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Federal judge rules against environmental groups in I-69 suit

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The two environmental organizations challenging the construction of Interstate 69 in southern Indiana lost in federal court Tuesday. The lawsuit filed by Hoosier Environmental Council and Citizens for Appropriate Rural Roads dealt with the stretch of the interstate from Washington, Ind. to Scotland, Ind.

The alignment of the road selected by the Indiana Department of Transportation and the Federal Highway Administration in this portion, called Section 3, would affect nearly 5 acres of various types of wetlands, nearly 2 acres of open ponds and roughly 1,000 linear feet of streams within the right-of-way to be relocated.

The interstate is being constructed in tiers. The first tier decided what general route to use from Indianapolis to Evansville. The second tier provides for more specific locations of sections of the highway.

Instead of the United States Army Corps of Engineers issuing one Section 404 permit for discharge of pollutants under the Clean Water Act for the entire project, it decided to have an application for each segment of the highway. In order to qualify for a permit, the project must, among other things, be the “least environmentally damaging practicable alternative.”

The Corps issued a permit to INDOT regarding Section 3, allowing INDOT to discharge dredged and fill material into the waters of the United States.

The plaintiffs sued in the Southern District of Indiana, seeking a declaration that the Corps violated Section 404 of the Clean Water Act by issuing a permit for the work on Section 3 without fulfilling Section 404’s requirements, and to prevent further construction of that section or the remainder of the interstate until the Corps complied with Section 404.

They maintain that the CWA requires the Corps to undertake an analysis of whether there is a less damaging practicable alternative for the entire interstate project, not just the section at issue, and that the tiering process lets INDOT work around the CWA.

Judge Larry J. McKinney rejected that argument.

“If granting a permit for one section of the route proved impossible under strictures of the CWA, then it is possible that INDOT and the FHWA might have (to) re-evaluate overall alignment alternatives, but there is no CWA requirement that the Corps must take it upon itself to examine alternatives to a project for which no permit is sought,” he wrote.

The plaintiffs also claimed the Corps public interest review for the Section 3 permit was inadequate because it failed to examine the probable negative impacts of the entire interstate project.

The judge pointed out that the Corps only has the authority to permit or regulate project activity that occurs in the navigable waters of the U.S. He also held the Corps did weigh each of the required general factors and several other specific factors with regards to Section 3, and its public interest review was not arbitrary, capricious, in violation of the law, or contrary to the substantial weight of the evidence.

McKinney granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for summary judgment.  

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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