Denver The route for the controversial South Lawrence Trafficway never will go through this Mile High City. At least that much is sure about the project.
But what happened in Denver on Thursday likely will decide whether the SLT ever travels anywhere east of Iowa Street.
Attorneys for the federal government, the Kansas Department of Transportation and a host of groups opposed to the unfinished trafficway project squared off in the 10th Circuit Court of Appeals in downtown Denver, arguing about whether the road should be allowed through the Baker Wetlands.
The three-judge panel likely will take at least 90 days to issue a decision in the case, which produced 8,000 pages of documents.
“The SLT project needs to back up and choose a new route,” said Bob Eye, an area attorney who represents the Prairie Band Pottawatomie Nation, the Sierra Club and a host of other groups opposed to the road running through the Baker Wetlands.
Attorneys with the Kansas Department of Transportation and the Federal Highway Administration, though, don’t have a route change in mind at all. The road builders in November 2010 won a ruling in Federal District Court saying legal authority existed to build the road through the wetlands. Roadway opponents now must prove to the appeals court that Judge Kathryn Vratil erred in her ruling.
On Thursday, the three-judge panel was told the roadway opponents’ arguments fell far short of meeting that standard and had “devolved into technical arguments about methodology,” rather than whether the Baker Wetlands property would be harmed.
“This is an unusual case because the owner of the property in question (the Baker Wetlands) is a proponent of the project because they’re confident it will improve the property,” said Ellen Durkee, an attorney with the U.S. Justice Department. “The mitigation plan for the property is comprehensive, and it will improve the property.”
The nearly $20 million mitigation plan will move both Haskell Avenue and Louisiana Street farther from the current wetlands, will add about 260 acres of new wetlands to the area and will create an endowment for Baker University to care for the property, among other items.
But roadway opponents said highway officials have misrepresented the likely impact the road will have on the area and don’t understand the cultural significance of the wetlands or of the southern portion of Haskell Indian Nations University, which is adjacent to the route and includes a Medicine Wheel and other spiritual sites.
Indeed, one Haskell student came up to the acting secretary of KDOT after the hearing and asked her how she would like it if someone injected large amounts of noise into her church service.
“That’s what that area represents to us,” she said.
Noise was a major issue that the three judge-panel asked attorneys about during a session that lasted a little more than 30 minutes.
Roadway opponents argued a noise study on the project was incomplete because it did not measure the predicted noise levels of the new SLT against the existing noise levels created by 31st Street. Such a comparison is part of the guidelines for a federal noise study. In fact, roadway opponents even pointed to a specific sentence in the noise study that admitted the two noise levels weren’t compared.
The road builders acknowledged the sentence, but said it was inaccurate because data in the report showed the two levels were compared. They also countered that the state has committed to building the project with noise barriers that will not allow noise levels in the wetlands to be higher than they are today.
Roadway opponents urged the court to find that federal highway officials had not properly researched the feasibility of a route that would build the bypass south of the Wakarusa River. But federal officials said they did study such routes. They found that the route would not take as much traffic off of local streets and would not prevent as many accidents compared with a route through the wetlands. Opponents dispute both claims.
Thursday’s arguments could be the last legal step for the project, which has been debated for more than 20 years. Once the 10th Circuit rules on the matter, the U.S. Supreme Court is the only other court that could hear an appeal on the case. The Supreme Court agrees to hear only a fraction of the cases that apply for review.
If state and federal officials prevail in the lawsuit, construction could begin by late 2013. If the court rules against the wetlands route, state officials have said the project would likely face an indefinite delay.
The trafficway project is designed to connect Interstate 70 to the west of Lawrence with Kansas Highway 10 east of Lawrence. The first two lanes of the western half of the road are built, but the bypass currently ends at Iowa Street.
Neither side said it could read much into the few questions that the three-judge panel asked during Thursday’s proceedings. But Eye said there was one point that he was certain of, regardless of how the ruling comes down.
“The passion will not go away,” Eye said. “I’m sure of that. We believe we have an extremely valuable resource that could be lost forever.”