ILNews

Federal judge rules against environmental groups in I-69 suit

Back to TopCommentsE-mailPrintBookmark and Share

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.  

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT