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News and notes from around town:
• The town I speak of today is Denver. Let’s call this a special edition of Town Talk, live from Downtown Denver where oral arguments will be heard by the federal appeals court in the case regarding the South Lawrence Trafficway.
But first, three quick observations about Denver. One, the expected temperature in Denver today — 60 degrees — likely will be warmer than in good old Lawrence. Two, gasoline here in the thin air is cheaper than it is in the flatlands. (Unless prices back home have changed dramatically overnight...) I saw a sign near downtown Denver advertising $3.04 per gallon gasoline. And third, my cabbie told me there are about 8,000 dentists in town for a convention. Maybe that explains why I woke up this morning missing two teeth. Actually, that last part is just conjecture. There are least a dozen possibilities that could explain my missing teeth.
Speaking of conjecture, that a good legal word. I’m hoping to hear lots of good legal words today. Let’s get started now by boning up on the SLT case.
• First the basics. In case you hadn’t heard, there’s been a little bit of controversy about whether state and federal highway leaders should be allowed to build the SLT through the Baker Wetlands. A group led by the Prairie Band Pottawatomie Nation in 2008 filed a federal lawsuit alleging that the Federal Highway Administration didn’t properly review the impacts the road would have on the Baker Wetlands and adjacent Haskell Indian Nations University. In November 2010, however, a federal judge ruled in favor of the road builders. In other words, the SLT was free to proceed. But in a move that shocked no one, the Prairie Band and its partners — which include the local Wetlands Preservation Organization, the Jayhawk Audubon Society, the Sierra Club and others — filed an appeal in the 10th Circuit Court of Appeals.
So, one thing to remember here is that the roadbuilders have one victory in the bag. Just speaking purely from a mathematical standpoint, the odds are on the roadbuilders side in this one. More federal appeals are upheld than overturned.
But you know what my broke, gambling-addicted buddy says about odds: Odds? What are odds?
• One thing that roadway opponents have going for them is that the decision by Judge Kathryn Vratil in November 2010 wasn’t a complete slam dunk for the roadbuilders. The Federal Highway Administration, by its own admission, made a few mistakes when it conducted its study of the impacts the SLT would have on the wetlands. The roadbuilders argue that mistakes “aren’t fatal” to the project. Roadway opponents argue that they are. Let’s take a look at three problem areas of the study that I suspect will be argued about today:
• Cost. A point to remember about this lawsuit is it essentially pits two routes for the SLT against each other. The route chosen by roadbuilders, which goes through the wetlands, is called the 32nd Street route. Roadway opponents have argued that if a road is going to be built at all, it should be one south of the Wakarusa River. That route is called a 42nd Street route.
As the Federal Highway conducted its study, it compared the 32nd Street route and the 42nd Street route on a variety of factors including cost. The Feds found the route through the wetlands would be about $19 million cheaper to build than the route south of the river. But upon further review, the Federal Highway Administration had to admit that it made a “key error” in computing the cost estimates. Mainly, that about $8.5 million in costs to do wetland mitigation were omitted from the estimate. So, that would mean that the wetland route is still cheaper, but not by as much.
But (get ready for a highly technical legal phrase), hold the phone. Upon further review, the Feds said they found another error in the computations. They inadvertently had added $8 million in costs to the bridge construction estimate for the wetland route. So, if you add the $8.5 million in wetland mitigation costs and remove the $8 million in bridge costs, it is “essentially a wash,” the Feds argue in their brief.
To which, roadway opponents essentially reply, “You’ve got to be kidding me.” The roadway opponents argue in their brief that they’ve never heard of this $8 million bridge error before. It has only been disclosed in the late stages of this appeal process. Now, roadway opponents are arguing that the Feds don’t really have a clear idea how much these two routes cost, and the Appeals Court should overturn this decision and have them start over.
The Feds, of course, disagree with that. Even if the court doesn’t consider the newly found $8 million error, it shouldn’t matter, they argue. That’s because the Feds didn’t reject the south-of-the-river route due to cost concerns. They rejected the route because they don’t believe it will do as well at moving traffic off city streets, that it will harm important environmental features south of the river, and a host of other reasons. The roadway opponents disagree strongly on many of those points. The two sides could argue forever on those issues. Fortunately, oral arguments today are limited to 15 minutes for each side.
All right, on to issue No. 2, in just a moment . . . Okay, I’m back. I had to take a quick break and get helping No. 3 of scrambled eggs and tater tots here at the luxurious Comfort Inn breakfast bar.
• Noise. The Feds aren’t willing to admit that they made a mistake with their noise study for this project. But pretty clearly, their consultant wrote a sentence in his report that they wished he hadn’t. It reads, in part, “due to the conceptual nature of this project, the predicted noise levels were not compared to the existing noise levels.” That’s not the best sentence to have in a federal noise study report since the guidelines for such studies pretty clearly require that you look at the noise levels of an area today and compare them to what they’ll be once the project is built.
But the Feds argue that the sentence has been taken out of context. In fact, they argue that the report very clearly examines the existing and predicted noise levels for “various locations” along the routes.
The Feds, though, do have a potential problem here. Judge Vratil in her original ruling did find that the Federal Highway Administration “did not comply with the noise study requirements.” But, it is worth remembering, that the judge did not find the error to be so serious that the project could not proceed.
Roadway opponents, though, have seized on the error, and argue it is “fatal” to the project moving forward. In their brief, they argue that noise from the new trafficway is a critical component not only to the environment of the wetlands, but also on the southern portion of Haskell’s campus and even to the nearby Prairie Park Nature Center and homes that are east of Haskell Avenue. What little work that was done was inadequate, they argue.
And they also seize upon that one sentence in the noise study. The opponents argue that the noise consultant is the expert on noise, and he admits that he didn’t compare existing noise levels to predicted noise levels. The opponents contend the court shouldn’t accept arguments from federal attorneys, after the fact, that he really did compare such levels.
“The study’s author and expert concluded that noise increase impacts were not determined,” the opponents write in their brief. “This admission should conclusively prove it to be defective. … This is a substantial deficiency requiring reversal.”
All right, back to the breakfast bar and then on to issue No. 3. Umm, tater tots.
• Floodplain impacts. It wouldn’t be fair to characterize this one so much as a mistake, but rather a significant disagreement among federal agencies. A key argument that the Feds have made for choosing 32nd Street over 42nd Street is that the route through the wetlands actually would do less to damage the Wakarusa floodplain than the south-of-the-river option. Roadway opponents have argued that “defies common sense.” Opponents also point to a study by the U.S. Department of Interior that found the south-of-the -river option had “less impacts on wetlands” and “less floodplain impacts.” Vratil in her November 2010 decision expressed some concern that the Feds had “ignored the conflicting views” of the Department of Interior.
In other words, she wasn’t quite buying that a road through the wetland would have less impact on floodplains than a road that goes south of the river. But this is where the law gets tricky. Vratil notes that it is not her job to be an expert on floodplain matters. It is her job to ensure that the proper processes are followed.
“The court is indeed skeptical, but it is in no position to choose between the conflicting opinions …” Vratil writes in her decision.
At the end of the day, that’s the big advantage the Feds have in this case. The Federal Highway Administration is the recognized expert in conducting these studies. The Fed’s attorneys make sure to remind the court of that in the final portion of their brief.
Soon, both sides will have one last chance to express those disagreements. Arguments are expected to begin around noon Lawrence time. As I prepare to go listen, I just keep having one thought go through my mind. The entire administrative record for this case — in other words, all the paper that has been produced for the court file — is 8,000 pages long.
Here’s hoping the judges don’t choose to go through it page by page. But maybe I'll take some tater tots along, just in case.