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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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