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

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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.”

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  • 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.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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