Center For Biological Diversity et al v. Federal Highway Administration et al

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.September 22, 2016

Plaintiffs’ Motion for Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7118 Email: jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY, el al., Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) PLAINTIFFS’ NOTICE OF MOTION and MOTION FOR SUMMARY JUDGMENT Filed : January 22, 2016 Hearing : January 23, 2017; 8:30 am Judge : Hon. George Wu Courtroom : 10 Case 5:16-cv-00133-GW-SP Document 32 Filed 09/22/16 Page 1 of 3 Page ID #:302 Plaintiffs’ Motion for Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NOTICE OF MOTION and MOTION FOR SUMMARY JUDGMENT TO ALL PARTIES AND THEIR COUNSEL OF RECORD please take notice that on January 23, 2017 at 8:30 am before the Hon. George H. Wu in courtroom 10 at the U.S. District Court for the Central District of California, located at 312 North Spring Street in Los Angeles, California, 90012, plaintiffs will, and hereby do, move for summary judgment in the above-captioned case, pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Administrative Procedure Act (“APA”), and this Court’s May 5, 2015, scheduling minute order (Dkt. 20). Plaintiffs seek summary judgment against Defendants Federal Highway Administration for its approval of the Mid County Parkway in violation of the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), Section 4(f) of the Department of Transportation Act (49 U.S.C. § 303), the APA (5 U.S.C. § 701 et seq.), and all claims set forth in the related Complaint. (ECF No. 1). Because the issues presented in this case arise under the APA and present purely legal issues, Plaintiffs are entitled to judgment as a matter of law. Plaintiffs’ motion is based on this notice; the attached points and authorities; the concurrently filed Statement of Uncontroverted Facts and Conclusions of Law; the concurrently filed declarations of Ileene Anderson, Drew Feldmann, George Hague, and Albert Thomas Paulek; all pleadings and papers filed in this action to date; the corrected administrative record lodged with the Court by defendants on August 26, 2016; and any other oral or documentary evidence that may be presented at or before the hearing on this motion. Pursuant to Local Civil Rule 56- 1, this motion is accompanied by a proposed order. /// /// Case 5:16-cv-00133-GW-SP Document 32 Filed 09/22/16 Page 2 of 3 Page ID #:303 Plaintiff’s Motion for Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Dated: September 22, 2016 CENTER FOR BIOLOGICAL DIVERISTY /s/ Jonathan Evans______ Jonathan Evans Aruna Prabhala Attorneys for Plaintiffs Case 5:16-cv-00133-GW-SP Document 32 Filed 09/22/16 Page 3 of 3 Page ID #:304 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7118 Email: jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY, el al., Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Filed : January 22, 2016 Hearing : January 23, 2017; 8:30 am Judge : Hon. George Wu Courtroom : 10 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 1 of 41 Page ID #:305 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION .................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................... 2 A. Environmental Review and Project Approval .................................................... 4 III. LEGAL BACKGROUND ................................................................................... 6 A. The National Environmental Policy Act ............................................................ 6 B. Section 4(f) of the Department of Transportation Act ....................................... 7 IV. STANDARD OF REVIEW ................................................................................. 8 V. ARGUMENT ........................................................................................................ 8 A. The EIR/S’ Flawed Project Description Does Not Permit Meaningful Public Review of the Project. ............................................................................. 8 B. Failure to Objectively Evaluate the Effects of NEPA Alternatives .................13 C. Failure to Provide a Reasonable Range of NEPA Alternatives .......................18 1. Evolution of the MCP and Environmental Review ........................................19 2. FHWA Fails to Analyze a Reasonable Range of Alternatives for a New, Revised Project.....................................................................................21 3. FHWA’s Failure to Analyze Anything But Six Lane Mixed-Flow Freeways Is Not a Reasonable Range of Alternatives ..................................22 D. The Mid County Parkway Violates Section 4(f) of the Department of Transportation Act ............................................................................................26 1. The Record Does Not Support the Determination that Avoidance Alternative 3B Is Not Prudent .......................................................................27 VI. THE COURT SHOULD VACATE APPROVAL OF THE MCP ....................34 VII. CONCLUSION ................................................................................................35 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 2 of 41 Page ID #:306 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TABLE OF AUTHORITIES Cases Alaska Wilderness Recreation & Tourism Ass’n v. Morrison 67 F.3d 723 (9th Cir. 1995) ...................................................................................19 California ex rel. Lockyer v. USDA 575 F.3d 999 (9th Cir. 2009) ................................................................................... 6 California v. Block 690 F.2d 753 (9th Cir. 1982) .......................................................................... 13, 18 Camp v. Pitts 411 U.S. 138 (1973) ..............................................................................................34 Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) ....................... passim City of Carmel-By-The-Sea v. U.S. Dep't of Transp. 123 F.3d 1142 (9th Cir. 1997) ........................................................................ 25, 26 City of S. Pasadena v. Slater 56 F. Supp. 2d 1106 (C.D. Cal. 1999) ...................................................................30 Coalition for Canyon Preservation v. Bowers 632 F.2d 774 (9th Cir. 1980) .................................................................... 24, 25, 26 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin. 538 F.3d 1172 (9th Cir. 2008) ...............................................................................22 Ctr. for Biological Diversity v. U.S. Dep’t of Interior 623 F.3d 633 (9th Cir. 2010) ................................................................................... 6 Ctr. for Envtl. Health v. Vilsack No. 15-cv-01690-JSC, 2016 U.S. Dist. LEXIS 79984, at *41 (N.D. Cal. June 16, 2016) ......................................................................................................................35 Earth Island Inst. v. U.S. Forest Serv. 351 F.3d 1291 (9th Cir. 2003) ................................................................................. 7 Klamath-Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt. 387 F.3d 989 (9th Cir. 2004) .................................................................................10 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 3 of 41 Page ID #:307 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lands Council v. Powell 395 F.3d 1019 (9th Cir. 2005) ................................................................................. 6 Marsh v. Or. Nat. Res. Council 490 U.S. 360 (1989) ..............................................................................................12 Metcalf v. Daley 214 F.3d 1135 (9th Cir. 2000) ................................................................................. 6 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29 (1983) ............................................................................................8, 33 N. Alaska Envtl. Ctr. v. Kempthorne 457 F.3d 969 (9th Cir. 2006) .................................................................................23 N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp. 545 F.3d 1147 (9th Cir. 2008) ................................................................................. 7 N. Plains Res. Council v. Surface Transp. Bd. 668 F.3d 1067 (9th Cir. 2011) ...............................................................................35 Native Ecosystems Council v. U.S. Forest Serv. 418 F.3d 953 (9th Cir. 2005) ........................................................................ 7, 8, 12 NRDC v. U.S. Forest Serv. 421 F.3d 797 (9th Cir. 2005) .......................................................................... 17, 18 Or. Nat. Desert Ass’n v. Jewell 823 F.3d 1258 (9th Cir. 2016) ........................................................................ 13, 16 Or. Nat. Res. Council Fund v. Goodman 505 F.3d 884 (9th Cir. 2007) ................................................................................... 8 Pollinator Stewardship Council v. EPA 806 F.3d 520 (9th Cir. 2015) .................................................................................35 Robertson v. Methow Valley Citizens Council 490 U.S. 332 (1989) ................................................................................................ 9 Sierra Club v. EPA 346 F.3d 955 (9th Cir. 2003) .................................................................................15 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 4 of 41 Page ID #:308 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Stop H-3 Ass'n v. Dole 740 F.2d 1442 (9th Cir. 1984) ....................................................................... passim U.S. Dep’t of Transp. v. Pub. Citizen 541 U.S. 752 (2004) ................................................................................................ 9 Westlands Water Dist. v. U.S. Dep’t of Interior 376 F.3d 853 (9th Cir. 2004) .................................................................................18 WildEarth Guardians v. Mont. Snowmobile Ass’n 790 F.3d 920 (9th Cir. 2015) .............................................................................7, 11 Statutes 23 U.S.C. § 138(a) (2015) .......................................................................................... 7 49 U.S.C. § 303(a) (2014) .......................................................................................... 7 49 U.S.C. § 303(c) ..................................................................................................... 7 5 U.S.C. § 706 ..........................................................................................................34 5 U.S.C. § 706(2)(A) (2015) ...................................................................................... 8 5 U.S.C. § 706(2)(D) (2015) ...................................................................................... 8 Rules Fed. R. Civ. P. 56(a)................................................................................................... 8 Regulations 23 C.F.R. § 774.17 ........................................................................................... passim 23 C.F.R. § 774.17(3)(iii)(A) ...................................................................................31 23 C.F.R. § 774.17(3)(iii)(B) ...................................................................................30 23 C.F.R. § 774.17(3)(iii)(C) ...................................................................................30 23 C.F.R. § 774.17(3)(iii)(D) ...................................................................................31 23 C.F.R. § 774.7 (a) ................................................................................................29 40 C.F.R. § 1500.1(b) ..........................................................................................9, 16 40 C.F.R. § 1500.2(d) ................................................................................................ 9 40 C.F.R. § 1502.1 ..................................................................................................... 6 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 5 of 41 Page ID #:309 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 40 C.F.R. § 1502.14 .......................................................................................... 13, 15 40 C.F.R. § 1502.14(a) .........................................................................................6, 18 40 C.F.R. § 1502.15 .................................................................................................16 40 C.F.R. § 1502.24 .................................................................................................16 40 C.F.R. § 1502.8 ...................................................................................................10 40 C.F.R. § 1508.28 .................................................................................................19 Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 6 of 41 Page ID #:310 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION The Mid County Parkway (“MCP” or “Project”) is a massive new freeway infrastructure project that would create a six to eight lane freeway between the cities of Perris and San Jacinto and would also expand several miles of Interstate 215 (“I-215”) between Perris and the March Air Reserve Base. Instead of minimizing impacts to local residents affected by the Project, the Federal Highway Administration (“FHWA”) approved a 1.732 billion dollar project alternative that “would result in the highest impacts to residential relocations in areas with minority and low-income populations” by literally dividing existing neighborhoods instead of routing the freeway through mostly vacant industrial areas. In the process of analyzing an alternative that had already been chosen as the preferred alternative by the Riverside County Transportation Commission (“RCTC”) the combined Environmental Impact Report and Environmental Impact Statement (“EIR/S”) engages in an opaque and misleading depiction of the proposed project’s size and route, which fails to provide an accurate picture of the effects on the disadvantaged communities that will be divided by this new freeway. It further misrepresents the environmental justice and community impacts by comparing hypothetical, nonexistent businesses and employees to the actual, existing homes and residents who will be forced to move because of the Project. FHWA curtailed a reasonable range of alternatives by changing the project in 2009 to sixteen miles and adding upgrades to I-215, yet eliminating alternatives for the new sixteen mile Project based on an older thirty-two mile version of the MCP from 2008 or even earlier. Simply moving forward with alternatives from a disapproved thirty-two mile freeway fails to analyze reasonable alternatives to the new Project such as incorporating High Occupancy Vehicle (“HOV”) lanes, different road alternatives, or combining road upgrades with transit. Finally, FHWA skirts the substantive mandate of Section 4(f) of the Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 7 of 41 Page ID #:311 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Department of Transportation Act by failing to provide evidence that there are not feasible and prudent alternatives or that the scant evidence provided meets the legal standard required for the permanent impacts to historic resources. II. FACTUAL BACKGROUND The Mid County Parkway is a 1.732 billion dollar, multi-facility freeway infrastructure project between the cities of Perris, in the west, and San Jacinto, in the east. MCP-AR-006134, MCP-AR-006250.1 It is a joint project proposed by RCTC, FHWA, and the California Department of Transportation, which conducted an environmental analysis of the Project under the California Environmental Quality Act (“CEQA”) and National Environmental Policy Act (“NEPA”) through the preparation of a combined EIR/S. AR:6018. The purpose of the MCP is to improve west-east movement of motor vehicles and goods, provide capacity for the forecast demand of traffic in 2040, meet state highway standards that would accommodate tractor trailer truck traffic, limit access to the highway, and provide compatibility with potential, future transit that may not be limited to automobile and truck traffic. AR:6103. It includes a west-east sixteen mile, limited access, six-lane freeway that connects I-215 with State Route 79 (“SR-79”) in the east. AR:6018, AR:6161. The west-east freeway route would be larger than six lanes to accommodate future highway lanes or transit facilities. AR:6161. The MCP also includes a north-south upgrade and addition of lane capacity to I-215, between Van Buren Boulevard adjacent to the March Air Reserve Base in the north and Nuevo Road in Perris in the south. AR:6028. The west-east portion of the MCP originates at a 75-100 foot three level interchange at I-215 and from there would “bisect a residential community located between Placentia Avenue and River Street” in Perris resulting “in a ‘physical 1 Hereinafter AR:[page number]. Zeros preceding the AR number omitted. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 8 of 41 Page ID #:312 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 change that would permanently alter the character of the existing community.’” AR:6403. The preferred, and later adopted, alternative “would result in the highest impacts to residential relocations in areas with minority and low-income populations” and where seven existing schools are within .25 miles of the Project. AR:6052, AR:7300. It also runs directly adjacent to Paragon and Liberty parks and would divide neighborhoods in Perris from those areas. AR:6394. From Perris, all of the MCP alternatives analyzed in the EIR/S travel east along the existing footprint of the Ramona Expressway to south of the Lake Perris State Recreation Area and the San Jacinto Wildlife Area, and through important core reserves designated for wildlife and habitat conservation under the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”). AR:6310, AR:6342, AR:7018. The MCP would expand the Ramona Expressway through the San Jacinto Valley, adding several interchanges where none currently exist. AR:6270, AR:6272. Several of the new interchanges would encourage new development, including large subdivision and mixed use projects, which have been proposed to connect to interchanges and freeway designs in the MCP. AR:006342- 3, AR:59779-82, AR:62364. The San Jacinto Valley currently has large areas designated as agricultural lands and conservation areas under the Riverside County General Plan and MSHCP. AR:6342, AR:7018. Despite the Mid County Parkway’s purpose of “[p]rovid[ing] increased capacity to support the forecast travel demand,” the Project will reduce travel time, but only result in “some improvements” or “no substantial change” to regional traffic congestion compared to the no build conditions. AR:6103, AR:7357, AR:6054. As the FHWA admits, the Project will result in only “some improvements in traffic conditions . . . or no substantial change compared to the No Build condition,” and even “result in traffic conditions slightly worse than the No Build condition” at some intersections. AR:7357. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 9 of 41 Page ID #:313 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A. Environmental Review and Project Approval The initially proposed MCP was twice the current Project length and included a thirty-two mile facility between Interstate 15 (“I-15”) in the west and SR-79. AR:6019. In 2004, FHWA issued a Notice of Intent to prepare an EIS to the public and included seven Build Alternatives and one No Project Alternative. AR:189-190. In September 2007, RCTC selected the Locally Preferred Alternative, Alternative 9, before the Draft EIR/S had been circulated. AR:6019. Comments on the thirty-two mile MCP in the Draft EIR/S circulated in October 2008 revealed two main issues: 1) concern about cost and the availability of funds for the MCP, and 2) improvements to existing facilities like Cajalco Road in the west between I-15 and I-215 and the Ramona Expressway and State Route 74 (“SR-74”) in the east between I-215 and SR-79 would be a better use of public funding and reduce impacts to communities, wildlife, state parks, wildlife areas, habitat preserves, open space, and agricultural lands. AR:6019; AR:13502-5.2 In response to those issues in 2009, the MCP was shortened from thirty-two miles to sixteen miles, changing the western boundary of the Project from I-15 to I- 215. AR:3799. RCTC and FHWA determined that widening and improving Cajalco Road would remove the need for the western portion of the initial route AR:3800), but proceeded with the upgrade of the eastern portion of the MCP even though that was further from existing jobs and communities. The shortened MCP was also reconfigured to include a substantial north-south upgrade to I-215 for approximately six miles, which added lane capacity and intersection upgrades that were not included in the earlier thirty-two mile MCP project. AR:6101, AR:2, AR:6028. As a result of the revised Project, FHWA and RCTC issued a 2 Plaintiffs and their affected members raised similar concerns. Declarations on behalf of Ileene Anderson, George Hague, Drew Feldmann, and Albert Thomas Paulek are submitted to address Plaintiffs’ standing. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 10 of 41 Page ID #:314 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Recirculated Draft EIR and Supplemental Draft EIS (“Recirculated EIR/S”) in 2013. AR:6021. The purpose and objectives of the new 16-mile route remained the same as the initial 32-mile Project, except for modification of the distance and a change of five years for the design year, and included the preferred Alternative 9. Compare AR:938 with AR:6023. The Recirculated EIR/S and Final EIR/S included three alternative routes through the city of Perris: a northerly alignment (Alternative 4); a central alignment (Alternative 5); and a southerly alignment (Alternative 9). AR:6142, AR:6146, AR:6150. Each of those three alternatives included the same design variations on the bridge over the San Jacinto River and a parallel route through agricultural lands slightly west of the city of San Jacinto. AR:6150, AR:6360. The alternatives for the sixteen mile west-east component of the shortened MCP followed the same alignment as the eastern half of the original thirty-two mile freeway analyzed in the Draft EIR/S, except that Alternative 9 was designed to avoid Paragon Park and Fire Station No. 90. Compare AR:1089 with AR:6616. On March 27, 2015, the Final EIR/S was released identifying Alternative 9 as the selected route—previously identified as the locally preferred alternative in 2007. AR:6019, AR:69381. Compared with the other build alternatives, the preferred alternative “would result in the highest impacts to residential relocations” in an area “dominated by minority, and Hispanic residents with high percentages of disadvantaged students.” AR:6052, AR:6217, AR:107850-51. Twelve days later RCTC adopted Alternative 9 with the San Jacinto River Bridge Design Variation as the approved Project on April 8, 2015. AR:53474. FHWA issued a Record of Decision on the MCP on August 17, 2015. AR:97. Plaintiffs filed the instant case on January 22, 2016. Dkt. No. 1. /// Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 11 of 41 Page ID #:315 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III. LEGAL BACKGROUND A. The National Environmental Policy Act The National Environmental Policy Act (“NEPA”) is “our basic national charter for protection of the environment.” California ex rel. Lockyer v. USDA, 575 F.3d 999, 1012 (9th Cir. 2009). The statute “establishes ‘action-forcing’ procedures that require agencies to take a ‘hard look’ at environmental consequences.” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 642 (9th Cir. 2010). “[T]he comprehensive ‘hard look’ mandated by Congress…must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). NEPA requires “disclosure of relevant environmental considerations that were given a ‘hard look’ by the agency,” thereby facilitating “informed public comment on proposed action and any choices or alternatives that might be pursued with less environmental harm.” Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005). An EIS serves two purposes: First, it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. Second, it guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Ctr. for Biological Diversity, 623 F.3d at 642. To this end, the NEPA implementing regulations require that an EIS provide a “full and fair discussion of significant environmental impacts” of the proposed agency action. 40 C.F.R. § 1502.1. An EIS must “[r]igorously explore and objectively evaluate all reasonable alternatives” to the proposal. Id. § 1502.14(a). “Courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th Cir. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 12 of 41 Page ID #:316 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2003). Although an agency has wide discretion in assessing the scientific evidence, it must take a hard look at issues, respond to reasonable opposing viewpoints, id., and must not rely on incorrect assumptions or data, Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005); see also WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920, 927 (9th Cir. 2015) (“NEPA requires more” than asking a court “to assume the adequacy and accuracy of partial data without providing any basis for doing so.”). B. Section 4(f) of the Department of Transportation Act The Department of Transportation Act of 1966 includes a provision— Section 4(f)—requiring the FHWA to make “special effort . . . to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.” 49 U.S.C. § 303(a) (2014); see also 23 U.S.C. § 138(a) (2015). Section 4(f) allows approval of a transportation project requiring the use Section 4(f) lands “only if-- (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm . . . resulting from the use.” 49 U.S.C. § 303(c). Unlike NEPA, Section 4(f) of the Department of Transportation Act imposes a substantive mandate. See N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1158 (9th Cir. 2008). The Ninth Circuit has held that Section 4(f) resources “may be ‘used’ for highway purposes only if ‘there [are] truly unusual factors present in [the] case,’ if ‘feasible alternative routes involve uniquely difficult problems,’ or if ‘the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes.’” Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1449 (9th Cir. 1984) (alteration in original) (quoting Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 413-14 (1971)). /// Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 13 of 41 Page ID #:317 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IV. STANDARD OF REVIEW A court “shall grant summary judgment if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Administrative Procedure Act (“APA”) governs judicial review of FHWA’s compliance with NEPA, Or. Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007), and Section 4(f) of the Department of Transportation Act. See Overton Park, 401 U.S. 402, 415-16 (1971). Under the APA, courts must hold unlawful and set aside an agency decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or was made “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A),(D) (2015). “Although the arbitrary and capricious standard is a narrow one,” courts must “engage in a substantial inquiry, a thorough, probing, in-depth review” to determine if the agency presented “a rational connection” between the facts and its conclusions. Native Ecosystems Council, 418 F.3d at 960. And in determining if an EIS issued “without observance of procedure required by law,” a court determines “whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.” Id. A decision is arbitrary and capricious if the agency has “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). V. ARGUMENT A. The Flawed Project Description Does Not Permit Meaningful Public Review of the Project Under NEPA In order for environmental review to adequately evaluate the environmental Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 14 of 41 Page ID #:318 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ramifications of a project, it must first provide a comprehensive and correct description of the proposed project itself. One of NEPA’s purposes is to “guarantee[] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” U.S. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (internal citations and alteration omitted) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). NEPA's purpose is realized not through substantive mandates but through the creation of a democratic decisionmaking structure that, although strictly procedural, is “almost certain to affect the agency's substantive decision[s].” Robertson, 490 U.S. at 350. To meet this purpose, NEPA procedures emphasize clarity and transparency of process. See Pub.Citizen, 541 U.S. at 756-57. It is particularly important for the agency to accurately and clearly describe the proposed action to the affected public. The MCP would permanently alter the physical, environmental, and social structure of the communities along the route, which is especially dramatic where the freeway project will bisect the community of Perris and the agricultural areas of the San Jacinto Valley. Yet, the EIR/S engages in an opaque and misleading depiction of the proposed project’s size and route; thereby, failing to provide an accurate picture of the effects on the disadvantaged communities that will bear the brunt of the environmental impacts of a new freeway dividing their community. The purpose of public issuance of an EIS is to provide “a springboard for public comment.” Pub. Citizen, 541 U.S. at 768. NEPA regulations provide that “public scrutiny [is] essential.” 40 C.F.R. § 1500.1(b). Therefore, agencies must “[e]ncourage and facilitate public involvement in decisions,” 40 C.F.R. § 1500.2(d), so that “environmental information is available to public officials and citizens before decisions are made,” id. § 1500.1(b). Moreover, NEPA documents “shall be written in plain language . . . so that decisionmakers and the public can Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 15 of 41 Page ID #:319 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 readily understand them.” Id. § 1502.8. NEPA documents are “unacceptable if they are indecipherable to the public.” Klamath-Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 387 F.3d 989, 996 (9th Cir. 2004). The EIR/S fails to clearly and transparently disclose the true width and dimensions of the Project and route through the affected community in violation of NEPA. The EIR/S describes the MCP as a six-lane controlled access freeway, AR:6150) for which “[g]enerally, the needed right of way varies from 220 ft to 660 ft in width.” AR:6161. Where the body of the EIR/S references maps of the Project width, it generally provides conceptual drawings or regional maps (see e.g. AR:6162, AR:6136, AR:6152, AR:6166), which fail to disclose to the public and decision makers the precise route of the new freeway through the community. This failure left the affected public unable to meaningfully participate in the “democratic” NEPA process, while also downplaying the significant impacts to land use and community cohesion. In comments, EPA noted “the Supplemental Draft EIS indicates that right of way needs vary from 220 feet to 660 feet in width as a result of topography, features of the natural and built environment, and design requirements.” AR:9491- AR:9492. EPA emphasized that the MCP with a width between 220-660 feet would divide the community and that efforts should be taken to minimize the land use and community impacts, including outreach to affected residents. AR:9488, AR:9492. Unfortunately, many affected property owners and residents were unable to tell from the EIR/S whether the MCP affected their home and requested maps and clarification of the Project route.3 3 E.g. AR:68939 (“I am very anxious to know whether or not my house is in the path of construction. Is my house going to be taken?”), AR:69431- 32 (“Please advise if my home is in the direct path of the proposed freeway.”), AR:69393, AR:69431, AR:68999, AR:069341, AR:069316, AR:069338, AR:069218, Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 16 of 41 Page ID #:320 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The agency informed some parties of the true dimensions and scope of the MCP, only in correspondence outside the EIR/S or buried in appendices to the Final EIR/S. When describing the MCP in correspondence with the U.S. Fish and Wildlife Service and Riverside County Regional Conservation Authority, the MCP proponents described the width of the Project as 200-1700 feet—almost triple the maximum width described in the EIR/S—where it expanded to include detention basins and interchanges. E.g. AR:10335, AR:10514, AR:10878. In order to find the actual width for the MCP, one must delve into the Final EIR/S appendices to decipher the details. Appendices to an EIS are to “consist of material which substantiates any analysis fundamental to the impact statement”; they are not to be the only place where fundamental information—such as an accurate project description—is found. See 40 C.F.R. § 1502.18(b); see also id. § 1502.15 (requiring an EIS “succinctly describe the environment of the area(s) to be affected . . . by the alternatives under consideration”); see WildEarth Guardians, 790 F.3d at 9226 (holding that mere inclusion, in appendix, of map agency used in its assessment, without any explanation in EIS, did not satisfy NEPA requirements). For example, Attachment H to Appendix I, of the EIR/S provides the “Conceptual Plan of the Preferred Alternative (Alternative 9 Modified with the San Jacinto River Bridge Design Variation)” and provides the level of detail needed to analyze the actual width through the affected community of Perris by comparing the map scale in the figure to the MCP. AR:7976 AR:8017. Attachment O-2 of Appendix O of the EIR/S provides parcel acquisition information and diagrams, which also provides a scale in feet. AR:9189. Applying that scale manually to the route just north of Paragon Park in Perris reveals a project width from AR:69250, AR:69296, AR:69346. Tellingly, none of the responses from RCTC staff provide links to the EIR/S itself. Id. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 17 of 41 Page ID #:321 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 approximately 300 to 500 feet in the residential community next to the park and approximately 1500 feet at the adjacent interchange and detention basin at Redlands Ave. AR:7992, AR:7993 (showing Paragon Park southwest of intersection of Placentia Ave & Redlands Ave), AR:9220, AR:9223. In the neighboring community at the intersection with Evans Road, the MCP measures approximately 1700 feet in width accounting for all road improvements. AR:7994, AR:9224. The claim in the EIR/S that the “right of way varies from 220 ft to 660 ft in width” vastly understates the actual width by roughly 1,000 feet where it reaches over 1,700 feet in width. Compare AR:6161 with AR:10335. Even if the appendices were easily decipherable, the Draft EIR/S and Recirculated EIR/S did not include a comparable “Conceptual Plan of the Preferred Alternative (Alternative 9 Modified with the San Jacinto River Bridge Design Variation)”; that detail was only provided in the Final EIR/S twelve days before the approval of the MCP. “[T]he broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989). Previous parcel acquisition maps were at the citywide scale which hindered the ability of residents, affected property owners, and the public to comprehend a sense of the impacts to their property and community. AR:3601- 3725 (Draft EIR/S), AR:5909-46 (Recirculated EIR/S). The blatant understatement in width of over 1,000 feet at areas throughout the route is no minor oversight to communities that suffer additional pollution, traffic, noise, and aesthetic impacts of a freeway dividing their neighborhoods. E.g. AR:10250, AR:10194 Yet, the EIR/S masks these impacts by minimizing the width of the Project and engaging in a conflicting and enigmatic approach for disclosure, which precludes informed analysis by the public and decision makers in violation of NEPA. See Native Ecosystems Council, 418 F.3d at 960. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 18 of 41 Page ID #:322 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 B. Failure to Objectively Evaluate the Effects of NEPA Alternatives The EIR/S misrepresents the environmental impact of the MCP and alternatives, which fails to inform the public and decision makers of the relative impacts and merits of the Project and results in a misleading depiction of the preferred alternative. The alternatives section is “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. This section must, among other things, “[r]igorously explore and objectively evaluate all reasonable alternatives, and. . . [d]evote substantial treatment to each alternative considered in detail . . . so that reviewers may evaluate their comparative merits.” Id. “[T]he touchstone for [the court’s] inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” California v. Block, 690 F.2d 753, 767 (9th Cir. 1982). Instead of accurately depicting the effects and alternatives the EIR/S relies upon a hypothetical future baseline of development: businesses and employees that could be affected by Alternative 5 should those businesses ever be built, and compares those effects to the existing homes and residents who would be displaced by Alternative 9. Petitioners repeatedly emphasized that the EIR/S must not rely on hypothetical development because it “fabricates an inflated future growth and baseline in order to justify the Project and mask its numerous impacts.” AR:9818, AR:9824-25, AR:10792, AR:13496-97. A flawed baseline precludes an accurate analysis, which is essential to implementing NEPA, and renders an EIS arbitrary and capricious. Or. Nat. Desert Ass’n v. Jewell, 823 F.3d 1258, 1264-65 (9th Cir. 2016). This inconsistent comparison results in a misleading EIR/S because it does not provide an objective comparison of the varying effects to the communities in Perris or the environmental justice impacts of the different alternatives. In comparing alternatives the EIR/S claims that “Alternative 5 Modified Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 19 of 41 Page ID #:323 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 would bisect several large intermodal distribution centers along Rider Street, as well as impact commercial and industrial businesses adjacent to I-215, and a few industrial businesses along Perris Boulevard.” AR:6051. Those “large intermodal warehouses [are] approved but not yet constructed and operational” and, yet, the EIR/S treats them as built for purposes of analyzing impacts. AR:6431, AR:6052. “Should these warehouse uses be displaced by Alternative 5 Modified”, they “may not be able to be relocated within the Perris area.” AR:6431, AR:6052. That assertion is purely speculative.4 FHWA did not make this same conclusion about its preferred alternative (Alternative 9) despite it “divid[ing] an existing community” and resulting in approximately 100 relocations of residential properties and displacement of 396 residents “with high percentages of low-income and/or minority populations.” AR:6432, AR:6051, AR:6208. The EIR/S determines that there is “ample supply of existing housing stock in the immediate area,” and thus, “Alternative 9 Modified is not considered to have disproportionately high or adverse impacts to environmental justice populations.” AR:6432. However, the EIR/S bases this conclusion on the comparison of hypothetical future businesses and warehouses The warehouses are not constructed, no employers have purchased them, no employees work in them, and no analysis has been conducted about the availability for large replacement parcels. Relying on this hypothetical future baseline FHWA concluded that “[b]ecause of this potential loss of major employers . . . Alternative 5 is considered to have disproportionately high and adverse impacts to environmental justice populations.” AR:6432. 4 AR:107850 (“planned businesses … within… the Perris Valley Commerce Center Specific Plan approved by the City of Perris in 2011”), AR:89209 (Perris Ridge Commerce Center II in the “planning stage” includes hypothetical “401 estimated impacted employees … included in all nonresidential tables and discussions”), AR:6291 (Proposed Perris Ridge Commerce Center II). Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 20 of 41 Page ID #:324 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that are not built, versus the actual homes and residences that exist in the area today. The EIR/S recognizes that Alternative 9 “would result in the highest impacts to residential relocations in areas with minority and low-income populations,” but disregards those immediate impacts in favor of speculative future impacts. AR:6052, AR:6217. Misrepresenting the impacts to environmental justice populations is a “clear error of judgment” that is arbitrary and capricious because "the agency offer[s] an explanation that runs counter to the evidence before the agency." See Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003). Aerial photos and maps of the alternatives demonstrate that Alternative 5 would be built north of Rider Street where there is mostly vacant land. AR:6620. However, Alternative 9 would divide the existing neighborhood northeast of the intersection of Perris Boulevard and Placentia Avenue. AR:6620. This type of apples to oranges comparison improperly masks the very real impacts to disadvantaged residents based on warehouse employers that may never materialize. Indeed, the lack of transparency was noted by RCTC commissioners during the hearing approving the MCP when “Commissioner Jeffries expressed concern that [the amount of homes and business impacted] was not disclosed to the Commissioners” despite the conflicting representations in the EIR/S. AR:51565 In order to “objectively evaluate… so that reviewers may evaluate their comparative merits” of alternatives, as required by NEPA, the EIR/S could have compared existing residents to existing businesses and employees, or future residents to future businesses and employees. 40 C.F.R. § 1502.14. The EIR/S had the same information about planned developments for both residential and business projects, yet chose to employ the comparison in a way that puts the finger on the scale to inflate baseline impacts to employees and minimize impacts to residents. Relying on an inaccurate baseline to compare environmental effects leads to an improper NEPA analysis. As the Ninth Circuit recently held, in order to establish Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 21 of 41 Page ID #:325 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 an accurate baseline an EIS must succinctly describe the environment of the areas to be affected by the alternatives under consideration, and insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. Jewell, 823 F.3d at 1264 (citing 40 C.F.R. §§ 1500.1(b), 1502.15,). In Jewell the Ninth Circuit found that the Bureau of Land Management did not accurately assess the existing baseline conditions in the area by discounting the presence of sensitive species. Id. at 1264- 65. Similarly FHWA’s improper inflation of hypothetical future businesses and employees that could be affected by Alternative 5 to mask the impacts to the actual current residents affected by Alternative 9 fails to provide the accurate analysis and public scrutiny that are “essential to implementing NEPA” and meet the agency's obligation to “insure the professional integrity, including scientific integrity, of the discussions and analyses” See id. at 1265 (citing 40 C.F.R. §§ 1500.1(b), 1502.24). As Plaintiffs emphasized during comments, relocations of residents by Alternative 9 would occur in an area “dominated by minority, and Hispanic residents with high percentages of disadvantaged students” and must be objectively analyzed. AR:107850- AR:107851. A 2003 report by the Civil Rights Project at Harvard University found that “when housing is taken away for freeway projects in minority and low-income communities or becomes unaffordable, the displaced individuals have fewer options for seeking alternative housing and may end up living farther away from their jobs and social networks.” AR:15974. The report went on to find that “an individual’s residential location is crucial and encompasses not only issues of affordability, but also access to public schools, police and fire protection, and public transportation.” Id. Indeed affected residents in Perris expressed exactly these concerns during public comment: it’s going to be hard to buy another house because my credit is not the way it used to be because I don’t have the income that I used to have… I have an Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 22 of 41 Page ID #:326 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11-year old and a 8-year old. They’re happy in the house that they live. They happy with their school that they go… don’t want to lose my neighbors. I don’t want to lose my friends. AR:51785, AR:51562-3. The MCP will also have significant, negative impacts on the residential community. “[L]ow income and minority communities face greater risks from environmental pollution as a result of living and working near highly polluted areas, including highways.” AR:15973. Residents would also deal with “disruption of local traffic patterns [due to closures] and access to residences, businesses, and community facilities; increased traffic congestion; and increased noise, vibration, and dust.” AR:6404-5. Access and use of schools and neighborhood parks would also be impacted. AR:6405. Dozens of road closures would separate homes from schools, parks, and neighbors. AR:7952-74 [Attachment G to Appendix I]. FHWA’s reliance on dubious economic assumptions to justify a preferred alternative under NEPA should be rejected because it does not “state a rational connection between the facts found and the decision made.” NRDC v. U.S. Forest Serv., 421 F.3d 797, 806 (9th Cir. 2005). In NRDC, the U.S. Forest Service misinterpreted data from economic reports to justify choosing the preferred alternative because it resulted in better “projected market demand scenarios.” Id. at 807. The Forest Service’s mistake “doubled the demand projection,” which the agency used to gauge the relative desirability of each of the proposed alternatives. Id. The Ninth Circuit held that the Forest Service’s EIS was misleading, violating NEPA, because it relied on these inflated projections to select an alternative. Id. at 807-08, 816. The EIR/S here also relied upon inflated forecasts of job losses and economic impacts to claim that the preferred alternative would have less impacts on environmental justice populations and the community. This led the FHWA to choose Alternative 9 based on inaccurate and misleading data that does not “state a Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 23 of 41 Page ID #:327 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 rational connection between the facts found and the decision made.” See id. at 806. C. Failure to Provide a Reasonable Range of NEPA Alternatives FHWA’s failure to develop a reasonable range of alternatives for the revised MCP that included new north-south upgrades to I-215 and a truncated west-east route runs afoul of NEPA because the EIR/S simply relies on alternatives proposed or eliminated for a different project—the original thirty-two mile, west-east project. FHWA changed the project, eliminated alternatives based on the previous version of the MCP, and yet failed to develop alternatives to meet the new project. Instead FHWA simply advanced the same routes and lane dimensions from the previous alternatives analysis. FHWA fails to analyze reasonable alternatives such as incorporating HOV lanes, different road alternatives such as those that proved viable for the western half of the MCP, or combining road upgrades with transit. Instead, the EIR/S relies upon three Build Alternatives with the same number of lanes, same I-215 upgrades, same fourteen mile west-east route connection with the Ramona Expressway and that only vary in their route through the city of Perris. In an EIS, agencies are to “[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a). “Judicial review of the range of alternatives considered by an agency is governed by a ‘rule of reason’ that requires an agency to set forth only those alternatives necessary to permit a ‘reasoned choice.’” Block, 690 F.2d at 767. “Under the rule of reason, the EIS ‘need not consider an infinite range of alternatives, only reasonable or feasible ones.’” Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004). “The touchstone for [the court’s] inquiry is whether an EIS’s selection and discussion of alternatives fosters informed decision-making and informed public participation.” Block, 690 F.2d at Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 24 of 41 Page ID #:328 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 767. “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995). 1. Evolution of the MCP and Environmental Review Prior to moving forward with the MCP, FHWA and RCTC conducted a Tier 1 EIR/S5 for the “preservation of right-of-way for a transportation corridor” in western Riverside County. AR:52393. Instead of fully evaluating all the Tier 1 alternatives RCTC moved forward with the MCP without completing a Final EIR/S. AR:6019.6 When the Draft EIR/S was circulated in October 2008 it proposed seven project alternatives: two No Project Alternatives (Alternatives 1A and 1B) and five Build Alternatives (Alternatives 4, 5, 6, 7, and 9). AR:1097. All of the Build Alternatives in the Draft EIR/S were “six- to eight-lane, controlled-access” freeways for the eastern half of the thirty-two mile MCP between I-215 and SR-79. AR:1099, AR:1105, AR:1111, AR:1118, AR:1124. FHWA and RCTC initiated environmental review for the MCP as a thirty-two mile freeway between I-15 and SR-79. AR:6138. The 2004 notice for the Draft EIR/S described eight project alternatives for the thirty-two mile MCP. AR:1073. In September 2007, over one year before the circulation of the Draft EIR/S, the RCTC Board selected a Locally Preferred Alternative (Alternative 9 Temescal Wash Design Variation) for the MCP. AR:6138, AR:1174. In 2013, FHWA issued a Recirculated EIR/S when it determined only to proceed with the sixteen mile eastern span of the MCP from I-215 in Perris to SR- 5 “Tiering” is appropriate for general matters at an earlier stage with subsequent narrower analyses incorporating the earlier analysis. 40 C.F.R. § 1508.28. 6 A Final Tier 1 EIS/EIR was “not completed… and all of the data and analyses contained in the… Tier 1 EIS/EIR needed to be updated for the analysis of the MCP Alternatives.” AR:6094. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 25 of 41 Page ID #:329 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 79 in San Jacinto, thus eliminating the western sixteen miles between I-15 and I- 215. AR:3781. All of the alternatives, except for No Project alternative 1A, included a six lane roadway. AR:3907, AR:3911, AR:3958. Specifically, the Recirculated EIR/S, which was later adopted as the Final EIR/EIS, included three Build Alternatives (4, 5, and 9) with two design variations (San Jacinto River Bridge and San Jacinto North), and the two No Project/No Action Alternatives (Alternatives 1A and 1B). AR:3803. Alternatives 1A and 1B were simply for “comparison of future with-project conditions to the future without-project ground conditions” and “not developed to meet the defined project purpose” or to be viable for approval by FHWA. AR:6200-01. The alternatives in the Recirculated and Final EIR/S for the sixteen mile west-east component of the shortened MCP followed the same alignment as the eastern half of the original thirty-two mile freeway analyzed in the Draft EIR/S, except that Alternative 9 was designed to avoid Paragon Park and Fire Station No. 90. Compare AR:1089 to AR:6616. The routes east of I-215 were designed to directly connect to the western half of the original thirty two-mile MCP and not proposed as independent alternatives for an eastern route. See e.g. AR:1089. The MCP in the Recirculated and Final EIR/S also included a different component than the earlier project, a north-south upgrade to I-215 for approximately 6 miles that added lane capacity and intersection upgrades between Van Buren Boulevard adjacent to the March Air Reserve Base in the north and Nuevo Road in the south and was a common element of all of the Build Alternatives. See e.g. AR:6028, AR:6101. The Final EIR/S noted alternatives that were eliminated from consideration because of issues affecting the western half of the original thirty-two mile MCP including engineering issues associated with the Cajalco Dam and Metropolitan Water District Facilities or “the modification to the project limits” to the sixteen Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 26 of 41 Page ID #:330 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 mile MCP after the circulation of the Draft EIR/S. AR:6250, AR:6251, AR:6252. Thus, outside of the design variations proposed in the Recirculated EIR/S and Final EIR/S no additional alternatives were proposed or analyzed for the MCP after it was cut in half and the north-south freeway upgrades to I-215 were included in the revised sixteen mile project. 2. FHWA Fails to Analyze a Reasonable Range of Alternatives for a New, Revised Project Plaintiffs noted that moving forward with the same alternatives in the shorter sixteen mile MCP did not result in a reasonable range of alternatives because many of the alternatives proposed, but eliminated, were eliminated due to constraints on the original thirty-two mile MCP. AR:9826, AR:14532, AR:15977-78. Thus, once the MCP was reduced to sixteen miles and added approximately six miles of upgrades to I-215, there was no disclosure or analysis of alternatives to the shortened MCP beyond the previous alternatives proposed for the eastern sixteen miles of the thirty-two mile facility. FHWA admits that “the alternatives discussed in Section 2.6, Alternatives Considered and Withdrawn from Further Consideration, starting on page 2-117 in the Final EIR/EIS are alternatives that were considered for the original thirty-two mile-long MCP facility.” AR:9928, AR:9914. Yet, all of these alternatives were eliminated because of constraints affecting the western half of the original thirty two mile MCP, not the sixteen mile revised MCP. AR:6251, AR:6252 (engineering issues associated with the Cajalco Dam and Metropolitan Water District Facilities or “the modification to the project limits” to the sixteen mile MCP). Despite FHWA’s claims that the shortened MCP has independent utility and logical termini and “will provide more direct routes for travelers… whose trips require east-west movements in addition to north-south movements” along the I-215 upgrade there is no evaluation of a range of alternatives for the sixteen mile MCP outside the Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 27 of 41 Page ID #:331 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 alternatives carried forward from the original thirty-two mile design. AR:9919, AR:6130-31. The shortened west-east route and over six mile north-south upgrades to I-215 create an independent project to the original facility, yet no independent alternatives analysis of those alternatives is provided. FHWA further claims that the range of alternatives is reasonable because the “foundation for the range of alternatives considered for the modified MCP project in the Recirculated EIR/S is found in the initial CETAP planning that was conducted as part of the RCIP from 1999-2000.” AR:9928. However, the FEIR/S admits that EIR/EIS process was “not completed… and all of the data and analyses contained in the… Tier 1 EIS/EIR needed to be updated for the analysis of the MCP Alternatives.” AR:6094. FHWA cannot properly rely upon an uncompleted analysis that it acknowledges needs to be updated and is over fourteen years old. FHWA only provides a conclusory analysis for the justification of the range of alternatives for the shortened MCP. AR:9929-30. There is no further discussion of why the alternatives already proposed for a larger, different project, still constituted a reasonable range of alternatives. Plaintiffs recognize that Alternative 9 in the Final EIR/S included a design variation to avoid Paragon Park and Fire Station No. 90 and integrate the San Jacinto River Bridge design that was not included in the Draft EIR/S. However, slight variations on the alignment of the adopted route does not constitute the reasonable range of alternatives contemplated by NEPA. See Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1218-19 (9th Cir. 2008) (rejecting agency’s consideration of “a very narrow range of alternatives,” “hardly different” from one another). 3. FHWA’s Failure to Analyze Anything But Six Lane Mixed- Flow Freeways Is Not a Reasonable Range of Alternatives FHWA also fails to analyze viable alternatives proposed by the public and transit agencies. Early and often throughout the MCP environmental review Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 28 of 41 Page ID #:332 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 process Plaintiffs suggested environmentally superior alternatives including, among other things, HOV lanes, reducing reliance on single occupancy automobiles through increased transit, transportation demand reduction, and various non-freeway lane configurations. E.g. AR:145-6, AR:506, AR:13640-1, AR:13678, AR:14527. Similarly, the Riverside Transit Agency suggested alternatives that integrate with public transit including “[d]esignated traffic lanes… for carpools and transit.” AR:59425-26, AR:11056, AR:13640-1. FHWA completely fails to propose or analyze an alternative that incorporates HOV or carpool lanes, (AR:6172), despite the fact that it claims to rely on the Tier 1 analysis as the foundation of alternatives. The Tier 1 analysis stated that RCTC, Riverside County, and the affected cities placed a “specific emphasis on the ongoing development of HOV facilities in Riverside County” and included project designs with “the provision of HOV lanes as part of the preferred [] alternative.” AR:9928, AR:52457. FHWA’s failure to describe why it failed to analyze an alternative that considered HOV lanes runs contrary to NEPA. See N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,978 (9th Cir. 2006) (“An agency must…explain its reasoning for eliminating an alternative.”). FHWA’s claims that HOV lanes were not considered because “no traffic congestion is expected on the MCP facility through the horizon year of 2040” is belied by the recognition in the FEIR/S that there will be “some improvements” or “no substantial change” to traffic compared to the no build conditions. AR:6172, AR:7357. Moreover, it fails to recognize the substantial greenhouse gas reductions that can result from reductions in single vehicle automobile use and increased transit alternatives. AR:013678, AR:013693 (Attorney General: “alternatives to individual vehicle travel” and public transit reduce greenhouse gas emissions). Similarly, the EIR/S fails to consider alternative lane configurations that meet the revised MCP’s Purpose and Need, outside of solely six lane freeway Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 29 of 41 Page ID #:333 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 alternatives. FHWA and RCTC admit that a non-freeway alternative is viable for the western portion of the former MCP from I-15 to I-215, which is closer to job centers and housing in the city of Riverside and Orange County. AR:6020. However, no attempt is made to develop or analyze an alternative that relies on upgrades to the existing road network, except for No Action Alternative 1B, which FHWA concedes was developed simply for comparison and not an attempt to analyze viable alternatives because it could not meet the MCP’s Purpose and Need. AR:6200-01. Likewise, the Final EIR/S fails to analyze any alternative that includes potential combined transit and roadway improvements. The Final EIR/S claims that transit is not a viable alternative because one of the Project objectives is to “move goods”, which could not be achieved via transit. AR:9927. However, this does not account for upgrades to both transit and existing roadways and the Final EIR/S recognizes that “[s]tate highways and other roads” can be designed to meet the design STAA truck standards. AR:009915. Instead, FHWA relies upon earlier screening of alternatives for a different project—the thirty-two mile west-east MCP—in order to summarily reject viable alternatives. The Ninth Circuit has held an EIS inadequate because it failed to consider an obvious, reasonable, and less environmentally damaging alternative. In Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir. 1980), the agency proposed a 10.8 mile highway segment. Id. at 777. The range of alternatives included different locations for the highway, but all of the build alternatives were four lanes. Id. at 784. The court faulted the agency for failing to consider “an improved and widened two-lane road for any portion of the project,” which “was both reasonable and obvious.” Id. at 783-84. Because the state originally planned for a two-lane road for part of the project, evidence showed that auxiliary lanes could improve traffic capacity, some areas did not present the same safety needs, lower traffic capacity was acceptable in some towns, and that parkland would be Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 30 of 41 Page ID #:334 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 spared by a two-lane road, the court found the EIS deficient for failure to consider a two-lane alternative. Id. at 784. Similarly here, the MCP EIR/S only considers six lane alternatives that could be widened to eight lanes in the future. AR:6161. There is no consideration of a four lane alternative with an HOV lane or combined transit and road upgrades, which could meet the project objectives while reducing the greenhouse gas and air pollution impacts and encouraging carpooling and transit. The Ninth Circuit's decision on a proposed highway in City of Carmel-By- The-Sea v. U.S. Dep't of Transp. also provides guidance on a reasonable range of alternatives. 123 F.3d 1142 (9th Cir. 1997). In Carmel-by-the-Sea the purposes of the freeway project included relieving traffic congestion, improving safety, and meeting traffic service needs for the following twenty years. Id. at 1155. The alternatives considered included a new freeway, improving the existing highway, or both. Id. at 1157-58. It also considered, but rejected, HOV lanes among other alternatives. Id. at 1158. The Ninth Circuit concluded the alternatives “span[ned] the spectrum of ‘reasonable’ alternatives” and thus satisfied NEPA. Id. at 1159. In the present case all of the alternatives, besides the No Action alternatives, are a new six lane freeway that varies by less than two miles from north to south through the City of Perris. AR:6161, AR:6174 (Compare scale to alternative routes). Even No Action Alternative 1B is a six lane roadway upgrade contemplated by the General Plan. AR:6201. However, the Final EIR/S recognizes that Alternatives 1A and 1B were “not developed to meet the defined project purpose” and only “to allow for comparison” of conditions with and without the Build Alternatives. AR:6200-01. Thus the only variation in the viable alternatives is a two mile west-east route through the City of Perris; the eastern fourteen miles of the Build Alternatives follow the same route, and all of the Build Alternatives include the same upgrade of I-215. See e.g.AR:6174, AR:6612 (Compare scale to alternative routes). Simply analyzing the same Project, except for a two mile Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 31 of 41 Page ID #:335 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 stretch through the City of Perris, for all of the viable alternatives, which are carried over from a different project does not “span the spectrum of reasonable alternatives” required by NEPA. See Carmel-by-the-Sea, 123 F.3d at 1157-59. Technical traffic reports completed for the MCP determined that a six-lane freeway would be required to accommodate the predicted level of traffic, yet no analysis was done to determine whether HOV lanes or public transit could be included to meet the total six lane traffic demand. AR:98148. Alternatives with fewer mixed-flow lanes or integrated transit seem to be both reasonable and obvious, and like in Coalition for Canyon Preservation, it is likely that making the MCP less than six mixed flow lanes in some stretches of the road (to protect important areas, or because certain portions require less capacity), including HOV lanes or integrating public transit could still meet the desired traffic demand. D. The Mid County Parkway Violates Section 4(f) of the Department of Transportation Act FHWA fails to provide evidence in the record that feasible and prudent alternatives, including Avoidance Alternative 3 Option B (“Avoidance Alternative 3B”), cannot be implemented to avoid Section 4(f) resources and it cannot demonstrate that there are “severe” or “uniquely difficult” problems of “extraordinary magnitudes” as required under Section 4(f) to permanently use historic resources that the statute protects. Stop H-3 Ass'n, 740 F.2d at 1449; 23 C.F.R. § 774.17. Plaintiffs noted that the environmental review “fails to analyze all feasible alternatives” to avoid Section 4(f) resources including the Multi-Use Prehistoric Site because it “fails to properly conduct an alternatives or mitigation analysis that demonstrates there are no feasible and prudent alternatives.” AR:009886. “Section 4(f) is ‘a plain and explicit bar to the use of federal funds for construction of highways [which use Section 4(f) resources]—only the most Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 32 of 41 Page ID #:336 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 unusual situations are exempted.’” Overton Park, 401 U.S. at 411 (1971). “A feasible and prudent avoidance alternative avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property.” 23 C.F.R. § 774.17 (emphasis added). Section 4(f) resources “may be ‘used’ for highway purposes only if ‘there [are] truly unusual factors present in [the] case,’ if ‘feasible alternative routes involve uniquely difficult problems,’ or if ‘the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes.’” Stop H-3 Ass'n, 740 F.2d at 1449 (alterations in original) (quoting Overton Park, 401 U.S. at 413, 416). 1. The Record Does Not Support the Determination that Avoidance Alternative 3B Is Not Prudent The Final EIR/S acknowledges that the MCP will permanently “use” Section 4(f) resources including five historic sites: a multi-use prehistoric site (“Multi-Use Prehistoric Site”) (P-33-16598) and four cultural resource sites (P-33-19862, P-33- 19863, P-33-19864, and P-33-19866). AR:7532.7 Plaintiffs address FHWA’s analysis of the Multi-Use Prehistoric Site in Chapter 4.8 The Multi-Use Prehistoric Site is approximately 78.5 acres and includes rock shelters, ceremonial areas with rock art panels, milling features with bedrock mortars and slicks, midden deposits, areas of former habitation, and other artifacts. AR:7545. Each Build Alternative, including the approved route, would use 2.6 acres or 3.3% of the total area of the prehistoric site. AR:7547. In the section 4(f) 7 Despite adjacency to parks and schools FHWA determined that the nearby parks, schools, and trails subject to Section 4(f) protections will not be permanently and substantially impacted constituting “constructive use.” AR:7532-3. 8 FHWA conducted two feasible and prudent analyses: Chapter 4 addressed the Multi-Use Prehistoric Site (AR7546-71); and Chapter 5 analyzed the four remaining cultural resource sites together. AR:7572-93. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 33 of 41 Page ID #:337 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 analysis, FHWA evaluated the two No Build Alternatives, 1A and 1B from the NEPA analysis, and four avoidance alternatives. AR:7551-64, AR:10056. All avoidance alternatives were determined to be feasible in terms of sound engineering, but two would not meet the project purposes and thus, were considered imprudent. AR:7552. The two remaining alternatives—Avoidance Alternative 1 and Avoidance Alternative 3 (Options A and B)—were evaluated further to determine whether they would be “prudent” under the regulatory standards as defined by 23 C.F.R. § 774.17. While Plaintiffs’ position is that FHWA short-circuited Section 4(f)’s substantive requirements for Avoidance Alternatives 1, 3A and 3B, we focus the Court’s attention on Avoidance Alternative 3B. Avoidance Alternative 3B “would shift the alignment at least 0.6 mi south of the Ramona Expressway… into the Lakeview Mountains.” AR:7563. This route would not use a 1.5 mile segment of the Ramona Expressway, require “slightly more right of way”, impact more non- transportation land uses, use approximately 35 more acres of a regional Habitat Conservation Plan “criteria areas”, impact one prehistoric site, require construction on steep terrain for a distance of about 1.2 mi causing an increase in the project construction costs by roughly $39 million, require two additional crossings of the Colorado River Aqueduct, result in changes in the cut and fill, result in additional visual impacts, and would not serve the planned residential and employment growth in the San Jacinto Valley area without an additional extension of the future Park Center Drive. AR:7563-4 FHWA determined that Avoidance Alternative 3B was not prudent because it would not use a 1.5-mile-long segment of the existing Ramona expressway, substantially increase the project costs to an “extraordinary magnitude”, and would result in substantially greater right of way and land use impacts, and contributions to cumulative impacts compared to the MCP Build Alternatives. AR:7560, Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 34 of 41 Page ID #:338 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AR:7564. FHWA references Table 4.4, which provides an analysis of the feasible Avoidance Alternatives to determine whether they are prudent as defined by regulation. AR:7556-60. An avoidance alternative is not prudent if (3)(iii) After reasonable mitigation, it still causes: (A) Severe social, economic, or environmental impacts; (B) Severe disruption to established communities; (C) Severe disproportionate impacts to minority or low income populations; or (D) Severe impacts to environmental resources protected under other Federal statutes; (iv) It results in additional construction, maintenance, or operational costs of an extraordinary magnitude; (v) It causes other unique problems or unusual factors; or (vi) It involves multiple factors in [these] paragraphs . . .of this definition, that while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude. 23 C.F.R § 774.17 (“Feasible and prudent avoidance alternative” definition). FHWA found that “[b]ased on the alignment through the Lake View Mountains, and the resulting greater amount of right of way and land use impacts” Avoidance Alternative 3B was not prudent because it would result in relatively greater impacts under a number of factors that cannot be supported by the record before FHWA or the Court. AR:7557-59. However, FHWA fails to provide sufficient information in the record to demonstrate that Avoidance Alternative 3B is not prudent, as required under 23 C.F.R. § 774.7(a) (“Section 4(f) evaluation… shall include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative”). Moreover, FHWA fails to demonstrate that the impacts meet the high bar to determine an alternative is imprudent under Section 4(f). “The Ninth Circuit has stated that alternatives are imprudent only where ‘there [are] truly unusual factors present in [the] case,’ if ‘feasible alternative routes involve uniquely difficult problems,’ or if ‘the cost or Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 35 of 41 Page ID #:339 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 community disruption resulting from alternative routes [reach] extraordinary magnitudes.’” City of S. Pasadena v. Slater, 56 F. Supp. 2d 1106, 1117 (C.D. Cal. 1999) (alterations in original) (quoting Stop H-3 Ass’n, 740 F.2d at 1449). The record does not support the determination that the “existing and planned land uses and resulting environmental impacts” of Alternative 3B would cause “severe disruption to established communities” that are “substantially greater and more severe.” See 23 C.F.R. § 774.17(3)(iii)(B)(“Severe disruption to established communities”); AR:7558, AR:7560, AR:7564. Table 4.5 calculates the impacts to existing and planned land uses, which states that Avoidance Alternative 3B will impact a total of 240.1 acres of existing land uses compared to the MCP adopted alternative of 152 total acres. AR:7562. However, 101.8 acres of the existing land uses impacted by Avoidance Alternative 3B are “Vacant Land.” AR:7562. Vacant land is the absence of a land use, not a land use. When “Vacant Land” is removed from the “Existing Land Use” totals, Avoidance Alternative 3B results in less impacts to existing land uses than the preferred alternative. AR:7562.9 Similarly, the record does not Support the determination that Avoidance Alternative 3B “would impact minority or low income populations more than the MCP Build Alternatives.”See 23 C.F.R. § 774.17(3)(iii)(C)(“Severe disproportionate impacts to minority or low income populations”); AR:7558. There is no discussion or analysis about how Avoidance Alternative 3B would impact those populations. Table 4.5 does state that Avoidance Alternative 3B would impact 1.1 acres more of residential land uses and 2 acres more of public facilities. Less land use impacts and impacts to vacant land cannot be substantially greater or more severe than impacts to existing land uses. 9 Avoidance Alternative 3B Existing land uses total 138.3 acres (240.1[total] minus 101.8[vacant land]). MCP Build Alternatives land uses total 145.7 (152 [total] minus 6.3 [vacant land]). Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 36 of 41 Page ID #:340 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AR:7562. However, there is no discussion about whether and how the residential areas actually include residences, or whether the impacts to residences and public facilities would disproportionately impact minority or low income residents. Even if there is an additional 3.1 acres of impacts to those communities it is a slight increase relative to the overall impacts of the total project and “does not cause other severe problems of a magnitude that substantially outweighs” impacts to Section 4(f) resources. See 23 C.F.R. § 774.17. While the record does demonstrate there would be more impacts to MSHCP Criteria areas under Avoidance Alternative 3B, it does not demonstrate that there will be “substantially greater and more severe” “environmental impacts” than the preferred alternative. AR:7557; see 23 C.F.R. § 774.17(3)(iii)(A)( “Severe… environmental impacts”). Nor does it show that there will necessarily be “greater and more severe impacts to biological resources (plant and animals and the habitats in which they occur) in Western Riverside County MSHCP designated Critical Habitats.” AR:7558; see 23 C.F.R. § 774.17(3)(iii)(D)(“Severe impacts to environmental resources…”). While the record does support FHWA’s assertion that there will be more impacts to Western Riverside County MSHCP criteria areas, there is no discussion or analysis of the impacts on the environment or biological resources in those criteria areas. AR:7562 (use of approximately 35 more acres). The biological resources within the criteria areas are not universally valuable because the criteria cells designate areas where certain resources are to be conserved and other resources may not be as biologically valuable. AR:7062 (“MSHCP requires conservation of only those portions of the cells that meet the criteria for conservation”). For example, areas north of the Ramona Expressway may be dairy operations that are degraded as habitat, but still designated as a criteria cell. AR:7018. Additionally the Section 4(f) analysis fails to disclose impacts of Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 37 of 41 Page ID #:341 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Avoidance Alternative 3B because the route is not disclosed. AR:7546(“the avoidance alternatives in the vicinity of [the Multi-Use] prehistoric site [] not shown… to protect that prehistoric site from unauthorized artifact collecting, vandalism”). The record simply cannot support the determination of greater impacts to environmental and biological resources because there is no analysis or disclosure of the underlying resources impacted in the criteria cells. Moreover, alternatives can be considered prudent even when they have significant consequences. In Stop H-3 Association, the court emphasized that protection of Section 4(f) lands is of “paramount importance.” 740 F.2d at 1451 (quoting Overton Park, 401 U.S. at 412-13). There, the Ninth Circuit held that although an alternative involved displacing one church, four businesses, and thirty- one residences, it did not “r[i]se to the level” of a disruption of extraordinary magnitude. Id. Additionally, the increased cost of $42 million was not extraordinary, “especially in light of the projected total cost” of $386 million. Id. at 1452. And although the alternative also increased noise, air quality, and visual impacts to nearby residences, these likewise did not constitute disruptions of extraordinary magnitude. Id. Even the increased safety concerns were insufficient to support a determination that the alternative was imprudent. Id. 1452-53. For FHWA to comply with Section 4(f), the imprudent alternatives that did meet the project purposes must have had “uniquely difficult problems,” a “cost or community disruption” of “extraordinary magnitudes,” or other “truly unusual factors,” Stop H-3 Ass’n, 720 F.2d at 1449. The use of approximately 35 more acres of Western Riverside County MSHCP criteria areas does not meet this standard. AR:7562. Even when an alternative results in greater environmental impacts than the proposed use, those impacts must be of an extraordinary magnitude to make a finding that an alternative is not prudent. Stop H-3 Ass’n, 740 F.2d at 1452 (concluding that despite increased noise, air quality, and visual Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 38 of 41 Page ID #:342 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 impacts, alternative not imprudent under Section 4(f)). Here, greater impacts on MSHCP criteria areas does not automatically prove greater impacts on biological or environmental resources without site specific analysis to determine whether those environmental resources actually exist within the project footprint. “Even if the alternatives might impact biological resources more than the proposed use, these are not “of a magnitude that substantially outweighs” impacts threatened by use of Section 4(f) lands.” See 23 C.F.R. § 774.17. While increased use of MSHCP lands is unfortunate, protection of Section 4(f) lands is of “paramount importance.” See Stop H-3 Ass’n, 740 F.2d at 1452 (quoting Overton Park, 401 U.S. at 412-13). The record does not demonstrate that the increased construction costs of Avoidance Alternative 3B are of an “extraordinary magnitude.” See 23 C.F.R. § 774.17; AR:7558-9. $39 million is an approximate increase in construction and total costs of only 2-3 percent of the $1.732 billion project cost, not “18 to 20 percent” asserted in the Section 4(f) analysis. AR:6250; AR:007558-9.10 The 2-3 percent increase in project costs of $39 million is not of an extraordinary magnitude under Section 4(f). AR:7558-9. Stop H-3 Ass’n, 740 F.2d 1441, 1452. In Stop H-3 Association, an increased cost of “$42 million (1978 dollars)” was not extraordinary, “especially in light of the projected total cost” of $386 million. Id. at 1452. Avoidance Alternative 3B only increases project costs by $39 million, less than the total increase in Stop H-3 Association, for a project that is at least 4.5 times more costly. Avoidance Alternative 3B only results in a 2-3 Using inflated comparisons to assert a cost increase of extraordinary magnitude misleads the public and decision makers and offers an explanation “that runs counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. 10 A $1.732 billion increase in total cost is 2.2 percent of $39 million, and a $1.35 billion increase in construction costs is 2.9 percent of $39 million. Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 39 of 41 Page ID #:343 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 percent increase in project costs, while the increase in Stop H-3 Association totaled 10.9 percent. The increased project cost of Avoidance Alternative 3B does not meet the legal threshold for finding an Avoidance Alternative not prudent. Based on the impacts described in subsections (3)(iii)(A)-(D) and (3)(iv) of the definition of “feasible and prudent avoidance alternative” in 23 C.F.R. § 774.17, FHWA concludes that Avoidance Alternative 3B is also not prudent under subsection (3)(vi) because the “cumulative impacts” would be “substantially more” for biological resources and would cause a cost increase of an “extraordinary magnitude.” AR:7559. Because the record and law does not support FHWA’s claims regarding the impacts to biological resources and increased costs, it cannot support a finding that Avoidance Alternative 3B would result in “cumulative impacts” that would be “substantially more” for biological resources and would cause a cost increase of an “extraordinary magnitude.” AR:7559. FHWA did not demonstrate that Avoidance Alternative 3B had “uniquely difficult problems,” or a “cost or community disruption” of “extraordinary magnitudes” justifying use of Section 4(f) resources. See Stop H-3 Ass’n, 720 F.2d at 1449. VI. THE COURT SHOULD VACATE APPROVAL OF THE MCP Vacatur of unlawful agency action is the presumptive remedy under the APA, which directs that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” or made “without observance of procedure required by law.” 5 U.S.C. § 706 (emphasis added). The Supreme Court has explained that if an agency’s decision “is not sustainable on the administrative record made, then the [agency’s] decision must be vacated and the matter remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973); Overton Park, 401 U.S. at 413-14. Vacatur is particularly apt where the agency failed to meet NEPA’s requirements to disclose and analyze Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 40 of 41 Page ID #:344 Plaintiffs’ Memo ISO Summary Judgment, CBD et al. v. FHWA et al, 16-cv-00133 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 before it makes its decision. See N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1072, 1089 (9th Cir. 2011) (reversing agency approvals authorizing construction of 130-mile railroad line to haul coal due, in part, to NEPA violation); Ctr. for Envtl. Health v. Vilsack, No. 15-cv-01690-JSC, 2016 U.S. Dist. LEXIS 79984, at *41 (N.D. Cal. June 16, 2016) (noting that “vacatur is the presumptive remedy” under the APA for procedural violations). Because vacatur is the presumptive remedy under the APA and Supreme Court precedent, it is the agency’s burden to prove that its faulty decision should remain undisturbed; remand without vacatur is the exception rather than the rule. See Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015). In deciding whether to remand without vacatur, a court must weigh “the seriousness of the agency’s errors against the disruptive consequences of an interim change that may itself be changed.” Id. The Ninth Circuit has authorized remand without vacatur in “limited” circumstances,” only when the agency shows that “equity demands” it. Id. More specifically in the environmental context, the agency must show that vacatur could result in environmental harms. See id. Here, FHWA cannot meet this burden—the NEPA errors here are serious and no environmental harm would result from vacatur. VII. CONCLUSION For the reasons set forth above, the Court should grant summary judgment in favor of plaintiffs, set aside and vacate the MCP and its approvals, prohibit activities related to the MCP, and order compliance with NEPA going forward. Dated: September 22, 2016 CENTER FOR BIOLOGICAL DIVERSITY /s/ Jonathan Evans Jonathan Evans ______ Aruna Prabhala Attorneys for Plaintiffs Case 5:16-cv-00133-GW-SP Document 32-1 Filed 09/22/16 Page 41 of 41 Page ID #:345 ______________________________________________________________________________ Decl. of George Hague, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7150 Email:jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY; and SAN BERNARDINO VALLEY AUDUBON SOCIETY, Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION; GREGORY NADEAU, Administrator; and VINCENT MAMMANO, Division Administrator, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) DECLARATION OF GEORGE HAGUE Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 1 of 6 Page ID #:346 Decl. of George Hague, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I, George Hague, hereby declare as follows: 1. I submit this declaration in support of plaintiffs’ Motion for Summary Judgment in this case. I have personal knowledge of the matters stated herein and, if called as a witness, could and would competently testify thereto. 2. I live in Moreno Valley, California. I currently serve on the Executive Committee for the Moreno Valley Group of San Gorgonio Chapter of the Sierra Club and am a chapter delegate to the Sierra Club California. I have been a member of the Sierra Club since 1982. I rely on the Sierra Club to represent my interest in conservation and environmental matters. 3. The Sierra Club is a national nonprofit conservation organization with over one million members dedicated to exploring, enjoying, and protecting Earth’s wild places, practicing and promoting the responsible use of Earth’s ecosystems and resources, educating and enlisting humanity to protest degradation and restore the quality of the natural and human environment, and using all lawful means to carry out these objectives. The San Gorgonio Chapter of the Sierra Club covers both San Bernardino and Riverside counties, including the area affected by the Mid County Parkway. Over 150,000 Sierra Club members live in California and over 2,600 of those members live in Riverside County. The Sierra Club is concerned about the impacts of urban sprawl, including freeway infrastructure development, particularly when such development threatens our environment, health, and quality of life. 4. Sierra Club members regularly enjoy recreational, fitness, and nature activities, such as hiking, swimming, meditation, jogging, and bird watching, on the publicly accessible lands in and adjacent to the Project area. Developing the Mid County Parkway area would deprive the Sierra Club and its members of the environmental, recreational, health and aesthetic benefits they currently enjoy from their use of the area. The Sierra Club and its members would derive environmental, Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 2 of 6 Page ID #:347 Decl. of George Hague, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 recreational, health, and aesthetic benefits from alternative uses of the Project area, such as reduced freeway infrastructure or alternative transportation options to the Mid County Parkway. 5. I am very concerned that the Mid County Parkway Project will exacerbate air pollution in this region. Already, Riverside County has some of the worst air quality in the United States, due, in large part, to the pollution from automobile traffic within the South Coast Air Basin. The Mid County Parkway would encourage more vehicle trips and lead to increased development in the San Jacinto Valley, the city of San Jacinto, and along the freeway route in Perris. In my individual capacity and on behalf of the Sierra Club, I have been very involved in developing methods to reduce the air quality impacts of tractor-trailer traffic in Riverside County. Emissions from diesel tractor-trailer trucks are harmful to public health, especially for groups that are more sensitive to air pollution such as children, people with cardiovascular disease, and senior citizens. 6. Automobile and diesel-truck traffic impact me directly as a resident of Moreno Valley and frequent visitor to the San Jacinto Wildlife Area and Lake Perris Recreation Area. I am also concerned about residents and communities in the Perris area that would be disproportionately affected by the Mid County Parkway Project where the route cuts through neighborhoods and runs adjacent to schools. As a retired school teacher, I am very concerned about the health and well-being of children in the communities in western Riverside. 7. The Mid County Parkway Project threatens to worsen the poor air quality in the region, especially for communities adjacent to and near the proposed route. Throughout the years of environmental review of the Project, I provided comments regarding the negative health consequences of freeways near communities and how freeways tend to have a disproportionate impact on low-income and minority communities. The negative health impacts of this freeway sadden me, and I am Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 3 of 6 Page ID #:348 Decl. of George Hague, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 very disappointed in the elected officials and government agencies that chose such an environmentally destructive route when there were other less harmful alternatives available. Building this freeway will impact the aesthetics, ecological stability and air quality of the communities and open spaces along the freeway route; it will also impact me spiritually. 8. I regularly enjoy wildlife and open spaces across southern California, including in areas within and adjacent to areas of the proposed Mid County Parkway Project. Some of my favorite places to visit in the areas affected by the proposed Mid County Parkway Project are the San Jacinto Wildlife Area, the Lake Perris State Recreation Area, and the surrounding San Jacinto valley. 9. I plan to visit the San Jacinto Wildlife Area, Lake Perris State Recreation Area, and the surrounding San Jacinto valley again because I know that the area is home to a rich diversity of flora and fauna. During my visits to these areas, I regularly travel the Ramona Expressway and nearby roads that would be affected by the Mid County Parkway Project. Together, these areas contain a wide diversity of ecological resources. For example, they provide habitat to numerous rare, threatened, or endangered plant and animal species that I enjoy viewing, including the burrowing owl, Northern Harrier, white-faced ibis, tricolored blackbird, and the thread-leaved brodiaea. I have not spotted the burrowing owl for a long time, and because the Mid County Parkway Project threatens its habitat, I worry that I may never see this bird in the area again. I enjoy visiting public lands in and adjacent to the proposed Mid County Parkway Project because of the opportunities to view native plants and wildlife—opportunities that are scarce in southern California due to urban sprawl and other development. My enjoyment of these areas is diminished by the impacts of road building and development encroaching on the area, which fragment habitat, displace endangered species, generate traffic, destroy views, and pollute air and water. Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 4 of 6 Page ID #:349 Decl. of George Hague, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10. My interests in visiting the San Jacinto Valley and adjacent public lands would be harmed if opportunities to traverse these areas and view wildlife were further diminished as a result of continued or expanding road building and development in or adjacent to those areas. 11. Through my work at the Sierra Club, I have learned that freeway development often comes at the expense of protections for ecologically valuable resources, such as the air or water of the region. I believe the Federal Highway Administration and Caltrans has a duty to adequately protect the ecologically valuable resources that are affected by the projects they approve, including wildlife and plant life, valuable habitats and habitat corridors, and water and air resources of affected communities. 12. The Sierra Club and its members have opposed development in the San Jacinto Valley that is connected to the Mid County Parkway Project, such as the Villages of Lakeview and Motte Ranch. The viability of both of these subdivision projects, which propose construction of several thousand homes in the San Jacinto Valley, relies upon the development of the Mid County Parkway to provide the transportation infrastructure. 13. I believe the Federal Highway Administration failed to meet its NEPA obligations because it did not properly consider, disclose to the public, or plan to mitigate the impacts of the Mid County Parkway Project on the land, air quality, water resources, plant life, and wildlife I care about. I am injured by the Federal Highway Administration’s NEPA failures because the Project directly and indirectly affects valuable natural resources in the area by encouraging sprawl and development and threatening the ecosystems that I regularly visit, enjoy and work to protect. 14. The relief sought by plaintiffs in this action—a declaration that the Mid County Parkway Environmental Impact Statement is contrary to law, an order Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 5 of 6 Page ID #:350 Case 5:16-cv-00133-GW-SP Document 32-2 Filed 09/22/16 Page 6 of 6 Page ID #:351 ______________________________________________________________________________ Decl. of Tom Paulek, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7150 Email:jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY; and SAN BERNARDINO VALLEY AUDUBON SOCIETY, Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION; GREGORY NADEAU, Administrator; and VINCENT MAMMANO, Division Administrator, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) DECLARATION OF ALBERT THOMAS PAULEK Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 1 of 6 Page ID #:352 Decl. of Tom Paulek, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I, Albert Thomas Paulek [Tom Paulek], hereby declare as follows: 1. I submit this declaration in support of plaintiffs’ Motion for Summary Judgment in this case. I have personal knowledge of the matters stated herein and, if called as a witness, could and would competently testify thereto. 2. I live in Idyllwild, California. I retired from the California Department of Fish And Wildlife (CDFW) as an Associate Wildlife Biologist after 28.5 years of service. My wildlife management education includes a Bachelor of Science in Zoology and a Master of Arts in Biology from California State University Long Beach. I worked as the CDFW Area Manager at the San Jacinto Wildlife Area from 1991 until my retirement in 2006. Since my retirement, I have maintained my professional certification as a Wildlife Biologist CWB® with The Wildlife Society. I have substantial knowledge and experience managing the plant and animal resources, endangered habitats and conservation efforts occurring on the San Jacinto Wildlife Area and the State of California. 3. I am on the Board of Directors of the Friends of the Northern San Jacinto Valley (FNSJV) and a have been a member since its founding in 1991. I currently serve as the FNSJV Conservation Chair. 4. The Friends of the Northern San Jacinto Valley is a 501(c)(3) grassroots conservation group dedicated to preserving and protecting the northern San Jacinto Valley, the San Jacinto Wildlife Area (SJWA), Mystic Lake, and Potrero Creek Conservation Unit of the SJWA. 5. The Friends sponsor bird and nature walks at the San Jacinto Wildlife Area from September through May to introduce all interested to the wonders of the San Jacinto Wildlife Area; attend community events to share information about the wildlife area and its wildlife resource and educational values; conduct tours of the SJWA for school groups and other interested people; submit written and oral comments on a wide variety of land use and transportation issues which affect the Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 2 of 6 Page ID #:353 Decl. of Tom Paulek, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 San Jacinto Wildlife Area and the northern San Jacinto Valley; work to conserve the wildlife resources and encourage proper management of the wildlife values at the San Jacinto Wildlife Area and the northern San Jacinto Valley; engage in legal advocacy failures of governmental agencies to properly comply with state and federal laws affecting the environment in the San Jacinto Valley. 6. The San Jacinto Valley would be directly affected by the Mid County Parkway and the large scale development associated with it because the freeway and development would bisect the San Jacinto Valley itself. I regularly travel the Ramona Expressway and nearby roads in the San Jacinto Valley. While traveling those roads I value the scenery, the plants and animals, and natural setting of the San Jacinto Valley. 7. I especially value the agricultural lands within the San Jacinto Valley because they play in important and necessary role as wildlife habitat and also buffer or minimize the impacts of development on the adjacent San Jacinto Wildlife area. The Mid County Parkway would directly impact areas that are habitat for wildlife, including agricultural lands, and it would also facilitate development and eventual build-out of the agricultural lands of the San Jacinto Valley. 8. I regularly recreate, study and observe wildlife and flora on public and private lands across southern California, including in areas within and adjacent to the proposed Mid County Parkway. Some of my most valued locations to visit in the areas affected by the Mid County Parkway include the San Jacinto Wildlife Area, the riparian habitats of the San Jacinto River, and the ephemeral wetland known as Mystic Lake. 9. I regularly travel to the San Jacinto Valley, and the roads and areas affected by the Mid County Parkway, and will visit the area in the future because I know that the area will be a last refuge for over 70 of the 146 species of plants (ex. San Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 3 of 6 Page ID #:354 Decl. of Tom Paulek, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jacinto Valley Crownscale) and animals (ex. Stephens’ Kangaroo Rat and the Least Bell’s Vireo) covered under the Multiple Species Habitat Conservation Plan (MSHCP) as this federal and state Endangered Species “take” permit is implemented. 10. Unfortunately, my enjoyment of these areas will be diminished by the impacts of road building and development encroaching on the area, which fragment habitat, displace endangered species, generate traffic, introduce noise and light to sensitive habitats, destroy views, and reduce air and water quality. My interests in visiting the San Jacinto Valley and adjacent public lands would be harmed if opportunities to use these areas and view birds and wildlife are further diminished as a result of continued or expanding road building and development occurring in or adjacent to those areas. 11. Freeway development will come at the expense of protections for ecologically valuable resources, and the air and water quality of the region. I believe the Federal Highway Administration and Caltrans must take aggressive steps to adequately protect the ecologically valuable resources that are affected by the projects they approve, including wildlife and plant life, valuable habitats and habitat corridors, and water and air resources. 12. The Friends have worked for decades to protect the wildlife resources and agricultural nature of the San Jacinto Valley. The Friends have opposed large scale subdivision projects that would add thousands of new buildings in the San Jacinto Valley and rely upon the development of the Mid County Parkway in order to provide the transportation infrastructure to make them viable for development. Projects currently contemplated include the Motte Ranch development, Villages of Lakeview, and San Jacinto River channelization. The Friends have also worked to minimize vehicular impacts in the San Jacinto Valley where it could harm biological resources, and water and air quality. Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 4 of 6 Page ID #:355 Decl. of Tom Paulek, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 13. I am injured by the Federal Highway Administration’s NEPA failures because the Mid County Parkway directly and indirectly affects ecological resources, by encouraging sprawl and development, including the ecologically valuable lands that I visit, enjoy and work to protect, without properly considering, disclosing to the public, or mitigating the impacts of these actions on the land, air quality, water resources, plant life, and wildlife I care about. 14. The relief sought by plaintiffs in this action–a declaration that the Mid County Parkway Environmental Impact Statement is contrary to law, an order setting aside the project and requiring that the Federal Highway Administration prepare a supplemental environmental impact statement, and an injunction prohibiting the Federal Highway Administration from carrying out planning, preparation, or development of the Mid County Parkway pending compliance with NEPA–will remedy my injury by preventing the Federal Highway Administration from forging ahead with a project that subjects ecologically valuable public resources to undisclosed and unmitigated adverse impacts and wholesale degradation damaging road building and the incumbent habitat conversion that results from the expansion of such infrastructure. 15. In summary, I have recreational, aesthetic, scientific, and spiritual interests in the conservation and preservation of wildlife that would be affected by the Mid County Parkway. These interests are being harmed by the Federal Highway Administration’s failure to comply with NEPA’s requirements to fully disclose to the public and decision makers the true environmental harms resulting from the Mid County Parkway. These interests would also be harmed by the development of the Mid County Parkway itself, which could further imperil these endangered and threatened species and habitats. The agency’s failure to fully analyze and disclose impacts on the environment prevented the disclosure and adoption of Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 5 of 6 Page ID #:356 1 mitigation measures or alternatives that could have reduced the impacts of the Mid 2 County Parkway project. Pursuant to 28 U.S.C. 1746,1 declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. 5 DATED: September 2( , 2016 A 7 &oi%4 8 ALBERT THOMAS PAULEK 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Deci. of Tom Paulek, 16-cv-00 133 6 Case 5:16-cv-00133-GW-SP Document 32-3 Filed 09/22/16 Page 6 of 6 Page ID #:357 ______________________________________________________________________________ Decl. of Ileene Anderson, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7150 Email:jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY; and SAN BERNARDINO VALLEY AUDUBON SOCIETY, Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION; GREGORY NADEAU, Administrator; and VINCENT MAMMANO, Division Administrator, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) DECLARATION OF ILEENE ANDERSON Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 1 of 7 Page ID #:358 Decl. of Ileene Anderson, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I, Ileene Anderson, hereby declare as follows: 1. I submit this declaration in support of plaintiffs’ Motion for Summary Judgment in this case. I have personal knowledge of the matters stated herein and, if called as a witness, could and would competently testify thereto. 2. I live in Los Angeles, California. I have a Masters of Science in Biology from the California State University at Northridge. I have studied and surveyed for native plants and animals in California for over 25 years. 3. I have been a member of the Center for Biological Diversity (“the Center”) since 1998. I am currently employed as a senior scientist and Public Lands Desert Director for the Center, and have worked at the Center since late 2005. 4. The Center is a tax-exempt, non-profit, membership organization with over 49,000 members, including approximately 11,000 members in California. The Center is incorporated in California with offices in Oakland, Los Angeles, and Joshua Tree, among other places throughout the United States. The Center is dedicated to the preservation, protection, and restoration of biodiversity, native species, ecosystems, and public lands. The Center is one of the leading conservation groups advocating for protection of threatened and endangered species. 5. The Center has several programs in place to address the many components of its advocacy, including an Endangered Species Program, an Oceans Program, a Climate Law Institute, an Environmental Health Program, a Public Lands Program, a Population and Sustainability Program, an Urban Wildlands Program and an International Program. At the Center, we believe that the health and vigor of human societies and the integrity and wildness of the natural environment are closely linked. Beyond their extraordinary intrinsic value, animals and plants, in their distinctness and variety, offer irreplaceable emotional, spiritual, and physical benefits to our lives and play an integral part in culture. Their loss, which parallels Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 2 of 7 Page ID #:359 Decl. of Ileene Anderson, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 the loss of diversity within and among human civilizations, impoverishes us beyond repair. 6. As part of its mission, the Center provides oversight of governmental activities that impact all species and their habitats, as well as on human health and wellbeing more generally. The Center has been at the forefront of efforts to hold the government accountable for its obligations under the Endangered Species Act, and engages in protection efforts and campaigns to ensure that our nation’s environmental laws—including the National Environmental Policy Act (“NEPA”)—are enforced with respect to imperiled wildlife and habitat, air and water quality, and human health, especially on our public lands. 7. The Center also actively develops and disseminates—to its members; policymakers; local, state, federal, and international governmental officials; non- profit organizations; and interested members of the general public—a wide array of educational and informational materials concerning the status of and threats to biodiversity, air and water quality, and federal public lands, including public lands in southern California. For example, we have webpages related to the damaging effects of freeway development and sprawl, and have implemented numerous letter submission “action alerts” to our membership on various issues involving freeway development in the state, so they can easily provide public comments on issues that are open for comment. 8. The Center’s members have diverse interests including natural history, ecology, conservation, wildlife and native plant observation, nature photography, hiking, camping, backpacking, quiet and solitude in nature, dark skies, and a love of California’s natural landscapes. The Center’s members, including myself, enjoy and use areas that would be affected by the Mid County Parkway. 9. I regularly recreate and observe plants and wildlife on public and private lands across southern California, including in areas within and adjacent to the Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 3 of 7 Page ID #:360 Decl. of Ileene Anderson, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 decision area. Some of my favorite places to visit in the decision area are the San Jacinto Wildlife Area, the San Jacinto River downstream of the Wildlife Area, the Bernasconi Hills and other nearby hills. I plan to visit the - San Jacinto Wildlife Area and the San Jacinto River area again because I know that the area is home to a rich diversity of flora and fauna. These areas of the decision area support a wide diversity of ecological resources. For example, they provide habitat to numerous rare plant and animal species, which I enjoy viewing. 10. The San Jacinto crownscale (Atriplex coronata var. notatior) is a small annual plant protected by the federal Endangered Species Act as an endangered species that is only found in what’s left of the San Jacinto floodplain on soils with high alkaline content that are episodically inundated. This plant is of scientific interest to me because of long-term interest in the genus to which this plant belongs – the Atriplex genus, which I studied in graduate school. Its ability to thrive on highly alkaline soils is amazing to me, and its tiny fruits are very distinctive, unique and attractive to behold. I also enjoy looking for other rare plants in the area including Coulter’s goldfields (Lasthenia glabrata var. coulteri), Davidson's saltscale (Atriplex serenana var. davidsonii), little mousetail (Myosurus minimus ssp. apus), long-spined spine flower (Chorizanthe polygonoides var. longispina), Parish's brittlescale ( Atriplex parishii), Plummer's mariposa lily (Calochortus plummerae), small-flowered microseris (Microseris douglasii var. platycarpha), small-flowered morning-glory (Convolvulus simulans), smooth tarplant (Centromadia pungens) and vernal barley (Hordeum intercedens 11. I also enjoy birding in the area around the San Jacinto River and adjacent hills. Burrowing owls are one of my favorite birds to watch, because they are ) among other interesting rare plants in western Riverside County in the area of the San Jacinto River and adjacent hills. Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 4 of 7 Page ID #:361 Decl. of Ileene Anderson, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 diurnal and their quizzical look and outgoing behavior make them entertaining to watch. I worry about the population of burrowing owls in western Riverside County because so much of their habitat has been developed, pushing the owls out, so they are becoming more rare and harder to observe. I’ve participated in burrowing owl surveys in western Riverside County and not observed very many owls there in recent years. 12. I enjoy visiting public lands in and adjacent to the decision area because of the opportunities to view native plants and wildlife, opportunities that are scarce in southern California due to urban sprawl and other development. However, my enjoyment of these areas is diminished by the impending impacts from road building and development in the area, which fragment habitat, displace some of Riverside County’s endemic endangered species, generate traffic, increase noise, destroy views, and reduce air and water quality. 13. My interests in visiting the decision area and adjacent public lands would be harmed if opportunities to traverse these areas and view plants and wildlife were further diminished as a result of continued or expanding road building and development occurring in or adjacent to those areas. 14. I have learned through my advocacy at the Center that freeway development too often comes at the expense of protections for ecologically valuable resources, or the air or water quality of the region. I believe the Federal Highway Administration and Caltrans must take aggressive steps to adequately protect the ecologically valuable resources that are affected by the projects they approve, including wildlife and plant life, valuable habitats and habitat corridors, and water and air resources. 15. The Center and its members have opposed development in the San Jacinto Valley that is connected to the Mid County Parkway, such as the Villages of Lakeview and Motte Ranch. Both of these subdivision development projects Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 5 of 7 Page ID #:362 Decl. of Ileene Anderson, 16-cv-00133 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 propose several thousand homes in the San Jacinto Valley that rely upon the development of the Mid County Parkway. 16. I am injured by the Federal Highway Administration’s NEPA failures because Mid County Parkway directly and indirectly affects ecological resources, including by encouraging sprawl and development, including the ecologically valuable lands that I visit, enjoy and work to protect, without properly considering, disclosing to the public, or mitigating the impacts of these actions on the land, air quality, water resources, plant life, and wildlife I care about. 17. The relief sought by plaintiffs, including the Center, in this action–a declaration that the Mid County Parkway Environmental Impact Statement is contrary to law, an order setting aside the project and requiring that the Federal Highway Administration prepare a supplemental environmental impact statement, and an injunction prohibiting the Federal Highway Administration from carrying out planning, preparation, or development of the Mid County Parkway pending compliance with NEPA–will remedy my injury by preventing the Federal Highway Administration from forging ahead with a project that subjects ecologically valuable public resources to undisclosed and unmitigated adverse impacts and wholesale degradation damaging road building and the incumbent habitat conversion that results from the expansion of such infrastructure. 18. In summary, I have professional, recreational, aesthetic, and spiritual interests in the conservation and preservation of wildlife such as burrowing owls and numerous rare plants that would be affected by the Mid County Parkway. These interests are being harmed by the Federal Highway Administration’s failure to comply with NEPA’s requirements to fully disclose to the public and decisionmakers the true environmental harms resulting from the Mid County Parkway. These interests would also be harmed by the development of the Mid County Parkway itself, which could further imperil these endangered and Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 6 of 7 Page ID #:363 Decl. of Ileene Anderson, 16-cv-00133 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 threatened species and habitats. The agency’s failure to fully analyze and disclose impacts on the environment prevented the disclosure and adoption of mitigation measures or alternatives that could have reduced the dangers of the Mid County Parkway project. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my personal knowledge. DATED: September 20, 2016 ____________________________ ILEENE ANDERSON Case 5:16-cv-00133-GW-SP Document 32-4 Filed 09/22/16 Page 7 of 7 Page ID #:364 ______________________________________________________________________________ Decl. of Drew Feldmann, 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7150 Email: jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY; and SAN BERNARDINO VALLEY AUDUBON SOCIETY, Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION; GREGORY NADEAU, Administrator; and VINCENT MAMMANO, Division Administrator, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) DECLARATION OF DREW FELDMANN Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 1 of 9 Page ID #:365 Decl. of Drew Feldmann, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I, Drew Feldman, hereby declare as follows: 1. I submit this declaration in support of plaintiffs’ Motion for Summary Judgment in this case. I have personal knowledge of the matters stated herein and, if called as a witness, could and would competently testify thereto. 2. I live in San Bernardino, California. I currently serve on the Board of Directors and am Conservation Chair of the San Bernardino Valley Audubon Society (“SBVAS”) and a have been a member since 1997. I am a former chapter president. I rely on SBVAS to represent my interest in conservation and environmental matters. 3. San Bernardino Valley Audubon is a fully independent 501(c)3 non-profit organization. SBVAS strives to bring people to their natural environment. Focusing on birds and other wildlife, we hope to conserve natural resources in the Southern California's "Inland Empire," specifically San Bernardino, Riverside, and Imperial Counties. 4. Founded in 1948, SBVAS is southeastern California's leading non-profit engaging people in the conservation of birds and their habitats. We involve people through recreational birding, envelop them in our education programs, and engage them in conservation actions from counting birds to working with local, state, and national policy makers. 5. I have enjoyed watching and studied birds in the counties of Riverside and San Bernardino area since 1999. My very first SBVAS-guided bird walk was on January 10, 1999, to the San Jacinto Wildlife Area, and in the first five minutes, we watched a bald eagle steal a fish from an osprey in mid-air. This incident has been an on-going inspiration for me and I have birded more frequently as a result. The San Jacinto Wildlife Area is one of the most significant places for avian fauna in southern California, and it would be directly and indirectly affected by the Mid Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 2 of 9 Page ID #:366 Decl. of Drew Feldmann, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 County Parkway and the large scale development associated with it because the freeway and development would bisect the San Jacinto Valley itself. 6. SBVAS works to educate its members, policymakers at the local, state, and federal level, non-profit organizations, and interested members of the public about the status of and threats to birds, wildlife, and the environment of the Inland Empire of California and statewide. For example, the SBVAS website details information about field trips, maps, birds, and meetings focused on bird watching and ornithology. SBVAS also publishes the “Western Meadowlark”, which is the bi-monthly newsletter focused on education and outreach of the amazing array of bird life of southern California and the activities of SBVAS. 7. In partnership with the National Audubon Society SBVAS worked to gain recognition for the northern San Jacinto Valley as an Important Bird Area (IBA) of Global Concern, based on scientific criteria. The IBA includes the San Jacinto Wildlife Area, much of the northern San Jacinto Valley, Lake Perris, part of the Badlands to the east, portions of the Lakeview and Bernasconi Hills, and a discontiguous riparian woodland along San Timeteo Creek. To qualify, a site has to be important to the health and survival of specific species of birds by measureable criteria. The San Jacinto Wildlife Area meets the requirements many times over. 8. SBVAS was among the founding bodies of the San Jacinto Wildlife Area, contributing some acreage won as mitigation in a lawsuit over three decades ago. Since then the chapter has used the wildlife area for regular field trips, beginning bird walks, and Christmas bird counts, with typically about 10 scheduled trips a year. In addition, SBVAS members bird the San Jacinto Wildlife Area individually or in small informal groups practically every week of the year. Its value also shows in the number of rare birds that pass through and stay for a while. As recently at September 5-10, 2016, dozens of birders, myself included, converged on the San Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 3 of 9 Page ID #:367 Decl. of Drew Feldmann, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jacinto Wildlife Area to see a Red-necked Stint (Calidris ruficollis), an Asian bird usually only seen in North America on islands in the Bering Sea off Alaska. 9. SBVAS also published the “Birds of the San Jacinto Valley Important Bird Area “booklet guide , which details the natural history and wide variety of avian fauna that rely upon the San Jacinto Valley for health, foraging, and reproduction. The booklet was compiled and edited by SBVAS members with photos and text contributed by SBVAS members. 10. SBVAS’ members have diverse interests beyond simply ornithology including natural history, ecology, conservation, wildlife and native plant observation, nature photography, hiking, camping, backpacking, quiet and solitude in nature, and a deep appreciation of California’s natural landscapes. SBVAS’ members, including myself, enjoy and use areas that would be affected by the Mid County Parkway. 11. SBVAS has also worked with state and national Audubon organizations to support tri-colored blackbird colonies in the San Jacinto Valley, which hosts one of the few remaining southern California flocks of tri-colored blackbirds, about 5,000 in all. In 2009, the flock nested not in the wildlife area but in a nearby farmer’s field on the Ramona Expressway, and SBVAS coordinated with Audubon California to pay the farmer $13,000 for the crop to save the birds from harm by avoiding the normally-scheduled harvest. 12. Through my volunteer work with SBVAS I have come to recognize the importance of agricultural lands within the San Jacinto Valley because they play in important role as wildlife habitat and also buffer or minimize the impacts of development on the adjacent San Jacinto Wildlife area. The Mid County Parkway would directly impact areas that are habitat for wildlife, including agricultural lands, and it would also encourage development and eventual build out of the agricultural lands of the San Jacinto Valley. Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 4 of 9 Page ID #:368 Decl. of Drew Feldmann, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 13. I regularly recreate and look for birds, wildlife, and flora on public and private lands across southern California, including in areas within and adjacent to areas of the Mid County Parkway. Some of my favorite places to visit in the areas affected by the Mid County Parkway are the San Jacinto Wildlife Area, Lake Perris, and the surrounding countryside 14. I plan to visit the all these areas again because I know that each of them is home to a rich diversity of flora and fauna. I particularly enjoy viewing birds such as following species, all of which have a special status : o Redhead o Golden eagle o Ferruginous hawk o White-tailed kite o Northern harrier o Bald eagle o Merlin o American peregrine falcon o Mountain plover o Long-billed curlew o Long-eared owl o Burrowing owl o Loggerhead shrike o Least bell's vireo o Coastal California gnatcatcher o Yellow warbler o Southern California rufous-crowned sparrow o Bell's sparrow o Tricolored blackbird Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 5 of 9 Page ID #:369 Decl. of Drew Feldmann, 16-cv-00133 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 o Yellow-headed blackbird 15. In addition, part of Audubon’s mission is to preserve habitat for birds and other wildlife. These areas of the decision area contain a wide diversity of ecological resources, providing habitat to numerous rare and protected plant and animal species, which it is my job as Conservation Chair to help protect: o Stephen's Kangaroo Rat o San Bernardino Kangaroo Rat o San Diego Desert Wood Rat o San Diego Black-tailed Jackrabbit o Los Angeles Pocket Mouse o American Badger o Silvery Legless Lizard o Orange-throated Whiptail o San Diego Banded Gecko o Northern Red Diamond Rattlesnake o San Bernardino Ringneck Snake o Coastal Rosy Boa o Quino Checkerspot o Munz's Onion o Parish's Brittlescale o San Jacinto Valley Crownscale o Davidson's Saltscale o Thread-leaved Brodiaea o Smooth Tarplant o Vernal Barley o Coulter's Goldfields o Spreading Navarretia Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 6 of 9 Page ID #:370 Decl. of Drew Feldmann, 16-cv-00133 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 o Wright’s Trichocoronis 16. I enjoy visiting public lands in and adjacent to the proposed Mid County Parkway because of the opportunities to view native plants and wildlife, opportunities that are scarce in southern California due to urban sprawl and other development. Unfortunately, my enjoyment of these areas is diminished by the impacts of road building and development encroaching on the area, which fragment habitat, displace endangered species, generate traffic, destroy views, and reduce air and water quality. 17. My interests in visiting the San Jacinto Valley and adjacent public lands would be harmed if opportunities to traverse these areas and view birds and wildlife were further diminished as a result of continued or expanding road building and development occurring in or adjacent to those areas. 18. I have learned through my advocacy at the SBVAS that freeway development too often comes at the expense of protections for ecologically valuable resources, or the air or water quality of the region. I believe the Federal Highway Administration and Caltrans must take aggressive steps to adequately protect the ecologically valuable resources that are affected by the projects they approve, including wildlife and plant life, valuable habitats and habitat corridors, and water and air resources. 19. SBVAS and its members have opposed development in the San Jacinto Valley that is connected to the Mid County Parkway, such as the Villages of Lakeview and Motte Ranch. Both of these subdivision development projects propose several thousand homes in the San Jacinto Valley that rely upon the development of the Mid County Parkway in order to provide the transportation infrastructure to make them viable for development.. 20. I am injured by the Federal Highway Administration’s NEPA failures because the Mid County Parkway directly and indirectly affects ecological Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 7 of 9 Page ID #:371 Decl. of Drew Feldmann, 16-cv-00133 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 resources, including by encouraging sprawl and development, including the ecologically valuable lands that I visit, enjoy and work to protect, without properly considering, disclosing to the public, or mitigating the impacts of these actions on the land, air quality, water resources, plant life, and wildlife I care about. 21. The relief sought by plaintiffs, including SBVAS, in this action–a declaration that the Mid County Parkway Environmental Impact Statement is contrary to law, an order setting aside the project and requiring that the Federal Highway Administration prepare a supplemental environmental impact statement, and an injunction prohibiting the Federal Highway Administration from carrying out planning, preparation, or development of the Mid County Parkway pending compliance with NEPA–will remedy my injury by preventing the Federal Highway Administration from forging ahead with a project that subjects ecologically valuable public resources to undisclosed and unmitigated adverse impacts and wholesale degradation damaging road building and the incumbent habitat conversion that results from the expansion of such infrastructure. 22. In summary, I have recreational, aesthetic, and spiritual interests in the conservation and preservation of wildlife such as the many special status species that would be affected by the Mid County Parkway. These interests are being harmed by the Federal Highway Administration’s failure to comply with NEPA’s requirements to fully disclose to the public and decision makers the true environmental harms resulting from the Mid County Parkway. These interests would also be harmed by the development of the Mid County Parkway itself, which could further imperil these endangered and threatened species and habitats. The agency’s failure to fully analyze and disclose impacts on the environment prevented the disclosure and adoption of mitigation measures or alternatives that could have reduced the dangers of the Mid County Parkway project. Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 8 of 9 Page ID #:372 Case 5:16-cv-00133-GW-SP Document 32-5 Filed 09/22/16 Page 9 of 9 Page ID #:373 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7118 Email: jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY, el al., Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) PLAINTIFFS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW Filed : January 22, 2016 Hearing : January 23, 2017; 8:30 am Judge : Hon. George Wu Courtroom : 10 Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 1 of 31 Page ID #:374 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 GLOSSARY CEQA California Environmental Quality Act EIR/S Environmental Impact Report and Environmental Impact Statement FHWA Federal Highway Administration HOV High occupancy vehicle MCP Mid County Parkway MSHCP Western Riverside County Multiple Species Habitat Conservation Plan NEPA National Environmental Policy Act RCTC Riverside County Transportation Commission Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 2 of 31 Page ID #:375 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff Center for Biological Diversity hereby submits this proposed Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Summary Judgment. Supporting evidence is listed for each statement. The Center’s Statement of the Conclusions of Law is set forth after the Statement of Uncontroverted Facts. I. FACTUAL BACKGROUND 1. The Mid County Parkway is a $1.732 billion, multi-facility freeway infrastructure project between the cities of Perris, in the west, and San Jacinto, in the east. MCP-AR-006134, MCP-AR-6250.1 2. It includes a west-east sixteen mile, limited access, six-lane freeway that connects I-215 with State Route 79 (“SR-79”) in the east. AR:6018, AR:6161. 3. The west-east freeway route would be larger than six lanes to accommodate future highway lanes or transit facilities. AR:6161. 4. The MCP also includes a north-south upgrade and addition of lane capacity to I-215, between Van Buren Boulevard adjacent to the March Air Reserve Base in the north and Nuevo Road in Perris in the south. AR:6028. 5. It is a joint project proposed by RCTC, FHWA, and the California Department of Transportation, which conducted an environmental analysis of the Project under the California Environmental Quality Act (“CEQA”) and National Environmental Policy Act (“NEPA”) through the preparation of a combined EIR/S. AR:6018. 6. The purpose of the MCP is to improve west-east movement of motor vehicles and goods, provide capacity for the forecast demand of traffic in 2040, meet state highway standards that would accommodate tractor trailer truck traffic, 1 Hereinafter AR:[page number]. Zeros preceding the AR number omitted. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 3 of 31 Page ID #:376 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 limit access to the highway, and provide compatibility with potential, future transit that may not be limited to automobile and truck traffic. AR:6103. 7. The west-east portion of the MCP originates at a 75-100 foot three level interchange at I-215 and from there would “bisect a residential community located between Placentia Avenue and River Street” in Perris resulting “in a ‘physical change that would permanently alter the character of the existing community.’” AR:6403. 8. The preferred, and later adopted, alternative “would result in the highest impacts to residential relocations in areas with minority and low-income populations” and where seven existing schools are within .25 miles of the Project. AR:6052, AR:7300. 9. It also runs directly adjacent to Paragon and Liberty parks and would divide neighborhoods in Perris from those areas. AR:6394. 10. From Perris, all of the MCP alternatives analyzed in the EIR/S travel east along the existing footprint of the Ramona Expressway to south of the Lake Perris State Recreation Area and the San Jacinto Wildlife Area, and through important core reserves designated for wildlife and habitat conservation under the Western Riverside County Multiple Species Habitat Conservation Plan (“MSHCP”). AR:6310, AR:6342, AR:7018. 11. The MCP would expand the Ramona Expressway through the San Jacinto Valley, adding several interchanges where none currently exist. AR:6270, AR:6272. 12. Several of the new interchanges would encourage new development, including large subdivision and mixed use projects, which have been proposed to connect to interchanges and freeway designs in the MCP. AR:006342-3, AR:59779-82, AR:62364. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 4 of 31 Page ID #:377 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 13. The San Jacinto Valley currently has large areas designated as agricultural lands and conservation areas under the Riverside County General Plan and MSHCP. AR:6342, AR:7018. 14. Despite the Mid County Parkway’s purpose of “[p]rovid[ing] increased capacity to support the forecast travel demand,” the Project will reduce travel time, but only result in “some improvements” or “no substantial change” to regional traffic congestion compared to the no build conditions. AR:6103, AR:7357, AR:6054. 15. As the FHWA admits, the Project will result in only “some improvements in traffic conditions . . . or no substantial change compared to the No Build condition,” and even “result in traffic conditions slightly worse than the No Build condition” at some intersections. AR:7357. a. Environmental Review and Project Approval 16. The initially proposed MCP was twice the current Project length and included a thirty-two mile facility between Interstate 15 (“I-15”) in the west and SR-79. AR:6019. 17. In 2004, FHWA issued a Notice of Intent to prepare an EIS to the public and included seven Build Alternatives and one No Project Alternative. AR:189-190. 18. In September 2007, RCTC selected the Locally Preferred Alternative, Alternative 9, before the Draft EIR/S had been circulated. AR:6019. 19. Comments on the thirty-two mile MCP in the Draft EIR/S circulated in October 2008 revealed two main issues: 1) concern about cost and the availability of funds for the MCP, and 2) improvements to existing facilities like Cajalco Road in the west between I-15 and I-215 and the Ramona Expressway and State Route 74 (“SR-74”) in the east between I-215 and SR-79 would be a better Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 5 of 31 Page ID #:378 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 use of public funding and reduce impacts to communities, wildlife, state parks, wildlife areas, habitat preserves, open space, and agricultural lands. AR:6019; AR:6204-6210. 20. In response to those issues in 2009, the MCP was shortened from thirty-two miles to sixteen miles, changing the western boundary of the Project from I-15 to I-215. AR:3799. 21. RCTC and FHWA determined that widening and improving Cajalco Road would remove the need for the western portion of the initial route, AR:3800, but proceeded with the upgrade of the eastern portion of the MCP even though that was further from existing jobs and communities. 22. The shortened MCP was also reconfigured to include a substantial north-south upgrade to I-215 for approximately six miles, which added lane capacity and intersection upgrades that were not included in the earlier thirty-two mile MCP project. AR:6101, AR:2, AR:6028. 23. As a result of the revised Project, FHWA and RCTC issued a Recirculated Draft EIR and Supplemental Draft EIS (“Recirculated EIR/S”) in 2013. AR:6021. 24. The purpose and objectives of the new 16-mile route remained the same as the initial 32-mile Project, except for modification of the distance and a change of five years for the design year, and included the preferred Alternative 9. Compare AR:938, with AR:6023. 25. The Recirculated EIR/S and Final EIR/S included three alternative routes through the city of Perris: a northerly alignment (Alternative 4); a central alignment (Alternative 5); and a southerly alignment (Alternative 9). AR:6142, AR:6146, AR:6150. 26. Each of those three alternatives included the same design variations Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 6 of 31 Page ID #:379 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 on the bridge over the San Jacinto River and a parallel route through agricultural lands slightly west of the city of San Jacinto. AR:6150, AR:6360. 27. The alternatives for the sixteen mile west-east component of the shortened MCP followed the same alignment as the eastern half of the original thirty-two mile freeway analyzed in the Draft EIR/S, except that Alternative 9 was designed to avoid Paragon Park and Fire Station No. 90. Compare AR:1089, with AR:6616. 28. On March 27, 2015, the Final EIR/S was released identifying Alternative 9 as the selected route—previously identified as the locally preferred alternative in 2007. AR:6019, AR:69381. 29. Compared with the other build alternatives, the preferred alternative “would result in the highest impacts to residential relocations” in an area “dominated by minority, and Hispanic residents with high percentages of disadvantaged students.” AR:6052, AR:6217, AR:107850-51. 30. Twelve days later RCTC adopted Alternative 9 with the San Jacinto River Bridge Design Variation as the approved Project on April 8, 2015. AR:53474. FHWA issued a Record of Decision on the MCP on August 17, 2015. AR:97. 31. Plaintiffs filed the instant case on January 22, 2016. Dkt. No. 1. A. The Flawed Project Description Does Not Permit Meaningful Public Review of the Project Under NEPA 32. The MCP would permanently alter the physical, environmental, and social structure of the communities along the route, which is especially dramatic where the freeway project will bisect the community of Perris and the agricultural areas of the San Jacinto Valley. 33. The EIR/S fails to clearly and transparently disclose the true width Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 7 of 31 Page ID #:380 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 and dimensions of the Project and route through the affected community in violation of NEPA. 34. The EIR/S describes the MCP as a six-lane controlled access freeway, AR:6150, for which “[g]enerally, the needed right of way varies from 220 ft to 660 ft in width.” AR:6161. 35. Where the body of the EIR/S references maps of the Project width, it generally provides conceptual drawings or regional maps (see, e.g., AR:6162, AR:6136, AR:6152, AR:6166), which fail to disclose to the public and decision makers the precise route of the new freeway through the community. 36. This failure left the affected public unable to meaningfully participate in the “democratic” NEPA process, while also downplaying the significant impacts to land use and community cohesion. 37. In comments, EPA noted “the Supplemental Draft EIS indicates that right of way needs vary from 220 feet to 660 feet in width as a result of topography, features of the natural and built environment, and design requirements.” AR:9491- AR:9492. 38. EPA emphasized that the MCP with a width between 220-660 feet would divide the community and that efforts should be taken to minimize the land use and community impacts, including outreach to affected residents. AR:9488, AR:9492. 39. Unfortunately, many affected property owners and residents were unable to tell from the EIR/S whether the MCP affected their home and requested maps and clarification of the Project route. E.g. AR:68939 (“I am very anxious to know whether or not my house is in the path of construction. Is my house going to be taken?”), AR:69431- 32 (“Please advise if my home is in the direct path of the proposed freeway.”), AR:69393, AR:69431, AR:68999, AR:069341, AR:069316, Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 8 of 31 Page ID #:381 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AR:069338, AR:069218, AR:69250, AR:69296, AR:69346. Tellingly, none of the responses from RCTC staff provide links to the EIR/S itself. Id. 40. When describing the MCP in correspondence with the U.S. Fish and Wildlife Service and Riverside County Regional Conservation Authority, the MCP proponents described the width of the Project as 200-1700 feet—almost triple the maximum width described in the EIR/S—where it expanded to include detention basins and interchanges. E.g. AR:10335, AR:10514, AR:10878. 41. In order to find the actual width for the MCP, one must delve into the Final EIR/S appendices to decipher the details. 42. For example, Attachment H to Appendix I, of the EIR/S provides the “Conceptual Plan of the Preferred Alternative (Alternative 9 Modified with the San Jacinto River Bridge Design Variation)” and provides the level of detail needed to analyze the actual width through the affected community of Perris by comparing the map scale in the figure to the MCP. AR:7976 AR:8017. 43. Attachment O-2 of Appendix O of the EIR/S provides parcel acquisition information and diagrams, which also provides a scale in feet. AR:9189. 44. Applying that scale manually to the route just north of Paragon Park in Perris reveals a project width from approximately 300 to 500 feet in the residential community next to the park and approximately 1500 feet at the adjacent interchange and detention basin at Redlands Ave. AR:7992, AR:7993 (showing Paragon Park southwest of intersection of Placentia Ave & Redlands Ave), AR:9220, AR:9223. 45. In the neighboring community at the intersection with Evans Road, the MCP measures approximately 1700 feet in width accounting for all road improvements. AR:7994, AR:9224. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 9 of 31 Page ID #:382 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 46. The claim in the EIR/S that the “right of way varies from 220 ft to 660 ft in width” vastly understates the actual width by roughly 1,000 feet where it reaches over 1,700 feet in width. Compare AR:6161, with AR:10335. 47. Even if the appendices were easily decipherable, the Draft EIR/S and Recirculated EIR/S did not include a comparable “Conceptual Plan of the Preferred Alternative (Alternative 9 Modified with the San Jacinto River Bridge Design Variation)”; that detail was only provided in the Final EIR/S twelve days before the approval of the MCP. 48. Previous parcel acquisition maps were at the citywide scale which hindered the ability of residents, affected property owners, and the public to comprehend a sense of the impacts to their property and community. AR:3601- 3725 (Draft EIR/S), AR:5909-46 (Recirculated EIR/S). B. Failure to Objectively Evaluate the Effects of NEPA Alternatives 49. The EIR/S misrepresents the environmental impact of the MCP and alternatives, which fails to inform the public and decision makers of the relative impacts and merits of the Project and results in a misleading depiction of the preferred alternative. 50. Instead of accurately depicting the effects and alternatives the EIR/S relies upon a hypothetical future baseline of development: businesses and employees that could be affected by Alternative 5 should those businesses ever be built, and compares those effects to the existing homes and residents who would be displaced by Alternative 9. 51. Petitioners repeatedly emphasized that the EIR/S must not rely on hypothetical development because it “fabricates an inflated future growth and baseline in order to justify the Project and mask its numerous impacts.” AR:9818, AR:9824-25, AR:10792, AR:13496-97. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 10 of 31 Page ID #:383 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 52. This inconsistent comparison results in a misleading EIR/S because it does not provide an objective comparison of the varying effects to the communities in Perris or the environmental justice impacts of the different alternatives. 53. In comparing alternatives the EIR/S claims that “Alternative 5 Modified would bisect several large intermodal distribution centers along Rider Street, as well as impact commercial and industrial businesses adjacent to I-215, and a few industrial businesses along Perris Boulevard.” AR:6051. 54. Those “large intermodal warehouses [are] approved but not yet constructed and operational” and, yet, the EIR/S treats them as built for purposes of analyzing impacts. AR:6431, AR:6052. 55. “Should these warehouse uses be displaced by Alternative 5 Modified”, they “may not be able to be relocated within the Perris area.” AR:6431, AR:6052. 56. That assertion is purely speculative. AR:107850 (“planned businesses … within… the Perris Valley Commerce Center Specific Plan approved by the City of Perris in 2011”), AR:89209 (Perris Ridge Commerce Center II in the “planning stage” includes hypothetical “401 estimated impacted employees … included in all nonresidential tables and discussions”), AR:6291 (Proposed Perris Ridge Commerce Center II). 57. The warehouses are not constructed, no employers have purchased them, no employees work in them, and no analysis has been conducted about the availability for large replacement parcels. 58. Relying on this hypothetical future baseline FHWA concluded that “[b]ecause of this potential loss of major employers . . . Alternative 5 is considered to have disproportionately high and adverse impacts to environmental justice populations.” AR:6432. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 11 of 31 Page ID #:384 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 59. FHWA did not make this same conclusion about its preferred alternative (Alternative 9) despite it “divid[ing] an existing community” and resulting in approximately 100 relocations of residential properties and displacement of 396 residents “with high percentages of low-income and/or minority populations.” AR:6432, AR:6051, AR:6208. 60. The EIR/S determines that there is “ample supply of existing housing stock in the immediate area,” and thus, “Alternative 9 Modified is not considered to have disproportionately high or adverse impacts to environmental justice populations.” AR:6432. 61. However, the EIR/S bases the conclusion on the greater impacts to environmental justice of Alternative 5 compared to Alternative 9 on the comparison of hypothetical future businesses and warehouses that are not built, versus the actual homes and residences that exist in the area today. 62. The EIR/S recognizes that Alternative 9 “would result in the highest impacts to residential relocations in areas with minority and low-income populations”, but disregards those immediate impacts in favor of speculative future impacts. AR:6052, AR:6217. 63. Aerial photos and maps of the alternatives demonstrate that Alternative 5 would be built north of Rider Street where there is mostly vacant land. AR:6620. 64. However, Alternative 9 would divide the existing neighborhood northeast of the intersection of Perris Boulevard and Placentia Avenue. AR:6620. 65. Indeed, the lack of transparency was noted by RCTC commissioners during the hearing approving the MCP when “Commissioner Jeffries expressed concern that [the amount of homes and business impacted] was not disclosed to the Commissioners” despite the conflicting representations in the EIR/S. AR:51565) Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 12 of 31 Page ID #:385 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 66. In order to “objectively evaluate… so that reviewers may evaluate their comparative merits” of alternatives, as required by NEPA, the EIR/S could have compared existing residents to existing businesses and employees, or future residents to future businesses and employees. 40 C.F.R. § 1502.14. 67. The EIR/S had the same information about planned developments for both residential and business projects, yet chose to employ the comparison in a way that puts the finger on the scale to inflate baseline impacts to employees and minimize impacts to residents. 68. Relying on an inaccurate baseline to compare environmental effects leads to an improper NEPA analysis. 69. Similarly FHWA’s improper inflation of hypothetical future businesses and employees that could be affected by Alternative 5 to mask the impacts to the actual current residents affected by Alternative 9 fails to provide the accurate analysis and public scrutiny that are “essential to implementing NEPA” and meet the agency's obligation to “insure the professional integrity, including scientific integrity, of the discussions and analyses” See id. at 1265 (citing 40 C.F.R. §§ 1500.1(b), 1502.24). 70. As Plaintiffs emphasized during comments, relocations of residents by Alternative 9 would occur in an area “dominated by minority, and Hispanic residents with high percentages of disadvantaged students” and must be objectively analyzed. AR:107850- AR:107851. 71. A 2003 report by the Civil Rights Project at Harvard University found that “when housing is taken away for freeway projects in minority and low-income communities or becomes unaffordable, the displaced individuals have fewer options for seeking alternative housing and may end up living farther away from their jobs and social networks.” AR:15974. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 13 of 31 Page ID #:386 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 72. The report went on to find that “an individual’s residential location is crucial and encompasses not only issues of affordability, but also access to public schools, police and fire protection, and public transportation. Id. 73. Indeed affected residents in Perris expressed exactly these concerns during public comment “it’s going to be hard to buy another house because my credit is not the way it used to be because I don’t have the income that I used to have… I have an 11-year old and a 8-year old. They’re happy in the house that they live. They happy with their school that they go… don’t want to lose my neighbors. I don’t want to lose my friends.” AR:51785, AR:51562-3. 74. The MCP will also have significant, negative impacts on the residential community. “[L]ow income and minority communities face greater risks from environmental pollution as a result of living and working near highly polluted areas, including highways.” AR:15973. 75. Residents would also deal with “disruption of local traffic patterns [due to closures] and access to residences, businesses, and community facilities; increased traffic congestion; and increased noise, vibration, and dust.” AR:6404-5. 76. Access and use of schools and neighborhood parks would also be impacted. AR:6405. 77. Dozens of road closures would separate homes from schools, parks, and neighbors. AR:7952-74 [Attachment G to Appendix I]. 78. The EIR/S here relied upon inflated forecasts of job losses and economic impacts to claim that the preferred alternative would have less impacts on environmental justice populations and the community. This led the FHWA to choose Alternative 9 based on inaccurate and misleading data. C. Failure to Provide a Reasonable Range of NEPA Alternatives 79. FHWA’s failure to develop a reasonable range of alternatives for the Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 14 of 31 Page ID #:387 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 revised MCP that included new north-south upgrades to I-215 and a truncated west-east route runs afoul of NEPA because the EIR/S simply relies on alternatives proposed or eliminated for a different project—the original thirty-two mile, west- east project. 80. FHWA changed the project, eliminated alternatives based on the previous version of the MCP, and yet failed to develop alternatives to meet the new project. 81. Instead FHWA simply advanced the same routes and lane dimensions from the previous alternatives analysis. 82. FHWA fails to analyze reasonable alternatives such as incorporating HOV lanes, different road alternatives such as those that proved viable for the western half of the MCP, or combining road upgrades with transit. 83. Instead, the EIR/S relies upon three Build Alternatives with the same number of lanes, same I-215 upgrades, same fourteen mile west-east route connection with the Ramona Expressway and that only vary in their route through the city of Perris. 1. Evolution of the MCP and Environmental Review. 84. Prior to moving forward with the MCP, FHWA and RCTC conducted a Tier 1 EIR/S for the “preservation of right-of-way for a transportation corridor” in western Riverside County. AR:52393. 85. Instead of fully evaluating all the Tier 1 alternatives RCTC moved forward with the MCP without completing a Final EIR/S. AR:6019. 86. A Final Tier 1 EIS/EIR was “not completed… and all of the data and analyses contained in the… Tier 1 EIS/EIR needed to be updated for the analysis of the MCP Alternatives.” AR:6094. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 15 of 31 Page ID #:388 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 87. FHWA and RCTC initiated environmental review for the MCP as a thirty-two mile freeway between I-15 and SR-79. AR:6138. The 2004 notice for the Draft EIR/S described eight project alternatives for the thirty-two mile MCP. AR:1073. 88. In September 2007, over one year before the circulation of the Draft EIR/S, the RCTC Board selected a Locally Preferred Alternative (Alternative 9 Temescal Wash Design Variation) for the MCP. AR:6138, AR:1174. 89. When the Draft EIR/S was circulated in October 2008 it proposed seven project alternatives: two No Project Alternatives (Alternatives 1A and 1B) and five Build Alternatives (Alternatives 4, 5, 6, 7, and 9). AR:1097. 90. All of the Build Alternatives in the Draft EIR/S were “six- to eight- lane, controlled-access” freeways for the eastern half of the thirty-two mile MCP between I-215 and SR-79. AR:1099, AR:1105, AR:1111, AR:1118, AR:1124. 91. In 2013, FHWA issued a Recirculated EIR/S when it determined only to proceed with the sixteen mile eastern span of the MCP from I-215 in Perris to SR-79 in San Jacinto, thus eliminating the western sixteen miles between I-15 and I-215. AR:3781. 92. All of the alternatives, except for No Project alternative 1A, included a six lane roadway. AR:3907, AR:3911, AR:3958. 93. Specifically, the Recirculated EIR/S, which was later adopted as the Final EIR/EIS, included three Build Alternatives (4, 5, and 9) with two design variations (San Jacinto River Bridge and San Jacinto North), and the two No Project/No Action Alternatives (Alternatives 1A and 1B). AR:3803. A 94. Alternatives 1A and 1B were simply for “comparison of future with- project conditions to the future without-project ground conditions” and “not developed to meet the defined project purpose” or to be viable for approval by Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 16 of 31 Page ID #:389 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 FHWA. AR:6200-01. 95. The alternatives in the Recirculated and Final EIR/S for the sixteen mile west-east component of the shortened MCP followed the same alignment as the eastern half of the original thirty-two mile freeway analyzed in the Draft EIR/S, except that Alternative 9 was designed to avoid Paragon Park and Fire Station No. 90. Compare AR:1089 to AR:6616. 96. The routes east of I-215 were designed to directly connect to the western half of the original thirty two-mile MCP and not proposed as independent alternatives for an eastern route. See e.g. AR:1089. 97. The MCP in the Recirculated and Final EIR/S also included a different component than the earlier project, a north-south upgrade to I-215 for approximately 6 miles that added lane capacity and intersection upgrades between Van Buren Boulevard adjacent to the March Air Reserve Base in the north and Nuevo Road in the south and was a common element of all of the Build Alternatives. See e.g. AR:6028, AR:6101. 98. The Final EIR/S noted alternatives that were eliminated from consideration because of issues affecting the western half of the original thirty-two mile MCP including engineering issues associated with the Cajalco Dam and Metropolitan Water District Facilities or “the modification to the project limits” to the sixteen mile MCP after the circulation of the Draft EIR/S. AR:6250, AR:6251, AR:6252. 99. Thus, outside of the design variations proposed in the Recirculated EIR/S and Final EIR/S no additional alternatives were proposed or analyzed for the MCP after it was cut in half and the north-south freeway upgrades to I-215 were included in the revised sixteen mile project. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 17 of 31 Page ID #:390 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2. FHWA Fails to Analyze a Reasonable Range of Alternatives for a New, Revised Project. 100. Plaintiffs noted that moving forward with the same alternatives in the shorter sixteen mile MCP did not result in a reasonable range of alternatives because many of the alternatives proposed, but eliminated, were eliminated due to constraints on the original thirty-two mile MCP. AR:9826, AR:14532, AR:15977- 78. 101. Thus, once the MCP was reduced to sixteen miles and added approximately six miles of upgrades to I-215, there was no disclosure or analysis of alternatives to the shortened MCP beyond the previous alternatives proposed for the eastern sixteen miles of the thirty-two mile facility. 102. FHWA admits that “the alternatives discussed in Section 2.6, Alternatives Considered and Withdrawn from Further Consideration, starting on page 2-117 in the Final EIR/EIS are alternatives that were considered for the original thirty-two mile-long MCP facility.” AR:9928, AR:9914. 103. Yet, all of these alternatives were eliminated because of constraints affecting the western half of the original thirty two mile MCP, not the sixteen mile revised MCP. AR:6251, AR:6252 (engineering issues associated with the Cajalco Dam and Metropolitan Water District Facilities or “the modification to the project limits” to the sixteen mile MCP). 104. Despite FHWA’s claims that the shortened MCP has independent utility and logical termini and “will provide more direct routes for travelers… whose trips require east-west movements in addition to north-south movements” along the I-215 upgrade there is no evaluation of a range of alternatives for the sixteen mile MCP outside the alternatives carried forward from the original thirty- two mile design. AR:9919, AR:6130-31. 105. The shortened west-east route and over six mile north-south upgrades Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 18 of 31 Page ID #:391 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 to I-215 create an independent project to the original facility, yet no independent alternatives analysis of those alternatives is provided. 106. FHWA further claims that the range of alternatives is reasonable because the “foundation for the range of alternatives considered for the modified MCP project in the Recirculated EIR/S is found in the initial CETAP planning that was conducted as part of the RCIP from 1999-2000.” AR:9928. 107. However, the FEIR/S admits that EIR/EIS process was “not completed… and all of the data and analyses contained in the… Tier 1 EIS/EIR needed to be updated for the analysis of the MCP Alternatives.” AR:6094. 108. FHWA cannot properly rely upon an uncompleted analysis that it acknowledges needs to be updated and is over fourteen years old. 109. FHWA only provides a conclusory analysis for the justification of the range of alternatives for the shortened MCP. AR:9929-30. 110. There is no further discussion of why the alternatives already proposed for a larger, different project, still constituted a reasonable range of alternatives. 111. Plaintiffs recognize that Alternative 9 in the Final EIR/S included a design variation to avoid Paragon Park and Fire Station No. 90 and integrate the San Jacinto River Bridge design that was not included in the Draft EIR/S. 112. However, slight variations on the alignment of the adopted route does not constitute the reasonable range of alternatives contemplated by NEPA. 3. FHWA Failure to Analyze Anything But Six Lane Mixed- Flow Freeways Is Not a Reasonable Range of Alternatives 113. FHWA also fails to analyze viable alternatives proposed by the public and transit agencies. Early and often throughout the MCP environmental review process Plaintiffs suggested environmentally superior alternatives including, Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 19 of 31 Page ID #:392 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 among other things, HOV lanes, reducing reliance on single occupancy automobiles through increased transit, transportation demand reduction, and various non-freeway lane configurations. E.g. AR:145-6, AR:506, AR:13640-1, AR:13678, AR:14527. 114. Similarly, the Riverside Transit Agency suggested alternatives that integrate with public transit including “[d]esignated traffic lanes… for carpools and transit.” AR:59425-26, AR:11056, AR:13640-1. 115. FHWA completely fails to propose or analyze an alternative that incorporates HOV or carpool lanes, (AR:6172), despite the fact that it claims to rely on the Tier 1 analysis as the foundation of alternatives. 116. The Tier 1 analysis stated that RCTC, Riverside County, and the affected cities placed a “specific emphasis on the ongoing development of HOV facilities in Riverside County” and included project designs with “the provision of HOV lanes as part of the preferred [] alternative.” AR:9928, AR:52457. 117. FHWA’s failure to describe why it failed to analyze an alternative that considered HOV lanes runs contrary to NEPA. 118. FHWA’s claims that HOV lanes were not considered because “no traffic congestion is expected on the MCP facility through the horizon year of 2040” is belied by the recognition in the FEIR/S that there will be “some improvements” or “no substantial change” to traffic compared to the no build conditions. AR:6172, AR:7357. 119. Moreover, it fails to recognize the substantial greenhouse gas reductions that can result from reductions in single vehicle automobile use and increased transit alternatives. AR:013678, AR:013693 (Attorney General: “alternatives to individual vehicle travel” and public transit reduce greenhouse gas emissions). Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 20 of 31 Page ID #:393 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 120. Similarly, the EIR/S fails to consider alternative lane configurations that meet the revised MCP’s Purpose and Need, outside of solely six lane freeway alternatives. 121. FHWA and RCTC admit that a non-freeway alternative is viable for the western portion of the former MCP from I-15 to I-215, which is closer to job centers and housing in the city of Riverside and Orange County. AR:6020. 122. However, no attempt is made to develop or analyze an alternative that relies on upgrades to the existing road network, except for No Action Alternative 1B, which FHWA concedes was developed simply for comparison and not an attempt to analyze viable alternatives because it could not meet the MCP’s Purpose and Need. AR:6200-01. 123. Likewise, the Final EIR/S fails to analyze any alternative that includes potential combined transit and roadway improvements. 124. The Final EIR/S claims that transit is not a viable alternative because one of the Project objectives is to “move goods”, which could not be achieved via transit. AR:9927. 125. However, this does not account for upgrades to both transit and existing roadways and the Final EIR/S recognizes that “[s]tate highways and other roads” can be designed to meet the design STAA truck standards. AR:009915. 126. Instead, FHWA relies upon earlier screening of alternatives for a different project—the thirty-two mile west-east MCP—in order to summarily reject viable alternatives. 127. Here, the MCP EIR/S only considers six lane alternatives that could be widened to eight lanes in the future. AR:6161. 128. There is no consideration of a four lane alternative with an HOV lane or combined transit and road upgrades, which could meet the project objectives Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 21 of 31 Page ID #:394 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 while reducing the greenhouse gas and air pollution impacts and encouraging carpooling and transit. 129. In the present case all of the alternatives, besides the No Action alternatives, are a new six lane freeway that varies by less than two miles from north to south through the City of Perris. AR:6161, AR:6174 (Compare scale to alternative routes). 130. Even No Action Alternative 1B is a six lane roadway upgrade contemplated by the General Plan. AR:6201. 131. However, the Final EIR/S recognizes that Alternatives 1A and 1B were “not developed to meet the defined project purpose” and only “to allow for comparison” of conditions with and without the Build Alternatives. AR:6200-01. 132. Thus the only variation in the viable alternatives is a two mile west- east route through the City of Perris; the eastern fourteen miles of the Build Alternatives follow the same route, and all of the Build Alternatives include the same upgrade of I-215. See e.g.AR:6174, AR:6612 (Compare scale to alternative routes). 133. Simply analyzing the same Project, except for a two mile stretch through the City of Perris, for all of the viable alternatives, which are carried over from a different project does not “span the spectrum of reasonable alternatives” required by NEPA. See Carmel-by-the-Sea, 123 F.3d at 1157-59. 134. Technical traffic reports completed for the MCP determined that a six- lane freeway would be required to accommodate the predicted level of traffic, yet no analysis was done to determine whether HOV lanes or public transit could be included to meet the total six lane traffic demand. AR:98148. 135. Alternatives with fewer mixed-flow lanes or integrated transit seem to be both reasonable and obvious, and like in Coalition for Canyon Preservation, it Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 22 of 31 Page ID #:395 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 is likely that making the MCP less than six mixed flow lanes in some stretches of the road (to protect important areas, or because certain portions require less capacity), including HOV lanes or integrating public transit could still meet the desired traffic demand. C. The Mid County Parkway Violates Section 4(f) of the Department of Transportation Act 136. FHWA fails to provide evidence in the record that feasible and prudent alternatives, including Avoidance Alternative 3 Option B (“Avoidance Alternative 3B”), cannot be implemented to avoid Section 4(f) resources and it cannot demonstrate that there are “severe” or “uniquely difficult” problems of “extraordinary magnitudes” as required under Section 4(f) to permanently use historic resources that the statute protects. 137. Plaintiffs noted that the environmental review “fails to analyze all feasible alternatives” to avoid Section 4(f) resources including the Multi-Use Prehistoric Site because it “fails to properly conduct an alternatives or mitigation analysis that demonstrates there are no feasible and prudent alternatives.” AR:009886. 1. The Record Does Not Support the Determination that Avoidance Alternative 3B Is Not Prudent 138. The Final EIR/S acknowledges that the MCP will permanently “use” Section 4(f) resources including five historic sites: a multi-use prehistoric site (“Multi-Use Prehistoric Site”) (P-33-16598) and four cultural resource sites (P-33- 19862, P-33-19863, P-33-19864, and P-33-19866). AR:7532. 139. Despite adjacency to parks and schools FHWA determined that the nearby parks, schools, and trails subject to Section 4(f) protections will not be permanently and substantially impacted constituting “constructive use.” AR:7532- Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 23 of 31 Page ID #:396 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3. 140. FHWA conducted two feasible and prudent analyses: Chapter 4 addressed the Multi-Use Prehistoric Site (AR007546-71); and Chapter 5 analyzed the four remaining cultural resource sites together. AR:007572-93. 141. The Multi-Use Prehistoric Site is approximately 78.5 acres and includes rock shelters, ceremonial areas with rock art panels, milling features with bedrock mortars and slicks, midden deposits, areas of former habitation, and other artifacts. AR:7545. 142. Each Build Alternative, including the approved route, would use 2.6 acres or 3.3% of the total area of the prehistoric site. AR:7547. 143. In the section 4(f) analysis, FHWA evaluated the two No Build Alternatives, 1A and 1B from the NEPA analysis, and four avoidance alternatives. AR:7551-64, AR:10056. 144. All avoidance alternatives were determined to be feasible in terms of sound engineering, but two would not meet the project purposes and thus, were considered imprudent. AR:7552. 145. The two remaining alternatives—Avoidance Alternative 1 and Avoidance Alternative 3 (Options A and B)—were evaluated further to determine whether they would be “prudent” under the regulatory standards as defined by 23 C.F.R. § 774.17. 146. Avoidance Alternative 3B “would shift the alignment at least 0.6 mi south of the Ramona Expressway… into the Lakeview Mountains.” AR:7563. 147. This route would not use a 1.5 mile segment of the Ramona Expressway, require “slightly more right of way”, impact more non-transportation land uses, use approximately 35 more acres of a regional Habitat Conservation Plan “criteria areas”, impact one prehistoric site, require construction on steep Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 24 of 31 Page ID #:397 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 terrain for a distance of about 1.2 mi causing an increase in the project construction costs by roughly $39 million, require two additional crossings of the Colorado River Aqueduct, result in changes in the cut and fill, result in additional visual impacts, and would not serve the planned residential and employment growth in the San Jacinto Valley area without an additional extension of the future Park Center Drive. AR:7563-4 148. FHWA determined that Avoidance Alternative 3B was not prudent because it would not use a 1.5-mile-long segment of the existing Ramona expressway, substantially increase the project costs to an “extraordinary magnitude”, and would result in substantially greater right of way and land use impacts, and contributions to cumulative impacts compared to the MCP Build Alternatives. AR:7560, AR:7564. 149. FHWA references Table 4.4, which provides an analysis of the feasible Avoidance Alternatives to determine whether they are prudent as defined by regulation. AR:7556-60. 150. FHWA found that “[b]ased on the alignment through the Lake View Mountains, and the resulting greater amount of right of way and land use impacts” Avoidance Alternative 3B was not prudent because it would result in relatively greater impacts under a number of factors that cannot be supported by the record before FHWA or the Court. AR:7557-59. 151. However, FHWA fails to provide sufficient information in the record to demonstrate that Avoidance Alternative 3B is not prudent, as required under 23 C.F.R. § 774.7 (“Section 4(f) evaluation… shall include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative”). 152. Moreover, FHWA fails to demonstrate that the impacts meet the high Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 25 of 31 Page ID #:398 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 bar to determine an alternative is imprudent under Section 4(f). 153. The record does not support the determination that the “existing and planned land uses and resulting environmental impacts” of Alternative 3B would cause “severe disruption to established communities” that are “substantially greater and more severe.” See 23 C.F.R. § 774.17(3)(iii)(B)(“Severe disruption to established communities”); AR:7558, AR:7560, AR:7564. 154. Table 4.5 calculates the impacts to existing and planned land uses, which states that Avoidance Alternative 3B will impact a total of 240.1 acres of existing land uses compared to the MCP adopted alternative of 152 total acres. AR:7562. 155. 101.8 acres of the existing land uses impacted by Avoidance Alternative 3B are “Vacant Land.” AR:7562. 156. Vacant land is the absence of a land use, not a land use. 157. When “Vacant Land” is removed from the “Existing Land Use” totals, Avoidance Alternative 3B results in less impacts to existing land uses than the preferred alternative. AR:7562. 158. Avoidance Alternative 3B Existing land uses total 138.3 acres (240.1[total] minus 101.8[vacant land]). MCP Build Alternatives land uses total 145.7 (152 [total] minus 6.3 [vacant land]). 159. Less land use impacts and impacts to vacant land cannot be substantially greater or more severe than impacts to existing land uses. 160. Similarly, the record does not Support the determination that Avoidance Alternative 3B “would impact minority or low income populations more than the MCP Build Alternatives.”See 23 C.F.R. § 774.17(3)(iii)(C)(“Severe disproportionate impacts to minority or low income populations”); AR:7558. 161. There is no discussion or analysis about how Avoidance Alternative Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 26 of 31 Page ID #:399 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3B would impact those populations. 162. Table 4.5 does state that Avoidance Alternative 3B would impact 1.1 acres more of residential land uses and 2 acres more of public facilities. AR:7562. However, there is no discussion about whether and how the residential areas actually include residences, or whether the impacts to residences and public facilities would disproportionately impact minority or low income residents. 163. Even if there is an additional 3.1 acres of impacts to those communities it is a slight increase relative to the overall impacts of the total project and “does not cause other severe problems of a magnitude that substantially outweighs” impacts to Section 4(f) resources. See 23 C.F.R. § 774.17. 164. While the record does demonstrate there would be more impacts to MSHCP Criteria areas under Avoidance Alternative 3B, it does not demonstrate that there will be “substantially greater and more severe” “environmental impacts” than the preferred alternative. AR:7557; see 23 C.F.R. § 774.17(3)(iii)(A)( “Severe… environmental impacts”). 165. Nor does it show that there will necessarily be “greater and more severe impacts to biological resources (plant and animals and the habitats in which they occur) in Western Riverside County MSHCP designated Critical Habitats.” AR:7558; see 23 C.F.R. § 774.17(3)(iii)(D)(“Severe impacts to environmental resources…”). 166. While the record does support FHWA’s assertion that there will be more impacts to Western Riverside County MSHCP criteria areas, there is no discussion or analysis of the impacts on the environment or biological resources in those criteria areas. AR:7562 (use of approximately 35 more acres). 167. The biological resources within the criteria areas are not universally valuable because the criteria cells designate areas where certain resources are to be Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 27 of 31 Page ID #:400 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 conserved and other resources may not be as biologically valuable. AR:7062 (“MSHCP requires conservation of only those portions of the cells that meet the criteria for conservation”). 168. For example, areas north of the Ramona Expressway may be dairy operations that are degraded as habitat, but still designated as a criteria cell. AR:7018. 169. Additionally the Section 4(f) analysis fails to disclose impacts of Avoidance Alternative 3B because the route is not disclosed. AR:7546(“the avoidance alternatives in the vicinity of [the Multi-Use] prehistoric site [] not shown… to protect that prehistoric site from unauthorized artifact collecting, vandalism”). 170. The record simply cannot support the determination of greater impacts to environmental and biological resources because there is no analysis or disclosure of the underlying resources impacted in the criteria cells. 171. Moreover, alternatives can be considered prudent even when they have significant consequences. 172. For FHWA to comply with Section 4(f), the imprudent alternatives that did meet the project purposes must have had “uniquely difficult problems,” a “cost or community disruption” of “extraordinary magnitudes,” or other “truly unusual factors,” Stop H-3 Ass’n, 720 F.2d at 1449. 173. The use of approximately 35 more acres of Western Riverside County MSHCP criteria areas does not meet this standard. AR:7562. 174. Here, greater impacts on MSHCP criteria areas does not automatically prove greater impacts on biological or environmental resources without site specific analysis to determine whether those environmental resources actually exist within the project footprint. Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 28 of 31 Page ID #:401 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 175. While increased use of MSHCP lands is unfortunate, protection of Section 4(f) lands is of “paramount importance.” See Stop H-3 Ass’n, 740 F.2d at 1452 (quoting Overton Park, 401 U.S. at 412-13). 176. The record does not demonstrate that the increased construction costs of Avoidance Alternative 3B are of an “extraordinary magnitude.” See 23 C.F.R. § 774.17; AR:7558-9. 177. $39 million is an approximate increase in construction and total costs of only 2-3 percent of the $1.732 billion project cost, not “18 to 20 percent” asserted in the Section 4(f) analysis. AR:6250; AR:007558-9. A $1.732 billion increase in total cost is 2.2 percent of $39 million, and a $1.35 billion increase in construction costs is 2.9 percent of $39 million. 178. The 2-3 percent increase in project costs of $39 million is not of an extraordinary magnitude under Section 4(f). AR:7558-9. Stop H-3 Ass’n, 740 F.2d 1441, 1452. 179. Avoidance Alternative 3B only increases project costs by $39 million, less than the total increase in Stop H-3 Association, for a project that is at least 4.5 times more costly. 180. Avoidance Alternative 3B only results in a 2-3 percent increase in project costs, while the increase in Stop H-3 Association totaled 10.9 percent. 181. The increased project cost of Avoidance Alternative 3B does not meet the legal threshold for finding an Avoidance Alternative not prudent. 182. Based on the impacts described in subsections (3)(iii)(A)-(D) and (3)(iv) of the definition of “feasible and prudent avoidance alternative” in 23 C.F.R. § 774.17, FHWA concludes that Avoidance Alternative 3B is also not prudent under subsection (3)(vi) because the “cumulative impacts” would be “substantially more” for biological resources and would cause a cost increase of an Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 29 of 31 Page ID #:402 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 “extraordinary magnitude.” AR:7559. 183. Because the record and law does not support FHWA’s claims regarding the impacts to biological resources and increased costs, it cannot support a finding that Avoidance Alternative 3B would result in “cumulative impacts” that would be “substantially more” for biological resources and would cause a cost increase of an “extraordinary magnitude.” AR:7559. 184. FHWA did not demonstrate that Avoidance Alternative 3B had “uniquely difficult problems,” or a “cost or community disruption” of “extraordinary magnitudes” justifying use of Section 4(f) resources. See Stop H-3 Ass’n, 720 F.2d at 1449. 185. FHWA cannot meet its burden to show that this case presents the “limited” circumstances requiring remand without vacatur because the NEPA errors here are serious and no environmental harm would result from vacatur. CONCLUSIONS OF LAW 1. This Court has subject matter jurisdiction over the claims pursuant to 28 U.S.C. § 1331 because they arise under federal law. 2. This Court has personal jurisdiction over the defendants, each of whom has appeared in these actions and not raised a defense of lack of personal jurisdiction. 3. The Defendants waived sovereign immunity pursuant to 5 U.S.C. § 702 because the plaintiffs seek review of agency actions. 4. The claims presented are ripe because the challenged agency actions are final. 5. The plaintiffs have standing because they have established that the agency actions challenged here would cause them actual, concrete, and Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 30 of 31 Page ID #:403 Plaintiffs’ Statement of Uncontroverted Facts and Conclusions of Law, CBD et al. v. FHWA et al, 16-cv-00133 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 particularized injuries fairly traceable to such actions and a favorable decision would redress those injuries. 6. The Defendants’ approval of the Final EIS and ROD for the Mid County Parkway was arbitrary, capricious, an abuse of discretion, not in accordance and without observance of procedure required by NEPA because the FEIS and ROD failed to adequately analyze, disclose, consider and evaluate: (i) the proposed project’s size and route, which fails to provide an accurate picture of the effects on the disadvantaged communities that will be divided by this new freeway; (ii) the environmental justice and community impacts by comparing hypothetical, nonexistent businesses and employees to the actual, existing homes and residents who will be forced to move because of the Project; and (iii) failing to consider a reasonable range of alternatives based on a previous, different project, including alternatives integrating HOV lanes, different road alternatives, or combining road upgrades with transit. 7. The defendants’ determinations with respect to the Mid County Parkway’s “use” of Section 4(f) resources including the Multi-Use Prehistoric Site (P-33-16598) were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with Section 4(f) of the Department of Transportation Act of 1966 because of FHWA fails to provide evidence that there are not feasible and prudent alternatives or that the scant evidence provided meets the legal standard required for the permanent impacts to historic resources. Dated: September 22, 2016 CENTER FOR BIOLOGICAL DIVERISTY /s/ Jonathan Evans Jonathan Evans ______ Aruna Prabhala Attorneys for Plaintiffs Case 5:16-cv-00133-GW-SP Document 32-6 Filed 09/22/16 Page 31 of 31 Page ID #:404 ______________________________________________________________________________ [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT Case No. 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Jonathan Evans (SBN 247376) Aruna Prabhala (SBN 278865) CENTER FOR BIOLOGICAL DIVERSITY 1212 Broadway Suite, 800 Oakland, CA. 94612 Phone: (510) 844-7110 Fax: (510) 844-7150 Email:jevans@biologicaldiversity.org aprabhala@biologicaldiversity.org Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY; and SAN BERNARDINO VALLEY AUDUBON SOCIETY, Plaintiffs, vs. FEDERAL HIGHWAY ADMINISTRATION; GREGORY NADEAU, Administrator; and VINCENT MAMMANO, Division Administrator, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.5:16-cv-00133-GW (SPx) [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT Date : January 23, 2017 Time : 8:30 am Judge : Hon. George Wu Courtroom : 10 Case 5:16-cv-00133-GW-SP Document 32-7 Filed 09/22/16 Page 1 of 2 Page ID #:405 [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT 2 Case No. 16-cv-00133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 This matter came before the Court by motion of Plaintiffs’ for summary judgment against the Defendants in these actions. Pursuant to Federal Rules of Civil Procedure 56, after full consideration of the matter, including all memoranda of law, declarations, and other documents filed in relation to this matter and the oral arguments of the parties, the Plaintiffs’ Motion for Summary Judgment shall be GRANTED and the Court orders and declares as follows: 1. Defendants’ decision approving the Record of Decision and approving the Project were unlawful and violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., Section 4(f) of the Transportation Act (“Section 4(f)”), 49 U.S.C. § 303(c), the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 and the implementing regulations of these laws; 2. The Record of Decision and accompanying Final Environmental Impact Statement prepared for the Project shall VACATED and REMANDED to the Defendants for further environmental analysis and compliance with NEPA, Section 4(f) and APA; 3. Defendants are prohibited from proceeding with any activities related to the Project unless and until Defendants comply with all applicable laws and regulations and all declaration and orders described above; 4. The Court will retain jurisdiction for the purpose of ensuring compliance with this Order and to resolve any motion by Plaintiffs for attorneys’ fees and costs. IT IS SO ORDERED, this ______ day of _________, 20___. ____________________________ Hon. George Wu United States District Court Judge Case 5:16-cv-00133-GW-SP Document 32-7 Filed 09/22/16 Page 2 of 2 Page ID #:406