Federal Permit and Funding of Devil's Slide Hwy 1 Project

April 3, 2001

Norman Y. Mineta, U.S. Secretary of Transportation
C/O David G. Ortez, Assistant Chief Counsel, FHWA
201 Mission Street, Suite 2100
San Francisco, CA 94105

Subject: Federal Permit and Funding of Devil's Slide Hwy 1 Project

Dear Mr. Secretary,

    This letter is to update you on the Foundations efforts to secure Federal funding for the 1986 Devil's Slide Highway 1 Improvement Project.  In my letter of  January 4, 2001, I requested your immediate attention and assistance as Secretary of Transportation , by directing the FHWA to submit the 1986 Devil's Slide Highway 1 Second Supplemental EIS/EIR study just concluded to the  U.S. District Court (Judge D. Lowell Jensen) so the Court  could conclude the judicial review of the Devil's Slide Hwy 1 Improvement Project (Tunnel Alternative) SSEIS/EIR.  Litigation regarding the project was commenced in U.S. District Court  in the Northern District of California in June 1986 (Sierra Club, et al. v. United States Department of Transportation , et al, Civ. No. 86-3384-DLJ). The project has been enjoined since September 1986, prior to the commencement of any construction .  It is with great regret and frustration that I must inform you that Caltrans has violated the U.S. District Court injunction by building a Tunnel mitigation habitat breeding pond  in  the path of the current FHWA Record of Decision holder and partially funded 1986 SEIR/EIR Martini Creek alignment alternative. The Martini Creek alignment alternative did not put listed species at risk. There are a total of six other feasible and reasonable alternatives that fulfill the goals of this highway project and none which jeopardize listed species or destroy statutory delineated critical environmentally sensitive habitat areas.    The Devil's Slide Hwy 1 improvement project requires Federal permits and funding. Caltrans Tunnel construction mitigation actions have caused the loss of obtaining Federal permits or highway funding for the following reasons: 

∑Caltrans commenced Tunnel mitigation construction activities within the currently 1986 SEIR/EIR approved Martini Creek alignment alternative path in November 2000 prior to  receiving approval by the U.S. District Court or the FHWA.
∑Caltrans commenced Tunnel mitigation construction on the Devil Slides Tunnel project prior to the  FHWA having issued their Record of Decision on the 1986 Devil's Slide Tunnel Alternative Second SEIS/EIR.
∑Caltrans Tunnel mitigation construction activities in November 2000 violated  Section 9 of the Endangered Species Act and its implementing regulations that prohibits the "take" of federally listed fish and wildlife. The California red-legged frog,  a native amphibian believed to have inspired Mark Twain's fabled short story "The Celebrated Jumping Frog of Calaveras County",  gained Endangered Species Act protection as a threatened species in May 1996. Just six months after their listing,  the voters of San Mateo County approved the LCP Measure-T ballot initiative.  The frog has suffered a 70  percent reduction in its geographic range in California as a result of habitat loss and alteration, overexploitation, and introduction of exotic predators. The Shamrock Ranch red-legged frog pond population is the largest known in San Mateo County.  See attached  Notice of Violation Endangered Species Act dated November 30,2000.
∑The U.S. Fish and Wildlife has designated Shamrock Ranch as critical habitat containing listed species. Critical habitat refers to specific geographic areas that are essential for the conservation of a threatened or endangered species and which may require special management considerations. A critical habitat designation sets up a preserve  if  the project requires Federal funding or a Federal permit. Violation of Section 9 of the Act will cause the loss of Federal permits and funding.
∑U.S. Fish and Wildlife Service Endangered Species Division Senior Biologist Ken Sanchez informed this Foundation that he would block and impede any investigation of Caltrans Devil's Slide Tunnel project mitigation construction activities in November 2000 that violated Section 9 of the Endangered Species Act and its implementing regulations that prohibits the "take of  federally listed fish and wildlife. Caltrans Tunnel construction mitigation actions have caused the loss of obtaining Federal permits or highway funding.
∑The San Mateo County Planning Commission denied an appeal by this Foundation to stop the Tunnel mitigation construction and issued Caltrans a Coastal Development Permit to construct a Tunnel mitigation frog pond in the path of the U.S. District Court enjoined Martini Creek alignment alternative. Caltrans Tunnel construction mitigation actions have caused the loss of obtaining Federal permits or highway funding.
∑The California Coastal Commission denied an appeal from this Foundation to stop the Tunnel mitigation construction and granted Caltrans a "Conceptual Concurrence" on the Devil's Slide Tunnel project 1986 SSEIS/EIR. Caltrans Tunnel construction mitigation actions have caused the loss of obtaining Federal permits or highway funding.

Mr. Secretary,  the Save Our Bay Foundation is asking you to direct Deputy Counsel Ortez of the U.S. Department of Transportation Federal Highway Administration to report Caltrans violation of  the U.S. District Court 1986 construction injunction. We request that Mr. Ortez ask the U.S. District Court to direct the U.S. Attorney's office to investigate all Caltrans, U.S. Fish and Wildlife Service and the San Mateo County Planning Commission activities in connection with the Devil's Slide Tunnel Project 1986 SSEIS/EIR.  The CEQA/NEPA review process has been politically corrupted in San Mateo County after fifteen years of  tireless effort by the FHWA. Caltrans Tunnel construction mitigation scheme  has violated the Courts injunction, violated the Endangered Species Act and caused the loss of obtaining Federal permits or highway funding.

I have enclosed a letter from former State Senator Quentin L. Kopp, Chair Transportation Committee to a Sierra Club Tunnel proponent for your review.   Judge Kopp is a man of great integrity and his understanding  of  the Sierra Club agenda appears to have been quite prophetic. Please don't allow the potential permanent closure of Devil's Slide and the non-existence of any roadway between Pacifica and Half Moon Bay on the Coastside. My warm regards to you and your family.

Sincerely,

John Plock, RCE 26066
Chair and Environmental Review  Director

CC: Honorable Michael Nevin, President of the San Mateo County Board of Supervisors
Special Agent Steve Furrer, U.S. Fish and Wildlife Services Division of Law Enforcement
Sara Wan, Chair and Members of the California Coastal Commission
John Blake, Chair EnviroBank Board of Trustees
Rubin Borrales, Deputy to POTUS

Enclosures: Sierra Club letter, Kopp letter, Nevin Op/Ed piece, Feds order study 9-6-95 , NOV to CCC

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