In a new case from Humboldt County, the First District Court of Appeals has ruled that Caltrans must see the trees as well as the forest -- at least in the environmental impact report for a controversial road widening.
Overturning a ruling by Humboldt County Superior Court Judge Dale A. Reinholtsen, a three-judge panel of the First District ruled that Caltrans should have examined the impact of a Highway 101 widening project on the root systems of individual old-growth redwood trees, rather than examining the impact on the old-growth forest in a more general way. The appellate court also said that Caltrans could not get around finding significant impacts by amending the project description to include proposed mitigation measures.
Writing for the majority in Trisha Lee Lotus v. Department of Transportation, Justice Stuart R. Pollak wrote: "Absent a determination regarding the significance of the impacts to the root systems of the old growth redwood trees, it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered. Should Caltrans determine that a specific tree or group of trees will be significantly impacted by proposed roadwork, that finding would trigger the need to consider a range of specifically targeted mitigation measures, including analysis of whether the project itself could be modified to lessen the impact."
The case began when Caltrans undertook to change the alignment of Highway 101 through Richardson Grove State Park in Humboldt County to make it easier and safer for large trucks to travel on the road. The winding two-lane road is so narrow that standard-sized trucks have a difficult time navigating the road. However, Richardson Grove is also home to more than 300 old-growth redwood trees, which are the first -- and most visible -- set of redwoods along the highway north of San Francisco. The project did not call for the removal of any old-growth redwoods. However, the environmental impact report did not discuss the impact of the project on the root systems of individual redwood trees. Judge Reinholsten generally ruled in favor of Caltrans, though he did find fault with the fact that the agency had proposed mitigation measures without -- apparently -- including a mitigation monitoring and reporting plan.
Trisha Lee Lotus and others sued Caltrans, represented -- as is so often the case these days in environmental cases -- by the Center for Biological Diversity. (Former congressman and one-time presidential candidate Pete McCloskey was also listed as a counsel for the plaintiff.) Overruling Reinholsten, the appellate court bought the Center for Biological Diversity's argument that the potential impact on root systems of specific old-growth redwoods should have been analyzed in the EIR. "The EIR in this case contains information regarding the overall impacts on the community of redwood trees," Judge Pollak wrote. "Though somewhat less clearly presented, the EIR also contains information about project activity that will take place within the root zones of specific old growth redwood trees."
In the case, the Center argued that Caltrans should have used the very specific analytical standards contained in the California Parks Department's Natural Resources Handbook as the benchmark against which to measure the environmental analysis. Though Caltrans referred to the handbook in its appellate brief, it did not refer to the handbook in the EIR. "The EIR fails to indicate which or even how many protected redwoods will be impacted beyond the tolerances specified in the handbook and, by failing to indicate any significant impacts, fails to make the necessary evaluation and findings concerning the mitigation measures that are proposed," Pollak wrote.
Making matters worse, the appellate court said, was the fact that Caltrans had incorporated the mitigation measures into the project description, thus allowing the agency to conclude that any impacts were less than significant. Though one could argue that this is the whole point of the California Environmental Quality Act -- to make sure impacts are less than significant -- the court accepted the Center's argument that this was not permissible. "As the trial court held," Pollak said, "the 'avoidance, minimization and/or mitigation measures,' as they are characterized in the EIR, are not 'part of the project.' They are mitigation measures designed to reduce or eliminate the damage to the redwoods anticipated from disturbing the structural root zone of the trees by excavation and placement of impermeable materials over the root zones."
The Case: Trisha Lee Lotus et al v. Department of Transportation, A137315
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