Imagine your favorite football team is a touchdown behind, the game clock is winding down, but there’s still a chance to pull out a win.
Suddenly, the referees just sit down and let the winning team do whatever it wants.
You and the rest of your fellow fans are puzzled, angry and frustrated as you watch the clock tick down and your team is left hopeless and forlorn.
Now you have an idea of how Protect Arizona’s Resources and Children and the Gila River Indian Community feel.
They’re down by at least a touchdown as the Arizona Department of Transportation continues laying the groundwork for the South Mountain Freeway.
And the referee, in this case U.S. District Judge Diane Humetewa, is just letting the clock tick down.
Humetewa on Aug. 19 ruled against PARC and the Gila Community, which are trying to stop the freeway on grounds that its environmental threats were not adequately studied and because it would cut a 200-foot gash in South Mountain, held a sacred site by Native Americans.
The plaintiffs have appealed the ruling to the U.S. 9th District Court of Appeals, but want work halted until the appeal can be heard.
The process requires them to first ask Humetewa to grant an injunction. If she refuses, they can then ask the same thing of the 9th District.
All sides in the case filed their briefs for and against the injunction by Sept. 30.
ADOT and the Federal Highway Administration naturally oppose an injunction and claim a delay will add millions of dollars in cost to what already is Arizona’s most expensive highway project in history.
PARC and the Gila Community are frantic, saying that if ADOT is allowed to continue pre-construction work and–eventually–construction, the reasons for their appeal will be rendered moot.
Nineteen days later, the referee is still sitting on the sidelines.
The plaintiffs wonder why.
And no matter where you stand on the freeway, it’s hard to not wonder what that delay is all about.
Of course, no one will likely ever know.
Judges often are a law unto themselves and tend not to share the sense of urgency expressed by the parties before them. After all, they wield immense power in their courtroom, and it’s easy to understand why the concerns of the parties before them don’t can’t influence them all that much.
And the judges don’t have to explain their actions to the public, especially reasons for delays.
But that doesn’t mean the public can’t speculate on the reasons behind their foot-dragging.
I’m speculating that her honor doesn’t want to be proven wrong.
I’ve covered judges off and on for most of my career. And the one thing that none of them liked was to have their decision reversed on an appeal.
It’s the equivalent of having your term paper thrown back at you by your teacher—or a story thrown back at a reporter by an editor.
No matter how gently the reversal might be worded, judges bristle with bruised egos.
And who can blame them?
They’re the masters of the universe in their courtroom and not accustomed to be second-guessed.
I am not saying Humetewa’s ruling was incorrect. That’s something for the 9th Circuit to decide.
Nor am I suggesting she thinks she made a mistake.
What I am saying is that I can’t help but wonder if she shares that almost irrational fear of reversal that so many of her brethren have about appeals, especially in high-profile cases like the South Mountain Freeway.
That fear no doubt diminishes in a case when every day’s delay pushes the reason for an appeal closer to oblivion.
But such delays do nothing to diminish the impression that facts and law alone aren’t necessarily the only things that keep the wheels of justice rolling.