Supporters of EPIC’s nearly 15-year-old Save Richardson Grove campaign may need to wait until November to read the decision in the latest Richardson Grove case. Yesterday, August 20, 2024 at 9:15 A.M., with a pleasant, salty coastal scent in the morning air outside, the Humboldt County Superior Courtroom 4 filled with a small but dedicated group of Richardson Grove supporters, ready to hear the opening arguments before Judge Timothy Canning in the lawsuit Bess Bair v. California Department of Transportation (or, Bair II).
Bair II is the latest case in the legal saga attempting to prevent the California Department of Transportation (Caltrans) from widening Highway 101 in Richardson Grove State Park. Currently at issue is Caltrans’ 2015 Final Report: An Evaluation of Potential Effects on Old-Growth Redwoods from Implementation of the Richardson Grove Operational Improvement Project. Within the context of the agency’s Final Environmental Impact Report (FEIR) for the proposed project, the 2015 report is an addendum. According to Caltrans, the addendum purportedly fixes the FEIS struck down by California’s 4th District Court of Appeals in 2014 (in Lotus v. Department of Transportation), and creates standards by which Caltrans can conclude whether or not there would be a significant effect on the old-growth redwoods from its proposed road-widening project. EPIC and the other Plaintiffs in this case disagree.
On the morning of August 20, Ross Middlemiss, counsel for the Plaintiffs, laid out a clear and compelling argument about the importance of the California Environmental Quality Act (CEQA)’s information-forcing purpose and Caltrans’ failure to fulfill that purpose. Framing the argument, Middlemiss highlighted how federal funding slated for Caltrans’ road widening project is predicated on a “finding of no substantial impact” under CEQA. The day's arguments mainly centered around the legal concept of a “threshold of significance,” which is the point, under CEQA, where an agency can determine whether or not a project has a significant effect on the environment. Middlemiss cited case law showing that while agencies (including Caltrans) have discretion to determine the threshold and which methodology will be used to analyze impacts of a project, agencies must set some form of quantitative threshold so that the public can understand how the agency made its decision. Caltrans argued that it does not have to set a threshold, despite its contradictory response to EPIC’s comments, where it stated that the threshold has remained the same since the 2010 FEIR.
Middlemiss also pointed out that Caltrans’ “tree rating system,” used to assess impacts to the old growth redwoods that would be cut at the roots, was ultimately subjective, as it was based on the opinion of one arborist, rather than a peer-reviewed system or any criteria laid out in the California State Parks Natural Resources Handbook (“Handbook”). For instance, different trees were assigned the same rating with no discernable reason behind them being rated equally.
Middlemiss went on to attack Caltrans’ methodology for not being supported by substantial evidence, and being unobjective to the point where another arborist would not understand the ratings or be able to draw the same conclusion. The methodology used in Caltrans’ FEIR does not rely on well-established evaluation criteria for individual trees, such as the Handbook, and creates a new subjective system that has not been tested or peer reviewed.
The Caltrans attorney’s response mainly focused on res judicata — Latin for “the thing has been judged.” This argument posits that this case should be dismissed as the issues before the court today, namely the adequacy of the FEIR under CEQA, were already decided in the case Bair I. In his rebuttal, Middlemiss was quick to remind Judge Canning that in Bair I, Caltrans failed to put the FEIR and Addendum out for public comment - rendering the documents incomplete drafts in this ongoing saga of transparency issues. Now that the Addendum has been commented on and Caltrans has responded, however inadequately, to those comments the issues can be substantively ruled on. The Caltrans attorney also defended Caltrans’ use of the tree rating system, saying the ratings were made using a clear synthesis of factors collected by their expert arborist. Middlemiss concluded the Plaintiff's arguments by referring to Caltrans as a huge agency with seemingly inexhaustible resources, and as such it should be able to draft an adequate CEQA document that fully evaluates the impacts to the old growth redwoods. Immediately after Middlemiss concluded the Plaintiff’s rebuttal Judge Canning stated that he would take the matter under submission to review the briefs and arguments this far - and that his decision would be made no later than 90 days from today.
EPIC will continue to provide updates about Richardson Grove as soon as they are received. Thank you for your ongoing, multidecadal support!
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