reed thank you may it please the court david rosen vom representing the heel of river indian community as a point of protocol i'd like to acknowledge the presence of the governor of the hill river indian communities steve lewis  shanker and i agreed to divide our time equally we would each like to reserve two minutes so while trying to go about eight i want to focus on section four f of the department of transportation act its requirements are strict to use for f property there must be no feasible and prudent alternative which means under the case law and the regulations that  highway may not use for f property unless there are truly unusual factors such as community disruption reaching extraordinary magnitude the record shows no such findings by the agencies instead the agency say that they satisfy their four f obligations because any alternative to building this sprit way in the e u one alignment which is east to west bordering within feet of the heel of river indian community and then turning north until you reach the western alternatives that any other alternative but the one would not meet the project's purpose and need but one can't narrowly draw a purpose and need statement to avoid for f obligations to take the hard look that for f that overton park that stop page three say has to be made so they never did a careful examination of any alternatives south of healing river any of the non highway alternatives because they concluded that those alternatives wouldn't meet the purpose and need the purpose and need being they said a major transportation facility the highway in the study area you see the study area on the map on page sixteen of our brief it is a car door south of south melton and north of pecos road now if the alternative were other alternatives the us sixty alternative which would have been which would have been north and of course the non freeway options council had what wasn't but the think the answer to judge fletcher is question wasn't that route fifty four miles south of downtown phoenix yes but understand the traffic congestion that is trying to be solved by this freeway most of the traffic congestion if you look at the various charts are north of south amount and that's where phoenix scottsdale tempe all of those densely populated communities are so this is in a way an effort to divert some of that traffic around the city  so people are living in the far south east valley and somehow they want to go to the far west side of phoenix they could avoid the main and rush hour traffic in phoenix i understood that that route south of  land would be too far south to meet that need we don't know that because that traffic analysis was never done and that's the problem i mean look at the traffic studies here this is  the congestion solution that it would have to be way to feel for if analysis was done against this is very harm to fore aft properties and we're not talking about let me out of that question about that it  if the map basically of the the project and am i correct in looking at that map if the route had been moved just a few hundred yards south of where it is would we have avoided the four f property entirely no no no because they had that that three ridges that will be blasted through are after th turn to the north to the north west so the even one corridor my question is if if that route were moved just a little bit further i guess in this case it would be south west would that problem be avoided there's nothing in the record suggesting that at all but when you know the answer to the question i mean you've lived with this case for i think the answer to the question i can't cite you in the record is no the ridges will will will still be impacted ridges continue on to reservation land so if no us is some degree south west into the reservation land you nonetheless going to go through the ridges because that geographical feature is continued there will still be impact not on necessarily south mountain park but understand that the four f property here is traditional cultural property as well the record shows according to the agencies that three point one miles of this freeway not just the thirty one acres w go through south mountain park that is traditional cultural property to hill or river but if i may let me get back to that i want to get answer my question on this very understand your answer because i am looking at this map and it looks to me like if if the route were altered just slightly to the left and to the south so too against of the southwest into the south that it would avoid touching the regional park completely write it i can't give you the dimensions the problem is that analysis is never done in this record council it's not a hard question it is the answer yes or no that the answer is i don't know how many yards or feet or miles one would have to go to avoid the mountain as opposed to the regional park but you agree with me that it would avoid the park and i hear your argument that for f also includes  cultural well and but the problem with with i think underlying my question is that the tribe voted twice not to sell or give up any of its land to address to try and  resolve the impact at least on on the park and it right it did but there were many other alternatives that would avoid the use of four f property all entirely which were never studied so let me take a didn't they look at other alternatives including no action no accident i read yet huge section the only i a s that is the only comparative it measuring traffic congestion is between no action and build the one there is no analysis of the impact on traffic congestion of any of those other alternatives and but but they did analyze non freeway options more buses improvement and in arterial streets etc which remarkably showed a greater reduction a greater reduction in traffic congestion then the freeway they are predicting a thirty one percent inc level of unmet traffic demand in twenty thirty five that is reduced to twenty percent they say so i mean their data is appropriate they say if the freeway is built that number reduces to eighteen percent it's a thirteen percent reduction through non freeway alternatives so i thought i read that question is if you want to take some measures to reduce that demand you have to weigh those benefits against the magnitude of the harm of this forest property and they never did that because they said any alternatives other than the e want to line meant means we don't need to study it so there's nothing in the record showing what's in the seventy thousand page record here everything but what i just said there is there is there  they say in their own briefs and it's throughout the record that they rejected those other options at the initial stage stage one screening they looked at north of phoenix and stage two never went to three four or five and no comparative traffic analyses and that's what they need to do i promise mr shanker that i would think i would need up his time and i'm already halfway through that you know you wanted ten minutes on your good morning your honour's howard shanker for the park plaintiffs collectively first i'd like to point out that needs at its heart is really a procedural statute and what we have here is a failure of process so for example the law says that you can't have a purpose a need that's so narrow that only one alternative will satisfy it well here they talk about a major transportation facility but they expressly define that as the south mountain freeway and with the gift of hindsight we see that any alternative that's not the south mountain freeway is dismissed because it's not consistent with the purpose and need for the project well am i wrong i thought that the surrounding property that is not parkland was already substantially developed well or get what the numbers are about iran or that's more than two thirds two third that's actually a misnomer because they cite to look good for the proposition and let me g the exact numbers this had to do actually with the analysis of the no build option what what defendants did is they used the same model the same socio economic same demographic model arguing eighty eight percent which to me seems to be pulled out of whole cloth because according to the environmental impact statement it says approximately fifty seven percent of the study area is developed the remaining forty three percent consists of agricultural land twenty two percent undeveloped land ten percent and open space eleven percent so this really is not a situation where the area is completely developed and frankly just going back to  that doesn't that include the zoning that has already been put in place for future development i'm not sure your honor i want to read that in the resulting doesn't preclude future development or changes and in fact if you look  at but don't you have to consider that i guess is what i'm asking i assume you have to consider but if you look at laguna and i believe it was in footnote eight they actually had development contracts and commitments that they were talking about when they came up with the ninety eight point five percent number so the problem here i mean as i understand it what we're dealing here doing with here is basically the southwest quadrant of the greater phoenix metropolitan area and trying to address the growth that has already occurred in that quadrant and that is expected to grow in the future is that what all this planning was about i think if that's what the planning was about we wouldn't be here today in court i think what the planning is and i'm having a hard time i mean i'm not understanding  i thought i thought that the transportation planning that we're talking about here has been ongoing for thirty years and on the record talks about hundreds of public meetings just with the g r i see alone and i don't know how many other  where you're on one of those one of the problems is this is a study area and a right of way that right benefit in the one nine hundred eighty s that the state is simply carried through in the changes on the ground are significant so they continue the study but the alternatives analysis memorandum that they rely on in that they cite when they try and include in the ass as opposed to discussing a reasonable range of action alternatives that was actually published in october two thousand and two the record regulations also tell you and let me give you an exact quote what it was a record of this is filed in this case two thousand and fifteen fifteen yes so i mean doesn't mean i haven't read all seventy thousand pages but isn't that what what constitutes the record in other words all of this planning that's been done by the metropolitan area group all of the public scoping all of the notice and comment isn't that what the record is full of covering a period of decades your honor and the regulations and guidance documents actually addressed that according to if they did w a guidance and i'll quote in most cases the assessment of the affected environment and environmental consequences conducted during the transportation planning process will not be detailed or current enough to meet any standards and the law is very clear that these transportation planning documents have to meet need to standards so what we're seeing is a right of way that might have regional transportation needs in the one nine hundred eighty s now it wouldn't and frankly going fifty three miles south of healing river probably would do a better job for the truck route that's supposed to go around phoenix this will not alleviate traffic during rush hour but that's not our judgment call to make is that don't we have to defer to the metropolitan transportation planning authorities decision that that's too far south in order to meet the need or you're everything went to court to substitute it judgment for that of the agent i'd like the court to impose the process that's required by law so here you have a purpose a need that allows for one action alternative you don't have an analysis of a reasonable range of alternatives and then with your no action alternative there's no baseline data and it's well settled in this circuit that  alternative using updated socioeconomic projections that do not assume completion of the south mountain freeway in the final yes there continues to be a lack of analysis regarding the projected differences in land use and emissions if no freeway were to be built to model traffic volume speed on a missions by removing the road segments representing south mountain while leaving the socio economic inputs constant does not provide an accurate comparison of these alternatives as is required underneath so we have an inadequate purpose and need no analysis of a range of alternatives and a flawed no action analysis i see my time is running a little low ad i would like to address briefly the aran impacts on children because i think that our briefs could have been a little bit clearer on that defendants of asserted that children are located in the same areas and thus have the same exposures as the general population and that they did a quantitative hotspot analysis and found that it wouldn't cause a violation of next national ambient air quality standards as a result they're saying that children the impacts on children don't need to be evaluated again give us how can you do that for a specific area in other words if you're looking at air quality in the entire valley of the sun how do you localize the impact on air quality from this particular project well there i mean are there are there tools that exist there are actual do that yes your honor there are tools and in fact with the e p a said about that was the conclusion in the final yes the children i have only accounted for in the analysis contented for the population as a whole does not meet the intent of executive order thirteen zero four five the construction of an eight lane freeway with diesel truck volumes of up to seventeen thousand pre date in an area with a large population of children constitutes a need to analyze disclose and mitigate impacts to children so there are actually two processes one is for m sats the mobile source air toxics those are different then the next what defendants say is mobile source air toxics in the entire study area will be reduced by ninety one percent what do you ph again said is the conclusion that i'm sad emissions will decrease by as much as ninety one percent pertains only to the overall study area and does not apply to the potential impacts that may be experienced directly adjacent to the project corridor so for things like benzene formaldehyde diesel particulates they do no roadside analysis at all and there are seventeen schools within a half mile of this right of way because it was selected in one nine hundred eighty  with regard to knox those are different what they looked at with the national ambient air quality standard was only pm ten and carbon monoxide and they did a hot spot analysis but with next what we're saying is they didn't do the analysis improperly the analysis was proper but they can't use that as a shield to say that they don't have to analyze impacts on children because first of all necks are set for a specific criteria pollutant they don't take into account the cumulative and synergistic impacts of emissions of m sad you're starting to lose me with all the science but but isn't this the area underneath where we have to give the agency the greatest lance counts you don't have to give them the greatest deference because they're not exercising their expertise they're failing to observe the process required by law on sense and you're argument is that they that they exercised bad science and and i thought that's what we we addressed in that's actually the argument that the e p a is making your honor the norm you point out that ok and the e p a created these tests so for the toxic pollutants the e p a says you need to do some near roadway emissions test and you just ignored it completely and for the next the science was fine but but it doesn't account for all of the impacts ok we've taken you slightly over your ten minutes well we'll do with both you and mr rosenbaum give each of you the two minutes rebuttal that i think you hoped to sa side please the court i'm john arbab appearing on behalf of the federal applebee's with me at counsel table is thor and he is representing the state applebee's and we will each be arguing for ten minutes your honor so i think the best way to deal with this is if i can respond to the specific points that were made by the plaintiffs to counsel here this morning first of all and section four f judge tolman was quite right about not only the very small amount of impact that there is on south mountain park but we very small amount of it they're cutting through three ridges no your honor it sounds like a very small impact your honor only only two bridges are in the park and the the total footprint is thirty one acres down from it was scaled down from forty acre footprint and so that's about zero point two percent of the sixteen thousand six hundred acre area it's the level of the ridge line and then the level of the freeway that's going to be cut through i'm not sure how high up in that in the air the roadway will pass as it goes through those two two peaks but another important point is that i think it was if you don't know that it's hard for you to tell me that there is minimal impact no your honor you're the height the height above ground level it's not it's not really the key the more relevant factors are the small footprint only thirty one acres out of a sixteen thousand acre park but also you know i i'm not sure i want to spend too much time on this one but if what we're talking about is cutting a deep gash through ridge line and parkland with the freeway  the fact that the freeway space that's occupied by the roadway itself is very little doesn't tell me very much about the visual or logical impact of the freeway you're under there is evidence there's discussion in the  s about the visual impact and it it will it will be very minor there are medication to make the roadways a passage through those two peaks blend in as much as possible with the natural scenery another important factor is that i think three point one miles of the highway will pass through the park but that's that's incorrect it's only nine tenths of a mile so we're talking about a relatively small footprint on the park that will have very little under the south of south of great land alternatives were seriously analyzed and the determination was made that that alternative passed so far south of downtown phoenix that it would not be used it would not it would not help to alleviate the problem that that this entire project was designed to address my understanding is an awful lot of the traffic that's going to go through the freeway to be built is actually going to be traffic that's coming there's a separate route that is a way of bypassing there's discussion in the f b i s about a truck bypass that that is a completely separate road that that already exists but that is not that that hasn't proved to be a solution to the problem that this project is set up to is designed to address and the agency gave very careful consideration to two other alternatives the if you go south of grik as as it has a right to do as a sovereign decided not to allow any alternative to be constructed on on its land so that put the agencies in something of a bind they had to either go north of  lander south of greg's land and the four f analysis is quite detailed about why the south of brick land and north of the park alternatives are not are not prudent and reasonable for  next i'd like to address a few of the arguments that mr shanker made in regard to nepa first of all we're not talking here about the agencies using an  included a roadway somewhere in the study area that was done by the local agencies the maricopa agencies in two thousand and fourteen it's very recent so the local the local agencies who are the sponsors or who are asking for federal funding to build this project and as far into the nepa process as twenty fourteen they are they are reaffirming that yes we think in our well i think the key word is reaffirming anybody who looks at the record here knows that the freeway that's now being proposed was proposed in roughly the same form beginning in the one nine hundred eighty s and plans were made to sort of not do excess building that would then get in the way of it i mean that question has been looked at again and again and by the local agencies and they still believe that a roadway in this area is is appropriate and necessary and it's not the the  recall that in the western so called western part of the study area there were three alternatives w fifty nine w seventy one and w one o one the fifty nine alternative was  on existing communities north of the park their failure to satisfy the purpose a need so it's not really true to say that those things were alternatives were rejected just because they didn't meet the purpose and need i would also  with regard to watchers question wasn't that the same situation that we faced in city of carmel with regard to the route for highway one between monterey and carmel valley so the word route that was ultimately chosen was the one that everybody had been focusing on for decades yes i think that case i believe does support the agency's position here because it illustrates that there's nothing as far as and concerned or really any any statute issue here there's nothing sinister or untoward about an agency having in mind an alternative at the beginning beginning of the process but to say on the seventy thousand page record is just ominous pointing out that the outcome here was sort of preordained or was not done in good faith because the agencies all along would or would refuse to authorize anything else at the end of the day that the record just does not bear that out but doesn't he raise a process and i've see same process process as everything that is mr rosenbaum is everything here and he's saying that the nineteen eight is a study that was done or i'm asking whether or not that one thousand nine hundred started it was not whether or not the later studies that you say many studies were done whether or not that cures it if that's a good word the court the concerns that are being raised about whether or not is satisfied for well doesn't it isn't that what he's arguing that you've taken all that does sound like mr shanker is argument but i'm asking i don't know it might not be as argument i'm asking if that is his argument that is what is you answer that if that's his argument it's simply not borne out by the record i'm about to take up mister thorne's time so i would just ask the judgment of this record be a firm thank you we'll start with a clean down minutes your honor robert thornton on behalf of the arizona department of transportation and the director of the department i'd like to respond to the court's last series of questions regarding this issue of so called one thousand nine hundred studies first understand your honour's congress has mandated a very elaborate transportation planning process found in twenty three u s c one thirty four one thirty five the statute requires transportation agencies to look at least twenty years out of the future so transportation planning necessarily by law looks decades into the future now that's not a static process your honor the same statute mandates that the regional transportation plan is updated every four years so it's not a static process it's  dynamic process that looks at situations circumstances are changing that's precisely what happened here yes the original regional transportation plan that's relevant was adopted in one nine hundred eighty five subsequently updated many times most recently in two thousand and seven to reflect the changes that congress adopted in two thousand and five and throughout those changes your are as the as the years have progressed through statutory changes congress has made it crystal clear that the analysis of individual transportation projects in a nepa document is necessarily linked to the policies and objectives established in the regional transportation plan this is what congress stated in twenty three u s c one thirty nine f that's what this court found in honolulu traffic dot com versus federal transit administration and that is consistent with a line of other ninth circuit cases holding that the purpose in need of a project is necessarily linked to the statutory objectives and the statutory objectives in this case set out by congress in twenty three c one thirty nine is that transportation planning governs and is important to the analysis the  mom's argument that i thought he was inviting the court to ask act as trant traffic engineers and is just almost comments indicated clearly that's not the proper role of the court here all of the transportation agencies the metropolitan planning organization the state of arizona arizona department of transportation the federal highway administration have all looked at the traffic made in the transit needs and decided that this project is needed project now i wanted to go to respond to judge tolman's inquiry about city of carmel by the sea and purpose in the in city of carmel by the sea there was a very similar challenge to the hatton canyon freeway project alluded to again a project that had been studied had been on the planning documents for a long time and the plaintiff's argument there was that the objective that was set out  e was a reasonable objective reasonable transportation objective and was not so narrow as to violate the requirements to analyze a reasonable range of alternatives now with regard to the alternatives there's been a i think a mischaracterization by by allen's council regarding the record chapter three of the e says in excruciating the long discussion of the lengthy process that was used not just excepting the regional transportation plan determination but revisiting that entire analysis including traffic analysis i would say agony your honor i appreciate that and that will be good advice to the to the preparers of environmental documents i think sometimes like you to original documents had larger print you reduced it when you put it in the r and i polish john of that may have been a function of the what you need to do in your use of p d f i don't know but but i appreciate the court's comment about that so there there was a broad range of alternatives analyze including going back to relook at mod is the document describes most rescreen down but not without significant analysis with regard to this issue of section for f mr rosenbaum alluded to the unusual circumstances standard that ignores the now well established line of cases in this court that the federal highway administration can determine that an alternative is not prudent if it does not accomplish the purpose in need of the project and again we would cite to this court alu traffic dot com versus federal transit administration again where the same argument was made that they didn't adequately analyze reasona honolulu traffic dot com unlike the plan here the regional transportation plan in hawaii said the objective is to build a high speed elevated transit facility from the west of the walk through downtown honolulu it was a quite specific objective articulated in that in the transportation plan much more specific frankly than the purpose articulated here which is chapter two describes is to accomplish the very significant need now i wanted to in specific answer to judge thomas question your honor you're entirely correct if if the project were to be moved in the area of south mountain one hundred yards we would be on the healer river indian community land and with and with regard to the terrain there basically when you get to the border of the healing river innings you need liane's and the project flat there and then the ridges start going up there is of course is need for required and extensive analysis of visual impacts on the mountain those were not hidden those were disclosed they were described responded to comments now i  wanted to shift to the mr shanker arguments with regard to air quality first there is it is uncontested in this case that this project meets the requirements of the clean air act the environmental protection agency stablish is for what are called criteria pollutants national ambient air quality standards carbon dioxide particulate matter ozone under section one and nine of the clean air act those are set on the basis of potential health effects with a adequate margin of safety considering the potential impacts on sensitive populations including children there complied with the clean air act requirements with regard to mobile source or talk to x there were there was substantial disagreement and substantial discussion amongst the agencies during the process frankly between the draft and the finally i arizona department of transportation federal highway administration sat down for months many many months with the environmental protection agency to do additional analysis of the mobile source air toxics issue there is extensive discussion of the rationale for why it is the precise methodology the e p a was suggesting was not adopted but there were frankly modifications to the methodology so for example mr shanker referred to one study area that was used for mobil source  that's factually incorrect in response to public comments the transportation agencies divided the steady area into two basically the the the developed area on the east project what's the area called concluded that in twenty thirty five the the amount of mobile source air toxics emissions would be reduced by approximately ninety up to ninety percent depending on regulate emissions of automobiles and it's a very effective regulatory scheme just finally your honor this project will not be used for people like me driving from los angeles to phoenix this is not a disneyland bypass this is to address the very acute congestion this documented in the record of congestion on the existing highway an arterial system in phoenix before you sit down with the chief permission if we were to  to enter injunctive relief here or send it back and stop the project what kind of costs would the public incur i want to know the practical impact of the practical impacts as it would be i think i'm doing this f minutes on the clock first from is ruined thank you want to briefly address two points one the impact on the for f property that is the traditional cultural property  if you look at volume eight of the supplemental record at fifteen zero five and fifteen zero six in discussing south mountain more dog dog as a traditional cultural property it says direct use the e one alternative i had to blow this up on my i pad it is small the e one alternative would result in direct use of the c p t c p approximately three miles of the free may alignment go to the next page would pass through the mountains and what effect this other and southwestern portions of the t c p so that's where i got that we're not talking about just thirty one acres of parkland which i don't want to minimize but the respect to read where the tribal cultural officer i may have the title wrong had signed off on this project at some point is that not true that absolutely not at every stage in this process and you'll see it throughout the seventy thousand pages that dr has expressed its objection to the project what the tribal officer did say is that he is involved in the mitigate effort with a dot and they are cooperating in the mitigate effort but the medication sent was to the mitigation at it's if if somebody is coming to destroy your property and you have a chance to mitigate some of the harms you will cooperate and that's what's going on more than cooperation i didn't the tribal officer concur in the mitigation plan that was proposed there if there is agreement on a mitigation plan a disagreement in the need to mitigate in the first place i understand right statement the agency's right that even with medication implementation of the proposed action would alter direct physical connection of community members with their homeland talks about how important the mountains are in the history and the flaw here is that in none of the prior traffic planning was there any evaluation analysis of the four f issues the purpose and need statement in this case was prepared in two thousand and three if you look at the record as a chart of announced meetings they were to a dot public meetings prior to the preparation of the purpose and need memorandum that supplemental record it participate in the so that i mean they've been they've been involved in these transportation planning meetings for decades that they they are one of about thirty to thirty five members of mag every town city you know i think that they speak up and make comments when they when they have concerns about what's being proposed there there is nothing in this record showing that at any meeting in any agenda there was any discussion of four if issues it's not their obligation at a mag meeting which has all sorts of other items on their agenda to raise the four if issues and what the regulations say is that if you're going to rely on prior regional planning prior traffic planning at some point there has to be consideration of the appropriate issues underneath there for under four f so when the purpose and need was nailed down if you read the page one of that purpose and need memo in two thousand and three says this will be the basis of chapter one of the final environmental impact statement and it so it was eleven years later and the purpose it made was build this freeway thank you very much mr shanker if you put two minutes on th runners first i want to make clear that the f h w a guidance with regard to transportation planning specifically says that the environmental impact statement ultimately will be judged by the standards of clickable underneath the regulations and guidance from the c e o q to the extent the information incorporated from the transportation planning process standing alone does not contain all of the information analysis required by need and it will need to be supplemented by other information contained in the us so what we have here is a tremendous failure of process they also talked about the statutory context and honolulu traffic that was to provide public transportation between one of the most congested urban corridors in the country the physical limitations were palpable and his list is different from city of carmel where where the geography between monterey and carmel valley was such that there really was only one feasible route that could be going to address unless they went through protected areas of haddon canyon well the geography here has nothing to do with that it is feasible to go south of healer river i actually live an hour tuki this is going to have no impact on my ability to get into downtown phoenix thirty years from now or the day it's built it's just a truck bypass that's ruck bypass to tucson the i eighty five is but a lot of trucks will now not take that truck bypass because this is going to be fast and every a little bit quicker and it's going to take them through a bedroom community so there is an existing truck like that  hire mitigation for for choirs all possible trying to mitigate harm in this case they didn't even have the fifteen percent design plan until after the record of decision was issued clear that's not all possible to have them with that is this kind of a chicken and egg problem that  you can't wait too far into the process before you begin and so the statute there or the regs or whatever say started fifteen percent i know you're on your way to law the only prohibition is not having it designed to one hundred percent in the transportation statutes but where they were just a fifteen percent cover of it's and that is a very it's a completely arbitrary number and you can see from both the mitigation and the four f analysis they put off a number of the mitigation planning until the design