After filing thousands of pages of argument and documents, attorneys for two highway planning agencies and opponents of the South Mountain Freeway likely will have 20 minutes each to make their case in oral arguments tomorrow, Oct. 19, in a San Francisco courtroom.
Appearing before a three-judge panel of the U.S. District Court of Appeals for the Ninth Circuit, those attorneys will be trying to summarize those thousands of pages.
Indeed, because there are two main parties opposing the freeway – the Ahwatukee-based Protect Arizona’s Resources and Children and the Gila River Indian Community – each of their lawyers has only 10 minutes to argue before the panel.
Howard Shanker, the Club West attorney representing PARC, said he may cut his 10 minutes shorter, reserving a few minutes for rebuttal after the government lawyers make their case.
It is unclear whether both the U.S. Justice Department, representing the Federal Highway Administration, and the state Attorney General, representing the Arizona Department of Transportation, will each split their 20-minute allotment or if one lawyer will speak on both their behalf.
How the panel views their arguments and the voluminous briefs likely will determine whether the freeway’s construction continues hurtling toward a late 2019 opening or whether it will be stopped dead in its tracks.
The issue before the judges is whether U.S. District Judge Diane Humetewa erred when she dismissed all the objections filed against the freeway by and virtually gave a green light to build it.
The panel has already twice rejected opponents’ requests to halt construction pending a resolution of that issue.
The panel could take weeks or even months to render a ruling.
And then, the losing side would have multiple options to appeal. It could request a rehearing by the panel or as all 16 judges on the Ninth Circuit to hear their case. It could also ask the U.S. Supreme Court to consider the case.
The high court is under no obligation to take it and the Ninth Circuit judges are not obligated to rehear it.
While all this is going on hundreds of miles away from Ahwatukee, the Arizona Department of Transportation and freeway developer Connect202Partners will continue building the 22-mile eight-lane connector between the Chandler and 54th Street interchanges on the I-10.
Crews have been working since the fall of 2016 on the $1.77 billion project – the most expensive highway project in state history.
PARC President Pat Lawlis has previously told supporters that the “infuriatingly slow” appeal represents the last best effort by opponents to stop the project.
“Our case will be one of the 99.9 percent of cases that are settled in the circuit court,” she said. “The Supreme Court would not accept an appeal from our case because it is about well-settled law with lots of precedents.”
But she also expressed confidence in PARC’s case.
“Whereas the Arizona District Court ignored established law and just decided that the government has the discretion to do whatever it wants, the Ninth Circuit actually pays attention to established law. Without a doubt, ADOT and the FHWA have violated two specific federal laws in numerous ways,” she said.
Here’s a look at the positions of the parties that will appear before the panel.
Highway agencies stress need
The South Mountain Freeway’s path through Ahwatukee is the “environmentally preferable alternative that would serve the project’s purpose and need” to alleviate traffic congestion around downtown Phoenix and reduce I-10 travel time, ADOT and the FHWA contend.
They say opponents cannot prove the freeway poses a major health hazard or that environmental studies were flawed.
“The (highway) agencies thoroughly considered the reasonably foreseeable environmental impacts of the project and alternatives, as well as potential mitigation measures,” acting U.S. Attorney Jeffrey Wood wrote.
Freeway opponents have contended that ADOT and the FHWA performed flawed environmental studies to justify its choice of the freeway path and that it should have been located much farther south of Ahwatukee and the reservation.
They claim that the estimated 140,000 vehicles that will use the freeway every day – half of them trucks – pose a particularly serious threat to the health of thousands of children attending the 17 schools located within a half-mile of the freeway.
Wood said the evidence compiled over 14 years of planning the freeway refutes those assertions.
He also reiterated one of the government agencies’ most common justifications for the freeway – namely that it is vital to a region already choking on traffic.
“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,” he said.
He also minimized the claims by Native Americans who accuse highway planners of running roughshod over laws protected sacred sites, including South Mountain, where the freeway will cut a 200-foot gash across three peaks.
“The project will impact less than 0.2 percent of the South Mountain Preserve/Park – 31.1 acres of this 16,600-acre area – and includes numerous measures to minimize harm to the SMPP, including acquiring an equivalent amount of replacement land,” Wood said.
“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,” he said, adding:
“For example, the agencies thoroughly studied the project’s potential noise impacts on children’s health, including noise receptors located at nine schools. The agencies ensured that noise impacts would be mitigated to an acceptable level through the use of noise walls.”
Wood also argued that the FHWA and ADOT were under no obligation to address strong recommendations by the U.S. Environmental Protection Agency for further study, stating, “Agencies are only required to give EPA’s comments adequate consideration, and they did so here.”
He also said, “Additionally, while EPA made general comments about the potential impact of ‘air pollution’ on children, it did not contest the specific analyses the agencies had performed.”
Federal and state attorneys also have raised the specter of mounting costs to taxpayers if construction is stopped, saying it would add $166,000 a day to the total freeway cost if construction was halted.
PARC focuses on health, environment
Shanker has accused the highway planners’ study of the freeway’s impact of as “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”
He said the case “presents a dramatic failure on the part of the agencies to properly coordinate their transportation planning” with federal environmental law.
He called their long-range transportation planning “an unwavering, myopic commitment to a project addressing regional transportation needs 30 years ago.”
“The conclusion that the same right-of-way that would have met regional transportation demands in the metropolitan Phoenix area in the 1980s will also meet regional transportation demands in 2030, strains credulity,” he wrote.
Shanker argued that the agencies defined a study area for the freeway in 1983 outside of the parameters of the National Environmental Protection Act.
“In other words, one of the most significant aspects of the project – where to put an eight-lane freeway – was withheld from the NEPA decision-making process,” he wrote, and that it “did not result from a process of informed public involvement. It was simply carried forward by ADOT for 30 years.”
He noted that the law says “the primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the act are infused into the ongoing programs and actions of the federal government.”
The law also requires that an environmental impact study “shall provide full and fair discussion of significant environmental impacts and shall inform decision-makers and the public of the reasonable alternatives,” Shanker wrote.
“ADOT asserts that the agency met with the (South Mountain) Citizens Advisory team on ‘60 occasions over 12 years,’” he wrote, charging that “the input of the South Mountain Citizens Advisory Team over the years was largely ignored.”
PARC also maintains that the agencies did not adequately assess the freeway’s impact on the health of children and its purported failure to have a plan for accidents involving vehicles carrying toxic chemicals.
Shanker noted that ADOT contends the freeway would reduce emissions by 91 percent, but said that calculation did not specifically limit the scope of study to Ahwatukee.
“An agency is required to consider impacts on human health that are directly related to the project,” he said. “The law does not carve out an exception to this rule for children.”
“Whether, and to what extent, children living and/or going to school in close proximity to the freeway are exposed to… other mobile source emissions is a ‘significant aspect of the environmental impact’ of this project that defendants have failed to consider,” he added.
Native Americans fear for mountain
All 21 Native American tribes in the Southwest have joined the Gila River Indian Community in opposing the freeway on cultural as well as environmental grounds.
Attorney Jeffrey Molinar said the freeway “would cause irreparable harm to resources that are vitally important to the Community’s culture, traditions, and religious beliefs.”
The primary objection involves South Mountain, which Native Americans consider sacred.
ADOT next year will begin cutting a 200-foot wide swath across three peaks to make way for the freeway.”
“The Community has unique interests in preserving South Mountain, which is one of its most sacred natural resources, and in saving other areas and artifacts of vital importance to its culture,” he wrote.
“While mitigation may attempt to reduce the harm – reburying the dead, moving some artifacts – the harm will be devastating.” Molinar wrote, adding:
. “No amount of remedial efforts can undo the damage that the freeway will cause to the cultural and religious heritage of the Community.”
“Undisputed testimony shows how the Community’s religion, oral histories, and ceremonial activities and practices all are tied to the natural environment,” he added, saying that South Mountain “is one of the Community’s most sacred natural resources”
He also criticized the agencies for arguing that the Gila Community had been working with them to avoid harming any ancestral remains.
“Helping to mitigate—reduce harm—is not agreement that any harm should occur,” he said. “If the bulldozers come, as they might if this appeal fails, it is better to re- bury ancestors than leave them in the trash pile.”
The Tohono O’odham Nation, the largest tribe occupying the Gila River reservation, 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.”
“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.”
Lawyers said that South Mountain, or “Muhadagi Doag,” has had a long and storied place in Native American culture.
Their brief 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,” lawyers continued. “As a descendant of the Hohokam, the Tohono O’odham have an interest in promoting and advocating for the protection of South Mountain.”
Native Americans have staged several protests in the past against the project.