A multimillion-dollar intermodal transportation facility that Russellville officials have championed for 21 years as an economic development boon for the Arkansas River Valley has been given the go-ahead by a federal judge who dismissed a 2014 lawsuit by neighboring opponents.
"That's just beautiful," Russellville Mayor Randy Horton said Friday evening upon hearing about the ruling. "That is extremely good news that we have been waiting for for a long time. Now we can start looking at the next chapter in industrial development in Russellville."
The lawsuit was filed Feb. 19, 2014, by the city of Dardanelle and the Yell County Wildlife Association, after an earlier lawsuit by the same plaintiffs challenging the U.S. Army Corps of Engineers' determination that the project would create no significant environmental impact. U.S. District Judge Billy Roy Wilson ruled for the plaintiffs in the first lawsuit on Aug. 16, 2004, invalidating the assessment on the grounds that the Corps had failed to consider the cumulative impact of the project's components.
The second lawsuit, filed 10 years later, challenged the Federal Highway Administration's environmental impact study that was issued in March 2013, after it took over as the lead agency and worked with the Corps on a more comprehensive study. That study, and an ensuing official decision Nov. 13, 2013, also found no significant environmental impact.
Richard Mays of Heber Springs, the attorney who filed both lawsuits, said Friday that he and his clients are disappointed in the ruling of U.S. District Judge D. Price Marshall Jr. and that he plans to review the ruling and then discuss with his clients whether to appeal to the 8th U.S. Circuit Court of Appeals in St. Louis.
"We believed we had a credible claim for invalidating the environmental impact statement," Mays said.
He said that while it's "a very important case," it has also been a strain on resources.
The city of Russellville began planning construction of a slack-water harbor on the Arkansas River 21 years ago, according to Marshall's ruling. The harbor was seen as the first component of a multimodal transportation complex that would include water, highway and rail transportation. An airport was part of the original plan as well, but was dropped as a result of Federal Aviation Administration restrictions.
Russellville and Pope County formed the Valley Regional Intermodal Authority in the late 1990s to spearhead the project to promote economic development and job creation in a six-county area including Pope, Conway, Johnson, Logan, Yell and Perry counties.
The 2014 lawsuit named the Intermodal Authority, along with federal and state agencies involved in the project. Among other things, it accused the authority of hiring biased contractors to help select the favored 880-acre location for the project.
The location is in a flood plain south of Russellville, and the plaintiffs contend that construction of the project is likely to cause flooding of homes and businesses in Dardanelle, which sits on the south bank of the Arkansas River, directly across from the Russellville Bottoms.
They also said the flooding would endanger wildlife in the Holla Bend National Wildlife Refuge 5 miles downstream from Dardanelle. The refuge is a 7,000-acre feeding and resting area for migratory waterfowl, as well as a habitat for endangered and threatened species.
The contractor, Parsons Infrastructure and Technology Group, is a private contractor that the authority first hired in 2004. Marshall said the plaintiffs contended that Parsons' involvement biased the environmental processes required under federal law in favor of locating the project in the authority's "home field."
Marshall conducted a hearing Feb. 15 and later requested an additional piece of information: a statement disclosing whether Parsons has any financial or other interest in the project's outcome, as required by the National Environmental Protection Act.
The plaintiffs argued that because no disclosure statement existed originally, it shouldn't be added belatedly. Marshall said that while the plaintiffs are correct that judicial review under the federal Administrative Procedures Act is generally limited to the record the agency had when it made its decision, "the rule is not absolute."
"A court may consider extra-record evidence where additional explanation of the agency's decision is the only way there can be effective judicial review," Marshall said, quoting a 2004 8th Circuit decision.
He said the exception applies to "the particular circumstances presented" in this case, allowing a confidential disclosure statement that was submitted to the court after the hearing to become part of the record.
The judge said that while technically, the authority's selection of Parsons violated federal law, that doesn't make the impact statement invalid.
"With hindsight, it's clear the error didn't compromise the objectivity and integrity of the NEPA process," Marshall said.
Mays said Friday that while he respects Marshall, "I disagree strongly with the opinion," in that it allows the violation to be overlooked.
Horton said that if Marshall's ruling holds, "that clears us up to begin the next phase, which is trying to secure funding" for the project.
The project has previously been estimated to cost more than $50 million.
The supporters of the project have said any flooding from the project would be minimal, especially compared with other potential sites in the Arkansas River Valley that were studied. 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 Federal Highway Administration said the project's geographic limits extend along the river from Arkansas 109 just west of Clarksville in Johnson County to Arkansas 9 near Morrilton.
Metro on 06/10/2018