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David B. Rosenbaum, 009819 Mary R. OGrady, 011434 Jeffrey B. Molinar, 018512 Christina C. Rubalcava, 026357 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2793 Telephone: (602) 640-9000 E-mail: [email protected] [email protected] [email protected] [email protected] Linus Everling, 019760 Thomas L. Murphy, 022953 Javier G. Ramos, 017442 Office of the General Counsel Gila River Indian Community 525 West Gu U Ki Sacaton, Arizona 85147 Attorneys for Plaintiff Gila River Indian Community

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA Gila River Indian Community, Plaintiff, vs. Federal Highway Administration; Karla S. Petty, in her official capacity as the Arizona Division Administrator of the Federal Highway Administration; Arizona Department of Transportation; and John S. Halikowski, in his official capacity as the Director of the Arizona Department of Transportation, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:15-cv-01219-DJH Document 1 Filed 06/30/15 Page 1 of 18

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Plaintiff, the Gila River Indian Community (the Community), for its Complaint

against Defendants, the Federal Highway Administration (the FHWA); Karla S. Petty,

in her official capacity as the Arizona Division Administrator of the FHWA; the

Arizona Department of Transportation (ADOT); and John S. Halikowski, in his

official capacity as the Director of ADOT, alleges as follows.

INTRODUCTION

1. On March 5, 2015, the FHWA and ADOT issued a Record of Decision,

approving a particular alignment for the new South Mountain Freeway (the Freeway)

and allowing the design, planning, and construction of the Freeway to proceed.

2. The Freeway would constitute a portion of State Route 202L (Loop

202) and part of a regional transportation system planned in 1985.

3. Extending twenty-two miles and consisting of eight lanes, the Freeway

would run from the Interstate 10/State Route 202 interchange in the east, travel just

north of and adjacent to Community land along Pecos Road, and veer north near 59th

Avenue before connecting again with Interstate 10 on the western side of Maricopa

County.

4. Construction of the Freeway would cause severe negative impacts to the

Community and its members, resulting in irreversible harm to sacred land, the

environment, public health, safety, welfare, and numerous cultural resources and

properties.

5. In approving the Freeway, the NHWA and ADOT failed to address

adequately the concerns raised by the Community, other agencies, and concerned

citizens and to analyze properly all of the alternatives that would have avoided or

mitigated the irreparable harm that would be caused by the Freeway.

6. Approval of the Freeway by the NHWA and ADOT was arbitrary,

capricious, an abuse of discretion, and not in compliance with applicable laws,


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including, but not limited to, the National Environmental Policy Act, Section 4(f) of the

Department of Transportation Act, and the Administrative Procedure Act.

7. The Community seeks declaratory and injunctive relief, including an order

enjoining all action in connection with the Freeway unless and until the NHWA and

ADOT comply with all applicable laws and regulations.

JURISDICTIONAL STATEMENT

8. Plaintiff, the Community, is a federally recognized Indian Tribe located

south of the Phoenix metropolitan area within Maricopa and Pinal Counties.

9. Defendant FHWA is an agency of the United States within the

Department of Transportation.

10. Defendant Karla S. Petty is the Arizona Division Administrator of the

FHWA and is named in her official capacity.

11. Defendant ADOT is the state agency responsible for roads and freeways

and the sponsor of the project at issue.

12. Defendant John S. Halikowski is the Director of ADOT and is named in

his official capacity.

13. This Court has jurisdiction pursuant to 28 U.S.C. section 1331 (federal

question), 5 U.S.C. section 702 (review of agency action), and 28 U.S.C. section 1362

(action by tribe where matter in controversy arises under federal law).

14. A substantial part of the conduct and events giving rise to the

Communitys claims occurred in the District of Arizona, and the land at issue is in the

District of Arizona.

15. Venue is proper in this Court pursuant to 28 U.S.C. section 1391(e).

ALLEGATIONS APPLICABLE TO ALL CLAIMS

16. Since the mid-1980s, ADOT and the Maricopa Association of

Governments (MAG) have planned the construction of a Regional Freeway and

Highway System (the Highway System), purportedly to address evolving

transportation needs throughout Maricopa County.


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17. Over the past thirty years, as funds became available, ADOT and MAG

have designed and constructed various segments of the Highway System.

18. Since 1985, ADOT and MAG have contemplated the construction of a

South Mountain Freeway, to be located in the southwestern part of Maricopa County,

forming a segment of the Highway System and constituting part of Loop 202.

19. As the FHWA and ADOT have acknowledged, [t]he general location for

the South Mountain Freeway has remained unchanged since 1985. Final

Environmental Impact Statement and Section 4(f) Evaluation (FEIS), pp. 1-5.

20. As the FHWA and ADOT also have acknowledged, [t]he location of the

freeway was formally adopted by ADOT and MAG in 1988 and 1989 when ADOT

performed preliminary design and State-level environmental documents according to

ADOT mandates. Id. at S-41.

21. For more than ten years, ADOT has identified Pecos Road, adjacent to the

Community, as the future right-of-way for the Freeway.

22. The FHWA and ADOT have admitted that their longstanding assumption

regarding the future construction of a highway in the study location, even prior to

beginning the procedures required under federal law for implementation, was used to

plan and design other transportation facilities. See id. at 3-35.

23. The FHWA and ADOT issued a Draft Environmental Impact Statement

and Section 4(f) Evaluation (DEIS) on April 16, 2013, recommending the

construction of the Freeway in the same location that had been adopted nearly twenty-

five years earlier.

24. Rather than evaluating all possible locations and actions to address

perceived transportation needs, the FHWA and ADOT restricted the geographic area

under consideration to a predefined study area.

25. Failing to consider adequately the alternatives outside of its predetermined

study area and evaluating only alternatives within the study area, the DEIS rejected the

no-action alternative and all non-freeway alternatives.


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26. The FHWA and ADOT considered in the DEIS only a single freeway

alignment for the eastern portion of the Freeway (the E1 Alignment). With no other

eastern options, the DEIS recommended the E1 Alternative.

27. The FHWA and ADOT considered three similar freeway alignments for

the western section of the Freeway, all of which connected to the E1 Alternative near

59th Avenue and Elliot Road, recommending one of them (the W59 Alignment).

28. The E1 Alignment would connect at its eastern terminus with the existing

traffic interchange between the I-10 (Maricopa Freeway) and Loop 202 (Santan

Freeway). It would travel west on Pecos Road, directly north of and adjacent to

Community land, for approximately eight miles. It then would veer northwest for

approximately five miles to a point near the intersection of 59th Avenue and Elliot

Road, where it would connect with the W59 Alignment. The W59 Alignment would

head north for approximately nine miles, cross the Salt River, and connect at its western

terminus with a new traffic interchange with I-10 (Papago Freeway) near 59th Avenue.

29. The Communitys religion, oral histories, traditions, and ceremonial

activities and practices all are tied to the natural environment.

30. The E1 Alignment would destroy parts of three separate ridges of South

Mountain the traditional name for which is Muhadagi Doag one of the Communitys

most significant and sacred natural resources and a cultural property that figures

prominently in the Communitys oral traditions.

31. The E1 Alignment would forever alter the landscape and views of South

Mountain as they are experienced and relied upon by members of the Community and

would isolate the members from many culturally significant locations and resources.

32. The E1 Alignment also would destroy or interfere with trails, shrines, and

archaeological sites within the Freeway corridor that constitute important cultural

resources for the Communitys members.

33. Two of the ridges that the E1 Alignment would destroy are within the

Phoenix South Mountain Park/Preserve (South Mountain Park), which is one of the


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largest municipally operated parks in the world and eligible for inclusion in the National

Register of Historic Places, placing it within the scope of section 106 of the National

Historic Preservation Act as a Traditional Cultural Property (TCP).

34. The E1 Alignment would take approximately 31.3 acres of South

Mountain Park, but use and adversely affect a much greater area.

35. The E1 Alignment would affect various sites on and around South

Mountain that contribute to South Mountains historical and cultural significance to the

Community, serve as important spiritual locations for its members, and constitute

protected TCPs.

36. The E1 Alignment also would interfere with the access that Community

members have to South Mountain and other natural resources that have cultural and

spiritual significance to them.

37. Because the E1 Alignment is directly adjacent to the Communitys

boundary, the construction and operation of the Freeway would negatively impact the

Communitys environment and natural resources, cause unnecessary pollution to the

land and air, create an unacceptable risk of exposure to hazardous materials, and harm

the health of Community members.

38. Converting Pecos Road currently used primarily for local residential

traffic into an eight-lane divided highway would increase the number of vehicles

traveling adjacent to Community land from approximately 25,000 to between 125,000

and 140,0000, a potential 460-percent increase in traffic.

39. A significant amount of the increased traffic would come from large

trucks, which currently are not permitted on Pecos Road. Those trucks would increase

pollution and the risk of exposure to hazardous materials that many of them would be

transporting.

40. The E1 Alignment would eliminate or disrupt wildlife, plant corridors,

washes and drainage areas, and other biological resources.

41. Around the same time that they issued the DEIS, the FHWA and ADOT


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received from a study team the initial Location/Design Concept Report (L/DCR),

which consisted of design plans at approximately a 15-percent level for the Freeway.

42. ADOT did not discuss the L/DCR in its DEIS or make it available to the

public for review and comment.

43. The Community, the Environmental Protection Agency (EPA), and

concerned citizens and groups submitted comments in response to the DEIS.

44. In its comments, the Community objected to ADOTs failure to consider

adequately the no-action alternative, which would avoid irreversible impacts to cultural

resources and protect the environment and the health, safety, and welfare of Community

members.

45. The Community also objected to ADOTs failure to analyze appropriately

action alternatives that would avoid South Mountain or minimize harm to South

Mountain such as options located north of the mountain and to its failure to consider

any alternative for the eastern alignment other than the chosen option.

46. In addition, the Community noted the failures of the FHWA and ADOT to

address and analyze properly the direct, indirect, and cumulative environmental impacts

of the project on the Community and its members, including those relating to air quality,

wetlands and other aquatic resources, eagles and other biological resources, and the

transportation of hazardous materials.

47. The EPA also recognized flaws in the DEIS, giving it the agencys lowest

rating of 3, signifying Inadequate Information.

48. The EPA concluded that the DEIS was deficient due to its lack of analysis

regarding the projects impacts on air quality: Based upon this lack of information

important to analyzing the projects potentially significant impacts on air quality, EPA

has rated the South Mountain Freeway DEIS at 3 Inadequate Information . . . . EPA

believes the following information would serve as the basis for a robust and meaningful

air quality analysis: 1) Assessment and disclosure of potential PM10 hotspot impacts

and confirmation of whether the project meets the Clean Air Acts transportation


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conformity requirements; 2) Emissions analyses that present the emissions of the South

Mountain Freeway corridor separate from those of I-10, along with updated traffic

forecasting for the No Action alternative; and 3) A robust air toxics risk assessment that

addresses potential health effects from the proposed new freeway. We recommend this

information be circulated in a Supplemental DEIS for public comment, in accordance

with NEPA and CEQs NEPA Implementation Regulations. Id., Vol. III, p. B7.

49. The EPAs rating of 3 represents that the EPA does not believe that the

draft EIS adequately assesses potentially significant environmental impacts of the

action, or the EPA reviewer has identified new, reasonably available alternatives that

are outside of the spectrum of alternatives analysed in the draft EIS, which should be

analysed in order to reduce the potentially significant environmental impacts. EPA

believes that the identified additional information, data, analyses, or discussions are of

such a magnitude that they should have full public review at a draft stage. EPA does

not believe that the draft EIS is adequate for purposes of the NEPA and/or Section 309

review, and thus should be formally revised and made available for public comment in a

supplemental or revised draft EIS. Id. at B9.

50. As the EPA noted, the FHWA and ADOT studied the environmental

impact of the Freeway only using models that assumed the construction of the Freeway,

rather than analyzing the impacts that would exist as a result of the no-action alternative

or other possible action alternatives.

51. Among other flaws and deficiencies noted in the comments was ADOTs

use of outdated data. For example, an expert for Protecting Arizonas Resources and

Children (PARC) found that ADOT improperly had relied on 2005 census data

although 2010 data was available and showed a decrease in projected population-growth

rates. See id. at B364-67.

52. The FHWA and ADOT issued the FEIS on September 18, 2014,

recommending the same Freeway alignment chosen in the DEIS.

53. ADOT did not sufficiently address or respond to the Communitys


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comments in the FEIS, ultimately rejecting them and concluding that prior discussions

and analyses were sufficient.

54. In its comments to the FEIS, the Community objected to ADOTs failure

to consider adequately the no-action alternative and other action alternatives, conduct

surveys and studies necessary to evaluate the project, and analyze the impacts of the

project on the Community and its members, among other deficiencies. The Community

also explained that its decision not to permit an on-Reservation alternative did not allow

ADOT to limit its review of eastern routes solely to the E1 Alignment.

55. ADOT also ignored the EPAs concerns and recommendations. As the

EPA stated in its comments to the FEIS, We have continuing concerns regarding the

analysis and discussions provided in the Final EIS regarding possible near-roadway

health impacts along the proposed new freeway corridor, including impacts to children

and sensitive receptors. Additionally, we have continuing concerns with the analysis of

the No Action Alternative, as well as impacts to both aquatic resources and wildlife

connectivity. Record of Decision (ROD), Vol. II, pp. A6-7.

56. ADOT similarly ignored requests made by the Arizona Game and Fish

Department: The FEIS fails to incorporate updated, relevant information, related to

wildlife connectivity that the Department has provided since . . . 2006 . . . . The

Department . . .requests the most recent, validated, and high quality information that we

provided be incorporated into the analysis, design and development of mitigations.

Furthermore, the Department requests that indirect and cumulative impacts be included

when considering appropriate mitigation. Id. at A42.

57. Acknowledging its prior use of outdated data, ADOT concluded that the

more current data nevertheless validated the overall conclusions of the DEIS in terms

of purpose and need . . . . FEIS, p. xi.

58. An expert retained by PARC noted that the only difference between the

DEIS and the FEIS is that the reduced figures . . . have now been plugged in to Figure

1-7 and the text on page 1-11. The fact that a nearly 20% decrease in projected 2035


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values has no bearing on conclusions regarding the proposed action suggests that

decisions regarding the proposed action were made irrespective of population and

employment projections to begin with. ROD, Vol. II, p. A213.

59. On March 5, 2015, the FHWA issued the ROD, approving the analyses

and conclusions set forth in both the DEIS and the FEIS.

60. Throughout the process, the FHWA and ADOT failed to consider all of

the negative impacts that the Freeway would have on South Mountain and other cultural

resources and properties significant to the Community.

61. Throughout the process, the FHWA and ADOT failed to consider all of

the significant aspects of the environmental impacts that the Freeway would have,

inform the public regarding their consideration of environmental concerns, or allow the

required public input and discussion of their findings.

62. Throughout the process, the FHWA and ADOT failed to evaluate properly

all reasonable alternatives including the no-action alternative that could have

avoided or minimized impacts to South Mountain, other natural resources, and the

environment.

63. Throughout the process, the FHWA and ADOT ignored comments,

concerns, and requests of the Community, federal and state agencies, retained experts,

and other citizens and groups.

64. Despite the limitations of their data and lack of support for their

conclusions, the FHWA and ADOT never issued a supplemental environmental impact

statement or ensured the disclosure and public comment required under applicable

statutes and regulations.

65. Even before the formal process had begun, the FHWA and ADOT had

improperly limited any future analysis to an arbitrary and predetermined study area and

had effectively rejected any non-freeway option.

66. The FHWA and ADOT did not utilize or disclose for discussion

sufficiently complete design documents to permit an adequate analysis of project


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impacts or to determine appropriate mitigation measures.

67. The FHWA and ADOT selected as the Preferred Alternative an action

alternative that cannot be built as described in the DEIS, FEIS, and ROD. In order to

build the Freeway in accordance with the Preferred Alternatives chosen alignment and

design, the agencies would need to acquire three wells held in trust by the United States

for the benefit of the Community. These wells are located in the direct path of the

proposed highway. The FHWA and ADOT have no authority, absent consent by the

Community, to obtain any rights to these tribal trust lands. The FHWA and ADOT

failed to consider this obstacle to building the Freeway and did not address this issue in

the DEIS, FEIS, or ROD.

68. The FHWA and ADOT have not established appropriate mitigation

measures to address the environmental and other harm from the Freeway, providing

only general guidelines for future action and reserving decision on specific measures

until a later date.

69. The FHWA and ADOT have acknowledged that the Freeway would not

accomplish its stated purpose and need, conceding that even at full build-out of the

Freeway, there will be capacity deficiencies at levels comparable to the No Action

Alternative on freeways and arterials throughout the Metropolitan Area and on the

South Mountain Freeway itself. FEIS, Vol. II, p. B446.

COUNT ONE (Violation of National Environmental Policy Act)

70. The Community realleges and incorporates by this reference the

allegations in Paragraphs 1 through 69 as if fully set forth herein.

71. The National Environmental Policy Act, 42 U.S.C. 4311-70; its

implementing regulations, 40 C.F.R. 1500-08; and other applicable regulations,

including 23 C.F.R. 771.101-.139, govern the procedures that the FHWA and ADOT

were required to follow in analyzing and approving the Freeway.

72. As the regulations explain, NEPA procedures must insure that


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environmental information is available to public officials and citizens before decisions

are made and before actions are taken. The information must be of high quality.

Accurate scientific analysis, expert agency comments, and public scrutiny are essential

to implementing NEPA. 40 C.F.R. 1500.1(b).

73. Among other responsibilities, the FHWA must [u]se the NEPA process

to identify and assess the reasonable alternatives to proposed actions that will avoid or

minimize adverse effects of these actions upon the quality of the human environment

and [u]se all practicable means, consistent with the requirements of the Act and other

essential considerations of national policy, to restore and enhance the quality of the

human environment and avoid or minimize any possible adverse effects of their actions

upon the quality of the human environment. Id. 1500.2(e), (f).

74. The regulations also explain the purpose of and requirements for

environmental impact statements: The primary purpose of an environmental impact

statement is to serve as an action-forcing device to insure that the policies and goals

defined in the Act are infused into the ongoing programs and actions of the Federal

Government. It shall provide full and fair discussion of significant environmental

impacts and shall inform decisionmakers and the public of the reasonable alternatives

which would avoid or minimize adverse impacts or enhance the quality of the human

environment. Id. 1502.1.

75. Under NEPA, [e]nvironmental impact statements shall serve as the

means of assessing the environmental impact of proposed agency actions, rather than

justifying decisions already made. Id. 1502.2(g).

76. In their environmental impact statements, agencies must [r]igorously

explore and objectively evaluate all reasonable alternatives, and for alternatives which

were eliminated from detailed study, briefly discuss the reasons for their having been

eliminated, [d]evote substantial treatment to each alternative considered in detail

including the proposed action so that reviewers may evaluate their comparative merits,

[i]nclude reasonable alternatives not within the jurisdiction of the lead agency, and


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[i]nclude the alternative of no action. Id. 1502.14(a)-(d).

77. Environmental impact statements must evaluate all potential impacts of a

project, whether they constitute direct or indirect effects. See id. 1502.16(a), (b).

78. Agencies also must ensure that the information on which they base their

analysis is complete and available or explain the deficiencies, even when the analysis

concerns catastrophic impacts with a low probability of occurrence. See id. 1502.22.

79. The EPAs role is specifically prescribed in the regulations, as well as in

related provisions of the Clean Air Act: Under section 309 of the Clean Air Act (42

U.S.C. 7609), the Administrator of the Environmental Protection Agency is directed to

review and comment publicly on the environmental impacts of Federal activities,

including actions for which environmental impact statements are prepared. If after this

review the Administrator determines that the matter is unsatisfactory from the

standpoint of public health or welfare or environmental quality, section 309 directs that

the matter be referred to the Council [on Environmental Quality] . . . . Id. 1504.1(b).

80. The FHWA and ADOT violated NEPA and its implementing regulations

by:

a. Limiting possible locations and alternatives before starting their

NEPA analysis and then improperly taking steps to justify

decisions made years earlier;

b. Improperly defining, before the NEPA process was underway, the

projects purpose and need as requiring a major transportation

facility within the study area, thereby artificially narrowing the

range of reasonable alternatives;

c. Failing to conduct a thorough analysis of the no-action alternative

and using flawed data that assumed the construction of the

Freeway;

d. Failing to use updated and complete data and to identify and

disclose the limitations in the data on which they relied;


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e. Failing to consider all reasonable action alternatives, including

non-freeway alternatives and alternatives in other locations;

f. Improperly limiting full consideration of action alternatives in the

eastern portion of the study area to only the E1 Alignment;

g. Improperly limiting full consideration of action alternatives in the

western portion of the study area to only three similar alignments,

all of which would connect to the E1 Alignment at the same point;

h. Failing to examine numerous reasonable alternatives, many

proposed during the comment periods of the NEPA process;

i. Failing to select as the Preferred Alternative a freeway alignment

that the FHWA and ADOT had the authority to build;

j. Failing to consider fully all of the direct, indirect, and cumulative

impacts of the Freeway on the Community and its members,

including negative effects relating to air pollution, new truck

traffic, and the transport of hazardous materials.

k. Failing to use updated data to evaluate the impacts of the Freeway

on wildlife and determine appropriate mitigation.

l. Failing to respond to and address the concerns of other federal and

state agencies; and

m. Failing to discuss all possible mitigation measures before

completing the NEPA process.

81. The actions, findings, and conclusions of the FHWA and ADOT were

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or

were without observance of procedure required by law, and thus were unlawful under

the Administrative Procedure Act (APA). See 5 U.S.C. 706(2)(A), (D).

COUNT TWO (Violation of Section 4(f) of Department of Transportation Act)



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allegations in Paragraphs 1 through 81 as if fully set forth herein.

83. The original Section 4(f) of the Department of Transportation Act, now

codified in two other statutory provisions, imposes substantive requirements on agency

action that uses publicly owned land or historic sites for transportation purposes: [T]he

Secretary may approve a transportation program or project . . . requiring the use of

publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge

of national, State, or local significance, or land of an historic site of national, State, or

local significance (as determined by the Federal, State, or local officials having

jurisdiction over the park, area, refuge, or site) only if (1) there is no prudent and

feasible alternative to using that land; and (2) the program or project includes all

possible planning to minimize harm to the park, recreation area, wildlife and waterfowl

refuge, or historic site resulting from the use. 49 U.S.C. 303(c); see also 23 U.S.C.

138.

84. As the implementing regulations provide, if the FHWA determines that no

feasible and prudent avoidance alternative exists, it may approve only the alternative

that [c]auses the least overall harm in light of the statutes preservation purpose. 23

C.F.R. 774.3(c)(1).

85. The regulations also require that a Section 4(f) evaluation include

sufficient supporting documentation to demonstrate why there is no feasible and prudent

avoidance alternative and shall summarize the results of all possible planning to

minimize harm to the Section 4(f) property. Id. 774.7(a).

86. The regulations explain that [a] feasible and prudent avoidance

alternative avoids using Section 4(f) property and does not cause other severe problems

of a magnitude that substantially outweighs the importance of protecting the Section

4(f) property. In assessing the importance of protecting the Section 4(f) property, it is

appropriate to consider the relative value of the resource to the preservation purpose of

the statute. Id. 774.17.

87. The regulations further explain that [a]n alternative is not feasible if it


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cannot be built as a matter of sound engineering judgment and [a]n alternative is not

prudent if: (i) [i]t compromises the project to a degree that it is unreasonable to proceed

with the project in light of its stated purpose and need; (ii) [i]t results in unacceptable

safety or operational problems; (iii) [a]fter reasonable mitigation, it still causes: (A)

[s]evere social, economic, or environmental impacts; (B) [s]evere disruption to

established communities; (C) [s]evere disproportionate impacts to minority or low

income populations; or (D) [s]evere impacts to environmental resources protected under

other Federal statutes; (iv) [i]t results in additional construction, maintenance, or

operational costs of an extraordinary magnitude; (v) [i]t causes other unique problems

or unusual factors; or (vi) [i]t involves multiple factors in paragraphs (3)(i) through

(3)(v) of this definition, that while individually minor, cumulatively cause unique

problems or impacts of extraordinary magnitude. Id.

88. Section 4(f) governs not simply the direct use of protected resources, but

also constructive use, which occurs when the transportation project does not

incorporate land from a Section 4(f) property, but the projects proximity impacts are so

severe that the protected activities, features, or attributes that qualify the property for

protection under Section 4(f) are substantially impaired. Substantial impairment occurs

only when the protected activities, features, or attributes of the property are substantially

diminished. Id. 774.15(a).

89. The FHWA and ADOT violated Section 4(f) of the Department of

Transportation Act and its implementing regulations by:

a. Failing to evaluate all reasonable alternatives for the Freeway,

including all possible alignments for the eastern portion;

b. Incorrectly rejecting all other alternatives considered not feasible

and prudent;

c. Incorrectly selecting as the Preferred Alternative a freeway

alignment that the FHWA and ADOT had no authority to build,

rather than a feasible and prudent alternative;


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d. Failing to determine all possible planning to minimize harm to

South Mountain and historic sites before completing the process;

e. Failing to ensure sufficiently complete design documents before

conducting their Section 4(f) analysis; and

f. Failing to analyze the projects constructive use of protected

resources.

90. The actions, findings, and conclusions of the FHWA and ADOT were

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or

were without observance of procedure required by law, and thus were unlawful under

the APA. See 5 U.S.C. 706(2)(A), (D).

COUNT THREE (Injunctive Relief)


allegations in Paragraphs 1 through 90as if fully set forth herein.

92. No adequate remedy at law exists for the violations by the FHWA and

ADOT of NEPA and Section 4(f) of the Department of Transportation Act.

93. Unless the FHWA and ADOT are enjoined from proceeding with the

Freeway project, the Community and its members will suffer immediate and irreparable

harm.

94. The balance of the equities favors granting an injunction to the

Community.

95. Granting an injunction to the Community and requiring compliance with

all applicable statutes and regulations also are in the public interest.

WHEREFORE, the Gila River Indian Community respectfully requests that

judgment be entered in its favor and against the Federal Highway Administration; Karla

Petty, in her official capacity as the Arizona Division Administrator of the Federal

Highway Administration; the Arizona Department of Transportation; and John S.

Halikowski, in his official capacity as the Director of the Arizona Department of


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Transportation, as follows:

1. A judgment declaring that (i) the FHWA and ADOT violated NEPA and

Section 4(f) of the Department of Transportation Act and (ii) the actions of the FHWA

and ADOT were arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law, or were without observance of procedure required by law;

2. An injunction enjoining all further action in connection with the Freeway

unless and until the FHWA and ADOT comply with their obligations under NEPA,

Section 4(f) of the Department of Transportation Act, and all other applicable statutes

and regulations;

3. All attorneys fees and costs recoverable under 28 U.S.C. 2412(d)(1)(A)

and any other applicable authority; and

4. For such further relief as the Court deems appropriate. DATED this 30th day of June, 2015

OSBORN MALEDON, P.A.

By: s/ Jeffrey B. Molinar David B. Rosenbaum Mary R. OGrady Jeffrey B. Molinar Christina C. Rubalcava 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2793

Linus Everling Thomas L. Murphy Javier G. Ramos Office of the General Counsel Gila River Indian Community 525 West Gu U Ki Sacaton, Arizona 85147 Attorneys for Plaintiff Gila River Indian Community

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