May 2021 - Parks & Recreation - 30

L AW R EV I EW

These reports were based on
scientific literature regarding redwoods and Yniguez's three decades
of experience as an arborist. Yniguez had made multiple site visits
to the Grove (including a helicopter
flight to evaluate tree crowns). He
also reviewed materials provided by
Caltrans, including the EA as well
as detailed schematic drawings of
all trees with root zones within the
Project area. Yniguez assessed each
tree individually to determine the
likely effect on its health from the
root zone disturbances created by
the Project, both with and without
mitigation measures.
Yniguez concluded that " none
of the proposed highway alterations is of sufficient magnitude to
threaten the health or stability of
any old-growth redwood, " because
" disturbances would be confined to
a small percentage of the area occupied by roots and would be well
within the adaptive capabilities of
the trees. " Further, in the absence
of proposed mitigation measures,
Yniguez found " the limited root
disturbance would be inconsequential to the appearance, stability, and
continued health of the old-growth
redwoods in Richardson Grove. "
Caltrans largely agreed with Yniguez's analysis, but also considered
other evidence, including: scientific
literature about the resilience, health
and development of redwoods and
their root systems generally; the
condition of the particular oldgrowth redwood trees in the Project
area; and the specific activities and
mitigation measures comprising
the Project. According to Caltrans,
" in no case would root disturbance
have a significant detrimental effect
on the health or stability of oldgrowth redwoods. " Accordingly,
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in May 2017, Caltrans issued revisions to the EA and a new FONSI
(tinyurl.com/2krurex6).

2017 Litigation
In response, Bair, again, renewed
claims similar to those in earlier litigation, alleging various violations
of NEPA. The district court once
again granted Bair partial summary
judgment as to some of the NEPA
claims. In the opinion of the district
court, Caltrans had not adequately
considered the following identified
issues in the revised EA/FONSI: (1)
whether redwoods would suffocate
when more than half of their root
zones were covered by pavement; (2)
whether construction in a redwood's
structural root zone would cause
root disease; (3) whether traffic noise
would increase because of the larger
size of the STAA trucks or because
of increased numbers of trucks; and
(4) whether redwoods would suffer
more frequent and severe damage as
a result of strikes by STAA trucks.
Because of those deficiencies,
the district court held the revised
EA was inadequate because Caltrans had not taken the requisite
NEPA " hard look " at the environmental impacts of the Project. In
light of those supposed shortcomings in the revised EA, the district
court concluded that substantial
questions had been raised as to
the effects of the Project, and it ordered Caltrans to prepare an EIS.
The district court also enjoined
Caltrans from proceeding with the
Project until the EIS was finalized.
Caltrans appealed.

NEPA APA Review
As cited by the federal appeals
court: " Agency decisions that allegedly violate NEPA are reviewed

under the Administrative Procedure Act (APA) " and federal
courts " set aside those decisions
only if they are arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with
law. " 5 U.S.C. § 706(2)(A). Further,
the appeals court noted NEPA " requires a federal agency to prepare
a detailed statement on the environmental impact of major Federal
actions significantly affecting the
quality of the human environment "
in an EIS. On the other hand, the
appeals court acknowledged that
NEPA regulations would alternatively " allow an agency to prepare
a more limited document, an Environmental Assessment (EA), if the
agency's proposed action would
not clearly require the production
of an EIS. " 40 C.F.R. § 1501.4(b)(c).
As described by the court, an EA
is " a concise public document that
briefly provides sufficient evidence
and analysis for determining whether to prepare an EIS. " 40 C.F.R. §
1508.9(a)-(b). If the agency determines that an EIS is not required, it
issues a FONSI, which briefly presents the reasons why the proposed
agency action will not have a significant impact on the human environment.
Pursuant to judicial review under the APA, the federal appeals
court acknowledged: " the agency's
decision to issue an EA/FONSI
in lieu of an EIS can be set aside
only upon a showing that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. " In so doing, the
court would review an EA/FONSI
to determine " whether the agency
has taken a hard look at the consequences of its actions, based its

http://www.tinyurl.com/2krurex6

May 2021 - Parks & Recreation

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