NEPA Supplemental EIS. The plaintiffs asserted that Caltrans violated NEPA by failing to prepare a supplemental EIS after new archaeological sites were discovered during construction. The court held that Caltrans sufficiently considered changes to the project and new information that was discovered after the Final EIS, and that its decision not to prepare a supplemental EIS was not arbitrary or capricious. In June 2016, Caltrans issued a NEPA Re-Validation that discussed studies regarding post-review discoveries and efforts to determine whether newly discovered sites were eligible for listing on the National Register of Historic Places. The Re-Validation also discussed whether the measures in the Final EIS would be sufficient to address any adverse effects to new discoveries. The State Historic Preservation Officer concurred with many of Caltrans’s findings in the Re-Validation or found that there would be no adverse effects with standard conditions. The court concluded that no supplemental EIS was required: “It is beyond dispute that during construction, at least one site discovered after the Final EIS was approved was damaged, although the Caltrans Defendants dispute the severity of the Damage. The Court does not wish to minimize that incident or the importance to Plaintiffs of the area in which the Willits Bypass Project has been constructed. However, the Court concludes the Caltrans Defendants did take a hard look at the changes to the Willits Bypass Project and the information that developed after the Final EIS was issued.” Section 106 Government-to-Government Consultation. The plaintiffs alleged that FHWA failed to engage in government-to-government consultation regarding post-review discoveries of historic properties and cultural resources during construction. After the plaintiffs had requested government-to-government consultation, FHWA and tribal representatives had telephone and in-person meetings about the tribes’ concerns and attempted to negotiate a project-specific programmatic agreement. The court determined that FHWA gave the plaintiffs a reasonable opportunity to address their concerns about post-review discoveries during construction and worked with them to try to resolve their concerns. The court also noted that the plaintiffs did not identify any new information that they would have provided to FHWA if they had been consulted earlier in the process. The court held that FHWA satisfied its government-to-government consultation obligations under the NHPA and the statewide Programmatic Agreement. Tribal Monitors. The plaintiffs claimed that Caltrans did not properly use tribal monitors during the construction and mitigation process. The court recognized that neither NEPA nor the NHPA required Caltrans to use tribal monitors. The plaintiffs’ argument was based on the statewide Programmatic Agreement, which required monitoring as part of a data recovery plan but did not set forth specific requirements for how monitors should be used. The plaintiffs also cited a Post-Review Discovery and Monitoring Plan that addressed how Caltrans would use tribal monitors. However, the court noted that the plaintiffs had objected to and refused to sign that plan; the court held that the plaintiffs could not subsequently require Caltrans to follow procedures that the plaintiffs had objected to when they were proposed. The court concluded that Caltrans did not violate any legal duty with respect to the way it used tribal monitors. Post-Review Discoveries. The court found that Caltrans had complied with the procedures in the Programmatic Agreement regarding post-review discoveries, and that compliance with procedures in the Programmatic Agreement was a substitute for consultation regulations for purposes of the agency’s compliance with Section 106. The court also explained that after additional discoveries were located, Caltrans had involved the plaintiffs in monitoring activity, met with the plaintiffs about their concerns, and attempted to negotiate a project-specific agreement. The court held that these actions satisfied Caltrans’s consultation responsibilities. Memorandum of Agreement. The plaintiffs also claimed that Caltrans violated Section 106 by not entering into a memorandum of agreement with them. Caltrans and the plaintiffs had attempted to negotiate a project-specific agreement, but when they failed to reach an agreement, Caltrans continued to follow the procedures in the statewide Programmatic Agreement. The court held that Caltrans was not required to execute a project-specific agreement. Assignment Responsibility for Tribal Consultation. The plaintiffs claimed that FHWA failed to reassume responsibility for NEPA and other laws in violation of the terms of its assignment MOU with Caltrans. The assignment MOU stated that “FHWA shall reassume all or part of the responsibilities for processing the project” if a tribe raised a project-related concern related to a law for which Caltrans assumed responsibility, and either the tribe or FHWA determined that the issue would not be satisfactorily resolved by Caltrans. The plaintiffs had, in fact, requested that FHWA reassume its responsibilities for the project, but FHWA argued that its decision to reassume responsibilities was discretionary. The court agreed with FHWA. The court explained that another section of the MOU required FHWA to consider several factors (including Caltrans’s comments, effects on the assignment program, disruption to the project, effects on other projects, potential confusion to the public, potential burden on other federal agencies, and overall public interest) before it makes a final determination to reassume responsibilities under the MOU. Reading the two sections together, the court concluded that the MOU did not require FHWA to reassume responsibilities for the project after the plaintiff tribes’ request that it do so. Thus, the court denied the plaintiffs’ claim that FHWA violated NEPA and other environmental laws by failing to reassume its responsibilities. Litigation Procedure Motions to Strike Extra-Record Declarations. The plaintiffs submitted declarations from two members of the plaintiff tribes that discussed their views of the consultation process and Caltrans’ use of tribal monitors during construction, as well as a declaration from a member of another tribe that discussed why his tribe did not sign a programmatic agreement. Caltrans and FHWA moved to strike the declarations as improper extra-record evidence; the court agreed. The court held that the plaintiffs did not show that any exceptions to considering extra-record evidence applied: none of the declarants were employees of FHWA or Caltrans; the plaintiffs did not show how the administrative record was insufficient; the plaintiffs did not claim that the agencies relied on extra-record documents; the plaintiffs did not show that the agencies acted in bad faith; and the plaintiffs did not show how the declarations might explain technical terms or complex subject matter. Standing. FHWA argued that the court could not redress the plaintiffs’ injuries and, therefore, that the plaintiffs did not have standing to bring the case. The court noted that some mitigation work remained to be completed for the project. Thus, the court concluded, “if Plaintiffs do prevail and if the Court orders the Federal Defendants to comply with the Section 106 consultation requirements or the other procedural requirements of NEPA and the Federal Highway Statutes, the Court could redress the injuries Plaintiffs claim to have suffered.” Mootness. Caltrans and FHWA argued that the case was moot because Phase 1 of Willits Bypass was opened to traffic and mitigation efforts were nearly complete. The court held that the case was not moot. The court reasoned that the project was not yet finished because the additional two lanes of Phase 2 had not yet been built (or even funded), and the court could still order a remedy if it found in favor of the plaintiffs: “If the Court were to find the [Defendants] violated any of the statutes at issue, the Court could remand for additional environmental review and . . . ‘however cumbersome or costly it might be’ conceivably order the Willits Bypass closed or taken down.” Statute of Limitations. Caltrans and FHWA argued that the case was barred by the statute of limitations, because the plaintiffs did not file the case until 2015, well past the 180 day period for challenging the FEIS and ROD, which were issued in 2006. (The statute of limitations in 23 U.S.C. § 139(l)(1) has since been shortened to 150 days.) The plaintiffs alleged that their claims were based on developments that occurred after the FEIS and within the catch-all six-year statute of limitations, including the agencies’ discovery of archaeological sites during construction and the agencies’ failure to engage in consultation. The court held that the plaintiffs’ claims were not barred to the extent they were based on conduct or events in the six years prior to the date that the plaintiffs filed this lawsuit. Laches. Caltrans and FHWA also argued that the plaintiffs’ claims should be barred by the equitable defense of laches. To prevail on a laches defense, a defendant must show that the plaintiff lacked diligence and that the defendant suffered prejudice. Because the plaintiffs’ claims were primarily based on events that occurred after construction began in 2013, the court focused its inquiry on that time period. Caltrans’s consultation log indicated that Caltrans (but not FHWA) had one meeting with members of at least one of the plaintiff tribes prior to 2013, and another meeting in 2013 several days before the plaintiffs requested government-to-government consultation. The court held that neither Caltrans nor FHWA demonstrated inexcusable delay by the plaintiffs.