A grass-roots group’s legal victory over the state is giving similar organizations statewide ammunition to fight highway and rail projects.
The Sept. 14 decision (PDF) by U.S. Judge Lynn Adelman sided with the Highway J Citizens Group, wiping out approval for the Highway J widening in Waukesha and Washington counties and pointing out numerous problems with state and federal planning for the project.
“If the Adelman decision is upheld, you are going to see a lot of lawsuits,” said Pat Riley, who is fighting the proposed widening of Highway 23 between Plymouth and Fond du Lac.
Federal attorneys for the U.S. Department of Transportation, Federal Highway Administration and U.S. Army Corps of Engineers are challenging the decision (PDF) and argue it should be reversed, said Bob Jambois, Wisconsin Department of Transportation general counsel. The Wisconsin Department of Justice also is fighting Adelman’s decision.
Jambois said it is pure speculation that the decision sets a precedent for future lawsuits. The federal challenge is pending, he said, and the ruling in the U.S. Eastern District Court of Wisconsin does not force other federal judges to make the same decision.
“To say that it is of precedential value, it would be legally incorrect for a lawyer to say that,” he said. “On the other hand, it may be of persuasive value.”
If the decision stands, Riley said, he probably will be the next organizer to file a lawsuit against a highway project.
But he may have to get in line.
Jim Bordeau is turning to the Highway J group for advice in his fight against a planned railroad improvement (PDF) from Plymouth to Kohler. He is asking why the state did not prepare an environmental impact statement for the project, which he opposes because of the increased train traffic that would result.
“They sued and they won,” Bordeau said, “so I want to see what they did.”
In Newburg, the Watershed Watchers Inc. is still focusing on writing letters instead of filing lawsuits, but the Highway J victory opens up the possibility of legal action, said President Marilyn John. The Watershed group, which has 85 members and sends a newsletter to about 180 people, opposes the expansion of State Road 33 from West Bend to Saukville because the road runs through a wetland and does not have much traffic, she said.
“Our theory is: Always keep the pressure on,” John said, “and make them think harder and work harder at what they’re doing.”
The grass-roots organizers do not speak for everyone living around the highway and rail projects. Expanding Highway 33 would speed commutes from West Bend, said Craig Farrell, executive director of the West Bend Area Chamber of Commerce. There is enough traffic on Highway 33 to start considering expansion to four lanes, he said.
“Certainly, the stretch between Saukville and West Bend, it’s a two-lane road,” Farrell said. “Certainly, with the growth of our community, it would be beneficial to have some road maintenance, which would be great, but also to expand the road.”
There are also two sides to the railroad debate in Plymouth. Bordeau opposes the state project to rebuild the rail, but Mayor Donald Pohlman said the project will bring in an employer with 450 jobs and revitalize the community.
“This is a jewel of an opportunity that I saw coming in as mayor,” Pohlman said.
The new opportunity for organizers to file lawsuits against the Wisconsin Department of Transportation is based mainly in Adelman’s decision on public hearing requirements.
John said 2005 and 2006 public meetings for Highway 33 were conducted in a way that, according to Adelman’s decision about Highway J, did not satisfy federal requirements. During the public hearings, people were told to give comments to court reporters instead of in an open forum, John said.
“I’m going to wait until I hear what develops from that (appeal),” she said. “But my attorney from Watershed Watchers said it’s too bad we’re not going to have any legal action here because the scoping meeting would’ve been a good place to start.”
In last week’s appeal of the Highway J decision, the U.S. and Wisconsin departments of justice argued the WisDOT meetings with court reporters satisfy federal public hearing requirements.
Riley said Adelman’s decision on federal public meeting rules also offers an edge in a lawsuit. WisDOT’s hearings for Highway 23 four years ago were done in the same way as those for Highway J and Highway 33, he said.
Jeff Gonyo, a steering committee member of the Highway J group, said the upcoming state elections in November 2010 make this a good time for people to mount a challenge.
“I think people are fed up with the way government is running right now,” he said. “They want it to change.
They want it to be more responsive to the people.”