While the judge decided not to halt the drainage project, his decision could lend momentum to a federal lawsuit against the highway expansion through north Denver neighborhoods.
By David Sachs
Denver District Court Judge David H. Goldberg won’t stop a flood control project at City Park Golf Course tied to the widening of I-70 through minority, low-income neighborhoods in north Denver. But he did say the drainage work “may be a thinly veiled subterfuge” to grease the skids for the highway expansion, which could prove relevant in a separate federal case against the I-70 project.
Plaintiffs suing the City and County of Denver argued that the true purpose of the project — which is absent from the city’s 2014 Storm Drainage Master Plan — is to protect the Colorado Department of Transportation’s I-70 expansion, which promises to increase traffic and pollution for years to come.
The $1.8 billion I-70 project would sink a portion of the highway 30 to 40 feet below ground, creating a flood pocket during large storms. Having the city assume the burden of drainage infrastructure shifts costs from CDOT and private companies to Denver taxpayers who pay a stormwater fee, advocates argued.
The pending case against the highway widening in federal court won’t be bound by such narrow legal concerns, however. That suit argues the Federal Highway Administration should not have approved CDOT’s widening without including the flood project in its environmental analysis.
which may result in significant detrimental chemical and biological changes to the soil and golf course that could take up to 10 years to manifest,” according to arborist Rebecca Wegner, who testified for the plaintiffs.
Goldhamer filed an injunction last month to stop CDOT from beginning construction before the federal case is heard. The request is still pending.
If a federal judge orders CDOT to redo its environmental analysis to include the drainage infrastructure, that would stall the widening, Goldhamer said, likely beyond next year’s election of a new governor. The question of whether to stop the expansion would then fall to whomever Coloradans elect to replace John Hickenlooper in 2018.
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Contact: Aaron Goldhamer
FOR IMMEDIATE RELEASE
Zeppelin Plaintiffs Move to Enjoin I-70 Widening Project
September 18, 2017
On Friday, a group of Denver citizens—including developer Kyle Zeppelin—filed a motion in Federal court to enjoin the Colorado Department of Transportation (“CDOT”) from proceeding with its controversial plan to expand I-70 through Denver. If the motion is successful it could bring a halt to the highway project, which has been derided by critics as an expensive and backwards-thinking boondoggle that threatens the health of predominantly low-income and Latino neighborhoods in north Denver.
CDOT and the Federal Highway Administration’s (“FHWA”) alleged failure to comply with the National Environmental Policy Act (“NEPA”) is the basis for the sought injunction. Namely, the plaintiffs assert that CDOT and the FHWA are proceeding with the I-70 project without two areas of required study: (1) a failure to study the effect on human health of the project in light of the disturbance of toxic materials present in the Superfund site where the project is located, and (2) a failure to study the environmental and other impacts of the City of Denver and CDOT’s joint proposed “Platte to Park Hill” drainage project, which the plaintiffs allege is designed to protect the proposed subgrade lowering of I-70.
The EPA has determined that part of the I-70 construction area contains conditions that “present a threat to public health and environment[,]” and that “excavation of these metal contaminated soils pose the threat of additional releases of these hazardous substances to the environment.” Nevertheless, CDOT did not analyze how the disturbance or spread of these contaminants may actually impact human health and the environment before deciding to proceed with the I-70 project, the plaintiffs allege.
The Platte to Park Hill project is the City of Denver and CDOT’s joint massive $300M drainage project planned for north Denver. CDOT is paying up to $60M toward this project. “Under NEPA, CDOT and the FHWA were required to study the Platte to Park Hill project, because it is connected to the I-70 project. They did not do so, in violation of federal law,” said Aaron Goldhamer, an attorney at the law firm Keating Wagner Polidori Free, P.C., that is representing the plaintiffs.
Goldhamer also represented various Denver residents in a suit against the City of Denver that was tried to a state court judge in August. That case alleged that the portion of the Platte to Park Hill project planned for City Park Golf Course—which is designated parkland—was unlawful under the Denver Charter because the project constituted highway construction and drainage support, which runs afoul of the Denver Charter’s restriction of parkland to “park purposes.” That case still awaits determination.
Additional plaintiffs to the federal case include Brad Evans, Christine O’Connor, Kimberly Morse, Jacqueline Lansing, and Janet Feder. Melissa Hailey of Keating Wagner and Jay Tuchton of the Tutchton Law Office also represent these plaintiffs. “Melissa Hailey is really the brains behind this operation, and is pulling the laboring oar,” Goldhamer said of Hailey, a former WildEarth Guardians attorney.
The plaintiffs expect that their requested injunction will be determined no later than early 2018, before CDOT is scheduled to begin construction. CDOT and the FHWA will have an opportunity to respond to the plaintiffs’ motion, and an injunction hearing is possible. If the injunction is granted, it would bode well for a final determination that CDOT would have to reissue an Environmental Impact Study before proceeding with the I-70 project, as “likelihood of success on the merits” is an important factor in obtaining injunctive relief. Likewise, if the injunction is granted, CDOT may not be able to help pay for the Platte to Park Hill project. If that happens, Goldhamer thinks “the City might scrap their Platte to Park Hill project. After all, they did not have any plan for it in Denver’s 2014 Storm Drainage Master Plan, before CDOT apparently realized they needed to account for more drainage issues and talked Denver into helping them out.”
Goldhamer’s City Park Golf Course case uncovered a document that Denver had fought to keep secret: a 2014 Montclair Creek Drainage Feasibility Evaluation, which clarified the following in writing:
CDOT’s Project Manager, Keith Stefanik[,] has confirmed from his management team that CDOT cannot include any of the Montclair Creek open channel projects [now known as Platte to Park Hill] in their design/build contract for the I-70 PCL project. To amend their Environmental Impact Study (EIS) to include an open channel option is such a large change in scope that they would have to start their NEPA EIS process essentially over again. It has taken them two years to get to the point of where they are ready to submit their supplemental package, and they are unwilling to jeopardize their progress on the EIS for the I-70 PCL.
NEPA requirements will activate if we use federal funding. If any of the Montclair Creek projects have to undergo a NEPA process, we understand from CDOT’s NEPA Project Manager, Kirk Webb, that this process would take a minimum of 2 to 3 years. Based on the I-70 PCL schedule, these projects are not a viable option for the City and County of Denver to pursue. It is understood if we are able to secure non-Federal funding for these project [sic], then we would not have to undergo a NEPA process.
In addition to the City Park Golf Course case, additional litigation concerning I-70—both in the District of Columbia and in Colorado Federal court—remains pending. A case filed in Colorado by the Sierra Club and neighborhood groups has been consolidated with the Zeppelin plaintiffs’ matter for purposes of case management.
The Zeppelin plaintiffs’ motion for the injunction is attached. Additional exhibits and pleadings in the case are available from the Federal District Court for the District of Colorado or upon request to the contact listed above.
Aaron D. Goldhamer | Attorney at Law
Keating Wagner Polidori Free, P.C.
1290 Broadway, Suite 600
Denver, CO 80203
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By David Sachs
In February, Colorado Department of Transportation Director Shailen Bhatt told a group of people fighting the widening of I-70 through north Denver neighborhoods to “sue us.” The advocates took his advice.
The lawsuit against the Federal Highway Administration, brought by developer Kyle Zeppelin and other opponents of the highway widening, will officially be filed Monday — the last possible date to challenge the environmental impact statement (EIS).
FHWA approved and is helping to fund CDOT’s project. The complaint says the agency violated the National Environmental Protection Act by failing to conduct sufficient oversight of the project’s EIS.
The suit takes specific aim at the agreement Denver reached with CDOT in 2015 that put local taxpayers on the hook for a project to funnel stormwater away from the 40-foot ditch the agency plans to dig to widen the freeway. The FHWA approved an EIS that did not account for the flood protection project, and the lawsuit aims to “show that both the City of Denver and CDOT intentionally hid the connection between the Platte to Park Hill Drainage Project and the Central I-70 project,” according to a press release.
Other lawsuits are still pending against CDOT’s plan to triple the footprint of I-70, which would generate more traffic and displace people in the mostly low-income, Latino neighborhoods of Elyria, Swansea, and Globeville. Advocates fighting the highway widening are going for a cumulative effect in court.
“Rather than have a single strategy, we’re trying to have a multi-pronged strategy,” said Brad Evans, who runs the Ditch the Ditch advocacy group and is also a plaintiff.
In related legal developments, there will be hearing in DC this September for a lawsuit that challenges the Environmental Protection Agency’s lax air quality standards. And there’s also an active lawsuit against the city over the City Park Golf Course water detention plan tied to I-70.
“The ideal outcome would be to put an end to the whole project,” said Jennifer Winkel, a local activist and spokesperson for the plaintiffs. “There are four lawsuits, and this is the one that will stall it, buy us some time … If we tie it up in the courts, that buys us time for the other lawsuits to do what they need to do.”
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