Bair et al v. California Department of Transportation et al, No. 3:2014cv03422 - Document 36 (N.D. Cal. 2014)
Court Description: ORDER GRANTING 35 STIPULATION AND ORDER FOR DISMISSAL WITHOUT PREJUDICE.(whalc2, COURT STAFF) (Filed on 12/4/2014)
Download PDF
<![CDATA[
Bair et al v. California Department of Transportation et al 1 7 JOSEPH W. COTCHETT (#36324; jcotchett@cpmlegal.com) PHILIP L. GREGORY (#95217; pgregory@cpmlegal.com) PAUL N. McCLOSKEY (#24541; pmccloskey@cpmlegal.com) COTCHETT, PITRE & McCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 8 Attorneys for Plaintiffs 9 STUART G. GROSS (#251019; sgross@gross-law.com) GROSS LAW, P.C. The Embarcadero Pier 9, Suite 100 San Francisco, CA 94111 Telephone: (415) 671-4628 Facsimile: (415) 480-6688 Doc. 36 2 3 4 5 6 10 11 12 13 14 SHARON E. DUGGAN (#105108; foxsduggan@aol.com) ATTORNEY AT LAW 336 Adeline Street Oakland, CA 94607 Telephone: (510) 271-0825 Facsimile: By Request RONALD W. BEALS, Chief Counsel DAVID GOSSAGE, Deputy Chief Counsel LUCILLE Y. BACA, Assistant Chief Counsel JANET WONG (#124272;janet_wong@dot.ca.gov) STACY LAU (#254507; stacy.lau@dot.ca.gov) 595 Market Street, Suite 1700 San Francisco, CA 94105 Telephone: (415) 904-5700 Facsimile: (415) 904-2333 Attorneys for Plaintiffs 15 Attorneys for Defendants 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 17 18 19 20 21 22 BESS BAIR; TRISHA LEE LOTUS; BRUCE EDWARDS; JEFFREY HEDIN; DAVID SPREEN; 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, Case No. 14-3422-WHA STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE Plaintiffs, 23 v. 24 25 26 CALIFORNIA DEPARTMENT OF TRANSPORTATION and MALCOLM DOUGHERTY in his official capacity as Director of the California Department of Transportation, 27 Defendants. 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA Dockets.Justia.com 1 This Stipulation is entered into by and among Plaintiffs Bess Bair, Trisha Lee Lotus, 2 Bruce Edwards, Jeffrey Hedin, David Spreen, Californians for Alternatives to Toxics, Center for 3 Biological Diversity, and Environmental Protection Information Center (collectively 4 “Plaintiffs”), on the one hand, and Defendants California Department of Transportation and 5 Malcolm Dougherty (“Caltrans”), on the other hand (collectively, the “Parties”), by and through 6 their respective attorneys of record. 7 IT IS STIPULATED BY ALL PARTIES HERETO, THROUGH 8 THEIR RESPECTIVE COUNSEL, AS FOLLOWS: 9 1. On May 18, 2010, Caltrans issued a Final Environmental Assessment (“Final 10 EA”) and adopted a Finding of No Significant Impact (“FONSI”) for and approved the 11 Richardson Grove Operational Improvement Project (the “Project”). Effective July 1, 2007, the 12 Federal Highway Administration (“FHWA”) assigned, and Caltrans assumed, environmental 13 responsibility for the Project pursuant to 23 U.S.C. 327. 14 2. On September 27, 2010, some of the Plaintiffs filed an action against Caltrans in 15 Bair v. California State Department of Transportation, Case No. 3:10-CV-04360-WHA (“Bair 16 I”), challenging Caltrans’ May 18, 2010 Final EA, FONSI, and Project approvals. 17 3. On December 19, 2011, the FHWA, on behalf of Caltrans, published a “Notice of 18 Final Federal Agency Actions on Proposed Highway in California,” Federal Register/Vol. 76, 19 No. 243, stating that there was a time period of 180 days in which claims relating to the Final 20 EA, the FONSI, and other approvals could be brought. 21 4. On April 4, 2012, the Court in Bair I granted Plaintiffs’ Motion for Summary 22 Judgment in part and remanded the action to Caltrans to “prepare a revised EA and record in 23 accordance with the instructions [in the Court’s Order].” Bair v. California State Dept. of 24 Transp., 867 F.Supp.2d 1058 (N.D.Cal. 2012). 25 5. On September 18, 2013, Caltrans issued a Supplement to the Final EA 26 (“Supplement”). Caltrans took public comment on the Supplement from September 21, 2013 to 27 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA 1 1 October 21, 2013. On January 23, 2014, Caltrans published responses to public comments 2 concerning the Supplement. 3 6. On January 24, 2014, Caltrans issued a NEPA/CEQA Re-validation/Re- 4 Evaluation (the “Re-Validation”), finding that, upon consideration of the Supplement, the 5 original May 18, 2010 FONSI remained valid. 6 7. On January 30, 2014, the California Court of Appeal reversed the Superior 7 Court’s decision in the related State Court case, Lotus v. State of California Department of 8 Transportation, granting Plaintiffs’ petition for writ of mandate. 9 8. On February 26, 2014, following Caltrans’ decision that the FONSI remained 10 valid, the FHWA, on behalf of Caltrans, published a “Notice of Statute of Limitations on Claims; 11 Notice of Final Federal Agency Actions on Proposed Highway in California,” Federal 12 Register/Vol. 79, No. 38, providing a time period of 150 days in which claims relating to actions 13 described in the Final EA, FONSI, Re-Validation, and other FHWA project records could be 14 brought. 15 9. On June 26, 2014, Caltrans rescinded its approval of the Project and posted public 16 notice of the rescission with the California State Clearinghouse. Caltrans rescinded its FONSI 17 and submitted formal notice of rescission for publication in the Federal Register later in 18 November 2014. 19 10. On July 28, 2014, Plaintiffs filed the subject action against Caltrans in Bair v. 20 California Department of Transportation, Case No. 3:14-cv-03422-WHA (“Bair II”) (Dkt. #1). 21 11. On October 8, 2014, Plaintiffs filed their First Amended Complaint (Dkt. #21). 12. On October 21, 2014, in the state Lotus v. California State Dept. of 22 23 Transportation action, Humboldt County Superior Court Case No. CV 110002, the California 24 Superior Court entered a Judgment and a Writ ordering Caltrans to set aside Project approval and 25 certification of the state Environmental Impact Report, and enjoining all Project-related activities 26 that could result in change or alteration of the physical environment until Caltrans performs 27 additional environmental analysis. 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA 2 1 13. On November 17, 2014, Caltrans formally withdrew the existing FONSI and 2 published notice of the withdrawal with the State Clearinghouse. 3 14. On November 19, 2014, Caltrans also submitted its formal rescission of the 4 FONSI to FHWA for posting in the Federal Register. 5 15. On November 26, 2014, the FHWA, on behalf of Caltrans, published a “Notice of 6 Rescission of Finding of No Significant Impact,” Federal Register/Vol. 79, No. 228, stating: “it 7 has rescinded the Finding of No Significant Impact (FONSI), which was issued on May 18, 8 2010, and published on December 19, 2011 in the Federal Register (Federal Register/Vol. 76, 9 No. 243/Monday, December 19, 2011/Notices, [48940]) for a proposed highway project on U.S. 10 Route 101 in Humboldt County. The FONSI was also revalidated on January 24, 2014 in the 11 Federal Register (Federal Register/Vol.79, No. 38/Wednesday, February 26, 2014/Notices 12 [108701].” It further stated that “additional environmental analysis on the project” was required 13 and “[a] new NEPA finding and any other necessary Federal environmental determinations will 14 be issued consistent with this additional analysis.” 15 16. As the Project now stands, there is no Project approval, no certified CEQA 16 document, and no federal NEPA finding, determination, or action. Additional environmental 17 analysis, which may affect the federal document or other environmental determinations or 18 actions, is being undertaken. Caltrans has furthermore represented that it has not taken any 19 “action” that “may affect” an Endangered Species Act listed species or habitat. A California 20 Superior Court injunction prohibits all Project activity that could change or alter the physical 21 environment until the legally-required environmental review is completed. See Lotus v. Dept. of 22 Transportation, 223 Cal.App.4th 645 (2014). 23 17. Without further environmental review, including, without limitation, a final 24 NEPA determination, and Project approval, the Project cannot proceed. 25 18. On November 19, 2014, Caltrans filed a Motion to Dismiss Plaintiffs’ First 26 Amended Complaint. 27 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA 3 1 19. Given these facts and actions by Caltrans and FHWA, there is no final agency 2 action subject to judicial review, and no claims have yet accrued for statute of limitations 3 purposes, and thus are not ripe for adjudication, concerning the review by Caltrans of the 4 environmental effects and/or impacts of the Project. Plaintiffs shall be able to file another legal 5 challenge after the final federal environmental determinations are made, and the Project is 6 approved, as a final agency action or determination would then have taken place and would 7 properly be at issue. Claims may include, but not be limited to: 8 a. The Endangered Species Act; b. The National Historic Preservation Act of 1966, as amended; c. The Wild and Scenic Rivers Act; d. Section 4(f) of the Department of Transportation Act of 1966; e. The Clean Water Act; and f. The National Environmental Policy Act (NEPA). 20. As a result, the Parties hereby stipulate that this Bair II action may be dismissed 9 10 11 12 13 14 15 without prejudice to the filing of a new action if and when new federal environmental 16 determinations are made and the Project is approved. 17 21. By this Stipulation, no party hereto waives any claim or defense, and can assert 18 any and all claims or defenses in any subsequent legal challenge. 19 22. Counsel for Caltrans is authorized to electronically sign and file this stipulation on 20 behalf of the Parties. 21 COTCHETT, PITRE & McCARTHY, LLP GROSS LAW, P.C. SHARON E. DUGGAN, ATTORNEY AT LAW 22 23 24 DATED: December 3, 2014 25 26 27 By: __/s/ Stuart G. Gross______________________ PHILIP L. GREGORY STUART G. GROSS SHARON E. DUGGAN Attorneys for Plaintiffs BESS BAIR, et al. 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA 4 1 CALIFORNIA DEPARTMENT OF TRANSPORTATION 2 3 4 DATED: December 3, 2014 5 6 By: __/s/ Stacy Lau__________________________ LUCILLE BACA JANET WONG STACY LAU Attorneys for Defendants CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al. 7 8 ORDER 9 10 11 12 Based on the foregoing Stipulation and good cause appearing therefor, this case is hereby dismissed without prejudice. IT IS SO ORDERED. 13 14 December 4 DATED: _____________, 2014 15 16 HONORABLE WILLIAM ALSUP 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER FOR DISMISSAL WITHOUT PREJUDICE; Case No. 14-3422-WHA 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
