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 GRANTS, IN PART, AND DENIES, IN PART, the Federal 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 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.)
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.) Chairman Hunter asked that the "FHWA intervene to assist us in assuring that our ancestral archaeological sites in the project area and mitigation lands of the Willits Bypass are protected." (Id.) Chairman Hunter also asked that "FHWA reassume the federal responsibility for environmental review of this project[.]"
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.
If a state assumes "responsibility under subsection (a)(2) [it] shall be solely responsible and solely liable for carrying out, in lieu of the Secretary, the responsibilities assumed under subsection (a)(2), until the program is terminated as provided in subsection (i)." Id. § 327(e). "Any responsibility of the Secretary not explicitly assumed by the State by written agreement under this section shall remain the responsibility of the Secretary." Id. § 327(a)(2)(D).
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"). (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 "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.)
(Id. § 3.2.3 (emphasis added).)
Section 9.1 of the MOU sets forth three circumstances that may warrant the FHWA reassuming responsibilities that had otherwise been assigned to Caltrans. (Id. § 9.1.1(A)-(C).) If the FHWA makes a determination to reassume responsibilities assigned to Caltrans, "the FHWA will informally notify Caltrans of the FHWA's determination" and "will provide Caltrans written notice of its determination including the reasons for its determination." (Id. § 9.1.2.) Caltrans has the opportunity to respond and to object. The FHWA then makes a final determination based on a 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 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 FAPA, 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.
As a result of the Court's rulings on the Federal Defendants' motions to dismiss, Plaintiffs' claims against the Federal Defendants have been limited as follows: (1) the Federal Defendants violated Section 106 of the NHPA by failing to engage in government-to-government consultation with Plaintiffs ("the NHPA consultation claim"); and (2) after February 18, 2015, the date on which the Plaintiffs demanded that the Federal Defendants reassume responsibility for the Willits Bypass Project, the Federal Defendants directly violated the NHPA, NEPA, and the Federal Highway Statutes by failing to act in accordance with the requirements of those statutes.
Plaintiffs contend that the Federal Defendants violated the NHPA, NEPA, and the Federal Highway Statutes "by failing to properly engage in government-to-government consultation with Plaintiffs on the [Willits Bypass] Project, by failing to identify or protect Plaintiffs' cultural, sacred, and historical resources or attempt to mitigate the impact the [Willits Bypass] Project had on them, and by refusing to reassume the" Willits Bypass Project. (Dkt. No. 131, Plaintiffs' Mot. at 12:8-11.) Plaintiffs bring these claims pursuant to the APA. The APA 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).
A court "will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency 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).
The Federal Defendants move to strike declarations submitted by Priscilla Hunter (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. Florida 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 Federal 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 Federal Defendants' decisions; they simply argue it is.
Plaintiffs also argue that their claims are premised on the Federal Defendants' failure to act, under Section 706(1). 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 Federal Defendants' objections. While the Court will not strike the declarations, it will consider them only where Plaintiffs have cited to particular paragraphs of a declaration in their briefs and only if the cited paragraphs are necessary to resolve these motions. 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)).
The Federal Defendants' cross-motion focuses on the merits of the Plaintiffs' claims, but they argue, in the alternative, that Plaintiffs do not have standing and that the claims are moot. Because those arguments relate to threshold jurisdictional issues, the Court addresses them at the outset.
The requirements of Article III standing are well-established. "[A] plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560-61 (1992)).
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 Defendants do not dispute that some mitigation work remains to be done on the Willits Bypass Project. Therefore, if Plaintiffs do prevail and if the Court orders the Federal Defendants to comply with the Section 106 consultation requirements or the other procedural requirements of NEPA and the Federal Highway Statutes, the Court could redress the injuries Plaintiffs claim to have suffered. See, e.g., Grand Canyon Trust, 98 F. Supp. 3d at 1057 (holding that plaintiffs had satisfied redressability requirement where, assuming plaintiffs succeeded on the merits, the court would order the defendants to follow NEPA and NHPA procedures which "could certainly redress Plaintiffs' procedural and aesthetic injuries").
Accordingly, the Court denies, in part, the Federal Defendants' cross-motion for summary judgment.
The Federal Defendants also argue that construction on the Willits Bypass Project is complete, rendering Plaintiffs' claims moot. "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. West, 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 Federal Defendants violated any of the statutes at issue, 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 Federal 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.
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.
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 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 government-to-government 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 allege that the Federal Defendants failed to engage in government-to-government consultation "[a]t the Final EIS/EIR stage, when Caltrans and FHWA stated there would be `no effect' when they did not know what the effects would be[.]" (SAC ¶ 96.)
Accordingly, the Court grants, in part, the Federal Defendants' cross-motion on that basis.
The Federal Defendants also argue that Plaintiffs' NHPA consultation claim is barred by laches. In order to prevail on this defense, the Federal Defendants must show that: (1) Plaintiffs lacked diligence; and (2) the Federal Defendants suffered prejudice. See Apache Survival Coal. v. United States, 21 F.3d 895, 905 (9th Cir. 1994). In environmental cases, including NHPA 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); see also id. at 906 (determining this standard should apply in NHPA cases).
The Federal Defendants do not articulate at what point the Court should start evaluating Plaintiffs' alleged lack of diligence.
The Federal Defendants direct the Court to Caltrans' consultation log to support their argument that Plaintiffs did not act diligently. That log reflects communications from Caltrans to some members of Plaintiffs' tribes, but it does not reflect any communication by the Federal Defendants to Plaintiffs prior to June 2013. The Federal Defendants' consultation log does not reflect any communications from the Federal Defendants to Plaintiffs regarding government-to-government consultation prior to 2013. (See, e.g., FHWA AR 0001-06 (discussing Sherwood Valley) and 0007 (forwarding June 4 letter from Coyote Valley).) Yet, 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 within the generally applicable six year statute of limitations. The Court finds the Federal Defendants have not met their burden to show inexcusable delay by the Plaintiffs, at least to the extent the NHPA 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 show Plaintiffs' NHPA consultation claim is barred by laches, and it denies, in part, their cross-motion on that basis.
Plaintiffs allege the Federal Defendants failed to engage in government-to-government consultation "[w]hen Caltrans, FHWA, and DOT commenced construction without taking appropriate steps to protect Plaintiffs' historic properties, cultural resources, and sacred sites encountered during construction activities and on the mitigation lands of the Willits Bypass Project; and . . . [w]hen Caltrans, FHWA, and DOT failed to correct these egregious errors once they discovered additional archaeological sites eligible for registry on the NRHP." (SAC ¶ 96.)
Plaintiffs do not identify any aspect of the Willits Bypass Project arising after the Final EIS and Record of Decision were issued, which would be considered a separate "undertaking" that would require the Federal Defendants to initiate a new Section 106 consultation process. That is not necessarily fatal to Plaintiffs' claim, because as set forth above, the NHPA's implementing regulations contemplate post-review discoveries may occur. 36 C.F.R. § 800.13. 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. Stipulation XV.B does not clearly call for additional government-to-government consultation.
However, Coyote Valley did formally request government-to-government consultation with the Federal Defendants, although the record does not show Round Valley made a similar request. In order to satisfy their responsibility to engage in government-to-government consultation, the Federal 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 "with representatives designated or identified by the 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 F.3d 856 (10th Cir. 1995). 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. Plaintiffs have not pointed the Court to any similar conduct by the Federal Defendants.
Rather, after Plaintiffs requested government-to-government consultation, the record shows that the Federal Defendants and designated tribal representatives communicated by telephone 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. (See, e.g., CT AR 017499, 024931, 200547-48; FHWA AR 0034-35, 0038, 0039, 0054, 0063-65, 0066 and 0069 (and embedded attachments); see also CT AR 011534 (entry dated 7/30/13), 011535 (entries dated 8/11/13, 10/23/13), 011536-38 (entries dated 12/5/13, 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 (entries dated 4/10/15, 4/15/15, 4/16/15), 011556-57 (entries dated 5/11/15, 5/14/15, 5/15/15, 5/19/15), 011558 (entry dated 6/15/15); FHWA AR at 0018-19 (entries dated 10/23/13, 12/5/13,1/30/14, 3/26/14, 4/26/14, 4/29/14).) Those efforts apparently continued after Plaintiffs filed this case. (See, e.g., FHWA AR 0394-98.)
Accordingly, the Court concludes the record shows the Federal 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 for summary judgment and grants the Federal Defendants' cross-motion for summary judgment on the NHPA consultation claim.
Plaintiffs also argue that once Plaintiffs advised the Federal Defendants that, in their view, the Caltrans Defendants were not satisfactorily resolving project related issues and concerns, the Federal Defendants should have reassumed their responsibilities under the NHPA, NEPA, and the Federal Highway Statutes. The Federal Defendants argue that Section 3.2.3 does not require them to reassume responsibilities for the Willits Bypass Project; rather, the decision to do so is discretionary.
"Interpretation of a contract is a matter of law," as is the determination of whether a contract is ambiguous. Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 2000).
The parties' dispute about the 2007 MOU focuses on the word "shall." Although the parties dispute the meaning of that term, that "does not establish that the [2007 MOU] is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation." Klamath Waters, 204 F.3d at 1210. Plaintiffs are correct that the term "shall" often connotes mandatory language. See, e.g., Black's Law Dictionary at 1585 (10th ed. 2014). In some instances, however, the term "shall" can mean "may," i.e. it can be used in a permissive sense. See id.; see also N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995) (finding that term "shall" as used in a forum selection clause was permissive, rather than mandatory).
Section 3.2.3 states that when a tribe or the FHWA determines that Caltrans will not satisfactorily resolve project related concerns raised during government-to-government consultation, "the provisions of section 9.1 concerning FHWA initiated reassumptions shall apply." Section 9.1.1, in turn, permits the FHWA to reassume responsibility for a project "upon the FHWA's determination that . . . Caltrans cannot satisfactorily resolve an issue or concern raised in a government-to-government consultation process[.]" Under Section 9.1.2, the FHWA is required to "informally notify Caltrans" of that determination and provide "written notice" of the determination and its reasons. Caltrans is provided with an opportunity to comment or object. In order to make a final determination about whether it will reassume responsibilities for a given project, the FHWA considers "Caltrans' comments or objections, the effect the reassumption will have on the Pilot Program, amount of disruption of the project concerned, the effect on other projects, confusion the reassumption may cause to the public, the potential burden to other Federal agencies, and the overall public interest." (2007 MOU § 9.1.2.)
"A written contract must be read as a whole and every part interpreted with reference to the whole, with preference given to reasonable interpretations." Klamath Waters, 204 F.3d at 1210; see also Nat'l Res. Def. Council v. County of Los Angeles, 725 F.3d 1194, 1206 (9th Cir. 2013) ("[A] court must give effect to every word or term" in an NPDES permit "and reject none as meaningless or surplusage.") (quotations and citation omitted). The Court must read Section 3.2.3 together with Section 9.1.2. When the Court considers the fact that, under Section 9.1.2, the FHWA must consider a number of factors, including Caltrans'' responses and objections, before it makes a "final determination", the Court finds the term "shall" in Section 3.2.3 is permissive and gives the Federal Defendants the discretion to determine whether they will or will not reassume responsibilities for the Willits Bypass Project.
Accordingly, the Court denies Plaintiffs' motion for suummary judgment and grants the Federal Defendants' cross-motion for summary judgment on the NHPA non-consultation claim, the NEPA claim, and the Federal Highway Statutes claim.
For the foregoing reasons, the Court DENIES Plaintifffss' motion for summary judgment, and it GRANTS, IN PART, AND DENIES, IN PART, the Federal Defendants' cross-m motion for summary judgment. The Court shall issue a separate judgmennt when it issues its Order on the Plaintiffs' and Caltrans' Defendants cross-motions for summary judgmentt.
