After that date, communications between Plaintiffs and Caltrans are not reflected in the Caltrans Defendants' consultation log until May 2013, at a meeting held prior to a field visit. (Id. 011532 (entry dated 5/30/2013).)Then, on June 4, 2013, Coyote Valley sent its letter to Mr. Felder requesting government-to-government consultation.
With the exception of the approval of the Final EIS, most of the events about which Plaintiffs complain relate to post-review discoveries that occurred once construction started in 2013. Those events fall outside the generally applicable six year statute of limitations. Therefore, the Court finds the Caltrans Defendants have not met their burden to show inexcusable delay by the Plaintiffs, at least to the extent their claims do not relate to approval of the Final EIS, and it denies, in part, their cross-motion on that basis.
Plaintiffs' arguments in support of their motion focus heavily on the issue of how tribal monitors have been and should be used during the construction and mitigation process. At the hearing on the motion, Plaintiffs conceded neither NEPA nor the NHPA impose a legal duty on the Caltrans Defendants to use tribal monitors. They also did not argue those statutes require the Caltrans Defendants to utilize monitors in a particular fashion.
Plaintiffs also cited to Post-Review Discovery and Monitoring Plan ("PRDMP"), dated December 1, 2015, to support their argument as to how the Caltrans Defendants are required to use tribal monitors. However, according to the record, Plaintiffs objected to and ultimately refused to sign the PRDMP. (See CT AR 014052-55, 014890-91, 024938-44.)Plaintiffs fail to provide the Court with any legal authority to support their position that it should now require Caltrans to follow procedures that Plaintiffs objected to when they were proposed. The Court concludes that Plaintiffs have not met their burden to show that the Caltrans Defendants violated any legal duty under the NHPA or NEPA with respect to the way the Caltrans Defendants utilize tribal monitors.
Accordingly, the Court denies Plaintiffs' motion and grants the Caltrans Defendants' cross-motion on this issue.
NEPA "establishes a `national policy [to] encourage productive and enjoyable harmony between man and his environment,' and was intended to reduce or eliminate environmental damage and to promote `the understanding of the ecological systems and natural resources important to' the United States." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U. S. C. § 4321). NEPA does not mandate particular results; it imposes "procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-51 (1989)); see also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) ("NEPA ensures that the agency . . . will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." ) (internal quotation marks and citation omitted). "NEPA merely prohibits uninformed — rather than unwise-agency action." Robertson, 490 U. S. at 351.
NEPA requires federal agencies to prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." Blue Mountains, 161 F. 3d at 1211-12 (quoting 42 U. S. C. § 4332(2)(C))." NEPA also imposes a continuing duty to supplement previous environmental documents." Price Road Neighborhood Ass'n v. U. S. Dep't of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997). In their opening brief, Plaintiffs argued the Caltrans Defendants violated NEPA by failing to prepare a supplemental EIS once additional archaeological sites were discovered. In their reply brief, Plaintiffs fail to address the Caltrans Defendants' response to this issue.
In the 2016 Re-Validation, the Caltrans Defendants concluded that the Willits Bypass Project "has not and will not have an adverse effect on historic properties, and therefore, a supplemental EIS/EIR is not necessary." (2016 Re-Validation at 12.)In that document, the Caltrans Defendants discuss a number of studies that were conducted with regard to post-review discoveries and the Caltrans Defendants' efforts to determine whether those sites were eligible for listing on the NRHP. (See, e.g., id. at 5-7, 8-10.)Plaintiffs have neither suggested nor put forth evidence that would suggest those studies were flawed. The Caltrans Defendants also acknowledged that the Willits Bypass Project "could not avoid nine (9) archaeological sites, all of which were assumed NRHP-eligible for Section 106 compliance." (Id. at 12.)With the exception of site CA-MEN-3571, the Caltrans Defendants stated that:
(Id.)Those conclusions are supported by the record. (See, e.g., CT AR 005584, 005606-06, 005592-93, 005594-98.)
The 2016 Re-Validation also addresses whether there would be any adverse effects to post-review discoveries and, if so, whether the measures set forth in the Final EIS, e. g., ARCH-2, ARCH-3 and ARCH-4, would be sufficient to address any such effects. The record demonstrates that the SHPO concurred with many of the Caltrans Defendants' findings or made findings of "no adverse effect with standard conditions/ESA." (See, e.g., CT AR 002790-93.)Further, the Plaintiffs have not demonstrated that the Caltrans Defendants' decision was based on factors that Congress did not intend the Caltrans Defendants' to consider, that they "entirely failed to consider an important aspect of the problem," "offered an explanation that runs counter to the evidence before" them, or that the decision "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Lands Council, 537 F. 3d at 987.
NEPA requires agencies "to take a `hard look' at the environmental effects of their planned action, even after a proposal has received initial approval." Marsh, 490 U. S. at 374. It is beyond dispute that during construction, at least one site discovered after the Final EIS was approved was damaged, although the Caltrans Defendants dispute the severity of the damage. The Court does not wish to minimize that incident or the importance to Plaintiffs of the area in which the Willits Bypass Project has been constructed. (See, e.g., 2016 Re-Validation at 10-11 (referencing CA-MEN-3571), CT AR 002972 (same), CT AR 002974-76, CT AR 014890-92.)However, the Court concludes the Caltrans Defendants did take a hard look at the changes to the Willits Bypass Project and the information that developed after the Final EIS was issued. Therefore, the Court concludes that the Caltrans Defendants' decision not to prepare a supplemental EIS was neither arbitrary nor capricious.
Accordingly, the Court denies Plaintiffs' motion, and grants the Caltrans Defendant' cross-motion on the NEPA claim.
Section 106 of the NHPA ("Section 106") requires that a federal agency with the "authority to license any undertaking, prior to the approval or expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property." 54 U. S. C. § 306108. An "undertaking" is "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." 36 C. F. R. § 800. 16(y). Plaintiffs allege, and the Federal Defendants have not disputed, that the Willits Bypass Project qualifies as an "undertaking."
Section 106 requires an agency to "stop, look, and listen" to "the effects of its programs." Muckleshoot Indian Tribe v. U. S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999). Therefore, a federal agency must
Muckleshoot, 177 F. 3d at 805 (brackets in original); see also 36 C. F. R. §§ 800. 3 (initiation of process), 800. 4 (identification of historic properties), 800. 5 (assessment of adverse effects), and 800. 6 (resolution of adverse effects). In addition, as part of this process, a federal agency must engage in consultation with a number of parties. See 36 C. F. R. § 800. 2(c)." Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. The Secretary's `Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act' provide further guidance on consultation." 36 CFR § 300. 16(f).
"When an undertaking may affect properties of historic value to an Indian tribe on non-Indian lands, the consulting parties shall afford such tribe the opportunity to participate as interested persons." 36 C. F. R. § 800. 1(c)(2)(iii); see also Te-Moak Tribe of Western Shoshone of Nev. v. U. S. Dep't of the Interior, 608 F.3d 592, 607 (9th Cir. 2010) (federal agencies required "to consult with tribes that `attach[] religious and cultural significance to historic properties that may be affected by an undertaking'") (brackets in original). When an agency engages in consultation with a tribe, it "must recognize the government-to-government relationship between the Federal Government and Indian tribes." Id. § 800. 2(c)(2)(ii)(C). Thus, "the agency official shall consult with representatives designated or identified by the tribal government or the governing body[. ]" Id.
An agency must provide a tribe with "a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects." 36 C. F. R. § 800(c)(2)(ii)(A). A failure to engage in Section 106 consultation "may be grounds for setting aside an agency action." Colorado River Indian Tribes v. Dep't of the Interior, No. ED CV 14-02504 JAK (SPx), 2015 WL 12661945, at *13 (C. D. Cal. June 11, 2015) (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 encompass "a continuing obligation to evaluate previously approved projects." Havasupai Tribe v. Provencio, 876 F.3d 1242, 1251 (9th Cir. 2017). However, NHPA's implementing regulations do address post-review discoveries and an agency's continuing obligations under the NHPA. Id., (citing 36 C. F. R. § 800. 13)." An agency official may develop a programmatic agreement pursuant to § 800. 14(b) to govern the actions to be taken when historic properties are discovered during the implementation of an undertaking." Id. § 800. 13(a)(1).
Plaintiffs argue that the Caltrans Defendants violated Section 106: (1) by failing to engage in "government to government consultation" with Plaintiffs before construction and once construction started and additional sites were located and (2) by failing to implement a memorandum of agreement or a project specific programmatic agreement with Plaintiffs.
Plaintiffs argue that the Caltrans Defendants violated Section 106, by failing to engage in "government-to-government" consultation. The Caltrans Defendants are correct that the duty to engage in "government-to-government" consultation remains with the Federal Defendants. For that reason, the Court denies, in part, Plaintiffs' motion, and it grants, in part the Caltrans Defendants' cross-motion.
The Caltrans Defendants do not dispute that they are required to engage in the consultation process required by Section 106 of the NHPA.
As set forth above, the NHPA's implementing regulations contemplate post-review discoveries may occur, 36 C. F. R. § 800. 13, and it is undisputed that there have been post-review discoveries. In addition, although the FAPA governs all highway projects in California, it is undisputed that there is not a programmatic agreement specific to the Willits Bypass Project in place. Further, according to the record, there was no plan in place for post-review discoveries on the Willits Bypass Project, which implicates the provisions of Stipulation XV. B of the FAPA. (See, e.g., FHWA AR 0008, hyperlink to "Notification of PRD #1 on the WBP. docx".) Compliance with procedures set forth in a programmatic agreement will "serve as a `substitute' for the regulations that concerns consultation for purposes of the agency's compliance with Section 106." Colorado River Indian Tribes, 2015 WL 12661945, at *13.
Plaintiffs have not shown how the Caltrans Defendants failed to comply with the procedures set forth in the FAPA regarding post-review discoveries. Further, to satisfy their responsibility to engage Section 106 consultation, the Caltrans Defendants were required to ensure Plaintiffs had a "reasonable opportunity" to, inter alia, identify their concerns about any such discoveries, articulate their views on the Willits Bypass Project's effects on those discoveries and participate in the resolution of any adverse effects to those discoveries. See Te-Moak Tribe, 608 F. 3d at 608; 36 C. F. R. § 800. 2(c)(2)(ii)(C).
As discussed in connection with the NEPA claim, the record shows that when additional discoveries were located, the Caltrans Defendants involved Plaintiffs in monitoring activity on the sites. The record also demonstrates that once Coyote Valley wrote to the Caltrans Defendants in June 2013 about its concerns, the Caltrans Defendants and designated tribal representatives communicated in writing regarding the Plaintiffs' concerns, attempted to negotiate a project specific programmatic agreement, and attended face-to-face meetings about the post-review discoveries and Plaintiffs' concerns with issues relating to those sites.
Plaintiffs cite to Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995), presumably to support their position that the Caltrans Defendants failed to comply with Section 106. In that case, the court found that the Forest Service failed to follow up on information from the plaintiffs, even though it knew the plaintiff tribes might be "hesitant to divulge the type of information" it was seeking about the traditional cultural properties at issue. Id. at 860-61. The court also found the Forest Service did not act in good faith, because it had 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 cultural properties were located in the relevant area. Id. at 858, 862-63. Although there were issues relating to CA-MEN-3571, Plaintiffs have not pointed the Court to similar behavior by the Caltrans Defendants. Plaintiffs also do not identify any new information they would have provided to the Caltrans Defendants if they had been consulted earlier in the construction process.
Accordingly, the Court concludes the record shows the Caltrans Defendants gave Plaintiffs the reasonable opportunity to address their concerns about the post-review discoveries and worked with them in an effort to resolve those concerns. The Court denies Plaintiffs' motion and grants the Caltrans Defendants' cross-motion on this issue.
Plaintiffs also argue that the Caltrans Defendants violated Section 106 by not entering into a memorandum of agreement with them. Plaintiffs cite no authority that Section 106 of the NHPA required the Caltrans Defendants to conclude and execute a project specific programmatic agreement with Plaintiffs, and they abandon this argument in their reply. Section 800. 6 of NEPA's implementing regulations addresses the resolution of adverse effects and provides, in part, that an "agency official shall consult with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawaiian organizations, to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties." 36 C. F. R. § 800. 6(a).
That regulation also contemplates that parties may execute a memorandum of agreement that would "evidence[] the agency official's compliance with section 106 and this part and shall govern the undertaking and all of its parts." Id. § 800. 6(c). The agency official also "may invite an Indian tribe . . . that attaches religious and cultural significance to historic properties located off tribal lands to be a signatory to a memorandum of agreement concerning such properties." Id. § 800. 6(c)(2)(ii). Nothing in that regulation requires the parties to reach an agreement on a memorandum of agreement.
The record shows the parties did make efforts to negotiate an agreement specific to the Willits Bypass Project. However, when the parties failed to reach an agreement, the ACHP determined that the Caltrans Defendants should coontinue to follow the procedures set forth in the FAPA. (CT AR 014892). Based on the record the Court cannot find the decision not to finalize the agreement the parties were attempting to negotiate was neiither arbitrary nor capricious. See also Quechan Indian Tribe v. U. S. Dep't of Interioor, 547 F.Supp.2d 1033, 1049 (D. Ariz. 2008) (finding that plaintiffs' invitation to sign a memorandum of agreement "is a matter of discretion" and finding that plaintiff failed to demonstrate that defendant's exercise of that discretion was arbitrary or capricious").
Accordingly, the Court denies, in part, Plainntiffs' motion for summary judgment, and it grants, in part, the Caltrans Defendants' motion.
For the foregoing reasons, the Court DENIES Plaintifffss' motion for summary judgment, and it GRANTS, IN PART, AND DENIES, IN PART, the Caltrans Defendants' cross-motion for summary judgment. The Court shall enter a final jjudgment as to all Defendants, and the Clerk shall close this file.
IT IS SO ORDERED.
