All 21 Native American tribes in the Southwest are asking permission to join the appeal against the South Mountain Freeway, but Arizona’s attorney general says they’re too late and wants them shut out.
The new fight before the U.S. Court of Appeals for the Ninth Circuit has emerged in papers filed by the Tohono O’odham Nation and the Inter Tribal Association of Arizona, which includes 21 federally recognized Indian tribes in Arizona, California, Nevada and New Mexico.
In asking permission to be included in the appeal, both Native American entities cite South Mountain as a sacred site and said plans to have the freeway cut a 200-foot-wide path through three peaks is a desecration forbidden by federal law, sets a “dangerous precedent” and poses a “disproportionate” impact on the Gila River Indian Community.
In response, the state Attorney General has asked the Ninth Circuit to dismiss the requests, contending that both groups are raising issues that were never presented to U.S. District Judge Diane Humetewa. Hence, Attorney General Mark Brnovich argues, the issues cannot now be raised on appeal.
Humetewa last July gave the go-ahead to the $1.77 billion project ‒ the most expensive freeway project in state history ‒ after rejecting a slew of arguments by the Gila Community and Ahwatukee-based Protect Arizona’s Resources and Children.
They contended that the environmental impact study of the freeway’s impact was fundamentally flawed, that the cut into South Mountain desecrated a sacred tribal site and that the freeway posed significant health threats for residents and school children in Ahwatukee and on the reservation.
PARC and the Gila Community already have an ongoing appeal of Humetewa’s decision, and no hearing date has yet been scheduled.
Meanwhile, the freeway has become an issue in Club West’s homeowners’ association election next month.
PARC President Pat Lawlis in a Facebook post last weekend noted that the HOA ballot includes a proposal for Club West to kick in $25,000 for continuing with the anti-freeway case and urged supporters to beware of a sneak attack on the measure.
“It is real important that we make a concerted effort to counter a negative campaign this time since we were blindsided by one last year,” urging supporters to circulate flyers ahead of the March 2 vote.
Lawlis told AFN, “Last year, someone mounted a mailbox campaign to vote ‘no’ on PARC funding. It took us by surprise, and we ended up losing the vote by a small margin. We don't know who was responsible for the campaign or whether they will do it again this year, but we want to be proactive this time.”
Lakewood’s HOA board recently dropped out of the appeal, claiming a majority of residents wanted out. The board cited a survey, but gave only percentages and no actual numbers of how many votes were cast.
In the new filings with the Ninth Circuit, both Native American entities contended that South Mountain’s standing in tribal culture required the Arizona Department of Transportation and the Federal Highway Administration to conducted a “heightened review” of the project’s impact.
They also raised the specter of further harm to Native American culture.
“ITAA is therefore concerned that the district court ruling at issue in this appeal, if affirmed, will set a dangerous precedent that will hinder our member tribes’ ability to protect these special places in the future and thereby, result in substantial harm to the traditional, cultural and religious practices of our tribal people,” the intertribal group states.
The state countered that the association “cannot shoehorn into these appeals issues that have never been part of the consolidated cases” involving PARC and the Gila Community.
The Tohono O’odham Nation argues that Humetewa’s ruling “could set a precedent which could significantly impact American Indian tribes’ ability to protect their tribal cultural properties, maintain their cultural connections and worldviews, and practice their religious ceremonies in the future.”
So-called tribal cultural properties, identified as TCPs in legal papers, are “sites of past and present religious ceremony, cultural connection and tribal patrimony,” the intertribal association notes. “These sites affect the day-to-day living and religious practices of American Indians in a way that other groups of peoples are not affected.”
Counting South Mountain, or “Muhadagi Doag,” as a TCP, the Tohono O’odham request notes that it has had a long and storied place in Native American culture.
It said the ancient Hohokam tribe “used Muhadagi Doag, more commonly known as South Mountain, as both a hunting and gathering ground, and a spiritual center. Muhadagi Doag is a Traditional Cultural Property, and remains significant to the O’odham. As a descendant of the Hohokam, the Tohono O’odham have an interest in promoting and advocating for the protection of South Mountain.”
The tribal association also strikes out at the air quality assessment that was part of ADOT’s environmental impact study.
PARC has contended that the prospect of as many as 140,000 vehicles on the freeway daily, nearly half of them trucks, would generate unhealthy levels of gas emissions.
The tribal association said ADOT’s study improperly assessed the impact on air quality for the entire length of the freeway instead of focusing on the stretch along Pecos Road.
“The disproportionate nature of impacts to the GRIC could not be adequately determined because the percentage of American Indians impacted by the project was diluted over the 156-plus square miles of the study area,” the association said.
It said federal law required a “heightened standard of impact assessment” because “American Indians are a subset of the vulnerable population category.”
Rather than address the argument specifically, the state attorney general said such arguments were never raised during ADOT’s 14-year administrative process for planning the freeway.
“A party forfeits arguments that are not raised during the administrative process,” it said.