Arizona Interstate 11 project still has a chance
By Howard Fischer
Capitol Media Services
PHOENIX -- A challenge to plans to build the 280-mile Interstate 11 project from Nogales to Wickenburg has survived a key legal challenge.
In a new ruling, U.S. District Court Judge John Hinderaker rejected arguments by the Federal Highway Administration and the Arizona Department of Transportation that any legal objection is premature. The federal agency insisted that no final decisions have been made where to place the new road.
But the judge said it is clear that the Federal Highway Administration, which makes the initial determination, already concluded that neither the Ironwood Forest or Sonoran Desert national monuments qualified for special consideration under federal law that would require it to study whether the highway should be placed elsewhere. And he said there was no analysis done on the ecological impacts to Saguaro National Park or Tucson Mountain Park based on the agency's conclusion that neither property was a wildlife or waterfowl refuge.
And even after an initial review, Hinderaker said that documents show that properties designated as not entitled to protection as highway placement determinations are made actually "kept their unprotected designations even after feedback from the Bureau of Land Management, the National Park Service, and Arizona Game and Fish, among others.''
What makes all that relevant, the judge said, is that it appears that some decisions already have been made.
"By not designated certain properties as protected or unprotected under (the federal law), defendants finalized certain legal obligations, or lack thereof,'' Hinderaker wrote.
In fact, the judge said, the evidence appears to show that the Federal Highway Administration foreclosed any alternatives outside the corridor unless new conditions arise. And he said the formal "Record of Decision'' by the agency "seems to acknowledge that the project, and the selected alternative corridor, will move forward notwithstanding objections from agencies following the draft and final environmental impact statements.''
And all that, he said, entitles those decisions to be challenged now, before there is a final decision.
Central to the dispute is the decision by the federal agency to approve one alternative route around the west side of Tucson.
That decision, according to various environmental groups, failed to consider the destruction to the Sonoran Desert, harm to wildlife and effects on air pollution. By contrast, they charged, those effects would be less if the highway is co-located with existing stretches of Interstates 19 and 10.
Attorney Wendy Park, representing the Tucson-based Center for Biological Diversity, said the federal agency "skewed the comparison of alternatives'' against selecting that "no-build alternative.'' The lawsuit was joined by the Coalition for Sonoran Desert Protection, the Friends of Ironwood Forest and the Tucson Audubon Society.
The plan has been defended by the state Department of Transportation.
In a filing with the court last year, John Haikowski who had been ADOT director that without an alternative to I-10, traffic will become so congested by 2035 that it will interfere with the ability of the region to function.
"Further, the success of the state economic development interests will depend on continuing transportation investments, like I-11, to maintain competitiveness,'' he said in his statement. "Worsened congestion and poor travel time reliability on the interstate freeway system would adversely affect economic competitiveness.''
And the project, which could cost anywhere from $3.1 billion to $7.3 billion, depending on the final path, also had the backing of Gov. Doug Ducey, who told Capitol Media Services years ago that the highway would "really benefit our state and allow us to be the player that we're going to be in terms of economic growth and development and trade.''
There was no response from a spokesman for current Gov. Katie Hobbs about whether she supports the project.
A spokesman for ADOT sidestepped the question of whether his agency continues to support the highway. Instead, Jonathan Brodsky said ADOT's focus with I-11 and other projects "continues to be balancing all needs including land use, environmental and population, commerce, employment and traffic, along with an ongoing commitment to work with stakeholders.''
Anyway, he said, there currently are no funds to advance further study of the path for the road.
In seeking to throw out the challenge, attorneys for the Federal Highway Administration raised similar arguments in their efforts to quash the lawsuit, telling Hinderaker the whole case is premature. At this point, they said, no decisions have been made about what route to choose through Pima County -- or even whether the project will ever go forward -- calling I-11 "a largely unfunded freeway construction project.''
Park, however, said that misrepresents the situation.
"The Record of Decision committed FHWA to development of the I-11 corridor over the 'no build' alternative, selected the vast majority of its route, and narrowed the potential routes through Pima County to either the 'West' or 'East Option','' she said in her legal filings. And all that, Park said, has occurred without the federal agency properly completing legally necessary evaluations of impacts of either choice on public lands.
Hinderaker, in his new ruling, said there seems to be enough in the challenge to let the case proceed.
"Plaintiffs plead cognizable (federal law) violations in their complaint alleging defendants failed to identify all lands protected under (the law), failed to determine how severely each property would be harmed, and failed to examine all feasible and prudent alternatives before comparing and eliminating alternatives,'' he wrote.
It isn't just the options of where the road is located in Southern Arizona that are at issue.
Park said a stretch between Casa Grande and Buckeye also would affect recreation areas as well as habitats for various endangered species. And she said there also would be environmental effects from the final stretch from Buckeye to Wickenburg.
The project, which eventually would run through Kingman and into Nevada, does have its proponents.
That includes support from local officials in Casa Grande and Maricopa who see it as aiding economic development.
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