Toll Road Opponents Fight Back
by Robin Everett

The Sierra Club and our allies filed a lawsuit last week that alleges that the U.S.
Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service (NMFS) violated the Endangered Species Act when they determined that the Foothill-South Toll Road is not likely to jeopardize any endangered species. The suit claims that the agencies’ decisions are severely flawed and biased and could open the door for an ecological disaster if the toll road were built.

The lawsuit charges that the agencies ignored or downplayed the threats the toll road poses to seven species, rather than relying on the best available science as required by law. The lawsuit also alleges that the FWS, in its Biological Opinion on the Toll Road, unlawfully relied upon the "voluntary, vague and untested mitigation measures" promised by the Transportation Corridor Agencies, and that NMFS failed even to prepare a Biological Opinion on the adverse impacts of the toll road on the endangered southern steelhead trout in San Mateo Creek – despite the substantial threats the toll road poses to that species.

The lawsuit notes that FWS, at TCA’s behest, selectively deleted scientifically damaging passages of the draft Biological Opinion. Furthermore, according to documents obtained by the Sierra Club and its allies through the Freedom of Information Act, the FWS also provided TCA, the project proponent, with an opportunity to review and comment on its draft Biological Opinion. TCA requested a number of specific excerpts be removed from the opinion pertaining to the Pacific pocket mouse and several other species, and FWS significantly revised the final opinion in response to these requests. TCA then used the final FWS Biological Opinion in its public relations materials to misleadingly proclaim that the toll road would not jeopardize any endangered species.