Judge Won’t Lift Ban on Road Work in Marshland

Expressing distrust of the federal government, a federal judge Monday refused to lift an injunction that has halted an environmentally sensitive bay-front construction project in Chula Vista.

The controversial project has put the city, federal government and Caltrans at odds with the Sierra Club.

A sometimes exasperated chief U.S. District Judge Gordon Thompson Jr. questioned the U.S. government’s attorney, Eileen Sobeck, relentlessly about federal construction plans that would affect 188 acres of marshland proposed as a wildlife sanctuary at Gunpowder Point. The marshes are home to two endangered bird species--the clapper rail and least tern.

Thompson repeatedly expressed displeasure with Sobeck’s answers before finally pointing a finger at her and Caltrans attorney Robert L. Meyer with the admonishment:

“I don’t trust them to make these decisions.”

Construction Halted

Moments earlier Thompson had told the attorneys that he was denying a motion brought by the U.S. government to lift an injunction that he had imposed in July that brought construction to a halt. Meyer said that Thompson’s order, which stopped construction of the Interstate 5-California 54 interchange and a flood control channel for the Sweetwater River, is costing Caltrans $25,000 a day.

Sobeck had asked Thompson for a partial lifting of the injunction, allowing work to continue on the east side of Interstate 5, while keeping the injunction in force on the west side of the highway where the marshes are located.

However, the injunction will remain in effect until the U.S. government works out a plan to have the 188 acres in place without easements. Until that is done, all construction will remain halted, said Thompson.

Sierra Club attorney Larry Silver predicted after the hearing that the projects would never be finished.

“They’re (federal government) acting irresponsibly,” said Silver. “Why throw good money away in a bad project . . . This project may never be finished.”

During the hearing Thompson pointed out that the U.S. agencies involved in the controversy--the Federal Highway Administration, Army Corps of Engineers and the U.S. Fish and Wildlife Service--were in disagreement over the project. The Fish and Wildlife Service had agreed with the Sierra Club that the wildlife sanctuary should not be cluttered with road easements and other development.

In fact, the Sierra Club was acting for the Fish and Wildlife Service when it sued in federal court to force the Federal Highway Administration and Corps of Engineers to consult with the wildlife service on the project as required by federal law. Thompson’s ruling on Monday also required the three agencies to resume consultations.

“We in fact represented the U.S. government against the U.S. government when we sued,” said Sierra Club spokeswoman Joan Jackson.

The Gunpowder Point project has been mired in confusion and controversy from the outset. The initial construction plans in 1984 called for San Diego County to acquire the 188 acres of marshland and turn it over to the Fish and Wildlife Service. But the land is still owned by the Santa Fe Development Co. and is the subject of another lawsuit filed by the Sierra Club.

Meanwhile, bay-front development has evolved to the point where Caltrans is now threatening to sue the U.S. government for damages suffered during the construction halt, while the county and Chula Vista are also snared in legal squabbles and looking for others to sue in order to protect their interests.

Adding to the confusion, Sobeck on Monday was acting as the sole attorney for the three federal agencies involved in the dispute, despite the fact that the Fish and Wildlife Service has been at odds with the Corps of Engineers and the Federal Highway Administration.

On Monday, Thompson made it clear to Sobeck that the entire issue could have been resolved if the three federal agencies had followed the law and consulted with each other and reached an agreement on the 188 disputed acres.

“The court didn’t invite your attendance here,” Thompson said to Sobeck. Earlier, Thompson had asked Sobeck:

“What construction is to be undertaken if I were to lift the injunction?”

Sobeck hesitated a moment before offering Thompson “a partial answer.”

“I want a full answer,” Thompson shot back. “I want to know what is contemplated.”

Sobeck then gave a long and rambling response that was subjected to more questions by Thompson. She ended by telling Thompson that the three federal agencies had begun consultations.

Silver countered by expressing fears that if Thompson were to lift the injunction and allow work to continue while talks were in progress, the U.S. government would then argue at a future date that construction was so far along it would be economically unfeasible to halt it.

Thompson agreed and said that “the court should be the overseer of the governmental agencies progress in conforming” to the federal Endangered Species Act.

“The federal agencies had their original chance . . . I think it’s now time that the court becomes part of the act. This is the only way we’re going to get this thing settled,” said Thompson.

Caltrans officials said the state has spent about $40 million on the freeway construction project. Meyer said that about 180 workers have been laid off since Thompson’s injunction went into effect on July 13. The contractors have threatened to file over $1 million in claims against the state because of the construction halt.

Caltrans in turn has notified the U.S. government that it will sue the three federal agencies to recover any funds lost by the state in the legal controversy.