For 15 years, an ambitious plan to build a multimillion-dollar intermodal transportation facility in Russellville, which supporters say would produce a wave of economic development in the area, has been stalled by federal litigation that moves at a snail's pace.
That could change after a hearing set for Feb. 15 in a Little Rock federal courtroom.
In back-to-back lawsuits, the neighboring city of Dardanelle and the Yell County Wildlife Association have said they don't want the project to proceed without an all-encompassing study of its impact on the surrounding area -- which they maintain still has not been done, despite an assessment undertaken in response to a 2004 court order.
The lawsuits say the location favored by the Federal Highway Administration, the U.S. Army Corps of Engineers and the River Valley Regional Intermodal Authority is in a flood plain immediately south of Russellville.
Construction of the project is likely to cause flooding of homes and businesses in Dardanelle, which is directly across the Arkansas River from Russellville, as well as in the Holla Bend Wildlife Refuge 5 miles downstream from Dardanelle, the lawsuits say. The refuge is a 7,000-acre feeding and resting area for migratory waterfowl, and habitat for endangered and threatened species.
The defendants -- the Federal Highway Administration, the Intermodal Authority and the Corps' Little Rock District -- said a thorough examination of the project's potential impact on the surrounding area has been completed in response to the 2004 directive, and in compliance with the National Environmental Protection Act of 1969, which requires federal agencies to assess the environmental impact of "significant actions."
On Feb. 15, U.S. District Judge D. Price Marshall Jr. will hold a hearing on each side's motion for summary judgment in the case.
Dardanelle and the wildlife group, represented by attorney Richard Mays of Heber Springs, want the judge to find that the Highway Administration's environmental impact statement, and its and the Corps' findings of No Significant Impact, which together have cleared the way for construction to begin, still don't comply with the National Environmental Protection Act and are thus "void and of no effect."
They also want Marshall to declare that because of the violation, the project should be permanently enjoined to prevent any further development.
The federal agencies, however, want Marshall to declare that the latest effort complies with the Environmental Protection Act and throw out the lawsuit, allowing the project -- which is now expected to cost more than $50 million -- to proceed.
"The enthusiasm on the Russellville side has not died off any at all," Marvin Gerlach, current chairman of the Intermodal Authority and a former board member of 10 years, said in a recent interview.
"We're sitting up here with our fingers crossed," Gerlach said. "We've been here before, and then this attorney just throws another wrench into the whole thing."
Mays, to whom Gerlach was referring, said his clients believe the Intermodal Authority hired biased contractors to examine the area and help select the site, and it illegally interfered in administrative decisions to nudge the Corps to set aside reservations about the administration's study and agree with its findings.
"They don't have any tenants for it yet, so we've not asked for a preliminary injunction to stop development," Mays said, adding: "My clients are not opposed to the intermodal facility. They just don't want it there."
He said the federal agencies have only "gone through the motions" of evaluating other sites and have been improperly influenced by the Intermodal Authority, which from the beginning has intended for the facility to exist in only one place.
THREE TRANSPORTATION MODES
Talk about creating a multimodal transportation complex in the Arkansas River Valley actually began in the 1990s, though it wasn't until 1997 -- or 1999, by some accounts -- that Russellville and Pope County established a multijurisdictional Intermodal Facilities Authority.
The stated purpose of the authority is to promote economic development and job creation in a six-county area -- Conway, Johnson, Logan, Perry, Pope and Yell -- through the construction of a multimodal transportation complex.
The authority's proposal for a roughly 880-acre complex includes three modes of transportation: water, highway and rail.
The water component would provide commercial navigation through a slack-water harbor connected to the Arkansas River. The highway portion would be connected to Interstate 40 north of Russellville, and a short-line railroad would connect to the national railroad grid.
A regional airport also was proposed, and the complex is expected to include an industrial park and warehouses, as well.
The Arkansas River Valley is a low-lying region between the Ozark Mountains to the north and the Ouachita Mountains to the south, running parallel to the Arkansas River. The project's geographic limits, according to the Highway Administration, extend along the river from Arkansas 109, located just west of Clarksville in Johnson County, to Arkansas 9 near Morrilton.
Records show that turmoil over the proposal began after the city of Russellville asked the Corps on Nov. 5, 1997, to conduct a feasibility study for a slack-water harbor on the river. That led the Corps to issue a Jan. 26, 2000, environmental assessment -- a brief discussion of the issues to help decide whether a more strenuous Environmental Impact Statement is necessary -- followed by the Corps' Finding of No Significant Impact, effectively authorizing the construction to begin.
The current plaintiffs, then joined by another environmental group and three individuals, filed suit in federal court on March 14, 2003, challenging the sufficiency of the assessment and saying the agencies failed to seriously consider the cumulative effects of the harbor's development on the overall area.
U.S. District Judge Billy Roy Wilson ended the case with an Aug. 16, 2004, order declaring that the Corps' assessment and findings violated the National Environmental Protection Act by failing to consider the cumulative effects of the various components of the facility.
He said the assessment, which his order invalidated, didn't constitute a "hard look," and considered only the harbor -- not the entire intermodal project. He enjoined the Corps from proceeding with the project pending the completion of an Environmental Impact Statement covering the entire project.
Within a month of the ruling, the Highway Administration took over as the lead agency on the project, and the Corps became a "cooperating agency." For the next 10 years, the agencies worked on the comprehensive study, which required public input.
The Highway Administration issued a final environmental impact study in March 2013, followed by an official Record of Decision, dated Nov. 13, 2013, finding that there were no significant environmental effects expected from the project.
But on Feb. 19, 2014, Mays filed a new federal lawsuit on behalf of some of the same plaintiffs. This one, assigned to Marshall, challenged the Highway Administration's environmental impact study and final decision.
It also complains that the Intermodal Authority unlawfully permitted one of its contractors to prepare the final impact statement and record of decision, which presented a conflict of interests, and unlawfully intervened to persuade the Corps to issue findings similar to that of the Highway Administration's, despite concerns from other Corps officials that the administration's study wasn't reliable.
Mays said the agencies' actions violated federal environmental and administrative proceedings laws and should be declared invalid and remanded to the agencies for further actions consistent with the National Environmental Protection Act.
According to his motion for summary judgment, filed in August, "the overarching issue in this case is whether two federal agencies -- the Federal Highway Administration and the U.S. Army Corps of Engineers -- have complied with the requirements of [the Environmental Protection Act], in their approval of environmental assessments of the effects of the proposed development ... and the issuance of their respective Records of Decision."
The complexity of the case is evident by the inclusion of a typed, three-page, double-columned table of acronyms to help the judge follow along.
Mays argues that while the proposed Intermodal Facility "purports" to benefit six counties, it "was conceived and promoted by, and designed to primarily benefit, the City of Russellville and Pope County. As a result, the site selection process was biased for the selection of a site ... in Pope County."
The federal defendants said they have complied with federal law. In their October brief in support of their motion for summary judgment, they said that in the decade since Wilson's ruling, the Highway Administration "went above and beyond" to ensure that the requirements of the Environmental Protection Act were met "for both the slack water harbor component and the land-based facilities through the development of an environmental impact statement."
"Finally, after rigorous review and ample public involvement," the Highway Administration issued its Record of Decision, the brief says.
It adds, "Even after conducting a re-evaluation to accommodate revised harbor design plans, the [administration] concluded in February 2016 that the proposed Project would not have any significant environmental impacts," reaffirming its decisions in 2013.
The Corps then adopted the administration's decision in its May 2016 Record of Decision, the brief notes.
It says the court's role under the Environmental Protection Act is "simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious."
An analysis of alternative sites "consisted of an in-depth and comprehensive process that included multiple technical studies, research, public outreach and comments, assessments by agency and outside professionals, and a thorough examination of potential environmental impacts," the brief says.
"They claim it would be a business boon," Mays said recently of the planned intermodal facility. "A lot of it is Chamber of Commerce talk. I don't know how likely it is they would realize the benefits they think they would."
Gerlach said that as a member of the Dardanelle Rotary Club, he believes "there's some sentiment changing over here," with the election of a new City Council member who has been questioning why the smaller city has held up an economic growth package for the region "for 17 years now."
He said Russellville missed out several years ago on being considered for a steel mill plant that instead went to Osceola, because the only site available for building it was the site set aside for the intermodal facility, which was caught up in litigation.
"Russellville's got a very healthy industrial base and is a desirable place to live," Gerlach said. "But it has no land to develop a factory on, other than this project."
Metro on 12/31/2017