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Archive for Wednesday, February 28, 1990

APPEAL OF EAGLES RULING TO BE

February 28, 1990

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A local environmental group will ask a federal appeals court in April to order restoration of a habitat for bald eagles on the Kansas River bank in Lawrence.

The environmental group, POETs (Protect Our Eagles' Trees), is appealing a decision made a year ago by U.S. District Judge Dale Saffels, whose ruling allowed developers of the Lawrence Riverfront Plaza to remove a stand of about 15 cottonwood trees from the banks of the Kansas River. The trees had been identified as perches for bald eagles, a federally protected endangered species.

Bob Eye, a Tonganoxie attorney representing POETs, said today that the 10th U.S. Circuit Court of Appeals scheduled oral arguments in the case for 9 a.m. April 10 in Denver. Defendants in the suit are the U.S. Army Corps of Engineers, which issued a permit allowing construction of the factory outlet shopping center, the U.S. Environmental Protection Agency and the U.S. Department of the Interior, and Lawrence Riverfront Associates, an arm of the Chelsea Group, developers of the center.

"IT'S MY understanding that the routine of the 10th Circuit is that they do retain the discretion to not hear oral arguments in every case, so obviously I'm pleased that they've asked us to appear before them," Eye said.

John Lungstrum, an attorney representing Chelsea, said he wasn't surprised by the court's decision to schedule oral arguments.

"I think both sides requested oral arguments. . . . It's always our practice to request oral arguments; we don't want to take a chance that the court might not understand our briefs."

Saffels, Kansas City, Kan., ruled a year ago today that POETs had no standing under federal law to protest destruction of the trees and that the court had no jurisdiction in the case. Additionally, he ruled that POETs failed to meet a 60-day requirement for notifying federal agencies of intent to bring suit.

POETS IS asking the appeals court to send the case back to the federal district court and to order the federal agencies to study alternative designs or locations for the shopping center. The group says the federal agencies allowed construction of the center without fully complying with provisions of the National Environmental Policy Act.

Lungstrum contends that the original judgment should be upheld.

"I have every confidence that the 10th Circuit will affirm the district court decision," he said.

Eye disagrees.

"That is an illegal development," he said of the Riverfront Plaza. "In my judgment, the federal agencies violated terms of the National Environmental Policy Act. It's regrettable that they . . . went ahead and destroyed that natural habitat."

EYE SAID there have been cases in which federal courts ordered the dismantling or modification of projects built in violation of the federal law.

Despite the removal of the cottonwoods, bald eagles did return to the riverfront during a bitter cold spell in December. Eye said the eagles' return should not be an issue in the case.

"That's irrelevant," he said. "It doesn't have any bearing in the fact that (the corps) didn't consider alternatives when it issued its permit."

The Riverfront Plaza is scheduled to hold its grand opening sometime in April, with individual outlets possibly opening in late March.

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