The Arizona Department of Transportation has asked that South Mountain Freeway opponents be required to post a bond of $188,000 for each day their appeal of a judge’s ruling keeps the project on ice.
Since appeals can take months, that bond would quickly soar into millions for the Ahwatukee-based Protect Arizona’s Children and Resources and the Gila River Indian Community.
The bond request is in a footnote of a 20-page brief that the state Attorney General’s Office filed on ADOT’s behalf with U.S. District Judge Diane Humetewa, who shot down a bid by PARC and the Gila Community to stop the project.
She must now decide the two groups’ request for an injunction stopping the project until the U.S. Ninth Circuit Court of Appeals can hear their appeal from her Aug. 19 ruling.
ADOT, the Federal Highway Administration, PARC and the Gila Community have been waiting for nearly three weeks for Humetewa to make a decision so the matter can move to the 9th Circuit. Regardless of how she rules on the injunction, both sides have indicated they would appeal that ruling as well.
While the lawyer for the Gila Community said tribal leaders have authorized posting of an unspecified sum as a bond, Shanker is arguing for a “public interest exception” to the federal court’s bond requirements.
But he conceded that federal courts are not bound by that exception.
“The court should not require the posting of a bond,” he argues in his brief. “If a bond is required, it should be nominal. Under (the National Environmental Protection Act), Congress intended for private plaintiffs to aid in the enforcement of national environmental policy. Ordinarily, where a party is seeking to vindicate the public interest … a minimal bond amount, if any, should be considered.”
He also said PARC, a group of homeowners near the freeway path, is virtually broke and hasn’t even been able to pay his fees for nearly a year.
Humetewa in August shot down both groups’ efforts to stop the freeway project. They had argued that pollution from thousands of vehicles a day threatened the health of Gila Community residents as well as thousands of children who attend the 17 schools in a half-mile radius of the thoroughfare.
Native Americans also accuse ADOT and the FHA of ignoring federal laws protecting their culture, arguing that South Mountain has been considered a sacred site for centuries and that the freeway would desecrate the site by cutting through it.
The plan calls for a 200-foot-wide cut on the western edge of the mountain so that the 22-mile freeway can connect West Phoenix and Chandler to give I-10 motorists a way to avoid Downtown Phoenix traffic.
Humetewa ruled that the plaintiffs failed to prove their case, stating that the highway agencies had gone to sufficient lengths to protect as much of South Mountain as possible and ensure that environmental regulations had been followed.
In their request to halt construction until the appeal is resolved, both PARC and the Gila Community contend that continuation of work would render their fight moot because it would inflict “irreparable harm” on the environment and South Mountain.
But ADOT contends the stakes are just as great for the public if work grinds to a halt, and says in its brief, “If the Court concludes that injunctive relief is warranted, the rule requires plaintiffs to post a security in an amount appropriate to pay the costs and damages.”
Federal attorneys also filed a brief opposing the injunction, but deferred to ADOT on the bond requirement, saying the federal government would not be harmed by a construction delay.
ADOT claims taxpayers will be forced to spend an additional $188,000 for every day that work is delayed, adding that a delay of a year would total at least $68.7 million.
“These costs are based on industry models that estimate escalation of project costs for various items, including materials, labor, right-of-way, and utility relocation/construction,” ADOT says.
Ultimately, ADOT says, a year’s delay could push the total cost of the $1.77-billion project to close to $2 billion and cost the region more than $650 million in economic harm.
“An injunction is not in the public interest because it would delay the mobility, environmental, health, safety, and employment benefits of the project,” ADOT’s brief states, citing the environmental damage from that the I-10 congestion that it says the South Mountain Freeway would alleviate.
In making its case against a work delay, ADOT states, “In addition to these day-for-day costs of an injunction, if the court enjoins the project, ADOT may be forced to terminate hundreds of design, pre-construction and construction activities.”
Calling it the largest freeway project in Arizona history and one of the “largest and most complex transportation projects in the United States,” ADOT argues any delay “will have a ripple effect on the design and construction schedule and result in enormous increases in the cost to the public.”
“The next twelve months are vital to the project, and significant progress on the utility and drainage work must be accomplished to allow follow-on civil infrastructure work to complete the project in late 2019 as scheduled,” ADOT says.
“A suspension of design and construction for approximately 11 months would increase the cost of the project to the point that ADOT would likely terminate all contracts,” ADOT’s brief states. “An injunction that prohibits ADOT from continuing with the project, and causes termination of the various contracts, will result in damages to the public ranging from $91.2 million to $131.7 million.”
In an interview, Shanker said federal appeals courts in public interest cases have said that any injunction-related bond “should be zero or a nominal amount.”
He said one of the cases that ADOT is relying on for the bond request involves a case he handled on appeal. He said the lawyer before him, who handled the case at the district court level, apparently was unaware he could argue for a public interest exemption from a bond.
At the appellate level, the 9th Circuit agreed with Shanker that the bond was too high, but also said a district court “has broad discretion as long as the amount does not make it difficult to pursue justice.”