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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

ADVERTISEMENT