Lawyers for South Mountain Freeway opponents appeared to receive a tepid response to their arguments from a three-judge federal appellate court panel at a hearing last week.
Attorneys for Ahwatukee-based Protect Arizona’s Resources and Children and the Gila River Indian Community made their case in just over 25 minutes on Oct. 19 at a hearing in San Francisco before the U.S. District Court of Appeals for the Ninth Circuit.
But their arguments appeared to draw little sympathy from Judge Richard C. Tallman, who at one point suggested they were asking the court to substitute its judgement for that of highway planners.
“You want the court to substitute its judgement for that of the agencies,” he told lawyers for the opponents.
And at another point, Judge William A. Fletcher, who appeared to be somewhat interested in one of the anti-freeway arguments, jokingly complained of the “excruciatingly small print” in some exhibits.
The third judge asked only one question.
Attorneys Howard Shanker, representing PARC, and Gila Community attorney David B. Rosenbaum appeared at the long-awaited hearing in hopes of persuading the panel to overturn U.S. District Judge Diane Humetewa’s July 2016 ruling that gave the green light to begin the freeway’s construction.
At a cost of $1.7 billion, the 22-mile, eight-lane connector between at 59th Avenue in West Phoenix and the Chandler interchange on I-10 is the state’s most expensive highway project in history and is scheduled to open in late 2018.
The lawyers’ arguments focused mainly on four key arguments contained in more than 70,000 pages of briefs and exhibits filed with the panel.
They asserted that the Arizona Department of Transportation and the Federal Highway Administration violated federal environmental law by failing to consider alternative routes.
They also said the agencies ignored federal law protecting sacred Native American sites such as South Mountain, and that they conducted inadequate environmental-impact studies.
They also said the agencies never budged from the route identified more than 30 years earlier when the freeway was first on the drawing board.
Tallman aggressively questioned the lawyers’ assertion that the agencies should have given more consideration to another location, about 54 miles south of its current path.
“Isn’t that too far south?” Tallman asked, noting that the Gila Community twice refused to have the freeway go through reservation land and spare South Mountain Preserve park from any incursion.
“The problem is that the tribe voted twice not to give up any of its land to try and resolve the impact on the park,” Tallman said.
When Rosenbaum argued, “There were many other alternatives that were never studied,” the judge replied:
“I thought they studied more than a dozen.”
Fletcher queried the lawyers on the specific impact the freeway would have on South Mountain.
The freeway will cut a 200-foot-wide gash through three peaks when construction on that phase begins in mid-2018.
However, Fletcher dropped that line of questioning when no one could specifically say how much of those peaks would be affected.
“It doesn’t tell me much about the visual or ecological impact of that freeway,” the judge said.
Rosenbaum asserted, “They did not analyze nonfreeway options – which remarkably showed a greater reduction in traffic congestion than the freeway.”
But Tallman retorted, “I thought I read the current freeway system is meeting only 84 percent of the demand.”
Tallman also asked, “If we were to enter an injunction, what kind of costs would the public incur? I want to know the practical impact.”
Government lawyers replied any construction delay would cost taxpayers $200,000 a day.
Shanker told the panel the agencies did not adequately analyze the freeway’s impact on Ahwatukee’s air quality, but Tallman said the kinds of tests the agencies used “are not our judgment call to make.”
“Don’t we have to defer to the metropolitan traffic planning agency?” he continued. “How do you localize the impact locally?”
When Shanker began to detail the tests that the agencies did not conduct, Tallman said, “You’re starting to lose me with all the science.”
“Don’t we have to give the agency the greatest deference in determining which standards and what scientific equipment and studies are necessary things to do?” the judge continued.
The panel will now decide the case, although it is under no deadline for making a decision. The judges have three times rejected requests to halt construction while they deliberate.
“Our case has been made,” PARC President Pat Lawlis said. “I just hope we get a timely decision.”
She said freeway developer Conect202Partners “is destroying our environment faster every day.”