ILNews

7th Circuit won’t make Indiana rip up section of I-69

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals on Tuesday rejected environmental activists’ arguments that the U.S. Army Corps of Engineers failed to adequately address impact on wetlands when it issued permits for a recently completed section of Interstate 69 in southern Indiana.

The opinion in Hoosier Environmental Council and Citizens for Appropriate Rural Roads v. United States Army Corps of Engineers and Indiana Department of Transportation, 12-3187, won’t do anything to slow future construction of I-69 between Evansville and Indianapolis. But the court also pointed out that just because the section of interstate south of Crane Naval Surface Warfare Center is finished, the litigation is not necessarily moot, as the state argued.

“A case is moot only if ‘it is impossible for a court to grant any effectual relief whatever to the prevailing party,” Judge Richard Posner wrote for the panel. “One possibility for relief in this case would be an injunction requiring the defendants to rip up section 3 (of I-69) and recreate the wetlands it has destroyed. … That would be an extreme measure, unlikely to be ordered, but the fact that relief is unlikely does not render a case moot.”

Posner also penned acerbic words for plaintiffs who he said could have challenged the project more effectively earlier.

“We find almost incomprehensible the plaintiffs’ failure, which they do not mention in their briefs and were unable to explain at the oral argument, to have sought a preliminary injunction against the construction of section 3 — or indeed against the construction of any segment of the I-69 project,” he wrote. “A motion for a preliminary injunction might well have been denied, but the denial of a preliminary injunction is immediately appealable and would have brought the litigation to a swifter conclusion. By their lassitude the plaintiffs have increased substantially the cost of the relief they seek, for now that cost would include the cost of destroying section 3; and the cost of an injunction is a material consideration in whether to grant it.”
 
The panel affirmed the ruling of Judge Larry McKinney of the U.S. District Court for the Southern District of Indiana, who held that the Corps evaluated all of the wetland-protection factors required in its approval of a Clean Water Act permit for the recently completed section of the interstate.

“The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms,” Posner wrote. “They may be playing a delay game: make the Corps do a public interest analysis from the ground up ... in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3 — making it a road to nowhere.”

ADVERTISEMENT

  • Road to somewhere
    This is not just about connecting Evansville to Indianapolis, otherwise Kentucky, Tennessee and Mississippi would not be constructing I-69 in their own states.

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT