Lotus v. Department of Transportation , 167 Cal. Rptr. 3d 382 ( 2014 )

Filed 1/30/2014
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
TRISHA LEE LOTUS et al.,
Plaintiffs and Appellants,
A137315
v.
DEPARTMENT OF TRANSPORTATION (Humboldt County
et al., Super. Ct. No. CV110002)
Defendants and Respondents.
Appellants1 appeal from a judgment denying their petition for a writ of mandate
and injunctive relief challenging the sufficiency of an environmental impact report (EIR)
approved by the State of California Department of Transportation (Caltrans). The project
involved is highway construction to adjust the alignment of the approximately one-mile
stretch of United States Route 101 that passes through Richardson Grove State Park
(park). While we reject many of appellants’ challenges to the adequacy of the EIR, we
agree that the report is insufficient insofar as it fails to properly evaluate the significance
of impacts on the root systems of old growth redwood trees adjacent to the roadway.
Accordingly, we shall reverse the judgment and remand the matter for further
proceedings.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts one, two, and four of the Discussion.
1
The appellants are Trisha Lee Lotus, Bruce Edwards, Jeffrey Hedin, Loreen Eliason,
Environmental Protection Information Center, Center for Biological Diversity, and
Californians for Alternatives to Toxics.
1
Factual and Procedural History
Richardson Grove State Park is home to redwood trees 300 feet tall and thousands
of years old, of particular importance because of the high quality of the old growth
redwood trees.2 The park “is the first stand of old growth redwoods that travelers on US
Route 101 pass through while on their northbound trek from San Francisco to Eureka and
the Oregon Coast” and the “[m]assive old growth trees located immediately adjacent to
the highway draw the full visual attention of all visitors who travel through this section of
US Route 101.”
As Route 101 passes through the park, it narrows to a two-lane road that curves
tightly between the trees. The curves of the roadway and inadequate shoulder widths,
among other things, do not meet current design standards. As a result, large vehicles
traveling on this roadway find it difficult “to stay within the travel lane without using part
of the opposing lane of traffic (‘off-tracking’) or traveling off the roadway and using the
shoulders.” Due to the current size and configuration of the road, industry standard-sized
trucks authorized by the Surface Transportation Assistance Act of 1982 (STAA trucks)
are prohibited from using this portion of Route 101.3This segment of roadway is the only
portion of Route 101 that restricts access of STAA trucks into Humboldt County.
According to Caltrans, this restriction prevents “ ‘businesses [in Humboldt County] from
being profitable and competitive with other similar business along the west coast.’ ”
Accordingly, the proposed project is designed “to adjust the roadway alignment to
accommodate [STAA] truck travel, thereby removing the restriction for STAA vehicles,
and improve the safety and operation of US Route 101 while also improving goods
movement.”
Caltrans issued a Notice of Preparation for an EIR in May 2008 and released the
draft EIR (DEIR) on December 4, 2008. Following a public comment period, Caltrans
2
An “old growth” redwood tree is defined in these proceedings as a tree with a diameter
of 30 inches or more measured at four and a half feet above ground level.
3
STAA trucks are slightly longer and configured differently than “California legal”
trucks, which are authorized to use this stretch of highway.
2
released and certified the final EIR and approved the project on May 18, 2010. The
Notice of Determination approving the EIR indicates that the project will not have any
significant effect on the environment, but that mitigation measures have been made a
condition of project approval and that a mitigation monitoring or reporting plan was
adopted for the project.
The EIR describes the project as involving “minor road adjustments including
realignments, curve corrections, and shoulder widening” as well as “culvert
improvements and repaving the roadway.” As relevant to this appeal, the primary
environmental impacts resulting from the project are tree removal and potential damage
to the structural root zones of other trees caused by, among other things, excavation and
placement of impervious material or fill over the roots.4
Focusing on the “community” of redwood trees as a whole, rather than on
individual trees, the EIR provides summary information regarding the project’s
environmental impacts. No old growth redwood trees will be removed. Only six
redwood trees ranging in size from four to nineteen inches in diameter will be removed.
“Within the project limits, there would be construction activities that occur within the
structural root zone of approximately 74 redwood trees ranging in diameter from 18
inches to 15 feet.” With respect to impacts to old growth redwood trees caused by fill, the
EIR states: “About 41 redwood trees thirty inches or greater in diameter within the park
would have fill placed within the structural root zone. The maximum depth of fill on
these redwoods would be three and a half feet. Of those redwood trees affected by fill,
about 50 percent would have fill of six inches or less and over 70 percent would have fill
of 12 inches or less.” With respect to impacts to old growth redwood trees caused by
excavation (or cuts), the EIR states: “It is estimated that construction excavation would
occur within the structural root zone of 58 redwood trees thirty inches in diameter or
4
The EIR explains that the structural root zone of a tree “is a circular area with the tree
trunk at the center and a radius equal to three times the diameter of the tree trunk
measured at breast height (4.5 feet above ground level).” The “root health zone” extends
in a slightly larger circle with a radius five times the diameter of the tree trunk.
3
greater within the park. The maximum depth of the excavation within the structural root
zone of redwoods thirty inches in diameter or greater within the park is two feet. Nearly
thirty percent of these redwood trees affected would experience excavation of six inches
or less.” With regard to placement of impervious roadway materials, the EIR states: “The
proposed realignments would require locating the roadbed nearer to some trees and
locating it further from other trees and removing the existing pavement. An additional
0.30 acres of impervious surface would be placed overall within the project limits. Of
this, 0.14 acre of roadbed material would be placed within the structural root zone area of
trees. This represents a nearly five percent increase in the total amount of hardened
surface (roadbed) within the structural root zone area of trees within the project limits
including both within the boundaries of the park and outside the park.”
The EIR also describes “avoidance, minimization and/or mitigation measures” that
“have been incorporated into the project to avoid and minimize impacts as well as to
mitigate expected impacts.” These include, “M-l: Restorative planting of 0.56 acre of
former US Route 101 roadbed alignment. . . . [¶] M-2: To offset the impacts to the trees
where construction occurs within the structural root zone, mitigation will be provided to
increase the amount of invasive plant removal. A contract with the California
Conservation Corps will be established to provide 300 hours a year for four years (three
days each year for a crew of twelve, the minimum crew size). Crew to be directed at the
discretion of the California Department of Parks and Recreation.” In addition, the
following “avoidance and minimization measures” will be implemented for work in the
park: “[1] An arborist shall be present to monitor any ground disturbing construction
activities. [¶] [2] All excavation below the finish grade within a setback equal to three
times the diameter of any redwood trees shall be done with shovels, pick axes, or
pneumatic excavator or other methods approved by the construction engineer to minimize
disturbance or damage to the roots with the exception of culvert work at PM 1.18, 1. 28,
1.34 and 1.35. Mechanized equipment can be used at these locations upon approval of the
construction engineer. [¶] [3] The contractor will be required to use a pneumatic
excavator (such as an air spade) while excavating the soil within the structural root zone
4
of redwood trees to minimize physical injury to the tree roots. [¶] [4] Smaller roots less
than 2 inches in diameter that must be cut shall be cut cleanly with sharp instrument in
order to promote healing. [¶] [5] The structural section for new pavement shall consist of
Cement Treated Permeable Base (CTPB) to minimize the thickness of the structural
section, provide greater porosity, minimize compaction of roots, and minimize thermal
exposure to roots from Hot Mix Asphalt paving. [¶] [6] After construction, the . . . cut-
slope area between PM 1.35 and PM 1.37 will be replanted. After tree removal, but prior
to excavation of the cut-slope areas, the upper four to six inches of duff and native soil
(topsoil) will be set aside for placement on finished fill slopes to provide the nutrients and
a seed bank for natural revegetation. [¶] [7] To help minimize potential stress on the
redwood trees during construction, watering will be provided. In areas where roadway
excavation will take place below the finish grade within the structural root zone of
redwoods 30 inches in diameter or larger, watering equivalent to 1/2 inch depth to an area
defined as from the edge of existing pavement to 25 feet beyond the edge of pavement
shall be performed. Watering to be performed not more than 24 hours after the roadway
excavation work at a site and shall occur weekly thereafter between the dates of June 1st
and September 30th. [¶] [8] Caltrans will adhere to the California Department of State
Parks and Recreation Commission Statement of Policy (Policy 11.4) which states, ‘In
order to maintain the genetic integrity and diversity of native California plants, all
transplant and propagation in the North Coast Redwoods District will be from the local
populations (preferably from within the same stand). For the purpose of this policy, local
is defined as being [from] the immediate project area (as close as possible, but generally
less than one mile).’ [¶] [9] In areas where new embankment is to be constructed to
protect roots and promote air circulation the following measures shall be used: [¶] [a]
Any duff layer shall be raked off the area within the clearing limits, stored, and replaced
as erosion control. For areas within the structural root zone of redwoods thirty inches in
diameter and greater, the duff will be hand raked. [¶] [b] A 0.75 foot thick layer of Class
1, Type A permeable material shall be placed and compacted as the first lift of the fill to
increase water infiltration and air circulation. (In areas next to the shoulder hinge point it
5
might not be possible to provide this much depth. In those cases, as much as feasible will
be placed.) [¶] [c] In locations where > 4 inches of fill would be placed next to the trunk
of a tree > 18 inches in diameter, a brow log shall be used to keep the soil from the tree
trunk to increase air circulation.”
Ultimately, the EIR concludes that “[n]o significant environmental impacts are
expected as a result of this project with the implementation of the stated special
construction techniques.”
On June 17, 2010, appellants filed their Petition for Writ of Mandate and
Injunctive Relief. The trial court initially issued an order finding in favor of Caltrans on
most issues but noting that “Caltrans may not have complied with [Public Resources
Code section 21000, et seq. (California Environmental Quality Act or CEQA)] in
adopting mitigation measures.” The court explained, “if a project will have a significant
effect, one way to comply with CEQA is to incorporate measures into the project that
would ‘avoid or substantially lessen the significant environmental effect . . . .’ [Citations.]
An agency adopting such mitigation measures, however, must also adopt a ‘reporting or
monitoring program’ that is ‘designed to ensure compliance during project
implementation.’ [Citations.] [¶] The fact of the matter is that Caltrans has adopted
mitigation measures, some of which are labeled ‘special construction techniques.’
[Citation.] More important, Caltrans’s finding of no significant environmental effects is
explicitly premised on mitigation measures; namely ‘the implementation of stated special
construction techniques.’ [Citation.] [¶] The Court does not believe that Caltrans violated
CEQA simply by taking into account mitigation measures in making its determination
that no significant effects will occur. It seems perfectly appropriate and realistic for an
agency in a case like this and in many others to: (1) be uncertain as to whether a project,
without mitigation, will have a ‘significant effect’ within the meaning of CEQA (a
fundamentally vague standard that this Court admits it had considerable difficulty
applying); and (2) be entirely certain that a project will not have a significant effect if
appropriate mitigation measures are adopted. [Fn. omitted.] [¶] But where, as here. an
agency decides to incorporate mitigation measures into its significance determination,
6
and relies on those mitigation measures to determine that no significant effects will occur,
that agency must treat those measures as though they were required, i.e., the agency must
treat those measures as though they were adopted following a finding of significance in
accordance with CEQA Guidelines section 15091(a)(1) and Public Resources Code
section 21081(a)(1). The Court will not punish Caltrans for taking into account its
mitigation measures when making its significance determination, but at the same time the
Court will not provide Caltrans a shortcut to CEQA compliance by allowing Caltrans to
rely on mitigation measures that have not been adequately adopted.” (Italics omitted.)
Accordingly, the court ordered Caltrans to show cause as to whether it had adopted a
mitigation monitoring or reporting program as required by CEQA.
Caltrans filed a response to the order to show cause on August 11. Although much
of the submission was ruled inadmissible, the court ultimately concluded, based on
evidence contained in the administrative record, that Caltrans had adopted a sufficient
mitigation monitoring program. Among other things, the court relied on the
Environmental Commitments Record for the proposed project, which is a tool used by
Caltrans “to track the project specific environmental commitments for a given project,”
as well as Caltrans’s assurances in response to comments on the draft EIR that “[t]he
minimization measures would be incorporated into the contract plans and specifications.”
Accordingly, the trial court issued an order denying the petition for writ of mandate and
this appeal timely followed.
Discussion
“In a mandate proceeding to review an agency's decision for compliance with
CEQA, we review the administrative record to determine whether the agency abused its
discretion. [Citation.] ‘Abuse of discretion is shown if (1) the agency has not proceeded
in a manner required by law, or (2) the determination is not supported by substantial
evidence.’ [Citation.] ‘When the informational requirements of CEQA are not complied
with, an agency has failed to proceed in “a manner required by law” and has therefore
abused its discretion.’ [Citation.] Furthermore, ‘when an agency fails to proceed as
required by CEQA, harmless error analysis is inapplicable. The failure to comply with
7
the law subverts the purposes of CEQA if it omits material necessary to informed
decisionmaking and informed public participation. Case law is clear that, in such cases,
the error is prejudicial.’ [Citation.] [¶] ‘In reviewing an agency's decision to certify an
EIR, we presume the correctness of the decision. The project opponents thus bear the
burden of proving that the EIR is legally inadequate.’ [Citation.] However, ‘[w]hile we
may not substitute our judgment for that of the decision makers, we must ensure strict
compliance with the procedures and mandates of the statute.’ [Citation.]” (State Water
Resources Control Bd. Cases (2006) 136 Cal. App. 4th 674, 723.)
1. The EIR adequately describes the project’s environmental setting.
California Code of Regulations, title 14, section 15125 provides in relevant part,
“(a) An EIR must include a description of the physical environmental conditions in the
vicinity of the project, as they exist at the time the notice of preparation is published, or if
no notice of preparation is published, at the time environmental analysis is commenced,
from both a local and regional perspective. This environmental setting will normally
constitute the baseline physical conditions by which a lead agency determines whether an
impact is significant. The description of the environmental setting shall be no longer than
is necessary to an understanding of the significant effects of the proposed project and its
alternatives. [¶] . . . [¶] (c) Knowledge of the regional setting is critical to the assessment
of environmental impacts. Special emphasis should be placed on environmental resources
that are rare or unique to that region and would be affected by the project.” (Cal. Code
Regs., tit. 14, § 15125.)5
Appellants contend the EIR’s description of the project’s environmental setting
fails to comply with the requirements of CEQA because it “failed to fully describe the
most critical aspect of the Project’s environmental setting: the nature, location, and extent
of each old-growth redwood root zone that would be affected by the Project.” We
disagree.
5
All future references to California Code of Regulations, title 14, section 15000 et seq.
will be denoted “Guidelines.”
8
The EIR describes the natural plant community within the park as “predominately
Redwood series, dominated by an overstory of large redwood trees.” The EIR emphasizes
that “[a]lthough the California Native Plant Society Inventory does not include redwoods,
it is a species that commands respect in and of themselves . . . .” Table 8 in the EIR
identifies by size and type each of the 54 trees, including the six redwood trees that will
be removed; Table 9 identifies additional trees by size and type, including 74 redwood
trees the structural root zones of which are located within the project area. The EIR
includes maps showing the location of trees identified in these tables and the proposed
modifications to Route 101. Accordingly, the EIR amply sets out the environmental
setting of the proposed project.
The cases relied on by appellants are distinguishable. In Galante Vineyards v.
Monterey Peninsula Water Management. Transit Dist. (1997) 60 Cal. App. 4th 1109,
1114, 1122, the description of the environmental setting was found to be inadequate
where the EIR for a proposed dam contained only one passing reference to vineyards in
the project area although there were “numerous vineyards” in the vicinity that were part
of a “thriving” industry. Likewise, in San Joaquin Raptor/Wildlife Rescue Center v.
County of Stanislaus (1994) 27 Cal. App. 4th 713, 718, 722-29, the environmental setting
description was found to be inadequate because it “completely fail[ed] to mention and
consider a nearby wetland wildlife preserve.” (Id. at p. 725.) As the trial court here noted,
“[t]he present case would be like Galante Vineyards and San Joaquin Raptor/Wildlife if
Caltrans had completely omitted any discussion of the old-growth redwoods, or made one
passing reference to the effect of, ‘By the way, some old-growth redwoods are also
present.’ That is not what happened.”
2. The EIR adequately describes the scope of the project.
CEQA Guidelines section 15124 provides in relevant part: “The description of the
project shall contain the following information but should not supply extensive detail
beyond that needed for evaluation and review of the environmental impact. [¶] (a) The
precise location and boundaries of the proposed project shall be shown on a detailed map,
preferably topographic. The location of the project shall also appear on a regional map.
9
[¶] (b) A statement of the objectives sought by the proposed project. A clearly written
statement of objectives will help the lead agency develop a reasonable range of
alternatives to evaluate in the EIR and will aid the decision makers in preparing findings
or a statement of overriding considerations, if necessary. The statement of objectives
should include the underlying purpose of the project. [¶] (c) A general description of the
project's technical, economic, and environmental characteristics, considering the principal
engineering proposals if any and supporting public service facilities.” “An accurate,
stable and finite project description is the sine qua non of an informative and legally
sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal. App. 3d 185, 193.)
“Only through an accurate view of the project may affected outsiders and public
decision-makers balance the proposal’s benefit against its environmental cost, consider
mitigation measures, assess the advantage of terminating the proposal (i.e., the ‘no
project’ alternative) and weigh other alternatives in the balance.” (Id. at pp. 192-193.)
As described in the EIR, the project involves “minor road adjustments including
realignments, curve corrections, and shoulder widening to accommodate STAA truck
travel, thereby removing the restriction of STAA vehicles, and improving the safety and
operation of US Route 101 while also improving goods movement. The project also
includes culvert improvements and repaving the roadway.” The specific proposed
modifications to the roadway are depicted on several maps and sufficiently described in
the final EIR.
The EIR explains that the project consists of three segments. In the first, “there
would be minor realignments of the existing roadway to minimize off-tracking conflicts
between large vehicles and fixed objects (trees). Two 12-foot lanes with 2-foot shoulders
are proposed where possible. This work would require minor earthwork, sliver widening
of the roadway and adjustments to the super-elevation (to ‘bank the curves’). The
maximum lateral change in the alignment would be 17 feet, but the average alignment
shift from the existing centerline would be approximately 2 to 6 feet.” There will be three
main areas of cut and fill; one cut of approximately 300 cubic yards and two fills each
with approximately 200 cubic yards. “The roadway in this segment would be slightly
10
widened to provide for two foot shoulders where possible. Proposed shoulders would be
tapered where existing trees are located adjacent to the edge of pavement.” In addition,
three existing culverts would be replaced or expanded. In the second segment, proposed
work only “involves removing and replacing the existing open graded pavement and
striping, and extending a berm to divert water into a downdrain to connect to [an existing
culvert]. There are no STAA restrictions in this segment, so no realignment or widening
is proposed.” The final segment “involves widening the roadway to provide for wider
shoulders, and realigning the roadway to minimize off-tracking conflicts between large
vehicles and fixed objects. The majority of this segment is located outside the park
boundary . . . .” A portion of the “proposed alignment would be shifted approximately
ten feet into an existing cut slope west of the highway.” The remainder of the “proposed
alignment would be shifted slightly to the east. A 200-foot long soldier pile retaining wall
would be constructed that would support the roadway from below the road.” 6
Contrary to appellants’ argument, further clarification regarding “how [Caltrans]
used the ‘Autoturn’ program to design the Project,” including information about “the
design considerations necessary to reconfigure the highway for STAA access” or “the
software’s characteristics or assumptions or the inputs Caltrans used to design the
Project” is not required by CEQA. CEQA requires only “a ‘general description’ of the
project’s technical characteristics. ‘General’ means involving only the main features of
something rather than details or particulars. [Citation.] The ‘general description’
requirement for the technical attributes of a project is consistent with other CEQA
mandates to make the EIR a user-friendly document.” (Dry Creek Citizens Coalition v.
County of Tulare (1999) 70 Cal. App. 4th 20, 28.) The EIR in this case strikes the desired
“balance between technical accuracy and public understanding.” (Ibid.) The additional
technical information sought by appellants is not necessary to allow the public and
6
Contrary to appellants’ argument, the project description did not change significantly
between the draft and final EIR. While some changes were made, particularly with regard
to placement of the retaining wall, none significantly changed the scope or purpose of the
project. That more trees were identified as suffering root zone impacts in the final EIR
than in the draft EIR does not establish a significant alteration of the project description.
11
decision-makers to fully understand the environmental consequences of the project.
Indeed, inclusion of this additional technical information would be inconsistent with the
directive in Guideline 15124 that the project description not supply “extensive detail
beyond that needed for evaluation and review of the environmental impact.”
3. The EIR fails to comply with CEQA insofar as it fails to evaluate the significance
of the project’s impacts on the root systems of old growth redwood trees adjacent to the
roadway.
CEQA requires that an EIR include, among other things, a detailed statement
setting forth “[a]ll significant effects on the environment of the proposed project” and
“[m]itigation measures proposed to minimize significant effects on the environment.”
(Pub. Resources Code, § 21100, subd. (b); see also Guidelines, § 15126 [“Significant
Environmental Effects of the Proposed Project” and “The Mitigation Measures Proposed
to Minimize the Significant Effects” shall be discussed “preferably in separate sections or
paragraphs of the EIR.”].) “For each significant effect, the EIR must identify specific
mitigation measures; where several potential mitigation measures are available, each
should be discussed separately, and the reasons for choosing one over the others should
be stated.” (Sacramento Old City Assn. v. City Council (1991) 229 Cal. App. 3d 1011,
1027.) If the EIR identifies significant environmental effects, the public agency may
approve the project only if it makes one or more of the following findings: “(a). . . [¶]
(1) Changes or alterations have been required in, or incorporated into, the project which
mitigate or avoid the significant effects on the environment. . . . [¶] (3) Specific
economic, legal, social, technological or other considerations . . . make infeasible the
mitigation measures or project alternatives identified in the environmental impact report.”
(Pub. Resources Code, § 21081; Sacramento Old City Assn. v. City Council, supra, 229
Cal.App.3d at p. 1034.) These findings must be made for each identified significant effect
“accompanied by a brief explanation of the rationale for each finding.” (Guidelines,
§ 15091.)
In Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134
Cal. App. 3d 1022, the court explained the importance of these procedural steps and
12
findings: “[T]he purposes of section 21081 are that there be some evidence that the
alternatives or mitigation measures in the EIR actually were considered by the decision
making agency and, as the Supreme Court stated in a similar situation, that there be a
disclosure of ‘the analytic route the . . . agency traveled from evidence to action.’
[Citations.] Thus, when a project is approved that will significantly affect the
environment, CEQA places the burden on the approving agency to affirmatively show
that it has considered the identified means of lessening or avoiding the project’s
significant effects and to explain its decision allowing those adverse changes to occur. [¶]
. . . [¶] . . . Only by making this disclosure can others, be they courts or constituents,
intelligently analyze the logic of the board’s decision.” (Id. at pp. 1034-1035.)
As quoted extensively above, the EIR in this case contains information regarding
the overall impacts on the community of redwood trees. 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. For example, Table 10 shows
the cut and fill depths for each old growth redwood tree in the project area. With this
data, it is possible to identify the trees that will be subject to the most cut or fill work and
plot them on the map to determine the location of the tree in relation to the proposed
roadway modifications. It is also possible using the data available in the EIR (Table 8) to
calculate the square footage of the root zones and determine what percentage of the root
zone will be impacted by the cut and fill work. The EIR also indicates the changes that
will result in the impermeable area covering the root zones of some of the old growth
redwood trees, both in terms of the number of square feet and as a percentage of the total
square footage of the root zone. The EIR does not, however, include any information that
enables the reader to evaluate the significance of these impacts.
Appellants suggest that the proper measure of significance is found in the State
Parks Natural Resources Handbook (“handbook”), which includes information for
safeguarding protected trees when planning for construction. According to the handbook,
“Construction activities in close proximity to trees can wound or destroy tree roots, the
closer the activity to the tree trunk, the higher the probability that the tree will suffer
13
injury. This includes soil disturbance from 0 to 3 foot depth including trenching, grade
changes, storage of vehicles and materials, or compaction caused by machinery
traversing the zone. . . .[¶] . . .[¶] There should be no construction activities in the
Structural Root Zone of a protected tree. This includes soil disturbance from 0 to 3 foot
depth including trenching, grade changes, storage of vehicles and materials, or
compaction caused by machinery traversing the zone. Any intrusion into this zone is
usually accompanied by significant injury to roots further from the trunk; this will
shorten the useful life of the tree in the developed area by reducing vigor and introducing
root disease. Furthermore, damage to any structural roots may cause an already
structurally compromised tree to become hazardous (i.e., a high risk of uprooting). [¶]
There should be no intrusion beneath the dripline for a protected tree which has pre-
existing structural root loss.” Finally, the handbook offers guidelines for determining how
much impact or damage “a protected tree . . . can endure and easily recover from.” “For
example, a young vigorously growing tree with no existing damage could likely survive a
30% loss of non-structural roots, or a 30% loss of foliage or some combination of these
[two] impacts totaling ≤ 30%.” In contrast, an old tree in poor health that has already
suffered a loss of 10% of its root health zone, according to the handbook, could not easily
survive further impacts.
Caltrans implicitly acknowledges the value of the handbook in its appellate brief,
citing it for the statement that “even the most low vigor trees can lose 10% of the roots
from their ‘root health zones’ [fn. omitted] without a significant loss in health. [Fn.
omitted.]” The EIR itself, however, does not reference the handbook or apply the
standards it prescribes to evaluate impacts to the old growth redwoods that may be
expected to result from the highway construction. In fact, the EIR fails to identify any
14
standard of significance, much less to apply one to an analysis of predictable impacts
from the project. 7
Caltrans compounds this omission by incorporating the proposed mitigation
measures into its description of the project and then concluding that any potential impacts
from the project will be less than significant. As the trial court held, 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. By
compressing the analysis of impacts and mitigation measures into a single issue, the EIR
disregards the requirements of CEQA. (See Pub. Resources Code, §§ 21100, subd. (b),
21081; Guidelines, §§ 15126, 15091; Sacramento Old City Assn. v. City Council, supra,
229 Cal.App.3d; Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra,
7
We do not suggest that the handbook is the only or necessarily the best measure for
determining significance. The standard of significance applicable in any instance is a
matter of discretion exercised by the public agency “depending on the nature of the area
affected.” (North Coast Rivers Alliance v. Marin Municipal Water District Board of
Directors (2013) 216 Cal. App. 4th 614, 624.) “The determination of whether a project
may have a significant effect on the environment calls for careful judgment on the part of
the public agency involved, based to the extent possible on scientific and factual data.”
(Guidelines, § 15064, subd. (b); see also Guidelines, § 15064.7, subd. (a) [“Each public
agency is encouraged to develop and publish thresholds of significance that the agency
uses in the determination of the significance of environmental effects. A threshold of
significance is an identifiable quantitative, qualitative or performance level of a particular
environmental effect, non-compliance with which means the effect will normally be
determined to be significant by the agency and compliance with which means the effect
normally will be determined to be less than significant”].)
15
134 Cal.App.3d.)8 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. 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. (Lincoln Place Tenants Assn. v. City of Los Angeles (2007)
155 Cal. App. 4th 425, 445 [“CEQA requires lead agencies to include within EIR’s
potentially feasible alternatives that, if adopted, would avoid or substantially lessen the
otherwise significant environmental effects of the proposed projects. In particular,
mitigation measures should be capable of ‘[a]voiding the impact altogether by not taking
a certain action or parts of an action’; ‘[m]inimizing impacts by limiting the degree or
magnitude of the action and its implementation’; ‘[r]ectifying the impact by repairing,
rehabilitating, or restoring the impacted environment’; ‘or [r]educing or eliminating the
impact over time by preservation and maintenance operations during the life of the
action.’ ”]; Guidelines, § 15370.) The finding also triggers the need to adopt an
enforceable monitoring program. (Guidelines, § 15091, subd. (d).) Simply stating that
8
The distinction between elements of a project and measures designed to mitigate
impacts of the project may not always be clear. For example, in the present case the use
of “Cement Treated Permeable Base (CTPB) to minimize the thickness of the structural
section, provide greater porosity, minimize compaction of roots, and minimize thermal
exposure to roots from Hot Mix Asphalt paving” might well be considered to define the
project itself. It would be nonsensical to analyze the impact of using some other
composition of paving and then to consider use of this particular composition as a
mitigation measure. However, the same cannot be said of most of the “avoidance,
minimization and/or mitigation measures” here, such as the restorative planting and
replanting, invasive plant removal, and use of an arborist and of specialized equipment.
These are plainly mitigation measures and not part of the project itself.
16
there will be no significant impacts because the project incorporates “special construction
techniques” is not adequate or permissible.
The two expert opinions cited in the EIR, both of which conclude that the project
will have no significant impact on the root health of the redwoods, suffer from the same
deficiency. Both fail to discuss the significance of the environmental impacts apart from
the proposed “avoidance, minimization and/or mitigation measures” and thus fail to
consider whether other possible mitigation measures would be more effective.
This structural deficiency in the EIR was brought to the attention of Caltrans but
was disregarded. A letter from the California Department of Parks and Recreation
commenting on the draft EIR advised Caltrans, “After careful review, the North Coast
Redwoods District has identified several inconsistencies in the DEIR and there is a
general lack of data or information that is necessary for our staff to make qualified
determinations as to the impact to the State Park resources, and the viability of the
mitigation measures that are presented. . . . Several sections of the DEIR are not
consistent with CEQA for which we believe additional analysis or mitigation measures
need to be developed. The document also contains numerous mitigation measures that are
not enforceable and are therefore not compliant with CEQA. [¶] Because of the apparent
inconsistencies, lack of clear mitigation methods and a lack of sufficient data to evaluate
the proposed project, we are not able to make a determination on some critical aspects of
the project’s impact to the State Park. We are concerned that the document does not meet
its requirement to be an enforceable environmental tool.” The letter specifically warns,
“[T]he DEIR states that the proposed action will not result in any significant adverse
effects to the environment and that no mitigation measures are proposed. These
statements conflict with many of the Environmental Consequences sections of this
document . . . . The DEIR also contains mitigation measures which are not acknowledged
in this section but are described in Appendix D. These measures need to be listed in this
section and the CEQA checklist needs to be corrected to indicate that significant adverse
effects will occur and then determine if those measures are adequately mitigated. The
DEIR also contains other measures that should be listed as mitigation but which will only
17
be done at the discretion of the contractor. These need to be measurable and enforceable
and listed as mitigations.” Despite Caltrans’s assurance that “[t]he final document will be
revised to identify the avoidance and minimization mitigation measures,” the final EIR
fails to do so.9 As succinctly summarized by the Board of Directors of the Save the
Redwood League, “the level and format of environmental review made it extremely
difficult to fully comprehend and assess the project.”
The failure of the EIR to separately identify and analyze the significance of the
impacts to the root zones of old growth redwood trees before proposing mitigation
measures is not merely a harmless procedural failing. Contrary to the trial court’s
conclusion, this short-cutting of CEQA requirements subverts the purposes of CEQA by
omitting material necessary to informed decision-making and informed public
participation. It precludes both identification of potential environmental consequences
arising from the project and also thoughtful analysis of the sufficiency of measures to
mitigate those consequences. The deficiency cannot be considered harmless. For this
reason, we must reverse the denial of the petition for a writ of mandate and remand the
case for issuance of a writ directing Caltrans to set aside its certification of the final EIR
pending modification of those portions of the EIR discussing impacts on old growth
redwood trees and proposed mitigation measures in compliance with CEQA. (Pub.
Resources Code, § 21168.9)
Caltrans is not required to start the EIR process anew. Caltrans need only correct
the deficiencies we have identified before considering recertification of the EIR. Whether
the correction requires recirculation of the EIR is for Caltrans to decide in light of the
9
At oral argument, counsel for Caltrans argued that a subsequent letter, dated November
18, 2009, from the Department of Parks and Recreation, confirming compliance with
requirements for federally-aided highway projects, indicates that the deficiencies in the
EIR had been corrected. In this letter the department “accept[ed] that [Caltrans] has
concluded there is currently no feasible and prudent alternative to the proposed
realignment through Richardson Grove State Park” and agreed “that the proposed
realignment action has included all possible planning by [Caltrans] to minimize long term
harm to Richardson State Park Resources.” However, the letter does not indicate that the
information necessary to evaluate this conclusion has been properly included in the EIR.
18
standards governing recirculation of an EIR prior to certification. (Pub. Resources Code,
§ 21092.1; Guidelines, § 15088.5.) 10
4. Analysis of cumulative traffic impacts from other Caltrans projects was not
required.
CEQA defines a cumulative impact as “an impact which is created as a result of
the combination of the project evaluated in the EIR together with other projects causing
related impacts” and requires that an EIR “discuss cumulative impacts of a project when
the project’s incremental effect is cumulatively considerable.” (Guidelines, § 15130,
subd. (a).) However, “[a]n EIR should not discuss impacts which do not result in part
from the project evaluated in the EIR.” (Guidelines, § 15130, subd. (a)(1).)
Caltrans argues that no discussion of cumulative traffic impacts was necessary in
light of the conclusion in the EIR that the project will not result in an increase in
commercial traffic. In discussing the environmental impacts of the project on population
growth, the EIR concludes that the project will not increase truck traffic in Humboldt
County. The EIR provides, “Caltrans commissioned a study in 2008 in order to assess the
disadvantages and potential growth impacts. The study, “Realigning Highway 101 at
Richardson Grove: The Economic Impact on Humboldt and Del Norte Counties” (Dr.
David Gallo, March 2008) found that transportation costs are currently higher within
these counties due to STAA restrictions, however, the removal of these restrictions would
not be expected to result in an increase in truck traffic, rather an increase in efficiency.
The study cites information from business owners in the region who estimated a
reduction in the number of annual truck trips of 12.3 percent if the STAA restrictions
through Richardson Grove were 1ifted. The reduction in the number of trips due to
increased efficiency would likely offset any increase in number of trips due to reduced
transportation costs, with a result that eliminating STAA restrictions in southern
10
With the exception of the cumulative impacts section discussed post, in light of the
remand, we do not reach appellants’ remaining arguments.
19
Humboldt County would not significantly change truck traffic. [¶] Another reason why
STAA truck traffic is not likely to substantially increase in Humboldt County is due to
the types of industr[ies] utilizing trucking as a primary goods movement method. A
report prepared by Caltrans for the California Senate Transportation Committee titled, “A
Study of Various Aspects of Tractor-Semi-trailer Productivity” (January 1986) examined
the comparative economic value of STAA trucks’ greater volume. The study analyzed the
theory that longer trailers constituted a substantial economic advantage in terms of
hauling volume. The study concluded that, when maximum weight is a criterion, the 48-
foot semi-trailers allowed under the STAA regulations ‘are more productive only for
high-cube (low density) freight. They are usable for heavier products but, for such goods,
are no more productive tha[n] the shorter non-STAA trailers.’ Meaning, that there is a
maximum weight restriction for loads as well as maximum length of cabs and trailers,
and that for heavy loads, the economic advantage for the longer vehicles is not present
because STAA trucks are subject to the same weight restriction as non-STAA trucks. [¶]
Additionally, the total number of trucks utilizing US Route 101 would not be likely to
change regardless of truck size for routine truck trips, regardless of the vehicle's volume
or the payload's weight (for instance, weekly or biweekly deliveries from distribution
centers to retail outlets). Increasingly, businesses rely upon products delivered to the
customer “just in time” rather than warehoused items. Trips of this kind would not likely
be affected by the proposed project. This is particularly true in light of economic trends.
Truck transport has been declining nationwide with the rise in fuel prices and many firms
are requiring full return payloads in order to maximize fuel economy. [¶] It is not likely
that truck traffic would be diverted from the 1-5 corridor to use US Route 101 if the
STAA restriction is lifted. Diversion onto US Route 101 would depend upon it being
economically feasible for the trucking companies to change their existing routes based
upon fuel consumption and travel times. Since all the major coastal cities from southern
California to northern Washington have readily available access to the 1-5 and Route 99
20
corridors, which have straighter alignments and faster travel times, the opening of STAA
access to US Route 101 through Richardson Grove is not expected to generate a
substantial amount of diverted truck traffic. In addition, a traffic study performed for the
projects to lift STAA restrictions on Routes 197 and 199 in Del Norte County [fn.
omitted] also found that there was very little latent demand [fn. omitted] expected with
the removal of the STAA restriction. That study estimated that providing STAA access
could add about eight truck round trips per day on Routes 199 and 197.”
Appellants argue that discussion of cumulative traffic impacts was required
because Caltrans knew that the effects of the project, although minor themselves, may be
significant when combined “with other Caltrans STAA truck access projects planned and
currently underway in Northern California.” We disagree that the evidence cited by
appellants supports such a conclusion.
Appellants cite to a comment by a Caltrans staffer in response to a draft of the
Richardson Grove Natural Environment Study in which she identifies “several STAA
Curve improvement projects that have recently been completed, or are planned in
Humboldt and Del Norte Counties” that “may increase commercial traffic levels.”
Appellants also cite to an email by another Caltrans staffer in which she notes that there
are changes in motion to allow use of STAA trucks on state highways in Humboldt and
Del Norte Counties and that the “shifting of Cal-Legal and STAA-configured truck
modes may cause some shifting of travel paths for some truckloads entering and leaving
Humboldt and Del Norte Counties.” Unlike the EIR quoted extensively above, neither
comment offers any additional analysis of these potential impacts.
Appellants rely on a prediction found in the traffic study for the Highway 197/199
STAA project, cited in the EIR, which estimates that in the year 2030 there will be
approximately 46 round-trips, or 92 more trucks, per day using the SR-199 and US-197
corridors than under the no build scenario. That same report concludes, however, “[t]he
Del Norte STAA improvements project is not expected to significantly increase truck
21
volumes on US-199, SR-197 or US-101. The [level of service] on US-101, US-199, and
SR-197 are within the acceptable thresholds . . . for existing and future 2030 background
conditions. . . . [¶] . . . While the project is expected to attract additional trucks to US-199
and SR-197, the increase in truck traffic will not have a significant negative impact on
traffic operations, transit operations, or the bicycle/pedestrian environment.” Contrary to
appellants’ argument, the report does not conclude that these two STAA access projects,
both of which have insignificant impacts on traffic, will have a significant cumulative
impact.
Disposition
The judgment is reversed and the matter is remanded to the trial court with
directions to enter a new judgment, consistent with Public Resources Code section
21168.9 and this opinion, granting plaintiffs’ petition for a writ of mandate. Appellants
shall recover their costs on appeal.
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
22
Trial Court: Humboldt County Superior Court
Trial Judge: Hon. Dale A. Reinholtsen
Counsel for Plaintiffs and Appellants: Center for Biological Diversity:
Kevin P. Bundy
Cotchett, Pitre & McCarthy:
Joseph W. Cotchett,
Philip L. Gregory
and
Paul N. McCloskey
Gross Law:
Stuart G. Gross
Law Offices of Sharon E. Duggan:
Sharon E. Duggan
Counsel for Defendants and Respondents: Department of Transportation:
Ronald W. Beals, Chief Counsel,
David Gossage,
Lucille Baca,
Janet Wong
and
Stacy Lau
23