Highway 164 lawsuit survives federal challenge

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By Sean Ryan

The leaders of two grass-roots organizations say they are ready for an appeal after a U.S. district court upheld their challenge of the widening of Highway 164.

The U.S. district court judge’s decision to uphold the ruling not only reinforces attempts to stop the widening of Highway 164 in Waukesha and Washington counties, but offers the chance to broaden the effect on highway planning, said Steve Schmuki, president of the Waukesha Environmental Action League.

“At a greater level,” he said, “it would be nice if they have to adjust the way they approach all projects.”

The Waukesha County Environmental Action League and Highway J Citizens Group last year won a lawsuit challenging the 2001 plan to widen Highway 164. The groups filed the lawsuit against the U.S. and Wisconsin departments of transportation, Federal Highway Administration and U.S. Army Corps of Engineers.

The federal agencies asked U.S. District Court Judge Lynn Adelman to reconsider the decision. Adelman on Tuesday refused to change his ruling.

Doug Hecox, FHWA spokesman, said the administration does not comment on litigation. Representatives from the Wisconsin Department of Transportation were unavailable to comment before deadline.

Adelman scheduled an April 7 meeting for attorneys to raise any other issues before the judgment becomes final.

According to Adelman’s ruling, the planning for the Highway 164 project does not satisfy federal standards because the agencies did not adequately justify that widening the highway would not affect development in the area. The agencies also fell short of federal standards, according to the ruling, by inadequately explaining why alternative projects were rejected.

Adelman’s ruling also criticized the public hearings for the project in which residents could testify to planners or write comments but could not ask questions in an open forum during which others could listen.

A portion of the Highway 164 widening was completed before the two organizations filed their lawsuit, said Jeff Gonyo, a member of the Highway J Citizens Group steering committee. As the case worked its way through court, he said, the state and federal agencies completed two more phases of the project.

But Adelman’s ruling leaves open the possibility that the portion of the highway between Ackerville and Sussex will not be widened from two to four lanes, Gonyo said.

The federal agencies could appeal the case to the U.S. Seventh Circuit Court of Appeals, but that would only broaden the decision’s influence if Adelman’s ruling is upheld, Schmuki said. The decision now can only influence cases in the federal court for the Eastern District of Wisconsin, but the appeals court could broaden the reach to cases and highway planning in other states, he said.

Although the Waukesha Environmental Action League members are only concerned about the Highway 164 project, Schmuki said, he would prefer a broader application.

“On a personal level,” he said, “not speaking for the organization, I’d love to see that become the standard across the country.”

Gonyo said his organization is prepared to take the case to the U.S. Supreme Court if necessary.

“Absolutely,” he said, “We have been fighting this battle for 11 years, and we have been in federal court for five years.”