Archive for Sunday, September 20, 1998

JUDGES TO HEAR APPEAL ON SLT

September 20, 1998

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Attorneys will argue the South Lawrence Trafficway case before the 10th U.S. Circuit Court of Appeals this week in Oklahoma City.

A panel of three judges will convene this week in Oklahoma City to consider the fate of the beleaguered South Lawrence Trafficway, a project mired in legal maneuvers for more than a decade.

And the answer to the debate will likely not come for another three to nine months, the amount of time expected for the panel to issue its opinion.

Attorneys will make their oral arguments in the trafficway's lawsuit Wednesday before the 10th U.S. Circuit Court of Appeals at Oklahoma City University. U.S. District Judge Tom Van Bebber on July 17, 1997, barred Douglas County and the Kansas Department of Transportation from taking any action and spending money on the eastern leg of the trafficway until project officials completed a supplemental environmental impact statement. The defendants appealed Van Bebber's ruling to the 10th Circuit Court.

Opponents of the trafficway say the way it is aligned in plans would negatively impact nearby wetlands and areas of the Haskell Indian Nations University campus used for prayer and worship.

The panel actually will consider two appeals, one of behalf of Douglas County and the state and the other on behalf of the Federal Highway Administration.

Representing plaintiffs in the case will be attorneys Robert Eye and Bruce Plenk, both of whom live in Lawrence and practice in Topeka. Mike Davis, an attorney with Stinson, Mag & Fizzell of Kansas City, Mo., will represent the state and county. Tamara Rountree of the U.S. Department of Justice will present oral arguments for the highway administration.

``Each side will have 15 minutes -- except the case has always been considered two cases,'' so each side actually will get 30 minutes each, said Davis, former dean of the Kansas University School of Law. ``Each of those will be a separate argument, but I'm sure the panel will eventually consolidate the cases into one opinion. I would be very surprised if they didn't.''

Panel asks questions

The panel members will be Judge Bobby Baldock of New Mexico, Judge Robert Henry of Oklahoma and Judge Monroe McKay of Utah. They either will affirm Van Bebber's decision last year or overturn it.

Asked how the process works, Davis said: ``Attorneys handle things differently, but usually you'll have two or three basic points you want to make to the court in your 15 minutes, but of course the panel is free to ask questions. One has to be prepared to be flexible.''

Davis declined to be specific about what he plans to argue before the panel. The defendants' argument, according to the brief they filed in the appeals court, essentially has been that the project no longer is federal in scope and therefore does not need to follow federal regulations.

The defendants' 16-page brief said, ``Under established Tenth Circuit law, Kansas Department of Transportation's and Douglas County's planned construction of the (eastern leg of the trafficway) will not be a major federal action, and thus NEPA (the Natural Environmental Policy Act) is inapplicable.''

Defense attorneys said, ``in their attempt to avoid the inevitable result of application of this circuit's law, plaintiffs have erected an exotic and confusing argument.''

Eye earlier this year said that claiming the project is no longer federal in scope and therefore does not have to comply with NEPA is a ``fundamental perversion of what Congress intended.''

Highway bill impact unclear

If the panel affirms Van Bebber's decision, the injunction on any work on the trafficway would stay until officials completed the supplemental environmental impact statement. If the judges overrule the decision, ``the state and county could go ahead and start buying property and building the road,'' Plenk said.

What impact a proviso in a new federal highway bill will play in the appeals process is unclear. The apparent intent of the proviso, which never received public hearing or debate, is to allow construction of the final five-mile segment of the trafficway between U.S. Highway 59 and Kansas Highway 10. Transportation Secretary Carlson said he lobbied Congress to include the proviso in the ``Transportation Equity Act for the 21st Century'' because of concerns about the potentially far-reaching consequences of Van Bebber's decision.

Davis declined to discuss the bill's impact on the case.

Plenk said he doesn't think the bill will have any effect.

``We don't think it directly affects the case because the highway bill was primarily talking about segmentation of roads and we think this is a case of defederalizing an already federalized project.''

Either side could choose to appeal the panel's decision, Davis said, and the next step would be arguments before the entire court. The last step would be a discretionary appeal before the U.S. Supreme Court, but Davis and Plenk both noted the court denies the majority of requests for appeals.

-- Deb Gruver's phone message number is 832-7165. Her e-mail address is dgruver@ljworld.com.

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