Amason v. City of Calion

2019 Ark. App. 106, 573 S.W.3d 30
CourtCourt of Appeals of Arkansas
DecidedFebruary 20, 2019
DocketNo. CV-18-618
StatusPublished
Cited by1 cases

This text of 2019 Ark. App. 106 (Amason v. City of Calion) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amason v. City of Calion, 2019 Ark. App. 106, 573 S.W.3d 30 (Ark. Ct. App. 2019).

Opinion

RAYMOND R. ABRAMSON, Judge

James Randall Amason, Sr., appeals following the Union County Circuit Court's entry of summary judgment on his declaratory-judgment action in favor of the City of Calion, Arkansas (the City). On appeal, Amason argues that the circuit court erred by (1) finding that he was procedurally barred from asserting the declaratory-judgment action; (2) concluding that there were no genuine issues of material fact; and (3) relying on inadmissible evidence. He also argues that the circuit court erred by granting the City's declaration of taking and denying his petition for an injunction. We affirm.

This case arises out of the City's construction of a wastewater plant on Calion Lake. Specifically, the plant is a sanitary sewage system that would discharge treated wastewater effluent into the lake. Amason owns property on Calion Lake, and on February 2, 2015, the City filed a condemnation complaint against Amason seeking two easements-a permanent easement *32and a construction easement-for construction of the plant.

On March 2, 2015, Amason answered and filed a counterclaim for a declaratory judgment. Amason asked the court to declare that "if the City of Calion goes forward with its stand-alone sewer system and dumps effluent into Calion Lake such will void the Surface Lease that was executed on July 13, 1934." He attached the 1934 surface lease and a 1955 assignment of the surface lease to the Arkansas Game and Fish Commission (AGFC).

The 1934 surface lease shows that certain Union County landowners leased their interests in several parcels of land for the establishment of Calion Lake. The surface lease states in part as follows:

The purpose of this lease is to provide a public fishing lake for the use, pleasure and enjoyment of the members of the public.... This lease shall continue and remain in full force and effect for such time as said lake is maintained and used for the purpose aforesaid, and no longer. If said lake is not maintained or the purpose of the lease abandoned, then rights herein surveyed shall cease and the right of possession to the surface of the lands shall return and vest in the respective owners.

In 1955, the lease was assigned to AGFC so long as it "maintain[s], operate[s] and preserve[s] the said Calion Lake as a public fishing lake for the use, pleasure and enjoyment of the members of the public generally and in keeping with purposes of said lease."

On May 18, 2015, the City filed a declaration of taking of two easements across Amason's property. The City stated that just compensation for the easements had been deposited into the court's registry.

On May 29, 2015, Amason objected to the City's declaration. He also filed a petition for injunctive relief. In the injunction petition, he requested that the court enjoin the City from constructing the wastewater plant and from "pursuing eminent domain in this cause of action" until the declaratory-judgment action had been resolved.

On February 3, 2016, the City filed a motion for summary judgment on Amason's declaratory-judgment action. The City argued that Amason did not have standing to assert the action and had failed to join necessary parties. The City further argued that the construction of the wastewater plant did not void the surface lease.

In support of its summary-judgment motion, the City offered the following exhibits: a copy of the 2015 assignment of the surface lease to the City; an affidavit from the Union County judge, Mike Loftin; an affidavit from the City's mayor, Karen Evans; a letter from the Arkansas Natural Resources Commission (ANRC); a letter from the Arkansas Department of Health (ADH); a letter from the United States Army Corps of Engineers (USACE); and two letters from AGFC.

In his affidavit, Loftin stated that the City had plans to construct a wastewater plant on Calion Lake to serve residents and to combat the pollution levels in the lake and that Union County did not object to the plant. In her affidavit, Evans stated that Calion Lake currently had pollution levels that prevent recreational activities such as swimming and skiing and that the wastewater plant would release treated effluent into the lake that would be cleaner than the current water. She stated that the water would be tested regularly to comply with Arkansas State regulatory standards. Evans further stated that Blake Harrell1 had conducted a review of the *33plant and that he had found that it would not negatively impact the fish population and that it complies with all environmental requirements.

In its November 13, 2012, letter, the ANRC approved the wastewater-plant plans and stated that the plant complies with required environmental-review regulations. In its July 15, 2015 letter, the ADH chief engineer stated that the ADH had made a preliminary approval of the wastewater plant. In its November 24, 2015 letter, USACE approved a permit for the wastewater plant.

In a January 17, 2014 letter, the AGFC assistant chief of fisheries management stated that he was responding to Amason's letter concerning the wastewater plant on Calion Lake. He noted that the lake had a history of water-quality problems and that it had been listed on the Environmental Protection Agency's (EPA's) impaired-waters list. He stated that AGFC is committed to working with the Arkansas Department of Environmental Quality to ensure that nothing will be discharged into the lake that will cause a decline in water quality.

In its October 8, 2015 letter, the AGFC director stated that the Commission had no concerns about the City's proposed wastewater plant. The director stated that after the plant is completed, biologists would monitor the water to ensure that the projected water levels matched the proposed levels and that no aquatic life is negatively impacted.

After the City filed its summary-judgment motion, the court entered an order on May 9, 2016, denying Amason's petition for an injunction and finding that the City's declaration of taking was valid.

On May 13, 2016, the City filed a reply to Amason's response to its summary-judgment motion. In the reply, the City additionally argued that the counterclaim did not present a justiciable controversy.

On June 23, 2017, the court held a hearing on the City's summary-judgment motion. At the hearing, the City's attorney informed the court that construction of the wastewater plant had commenced but that the project had not yet been completed.

On October 26, 2017, the court entered a written order granting the City's motion for summary judgment. On November 22, Amason filed a notice of appeal, appealing both the May 9, 2016 order upholding the City's taking and denying injunctive relief and the October 26, 2017 order granting the City's summary-judgment motion.

On December 12, the court entered a supplemental order granting the City's summary-judgment motion. In the supplemental order, the court specifically found that Amason was procedurally barred from bringing the declaratory-judgment action because (1) he did not have standing; (2) he had failed to join necessary parties; and (3) the action did not present a justiciable controversy. The court further found that the construction of the wastewater plant did not void the surface lease.

On December 20, Amason filed an amended notice of appeal to include the December 12, 2017 supplemental order.

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2019 Ark. App. 106, 573 S.W.3d 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amason-v-city-of-calion-arkctapp-2019.