In Souza v. California Department of Transportation, No. 13-cv-04407 (N.D. Cal. May 2, 2014), plaintiffs sought to enjoin a project proposed by the California Department of Transportation (Caltrans) to modify U.S. Route 199 and State Route 197 in Del Norte County, California, near the Smith River. Plaintiffs challenged the adequacy of Caltrans’ consultation with the National Marine Fisheries Service (Service) regarding the impacts of the project on the Southern Oregon Northern California Coast Evolutionary Significant Unit of the threatened coho salmon (SONCC coho). As required under section 7 of the Endangered Species Act (ESA), Caltrans prepared a biological assessment (BA) regarding the project. Caltrans subsequently revised the BA two more times, appearing to conclude that the project may affect, but is not likely to adversely affect, the SONCC coho. The Service thereafter issued a letter of concurrence with Caltrans’ assessment, thereby completing informal consultation pursuant to section 7.
Plaintiffs challenged the consultation process, arguing Caltrans’ BAs and the Service’s letter of concurrence were inadequate due to internal inconsistencies within the BAs. The U.S. District Court for the Northern District of California agreed, finding the BAs “pose material inconsistencies and fail to reasonably explain what Caltrans' ESA conclusions were such that NMFS could properly concur in them.” Among other things, the BAs concluded the proposed project “will affect” the SONCC coho, “may have an adverse affect” on the SONCC coho, “is likely to adversely affect” the SONCC coho’s critical habitat, and “is not likely to adversely affect” the SONCC coho. Based on these inherent inconsistencies, the court concluded plaintiffs had raised serious questions regarding the adequacy of the ESA review and consultation process, and enjoined the project pending resolution of plaintiffs’ claims on the merits.