Wakarusa Wetlands Dispute Decided in Tenth Circuit Court
A group of students from Haskell Indian Nations University lost a major skirmish in their battle to save the Wakarusa Wetlands, long associated with Haskell history and traditional cultural practices, when the U.S. Tenth Circuit Court of Appeals ruled July 10 that government environmental studies were adequate to allow major highway construction through the wetlands area.
The students challenged noise, safety and other aspects of the government’s preferred highway route in south Lawrence, Kansas and its alleged lack of compliance with the National Environmental Policy Act (NEPA) and related laws. They underscored their opposition via a thousand-mile, cross-country trek dubbed the Trail of Broken Promises to Washington, D.C. to advocate for sacred sites protection.
In addition to the students’ Wetlands Preservation Organization (WPO), the Prairie Band Pottawatomie Nation, Sierra Club, and several environmental groups also objected to the Federal Highway Administration and Kansas Department of Transportation plan to construct a $192 million, 6- to 10-lane bypass—the South Lawrence Traffic way (SLT)—to connect Kansas Highway 10 with Interstate-70.
Haskell professor Daniel Wildcat, Yuchi/Muskogee, WPO faculty advisor, said the verdict was like “adding insult to injury” when the court ignored Native voices about the history and importance of the wetlands.
Haskell was a boarding school during a period when “our very identity was threatened” and children there used the wetlands as a place to “speak their language, sing their songs, and offer prayers in the days when they received corporal punishment to do so,” he said.
The Prairie Band Pottawatomie Nation’s role in the lawsuit mirrored the history of other tribes whose families had been involved with Haskell for generations, he said.
Jessica Lackey, Cherokee, who was WPO president during the wetlands controversy, said she was “heartbroken” when she found out about the verdict, but noted that Wildcat and others “reminded us this is just another step in the battle, and we’ll find other ways to keep the highway from being built.”
Robert Eye, an attorney for WPO, said he has been involved in the Wakarusa Wetlands issue for some 26 years and believes that “if a wetland [area] with this value can’t be protected, I’m concerned whether wetlands anywhere can be protected.” He noted that more than 90 percent of wetlands in the Midwest have been lost.
Attorneys in the case haven’t decided whether to pursue a rehearing in the Tenth Circuit, an en banc hearing there, or a petition to the U.S. Supreme Court, he said.
He said he was “very, very disappointed” in the verdict, but “certainly not resigned” as he and others “are trying to figure out what other legal means would be appropriate.”
The government considered a southern bypass route south of the wetlands, that, planners said, “would hasten undesirable urban development south of the Wakarusa River” and pose safety concerns, compared to a more northern route, the government’s final choice, which would destroy more wetland acres but which under its mitigation plan would create a greater net wetland acreage.
A proper NEPA analysis would have resulted in an alternate SLT route that would have bordered, rather than crossed, the wetlands area adjoining Haskell, opponents said, noting that the wetlands are treasured for their biodiversity and such cultural sites as a Medicine Wheel earthwork.
The opponents proposed a previously unstudied alternative route for SLT around the wetlands but it was rejected by the government, which contended that “sharp curves in the route rendered it unacceptable from a safety standpoint,” according to the court.
“Finding no fatal flaws in the environmental impact statement or the prudence analysis [referring to a determination there was no feasible and prudent alternative to the selected route], we affirm the judgment of the district court,” the three-judge federal appeals court panel said, concluding that the environmental and other analyses “were not arbitrary and capricious under the APA [Administrative Procedure Act].”