jeanne scherer, chief counsel derek s. van hoften (sbn … · california department of...

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JEANNE SCHERER, Chief Counsel DAVID GOSSAGE, Deputy Chief Counsel LUCILLE Y. BACA, Assistant Chief Counsel DEREK S. VAN HOFTEN (SBN 226880) STACY J. LAU (SBN 254507) 111 Grand Avenue, Suite 11-100, Oakland, CA 94612 Telephone: (510) 433-9100, Facsimile: (510) 433-9167 Attorneys for Defendants CALIFORNIA DEPARTMENT OF TRANSPORTATION; MALCOLM DOUGHERTY

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THE COYOTE VALLEY BAND OF POMO INDIANS OF CALIFORNIA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

Case No. 4:15-CV-04987-JSW CALIFORNIA DEPARTMENT OF TRANSPORTATION’S AND MALCOLM DOUGHERTY’S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

The California Department of Transportation and Malcolm Dougherty, in his official

capacity as Director of the California Department of Transportation (collectively referred to herein

as Caltrans), for their Answer and affirmative defenses to the Complaint hereby admits, denies, and

alleges the following:

INTRODUCTION

1. Caltrans admits that Plaintiffs bring this action to challenge the Willits Bypass

Project. Except as expressly admitted herein, Caltrans denies the remainder of the allegations in

Paragraph 1.

1 CALIFORNIA DEPARTMENT OF TRANSPORTATION’S Case No. 4:15-cv-04987-JSW AND MALCOLM DOUGHERTY’S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

Case 4:15-cv-04987-JSW Document 26 Filed 01/11/16 of 23

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2. Caltrans denies the allegations in the first and third sentences of Paragraph 2. The

allegations contained in the second sentence of Paragraph 2 are vague and ambiguous and Caltrans

denies them on that basis.

3. Caltrans lacks the knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations pertaining to the pictures included in Paragraph 3, and therefore denies

the same. Caltrans also hereby objects to the inclusion of the pictures on the grounds that Plaintiffs

failed to establish their foundation and authenticity, and they are irrelevant. Except as expressly

admitted herein, Caltrans denies the rest and remainder of Paragraph 3.


or falsity of the allegations pertaining to the picture included in Paragraph 4, and therefore denies the

same. Caltrans also hereby objects to the inclusion of the picture on the grounds that Plaintiffs failed

to establish its foundation and authenticity, and it is irrelevant. Except as expressly admitted herein,

Caltrans denies the rest and remainder of Paragraph 4.


or falsity of the allegations pertaining to the picture included in Paragraphs 5, and therefore denies

the same. Caltrans also hereby objects to the inclusion of the picture on the grounds that Plaintiffs

failed to establish its foundation and authenticity, and it is irrelevant. Except as expressly admitted

herein, Caltrans denies the rest and remainder of Paragraph 5.


or falsity of the allegations pertaining to the picture included in Paragraph 6, and therefore denies the


to establish its foundation and authenticity, and it is irrelevant. Except as expressly admitted herein,


7. The allegations contained in Paragraph 7 consist of Plaintiffs’ description of their

lawsuit and require no response. To the extent a response is deemed required, Caltrans denies that

Plaintiffs are entitled to declaratory relief, injunctive relief, and damages against the federal and state

Defendants, as well as denies the rest and remainder of Paragraph 7.



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8. Caltrans denies Paragraph 8.

9. The allegations contained in Paragraph 9 consist of Plaintiffs’ description of their

lawsuit and require no response. To the extent a response is deemed required, Caltrans denies that

Plaintiffs are entitled to the declaratory relief, injunctive relief, and damages sought, as well as

denies the rest and remainder of Paragraph 9.

10. Paragraph 10 contains paraphrases and summaries of several federal statutes and

regulations, which speak for themselves and no further answer to Paragraph 10 is required.

11. Paragraph 11 contains a paraphrase and summary of a federal regulation, which

speaks for itself and no further answer to Paragraph 11 is required.

12. Caltrans admits that on July 1, 2007, the Secretary of the United States Department of

Transportation (USDOT) assigned, and Caltrans assumed, the USDOT Secretary’s responsibilities

under the National Environmental Policy Act of 1969 and all of the USDOT Secretary’s

responsibilities for environmental review, consultation, or other such action required under

enumerated federal environmental laws with respect to most highway projects within the State of

California. Admits that Caltrans continues to carry out such responsibilities in accordance with the

2012 Memorandum of Understanding entered into by the Federal Highway Administration and

Caltrans. Admits that Caltrans assumed the USDOT Secretary’s responsibilities under Section 106

of the National Historic Preservation Act for most highway projects in the State of California.

Except as expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 12.

13. Paragraph 13 contains a paraphrase and summary of Executive Order 13175 (2000),

which Executive Order speaks for itself and no further answer to Paragraph 13 is required.

14. Admits that FHWA concluded its Section 106 review for the Willits Bypass Project in

2005, and made a finding of a conditional no adverse effect to historical properties. Admits that the

Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the Willits Bypass

Project was finalized in 2006. Except as expressly admitted herein, Caltrans denies the rest and

remainder of Paragraph 14.



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15. Paragraph 15 alleges to quote 23 C.F.R. § 771.30(a)(2), which speaks for itself, and

no answer to Paragraph 15 is required.

16. Denies the first sentence of Paragraph 16. The allegations contained in the remainder

of Paragraph 16 are vague and ambiguous, and Caltrans denies them on that basis.

17. Denies the first sentence of Paragraph 17. The allegations contained in the remainder


18. Denies Paragraph 18.

19. Admits circulating several versions of a draft agreement that is intended to govern the

actions to be taken when historic properties are discovered during the remaining implementation of

the Willits Bypass Project. Except as expressly admitted herein, Caltrans denies the rest and


20. Paragraph 20 consists of Plaintiffs’ characterization of an exhibit to their Complaint,

to which no response is required. To the extent a response is deemed required, the allegations

contained in Paragraph 20 are vague and ambiguous, and Caltrans denies them on that basis.

21. Admits that construction of the Willits Bypass Project has been underway for over

two years. Except as expressly admitted herein, Caltrans denies the rest and remainder of Paragraph

21 as vague and ambiguous.


or falsity of the allegations pertaining to the picture included in Paragraph 22, and therefore denies


failed to establish its foundation and authenticity, and it is irrelevant.


or falsity of the allegations pertaining to pictures included in Paragraph 23, and therefore denies the

same. Caltrans also hereby objects to the inclusion of the pictures on the grounds that Plaintiffs

failed to establish their foundation and authenticity, and they are irrelevant.

24. Admits that Caltrans did not prepare an SEIS for the Willits Bypass Project. Denies

the rest and remainder of Paragraph 24.



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25. Admits that at this time, Caltrans has assumed, for the purposes of the Willits Bypass

Project, that Post-Review Discovery (“PRD”) -1 is eligible for the NRHP. The remainder of

Paragraph 25 contains legal contentions regarding the definition of “historic property” to which no

response is required. Denies the rest and remainder of Paragraph 25 as vague and ambiguous.


Project, that PRD-2 and PRD-4 are eligible for the NRHP. The remainder of Paragraph 26 contains

legal contentions regarding the definition of “historic property” to which no response is required.

Denies the rest and remainder of Paragraph 26 as vague and ambiguous.

27. Admits that as of December 31, 2014, Caltrans has assumed, for the purposes of the

Willits Bypass Project, that CA-MEN-3567, CA-MEN-3568, CA-MEN-3569, CA-MEN-3570, CA-

MEN-3594, and Semphor 1, are eligible for the NRHP. The remainder of Paragraph 27 contains

legal contentions regarding the definition of “historic properties” to which no response is required.



Project, that CA-MEN-2645/H is eligible for the NRHP. The remainder of Paragraph 27 contains

legal contentions regarding the definition of “historic properties” to which no response is required.


29. The allegations contained in Paragraph 29 are vague and ambiguous, and Caltrans


30. Caltrans admits that it is currently protecting CA-MEN-3571 as an ESA. Caltrans



or falsity of the allegations pertaining to the picture included in Paragraph 31, and therefore denies


failed to establish its foundation and authenticity, and it is irrelevant.





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failed to establish their foundation and authenticity, and they are irrelevant.

33. Admits the allegations contained in the first sentence of Paragraph 33. Denies the rest

and remainder of Paragraph 30.


35. Admits that the Final EIR/EIS for the Willits Bypass Project includes measures for

“Unanticipated archeological discoveries,” “Unanticipated discoveries of human remains,” and the

“Establishment of Environmentally Sensitive Area Action Plan.” Except as expressly admitted




or falsity of the allegations pertaining to a picture included in Paragraph 37, and therefore denies the


to establish its foundation and authenticity, and it is irrelevant. Caltrans denies the rest and







39. The third sentence of Paragraph 39 contain legal contentions to which no response is

required. Caltrans denies the rest and remainder of Paragraph 39.

40. Caltrans lacks the knowledge or information sufficient to form a belief as to the

allegations contained in Paragraph 40, and therefore denies these allegations. The allegations

contained in Paragraph 40 are also vague and ambiguous, and Caltrans denies them on that basis.

41. The third sentence of Paragraph 41 characterizes the relief that Plaintiffs seek in this

lawsuit, to which no response is required. To the extent a response is deemed required, Caltrans



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denies that Plaintiffs are entitled to such relief. Caltrans denies the rest and remainder of Paragraph

41.





failed to establish their foundation and authenticity, and they are irrelevant. Caltrans denies the rest







45. Denies the first sentence of Paragraph 45. Admits that the Sherwood Valley

Rancheria of Pomo Indians is a federally recognized Tribal government. Caltrans lacks sufficient

information or knowledge to form a belief as to the allegations contained in the remainder of

Paragraph 45, and therefore denies these allegations.


denies them on that basis. Also, in response to the allegations contained in the fourth and fifth

sentences of Paragraph 46, Caltrans lacks sufficient information or knowledge to form a belief as to

Plaintiffs’ alleged “reports” from the Sherwood Valley Tribe, and therefore denies these allegations.

Except as expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 46.

47. The allegations contained in Paragraph 47 purport to cite portions of correspondence

from the Sherwood Valley Tribe, which correspondence speaks for itself and is the best evidence of

its contents. Caltrans denies any allegation inconsistent with the plain language, meaning, and

context of said correspondence.



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48. In response to the allegations contained in the first four sentences of Paragraph 48,

Caltrans lacks sufficient information or knowledge as to Plaintiffs’ alleged reports from the

Sherwood Valley Tribe, and therefore denies these allegations. The remainder of Paragraph 48

purports to cite a portion of a statement from the Sherwood Valley Tribe, which statement speaks for

itself and is the best evidence of its contents. Caltrans denies any allegation inconsistent with the

plain language, meaning, and context of any such statement.

49. Caltrans lacks sufficient information or knowledge as to Plaintiffs’ alleged statements

from the Sherwood Valley Tribe, and therefore denies the allegations contained in Paragraph 49.

50. The allegations contained in Paragraph 50 consist of Plaintiffs’ description of the

relief sought in this lawsuit, and require no response. To the extent a response is deemed required,

Caltrans denies that Plaintiffs are entitled to the relief requested in Paragraph 50, as well as denies

the rest and remainder of Paragraph 50.

II. PARTIES

A. PLAINTIFFS

51. Admits that the Coyote Valley Band of Pomo Indians of California is a federally

recognized Tribal government.

52. Admits that the Round Valley Indian Tribes of California is a federally recognized

Tribal government.

53. Denies the allegations contained in the second sentence of Paragraph 53, and the

allegation in the third sentence of Paragraph 53 that Plaintiffs are “harmed” by ground disturbing

activities. Caltrans lacks sufficient knowledge or information to form a belief as to the allegations

contained in the remainder of Paragraph 53, and therefore denies these allegations.

54. Caltrans lacks sufficient knowledge or information to form a belief as to the

allegations contained in Paragraph 54, and therefore denies these allegations.


56. Paragraph 56 contains legal assertions and conclusions to which no responsive

pleading is required, and therefore Caltrans denies the same.



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B. DEFENDANTS

58. Admits Paragraph 58.

59. Admits Paragraph 59.

60. Admits that the Federal Highway Administration (FHWA) is a federal agency within

the United States Department of Transportation (USDOT). Except as expressly admitted herein,


61. Admits that Gregory Nadeau is the Acting Administrator of FHWA. Except as

expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 61.

62. Admits that Caltrans is a state agency within the State of California, that Caltrans is

using some federal funds for the Willits Bypass Project, that Caltrans executed a Memorandum of

Understanding Between the Federal Highway Administration and the California Department of

Transportation (“MOU”), and that Caltrans prepared and adopted the Final EIS/EIR for the Willits

Bypass Project. The remainder of the allegations in Paragraph 62 purport to characterize the MOU,

which speaks for itself and is the best evidence of its contents. Caltrans denies any allegation

inconsistent with the plain language, meaning, and context of the MOU. Except as expressly


63. Admits that Malcolm Dougherty is the Director of Caltrans. Except as expressly

admitted herein, Caltrans denies the rest and remainder of Paragraph 63 as vague and ambiguous.

III. JURISDICTION

64. Caltrans denies that this Court has jurisdiction over Plaintiffs claims for monetary

relief against Caltrans, or those claims based on California state law, due to California’s sovereign

immunity under the Eleventh Amendment to the Constitution of the United States. The rest and

remainder of Paragraph 64 contains legal conclusions to which no response is required, and therefore

Caltrans denies the same.


IV. VENUE



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66. To the extent this Court has jurisdiction over this matter, if any, Caltrans admits that

venue lies in this judicial district.

V. INTRADISTRICT ASSIGNMENT

67. To the extent this Court has jurisdiction over this matter, if any, Caltrans admits that

this case is related to Center for Biological Diversity, et al. v. United States Department of

Transportation, et al., case number 3:12-02172, as defined in Civil Local Rule 3-12(a). The

remainder of Paragraph 67 consists of legal contentions to which no response is required.

VI. STATUTORY AND FACTUAL ALLEGATIONS

A. Statutory and Regulatory Allegations

1. The Administrative Procedures Act



2. The National Environmental Policy Act

















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3. The National Historic Preservation Act






















B. THE WILLITS BYPASS PROJECT



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88. Caltrans admits that it is constructing the Willits Bypass Project and implementing

related mitigation in Mendocino County, California. The allegations contained in the remainder of

Paragraph 88 are vague and ambiguous, and Caltrans denies them on that basis.

89. Paragraph 89 appears to quote from the 2014 Mitigation and Monitoring Proposal for

the Willits Bypass Project, a document which speaks for itself and is the best evidence of its

contents. Caltrans denies any allegation inconsistent with the plain language, meaning, and context

of the 2014 Mitigation and Monitoring Proposal.

90. Admits that the Willits Bypass Project is being constructed in two phases. Caltrans


91. Admits that Phase 2 of the Willits Bypass Project is currently unfunded. The

allegations contained in the last sentence consists of Plaintiffs’ description of their lawsuit and

require no response. The allegations contained in the remainder of Paragraph 91 are vague and

ambiguous, and Caltrans denies them on that basis.


or falsity of the allegations in Paragraph 92, and therefore denies the same.

93. Admits that the Willits Bypass Project is a federal undertaking subject to Section 106

of the NHPA and its implementing regulations, and that Caltrans is subject to state historic

preservation laws. The allegations contained in the remainder of Paragraph 93 are vague and

ambiguous, and Caltrans denies them on that basis.

94. Admits that, as a result of the environmental review process, several project

alternatives were analyzed and the Modified Alternative J1T was selected as the preferred

alternative. Except as expressly admitted herein, Caltrans denies the rest and remainder of

Paragraph 94.

95. Admits that construction of the Willits Bypass does include ground disturbing

activities at varying depths. Except as expressly admitted herein, Caltrans denies the rest and





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97. Denies the allegations contained in the first sentence of Paragraph 97. The remainder

of Paragraph 97 consists of legal assertions and conclusions to which no responsive pleading is

required, and therefore Caltrans denies the same.









102. Denies the first sentence of Paragraph 102. The remainder of Paragraph 102 contains

legal assertions and conclusions to which no responsive pleading is required, and therefore Caltrans

denies the same.


pleading is required, and therefore Caltrans denies the same. Caltrans denies the rest and remainder

of Paragraph 103.



105. Denies the first sentence of Paragraph 105. Caltrans lacks information or knowledge

sufficient to form a belief as to the allegations contained in the second sentence of Paragraph 105,

and therefore denies these allegations.



of Paragraph 106 as vague and ambiguous.




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108. Admits that, at the time the complaint was filed, an agreement that is intended to

govern the actions to be taken when historic properties are discovered during the remaining

implementation of the Willits Bypass Project had not yet been executed. Except as expressly



denies them on that basis. Caltrans also lacks sufficient information or knowledge to form a belief

as to the allegations contained in Paragraph 109, and therefore denies these allegations

110. The allegations contained in the first sentence of Paragraph 110 are vague and

ambiguous, and Caltrans denies them on that basis. Caltrans also lacks sufficient information or

knowledge to form a belief as to the allegations contained in the first sentence of Paragraph 110, and

therefore denies these allegations. The second sentence of Paragraph 110 purports to characterize

and quote from a Contract Change Order. To the extent that this Contract Change Order exists, it

speaks for itself and is the best evidence of its contents. Caltrans denies any allegation inconsistent

with the plain language, meaning, and context of said Contract Change Order.

111. The first two sentences of Paragraph 111 purport to characterize and quote from a

September 10, 2015, e-mail from Caltrans. To the extent that such an e-mail exists, it speaks for

itself and is the best evidence of its contents. Caltrans denies any allegation inconsistent with the

plain language, meaning, and context of said e-mail. The allegations contained in the third sentence







as to the allegations contained in Paragraph 113, and therefore denies these allegations.



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of Paragraph 119.

120. Caltrans lacks knowledge or information sufficient to form a belief as to the truth or

falsity of the allegation, and therefore deny the same.



C. Supplemental EIS

123. Admits that the 2006 Final EIR/EIS identified only one site eligible for the National

Register of Historic Places with the area of potential effect of the Willits Bypass Project. Except as

expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 123.




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1. Alleged Sites Identified Subsequent to the Final EIR/EIS.

126. Admits that some post-review discoveries were made. Except as expressly admitted


2. Mitigation and Monitoring Plans

127. Admits that in 2012 and 2014, Caltrans issued mitigation and monitoring plans for the

Willits Bypass Project, which plans speak for themselves and are the best evidence of their contents.




3. Supplemental EIS

130. The allegations contained in Paragraph 130 purport to characterize a March 17, 2015,

letter from the Coyote Valley Tribe, which letter speaks for itself and is the best evidence of its

contents. Caltrans denies any allegation inconsistent with the plain language, meaning, and context

of the letter. Paragraph 130 also contains legal assertions and conclusions to which no responsive


of Paragraph 130.

131. Admits that Caltrans prepared a Supplemental EIR for potential impacts to North

Coast Semaphore Grass, which is listed as a “threatened species” under the California Endangered

Species Act. Except as expressly admitted herein, Caltrans denies the rest and remainder of

Paragraph 131.

4. Surveys

132. Denies the allegations in the first, second, fourth, and fifth sentences of Paragraph

132. The allegations contained in the third sentence of Paragraph 132 are vague and ambiguous, and

Caltrans denies them on that basis.

D. Protection of Alleged Sites



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133. To the extent that Paragraph 133 cites to a draft post-review discovery and monitoring

plan, and to the extent that such draft is relevant and admissible, if at all, it speaks for itself and no

further answer is required. Caltrans denies the rest and remainder of Paragraph 133.









1. Allegations Based on April 10, 2015 Draft Programmatic Agreement

138. To the extent that Paragraph 138 cites to a draft attachment to a draft Programmatic

Agreement, and to the extent that such draft is relevant and admissible, if at all, it speaks for itself

and no further answer is required. Caltrans denies the rest and remainder of Paragraph 138.

139. To the extent that Paragraph 139 cites to a draft attachment to a draft Programmatic

Agreement, and to the extent that such draft is relevant and admissible, if at all, it speaks for itself

and no further answer is required. Caltrans denies the rest and remainder of Paragraph 139.

140. To the extent that Paragraph 140 cites to a draft Programmatic Agreement, and to the

extent that such draft is relevant and admissible, if at all, it speaks for itself and no further answer is



142. Denies that at least 30 culturally significant ancestral Pomo sites have been found

subsequent to the Final EIR/EIS. Caltrans lacks knowledge or information sufficient to form a belief

as to the truth or falsity of the rest and remaining allegations in Paragraph 142, and therefore deny

the same.



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143. The allegations in the first sentence of Paragraph 143 are vague and ambiguous, and

Caltrans denies them on that basis. The second sentence of Paragraph 143 asserts legal conclusions

to which no response is required, and therefore Caltrans denies the same. Caltrans denies the rest


2. Allegations Regarding the Use of the Mitigation Plan







3. Lithic Concentrations


147. Caltrans lacks sufficient information or knowledge to form a belief as to the

allegations regarding Plaintiffs’ communications with the FHWA and the Army Corps, and as to

Plaintiffs’ beliefs, and therefore denies these allegations. Caltrans denies the rest and remainder of

Paragraph 147.

148. The allegations contained in the first sentence of Paragraph 148 describe Plaintiffs’

requests, and therefore no response is required. Caltrans denies the rest and remainder of Paragraph

148.






E. Tribal Monitors



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152. Caltrans lacks knowledge or information sufficient to form a belief as to the truth or

falsity of the allegations in Paragraph 152, and therefore deny the same.

153. Denies the first sentence of Paragraph 153. The remainder of Paragraph 153 contains

legal assertions and conclusions to which no responsive pleading is required, and therefore Caltrans

denies the same. Caltrans denies the rest and remainder of Paragraph 153.




156. Admits that it is currently Caltrans’ intent to curate artifacts in accordance with the

Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation. The

rest and remaining allegations in Paragraph 156 contains legal assertions and conclusions to which

no responsive pleading is required, and therefore Caltrans denies the same.



of Paragraph 157.



of Paragraph 158.



161. Admits that Caltrans has not provided tribal monitors with global positioning system

units. Except as expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 161.




F. Efforts to Protect Sites



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165. To the extent that Paragraph 165 cites to a letter from Coyote Valley to Caltrans, and

to the extent that such letter is relevant and admissible, if at all, it speaks for itself and no further

answer is required. Caltrans denies the rest and remainder of Paragraph 165.





of Paragraph 168.



VII. CLAIMS FOR RELIEF

CLAIM ONE

NEPA AND APA

171. In answer to Paragraph 171, Caltrans incorporates and re-alleges its specific answers

to Paragraphs 1 through 170, as if set forth herein.

172. Paragraph 172 contains legal assertions or conclusions to which no responsive




174. Admits that post-review discoveries have occurred and that the area of potential effect

has been changed since the Final EIR/EIS. Except as expressly admitted herein, Caltrans denies the

rest and remainder of Paragraph 174.



CLAIM TWO

FEDERAL HIGHWAY STATUTES AND THE APA



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CLAIM THREE

NATIONAL HISTORIC PRESERVATION ACT








184. Admits that Caltrans has not provided tribal monitors with global positioning system

units. Except as expressly admitted herein, Caltrans denies the rest and remainder of Paragraph 184.


PRAYER FOR RELIEF

Answering Paragraphs 1, 2, 3, 4, 5, 6 and 7 in this section, Caltrans denies the Plaintiffs are

entitled to any of the relief requested.

CALTRANS’ AFFIRMATIVE DEFENSES

Caltrans alleges the following affirmative defenses to the Complaint. In asserting these

affirmative defenses, Caltrans does not assume the burden to establish any fact or proposition where

that burden is properly imposed on Plaintiffs.

First Affirmative Defense

1. Plaintiffs’ claims are barred, either in whole or in part, by the absence of jurisdiction.



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Second Affirmative Defense

2. Plaintiffs failed to state a claim upon which relief may be granted.

Third Affirmative Defense

3. Plaintiffs claims are barred by the statute of limitations.

Fourth Affirmative Defense

4. Plaintiffs claims and requested relief are, in whole or in part, barred by California’s

sovereign immunity under the Eleventh Amendment to the U.S. Constitution.

Fifth Affirmative Defense

5. Plaintiffs claims are not ripe for judicial review.

Sixth Affirmative Defense

6. Plaintiffs failed to plead sufficient facts to establish a right to injunctive relief

pursuant to Federal Rules of Civil Procedure Rule 65.

Seventh Affirmative Defense

7. The Complaint and each cause of action therein may be barred, in whole or in part, to

the extent Plaintiff has waived or is estopped from, or are barred by the doctrine of laches or unclean

hands from, asserting such causes of action.

Eighth Affirmative Defense

8. Plaintiffs claims are moot.

Ninth Affirmative Defense

9. Caltrans presently has insufficient knowledge or information on which to form a

belief as to whether they may have additional, as yet unstated, defenses available. Caltrans reserves

the right to assert additional affirmative defenses at such time and to such extent warranted by

discovery and the factual developments in this case.

PRAYER

WHEREFORE, Caltrans prays for judgment or relief against the Plaintiffs as follows:

1. That the claims against Caltrans be dismissed with prejudice;



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2. That Caltrans be awarded their attorneys’ fees, costs and disbursements incurred in

defending this matter; and

3. Such other and further relief as this Court deems just and proper.

DATED: January 11, 2016 JEANNE SCHERER DAVID GOSSAGE LUCILLE Y. BACA DEREK S. VAN HOFTEN STACY J. LAU

By: /s/ Derek S. van Hoften ____________ Attorneys for Defendants

CALIFORNIA DEPARTMENT OF TRANSPORTATION and MALCOLM DOUGHERTY



jeanne scherer, chief counsel derek s. van hoften (sbn … · california department of...

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