It didn't take long for a member of the opposition to the 32nd Street alignment of the South Lawrence Trafficway to deliver an editorial to the Journal-World office.
http://www2.ljworld.com/news/2012/jul/17/religious-justice/?opinion
I'm thinking of writing a response...
- Nothing in the American Indian Religious Freedom Act gives a Native American Tribe (or a individual member of a tribe) absolute veto on a project. It requires detailed scrutiny of potential harm to NA religious practices. In this case, the concern is of damage to the wetlands as a whole, and the effects of traffic adjacent to sites now used for religious practices. The review (in the form of the 2003 Environmental Impact Statement) indicated that, as a result of predictable changes in traffic volume and land use, the wetlands complex would face a greater harm by using the purported "avoidance" route. This thesis has now been defended successfully - twice.
- Members of the anti-SLT camp have made public statements that indicate that they do not believe that any project that involves the filling of wetlands could meet legal scrutiny, notwithstanding the 2003 EIS and its successful defense. Mike Ford (the writer of this above-linked opinion piece) still states that the 2003 EIS is a "sham" and "pro-development propaganda."
Comments?
Up here the Indians did manage to get a major highway project scrapped: extending the US 169 expressway from Onamia to Garrison. They insisted on the bypass alignment, figuring they could make a pile by cheaply buying up land around it. Mn/DOT elected to drop the project because the bypass alignment was significantly more expensive and would be less effective as a lot of the traffic wants to go by the lake.
Does the tribe in question own the wetlands? If so, then the state of Kansas would most likely have to enter a tribal-state compact to use the land, which might include some stipulations on its use. If not, the tribe effectively has as much say on things as any special interest group trying to influence the government's decision.
(This is my understanding of the situation. I am not a lawyer.)
Scott... The stretch of wetlands in question were once part of the Haskell campus, and if they it were part of the campus, it would probably include direct involvment with the Bureau of Indian Affairs and/or the Haskell University board of Regents. It was Haskell's continued opposition to the 31st Street alignment (which would put the Trafficway in the existing 31st Street Right of Way corridor, which *is* technically part of the Haskell Campus) that forced the parties to abandon the 1998 EIS and (eventually) start over.
In the eyes of the Real Estate lawyers, the wetlands that will now be taken belong mainly to Baker University, which acquired the land as surplus in the late 1960s. Baker has acquiesced to the 32nd Street alternative. There are those that suggest that the wetlands should be seized from Baker and returned to Haskell because either (a) The way in which Baker obtained the land was questionable (b) acquiessing to the 32nd Street alignment has caused them to be in conflict with a provision in their acquisition that indicates that they would restore the ground to wetlands [the deed restriction they cite, however, *did* have and expiration date. Baker now carries a "clean" title
Even if, somehow, the Anti-SLT crowd were to convince a court that the wetlands should pass back to Haskell, it would not change the thesis of the EIS.
BTW, the new SLT corridor across the wetlands also involves moving 31st Street off the existing ROW. As noted above, that roadway would revert back to Haskell.
Johnathan attempted to comment on this thread while the mods were cleaning it out. Here's his comments that he sent to me via PM (he had indicated his intent to post this publicly)
Quote
I haven't commented before now because Indian affairs are a specialized area of the law of which I have very little knowledge. However, it occurs to me that the SLT could conceivably be in serious trouble if the opponents can plausibly claim that the ability to carry out traditional religious practices in the wetlands in the 31st and 32nd Street corridors is a protected treaty right. I believe the prevailing legal theory is that treaties rank just under the US Constitution as the supreme law of the land, which would imply that failure to honor a treaty right is an issue that can be raised de novo in the appeals process.
This is very far-fetched and I personally have no reason to believe that such a treaty right exists or, if it does, to which tribe it adheres. I do hope there is a KDOT attorney keeping an eye on this angle, however.
Replying to Johnathan's comments:
If there were an issue of protected treaty rights issues, the plaintiffs forfeited their opportunity to invoke it when they did not do so in the initial trial. The only new arguments that could be used in a de novo review would, basically, be changed circumstances.
How would you feel if they wanted to tear down the WTC site for a subway station?
Quote from: NE2 on July 21, 2012, 10:15:16 PM
How would you feel if they wanted to tear down the WTC site for a subway station?
You do realize that they tore down a subway station to make way for the original WTC, right....
Better analogy - let's say that my family owns a land parcel that we have built a monument to a deceased relative, or a place to collect our thought. The local DOT determines that it will need to take that parcel as part of a highway project. I would certainly be disappointed. Such an issue has happened here in Kansas before, when they widened US 24-40 in Leavenworth County.
http://scholar.google.com/scholar_case?case=12804161077628636533
Quote from: route56 on July 22, 2012, 12:25:25 AM
Quote from: NE2 on July 21, 2012, 10:15:16 PM
How would you feel if they wanted to tear down the WTC site for a subway station?
You do realize that they tore down a subway station to make way for the original WTC, right....
Sort of... they put the H&M station underground.
How is this a bad analogy? We have a site that is supposedly sacred to a number of people (I haven't looked at the details of this swamp, and I doubt you have), which KDOT wants to take for a highway.