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)
http://www.box.net/shared/7b2xe9mvd6de4zpkz7vv

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

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case No. C 10-04360 WHA

BESS BAIR; TRISHA LEE LOTUS; BRUCE EDWARDS; JEFFREY HEDIN; LOREEN ELIASON; ENVIRONMENTAL PROTECTION INFORMATION CENTER, a non-profit corporation; CENTER FOR BIOLOGICAL DIVERSITY, a non-profit corporation; and CALIFORNIANS FOR ALTERNATIVES TO TOXICS, a non-profit corporation, Plaintiffs,
v.
CALIFORNIA STATE DEPARTMENT OF TRANSPORTATION, and CINDY McKIM, in her official capacity as Director of the State of California Department of Transportation, Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION

INTRODUCTION
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.

STATEMENT
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.

ANALYSIS
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).

May 25, 2011: Injunction Sought in Lawsuit Against CalTrans

For Immediate Release, May 25, 2011

Contacts: Gary Hughes, EPIC; Patty Clary, CATS; Peter Galvin, Center for Biological Diversity

Challenge Seeks to Halt California Highway Project That Would Destroy Ancient Redwoods

SAN FRANCISCO— A coalition of conservation groups and local residents today asked a federal judge to stop California transportation officials from moving ahead with a controversial highway project that would jeopardize ancient stands of redwood trees in northern California’s Richardson Grove State Park.

The coalition seeks to halt plans by the California Department of Transportation (Caltrans) to realign a section of Highway 101 that winds through old-growth redwoods in the park. The work would require crews to dig into the roots of towering redwoods that stand along the highway within park boundaries. Today’s filing asks a judge to stop the project until legal proceedings are complete.

The threat of possibly fatal damage to the prized ancient trees, as well as harm to sensitive wildlife posed by the controversial project, is driving today’s legal challenge, which is the second filed by the coalition. Caltrans has failed to evaluate impacts of the project in violation of the National Environmental Policy Act and the Wild and Scenic Rivers Act.

“The importance of this old-growth redwood stand, in view of the important heritage of the redwood forest, requires special consideration before projects that would impact the stand are allowed to go forward,” Joe McBride, a professor of forestry and landscape architecture at the University of California at Berkeley, said in today's filing. “Substantial, irreparable damage would occur to the trees in the project area. This would, in turn, cause negative impacts to the overall health of the forest.”

McBride’s finding is based on his scientific review of the potential of impacts to each tree along the project route — a review plaintiffs show Caltrans failed to undertake.

“This project will cause major damage to one of our most prized state parks,” said Gary Hughes of the Environmental Protection Information Center, one of the plaintiff groups and spokesman for the coalition. “For Caltrans to railroad this multimillion-dollar project by grossly understating its impacts is a violation of the public's trust and a wasteful use of taxpayer money.”

“With less than 3 percent of our ancient redwood trees remaining, we cannot allow Caltrans to injure and kill the precious giant trees of Richardson Grove State Park,” said Peter Galvin, conservation director at the Center for Biological Diversity. “We will fight this project to the end, no matter how long it takes.”

Plaintiffs are Trisha Lee Lotus, Bess Bair, Bruce Edwards, Jeffrey Hedin, Loreen Eliason, Environmental Protection Information Center, Californians for Alternatives to Toxics and the Center for Biological Diversity. They are represented by a team that includes Philip Gregory and former congressman “Pete” McCloskey of Cotchett, Pitre & McCarthy, a law firm in San Francisco.

Lead Hazardous Waste in Richardson Grove

There is an important issue concerning Richardson Grove that Caltrans has done their best to keep from the public's eye. This issue is hazardous waste in the form of aerially deposited lead (ADL).

ADL is lead left behind from years of leaded gasoline use. On old roads like 101 that have been in existence since the early 1900's, lead was continuously deposited from the tailpipes of cars and poorly combusted leaded gasoline. This lead ended up in either the surrounding soil or moving downstream. In areas with thick canopy cover and deep rich soil, like Richardson Grove, much of the lead remained in the soil and usually ended up between 6 and 24 inches underground. The top six inches are usually lead free, as this is duff and recent soil accumulation post leaded gasoline.

Lead serves no purpose in our bodies and is dangerous to all living things. It is toxic to numerous organs and biological functions, including the heart, bones, intestines, kidneys, and reproductive and nervous systems. It is especially toxic to children, causing potentially permanent learning disabilities and behavior disorders. There is no safe threshold for lead exposure, no amount small enough to not cause harm. We all carry a pre-existing body burden of lead in our bones, blood and tissue, and unless specialized therapys are undertaken, it remains for life. That is why hazardous waste guidelines for lead exist. In Richardson Grove, levels of lead were found in many places to be above hazardous waste levels, and other places just slightly below. Considering how sensitive a state park like Richardson Grove is, with familys camping and people strolling about throughout the year, and automobile traffic up 101, one would think that CalTrans would care about the potential for exposing people to lead. They don't.

Removing leaded hazardous waste from roadsides requires great care and large amounts of money. Care and money that Caltrans doesn't have. This is why Caltrans is doing their best to avoid listing areas in the state as hazardous waste sites. They are doing this by either raising the allowable limits 30 times current standards in non sensitive areas. Or in the case of Richardson Grove and other sensitive areas, fudging the books and manipulating data collection. They did this in four ways;

1) Caltrans tests every six inches and then combines these together for a "Total Threshold Limit Concentration" (TTLC). If the combined levels exceed 5 ppm soluble lead its hazardous waste. Their rationale for using this dubious method is that all of the removed soil will be mixed up into one mass by the projects end. However, in the case of Richardson Grove, the project calls for excavating down 24" (except for new wall pillars that go much deeper), yet Caltrans only tested down to the 18" depth, avoiding the area with potentially the greatest concentration of lead. Caltrans website states that “Aerially deposited lead is typically found within the top 2 feet of material in unpaved areas within the highway right of way”.

2) The top 4 inches, which are lead free, were added to the mix to come up with a TTLC that was just under haz waste criteria. Yet this soil will not end up with the rest of the soil and shouldn't have been added. The FEIR states "The top 4 inches of duff (redwood tree and Douglas fir leaf litter) shall be removed, stored at a staging area location and subsequently spread out on exposed disturbed soils within the park boundary."

3) Caltrans never tested the area where the new wall is going and where the deepest excavating is to take place.

4) Caltrans used an inaccurate test method. Even though Caltrans has always prided themselves as being more protective from hazardous lead exposure than other states because they use a test method known as CA-WET (CA=citric acid), for Richardson Grove they used a method called Di-Wet. This method is known for being inaccurate, so much so that in 2007 WQCB issued a memorandum and action alert that stated “analytical data from the Waste Extraction Test (WET) performed with deionized water as the extractant (DI-WET) were used to classify a waste stream as non-hazardous. When samples of the waste were subjected to the correct version of the WET (using citric acid as the extractant), it became clear that the waste had been improperly tested initially and may have been inappropriately accepted for discharge to a landfill that was not permitted to accept hazardous waste. As a result, the owner and operator of that landfill may face significant enforcement proceedings and expensive corrective action measures.”

For Caltrans to honestly evaluate the potential for lead hazardous waste, they need to retest to the depth of 24”, the need to test the new wall site, they need to exclude the 0-4” horizon from the TTLC and they need to use their normal method of CA-WET when they test. But even then, the question will remain, will they manipulate new testing as well. Since the answer is probably yes, the testing should instead be done by an independent agency that can be trusted.

Dan Zimmerman / Environmental Investigator / Northcoast Ocean and River Protection Association (NORPA)