Arizona Department of Transportation

While work on the South Mountain Freeway is proceeding quickly, the court effort aimed at stopping it is moving at a snail’s pace.

Just days after a panel of judges for the U.S. District Court of Appeals for the Ninth Circuit appeared to be on track for possibly scheduling oral arguments in the case, it granted the Gila River Indian Community a delay that is a month longer than it wanted to file a brief.

The panel’s action on Monday, April 17, came only three days after it had granted a request by the Arizona Department of Transportation and the Federal Highway Administration to file a brief that was longer than what the court normally allows.

When that request was granted, it triggered a deadline for the Protect Arizona’s Resources and Children to file a final brief – normally a sign that oral arguments might be set soon.

But then the court gave the Gila Community until May 30 to file a brief even though the community had only requested a May 1 deadline.

As always, the panel did not explain its actions.

PARC and the Gila Community are appealing U.S. District Judge Diane Humetewa’s rejection of their arguments that ADOT and the FHWA planned the freeway in violation of federal environmental regulations as well as laws protecting sites considered sacred by Native Americans.

The panel also has not ruled on a request by 21 tribes in the Southwest to intervene in the case.

Native Americans consider South Mountain a sacred site and say ADOT’s plan to cut a 200-foot-wide gash across three mountain peaks violates federal protection of such sites.

If the tribes’ request is granted, that would presumably create still more delays. The panel likely would to set a deadline for their brief, give the government agencies time to respond and then possibly give the tribes still more time to answer that brief.

Appeals courts do not work under any deadline and cases have been known to drag on for years.

When the appeal was filed late last year, PARC and the Gila Community had requested a temporary injunction halting freeway work until the case was resolved.

But the panel sided with the government agencies, which contended that the appeal had little likelihood of success and a construction delay would cost taxpayers tens of millions of dollars.

In seeking permission to file a brief longer than the panel permits, ADOT and the FHWA lawyers contended that the record in the federal case is more than 78,000 pages long and that they needed to address “voluminous administrative records, multiple parties and complex issues.”

In their brief, the government agencies say they “selected the environmentally preferable alternative that would serve the project’s purpose and need. The project will reduce congestion and save millions of hours of travel time; the present value of travel time savings for the project between 2020 and 2035 would be almost $3.4 billion.”

They also say the freeway will impact only two-tenths of one percent of South Mountain Preserve, or about 31.1 acres of the 16,600-acre area.

“The agencies thoroughly considered the reasonably foreseeable environmental impacts of the Project and alternatives, as well as potential mitigation measures,” they maintain.

The agencies also said that they considered alternatives to the freeway, but that “these alternatives were eliminated because they did not address the unmet transportation demand.”

That demand indicated that without the freeway, only 69 percent of the transportation network’s demands would be met in 2030, the brief states.

Government lawyers also dispute PARC’s contention that environmental studies of the freeway’s impact were flawed.

“After considering all the available information and the models of air emissions, the agencies determined that the proposed project would not produce disproportionate impacts on children,” government attorneys wrote.

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