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Wednesday, July 6, 2011

Preliminary Injunction GRANTED! July 6, 2011

The judge granted the preliminary injunction in the federal lawsuit against CalTrans' Richardson Grove highway plan!

Here's a link to the July 6, 2011 order from the judge. (pdf)

Below is the first 5 pages, a glimpse...

Case No. C 10-04360 WHA

CALIFORNIA STATE DEPARTMENT OF TRANSPORTATION, and CINDY McKIM, in her official capacity as Director of the State of California Department of Transportation, Defendants.


This environmental-impact litigation arises out of a proposal to widen Highway 101 through old-growth redwood trees. A preliminary injunction is warranted until a final decision on the merits, for the reasons below.

Two hundred miles north of San Francisco, at the southern edge of Humboldt County, is
Richardson Grove State Park. It is home to ancient redwoods 300 feet tall and thousands of years old. The park shelters an abundance of wildlife, including the marbled murrelet and spotted owl.

Highway 101 threads through the park for about one mile. Some huge redwood trees come right up to the road, narrowing the two-lane highway to a mere 22 feet (EA 3). Due to its narrow and winding curves, this section of the highway poses safety hazards for large trucks. Specifically, trucks authorized by the Surface Transportation Assistance Act, 23 U.S.C. 101, are often longer and carry more volume than standard trucks. Most of these longer vehicles are prohibited from using this section of Highway 101 because of “off-tracking.” A truck off-tracks when its back tires do not follow its front tires around a curve, but rather take the shorter route. Narrow lanes and tight turns lead to off-tracking. Despite the safety hazard, there are a few legislative exceptions, including a temporary exception for livestock haulers, which allow some STAA trucks access through the park (EA 1–4).

Defendants California Department of Transportation and Cindy Kim, the director of Caltrans, have initiated the Richardson Grove Operational Improvement Project to widen the road to meet highway requirements in order to allow all STAA trucks safer passage through the park. The stated purpose of allowing larger trucks through-access on Highway 101 is to lower the cost of transportation for goods imported into and exported from Humboldt County (EA 5). Currently, for instance, STAA trucks going from Oakland to Eureka must take a 446-mile detour via I-5 through Oregon and back south on Route 101 (EA 5).

This environmental-impact controversy arises because widening the road might have adverse effects on the redwoods. Their roots are shallow. The roots extend outward three to ten times the diameter of the tree trunk (EA 41 n.6; Compl. ¶ 36). Their interlacing root system provides mutual reinforcement (Compl. ¶ 71). The soil is loose and aerated. Redwoods breathe through their roots, absorbing air, nutrients, and water. The trees need non-compact soil to thrive (McBride Decl. ¶¶ 11–14).

For these reasons, the proposal is merely to widen the roadway slightly and to do so using minimal-impact techniques. During oral argument, Caltrans’ attorney stated that the plan would fell 54 trees. Only six of them are redwoods, two of which are located inside the park and none of which are old growth — meaning those six redwoods have diameters less than 30 inches (EA 40).

Once cleared, the project plans to regrade, realign, and widen the road. In most cases, the project would shift the center line of the highway by one to six feet. The maximum realignment would shift the centerline 17 feet (EA 62). The construction calls for cut-and-fill techniques. In other words, Caltrans would cut the soil and fill it with sturdy, compact material suitable for highway foundation. This, however, is a main point of contention. (This poses a risk for the root system, which needs loose soil, not compact soil.) To continue with mitigation precautions, excavation near old-growth redwoods would be done by hand or with an air spade. An air spade uses air compression to clear away dirt rather than cutting roots while digging away at soil. Roots that are less than two inches would be cut and watered so they would not dry out. Brow logs would be braced against tree trunks to minimize the effect of fill on the trees (EA 113–15). A retaining wall to support the roadway would be installed spanning 200 feet and reaching ten to thirteen feet high (EA 19). New culverts would replace older ones to improve drainage (EA 41). Clearly, the proposal has been drawn with an eye to mitigating most damage to the redwoods.

Caltrans issued a draft and then a final Environmental Assessment. In its draft EA, Caltrans stated that construction around redwood roots has the “most potential to result in impacts to trees” and that the project would be “likely to [a]dversely [a]ffect” the spotted owl (Draft EA 83, 104). After issuing its draft EA — pursuant to NEPA — and its Section 4(f) analysis — pursuant to the Department of Transportation Act of 1966, 49 U.S.C. 303 — Caltrans received hundreds of letters protesting the project (Duggan Decl. Exh. 3-1 through 3-12). In response, Caltrans slightly changed its proposal. In May 2010, Caltrans issued a final EA, which documented relocating a proposed retaining wall, added a chart describing trees whose roots would be affected by the cut and fill soil, more than doubled the estimate of trees whose root structures might be adversely impacted, and cited the names of two arborists who claimed no significant impact would occur (EA 19–20, 108–12). Despite opposition, the agency adopted a “finding of no significant impact.” The FONSI avoided the requirement of performing a complete investigation and producing an Environmental Impact Statement.

Plaintiffs are individual supporters and non-profit environmental groups who claim this project will jeopardize the health of the trees and wildlife. Plaintiff Bess Bair is the granddaughter of the owner of The Harstook Inn (situated in the Park), which was sold to Save-The-Redwoods League. The granddaughter of the man who originally gave Richardson Grove to California, plaintiff Trish Lee Lotus remains an avid visitor to the Grove. Plaintiff Bruce Edwards is a truck driver from Humboldt County who regularly drives on this section of Highway 101. While performing volunteer work for the Piercy fire department, plaintiff Jeffrey Hedin drives through Richardson Grove. Plaintiff Loreen Eliason owns an inn on Highway 101 just six miles north of Garberville and claims that the preservation of Richardson Grove is essential to her business and those like it (Compl. ¶¶ 20–23). Plaintiffs Environmental Protection Information Center, Center for Biological Diversity, and Californians for Alternatives to Toxics are non-profit organizations that promote environmental protection. These groups and individuals bring this action on behalf of their members who have an interest in California’s wildlife and natural wonders (Compl. ¶¶ 24–26). Harm to the redwoods and natural environment of the park would allegedly irreparably hurt the “health, recreational, scientific, cultural, inspirational, educational, [and] aesthetic” interests of the plaintiffs (Compl. ¶ 27).

This action alleges that defendants have violated the National Environmental Protection Act, the Department of Transportation Act, the Wild and Scenic Rivers Act, and the Administrative Procedure Act. The complaint claims defendants violated NEPA by failing to (1) establish the need and purpose for the project, (2) disclose and evaluate the significant environmental effects, (3) explore and evaluate reasonable alternatives to the project, (4) adequately document public comments and concerns and responses to those comments, and (5) prepare an environmental impact statement (Compl. ¶ 99). Plaintiffs also allege that Caltrans violated Section 4(f) of the Department of Transportation Act by failing to determine that no alternatives existed and by failing to create a plan that would minimize harm (Compl. ¶ 120). In not consulting with the National Park Service concerning the effects of relocating the retaining wall closer to the Eel River, defendants allegedly violated Section 7 of the Wild and Scenic Rivers Act (Compl. ¶ 125). The Administrative Procedure Act was violated, it is said, by approving and adopting an EA/FONSI contrary to NEPA and Section 4(f) standards.

By the instant motion, plaintiffs seek a preliminary injunction to halt all activity on this project while we litigate the merits. At this stage, defendants have not submitted the administrative record, but instead we have the record submitted on this motion.

A plaintiff seeking a preliminary injunction must show (1) that she is likely to suffer irreparable harm in the absence of a preliminary injunction, (2) that she is likely to succeed on the merits, (3) that the balance of equities tips in her favor, and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008). So long as a likelihood of irreparable harm is always shown, these elements are balanced on a sliding scale, so that a stronger showing of one may offset a weaker showing of others. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). More specifically, if a likelihood of irreparable harm is shown, “[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of
hardships tips sharply in the plaintiff’s favor.” Id. at 1134–35 (citation omitted).

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