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Archive of Prominent Section 106 Cases:
June 2000

Introduction

Criteria for
Involvement

Arizona-Nevada:
Hoover Dam Bypass

California:
U.S. Courthouse
(San Diego)

California:
Geothermal Developments
(Modoc & Klamath National Forests)

District of Columbia:
General Post Office

Kansas:
South Lawrence Trafficway

Louisiana:
Industrial Canal Lock
(New Orleans)

Minnesota-Wisconsin:
Stillwater Lift Bridge

Mississippi:
U.S. Courthouse
(Gulfport)

New York:
Hudson River Park
(New York City)

South Dakota:
Francis Case Reservoir

South Dakota:
Federal Lands along Missouri River

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Kansas: Construction of the South Lawrence Trafficway, Lawrence

Agency: Federal Highway Administration

Criteria for Council Involvement:

  • This project will adversely affect the Haskell Institute, a National Historic Landmark (Criterion 1).

  • Controversy over the project's impacts and attempted segmentation has resulted in litigation (Criterion 3).

  • National Indian organizations and more than 47 tribes have raised concerns regarding identification of and impacts to properties of traditional religious and cultural significance (Criterion 4).


Recent Developments

In March 2000, the Federal Highway Administration (FHWA) withdrew its support for completion of the St. Lawrence Trafficway given its potential impact on historic properties, including the Haskell Institute (now known as the Haskell Indian Nations University). This action effectively reverses FHWA’s 15-year support for alternatives that would have adversely affected the Haskell Institute and the adjacent Baker Wetlands, a National Natural Landmark that was historically part of the institute. FHWA indicated its preference for the “no build” alternative in its Final Supplemental Environmental Impact Statement (FSEIS) for the project.

FHWA’s decision follows the Haskell University Board of Regents’ reaffirmation of their opposition to the project. In October 1999, the regents invited the Council, FHWA, and other consulting parties to make presentations to the board regarding the project. At that meeting, the Council provided an overview of the Section 106 process and emphasized the need for FHWA to complete the process of identifying and evaluating historic properties, including the Baker Wetlands, prior to consulting on ways to resolve the project’s adverse effects.

At a closed session after the meeting, the Board of Regents voted to reject mitigation measures developed by the Kansas Department of Transportation (KDOT) and to continue to oppose the project. Shortly afterward, the Secretary of KDOT and the Douglas County Administrator pronounced the project “dead” in the local media.


Background

The South Lawrence Trafficway is a four-lane, high-speed highway on the western and southern periphery of Lawrence, Kansas. The project was designed to link routes K-10, U.S. 59, and the Kansas Turnpike (I-70), thereby reducing congestion on local thoroughfares. Planning for the 14-mile highway began as early as the 1960s. Under the National Environmental Policy Act (NEPA), FHWA issued its Record of Decision to fund the project in 1990. Thereafter, the project was split into two independent legs, and the nine-mile western leg was constructed.

Three of the proposed alignments for completing the highway’s five-mile eastern leg would adversely affect the Haskell Institute, one of the first large off-reservation boarding schools for Indian students established by the Federal Government. Eleven of the university’s buildings and a cemetery are included in the Haskell Institute National Historic Landmark (NHL).

In addition, the southern portion of the university contains a medicine wheel and an area where sweat lodges are used. This area has historical, religious, and cultural significance to the university community and Indian tribes, and FHWA determined it eligible for the National Register. The alignments for the highway would also cross the adjacent Baker Wetlands, the historical significance of which remains to be fully evaluated. The southern part of Haskell and the Baker Wetlands would be adversely affected by visual, audible, and atmospheric impacts and changes to the historic setting.

The University Board of Regents, the National Haskell Alumni Association, the National Congress of American Indians, the National Native American Church Association, and more than 47 tribes have opposed the county’s preferred alternative. Local environmental and civic groups also oppose the project.

After several years of dispute regarding the environmental impacts of the five-mile eastern leg, Douglas County withdrew its application for FHWA funding for that phase of the project. This led to two successful challenges in Federal court by several university students and alumni on the legality of FHWA’s “de-federalizing” the eastern leg of the federally funded project. In February 1999, FHWA resumed environmental analyses of the proposed highway pursuant to a court order.

In May 1999, Council staff visited Haskell and the Baker Wetlands and met with the involved agencies. The Council then wrote to FHWA asking for additional studies of the wetlands, expressing concern that they might contribute to the significance of the Haskell Institute and have historical, religious, and cultural significance to the university community and Indian tribes. In light of that letter, the Army Corps of Engineers’ Kansas City District informed Baker University, present owner of the wetlands, that the Corps may have Section 106 responsibilities with respect to permitting actions in the Baker Wetlands.


Policy Highlights

Controversy surrounding this project emanates from inadequate consideration of properties of historical and traditional religious and cultural significance to many Indian tribes nationally. Both the NHL designation for the Haskell Institute and the county’s initial planning for the South Lawrence Trafficway took place in the 1960s, before the significance of such properties was generally recognized.

The NHL designation of the Haskell Institute, therefore, recognized only its buildings and historic cemetery, not the area south of campus that was historically part of the institute and contains properties of religious and cultural significance to tribes. This area is made even more unique by its significance as an important intertribal historic property.


Staff contact: Margie Nowick

October 1999 report on this case



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