Citizens Expressway Coalition, Inc. v. Lewis

523 F. Supp. 396, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1981 U.S. Dist. LEXIS 18536
CourtDistrict Court, E.D. Arkansas
DecidedSeptember 30, 1981
DocketNos. LR-C-81-124, LR-C-81-586
StatusPublished
Cited by2 cases

This text of 523 F. Supp. 396 (Citizens Expressway Coalition, Inc. v. Lewis) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Expressway Coalition, Inc. v. Lewis, 523 F. Supp. 396, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1981 U.S. Dist. LEXIS 18536 (E.D. Ark. 1981).

Opinion

MEMORANDUM OPINION

WOODS, District Judge.

INTRODUCTION

This action involves the construction of 25.3 miles of highway running from Bella [398]*398Vista to the Fayetteville Loop. Highway 71 is completed from Bella Vista to the Missouri line, and the proposed construction will link Bella Vista and the Fayetteville bypass. This connection will bypass the developing urban areas of Springdale, Rogers and Bentonville. Its purpose is to relieve the admittedly serious traffic congestion in these areas. There are no plans at this time to continue the highway south of Fayetteville, thereby connecting Fayetteville and Fort Smith. As required by law, a final environmental impact statement covering this project was filed before final approval of the project. It is the sufficiency of this impact statement which is being questioned in these lawsuits.

The plaintiffs first challenge the scope of the EIS, contending that the Fayetteville-McKissick Creek segment of the construction is part of the larger project of highway construction running from the Missouri line to Fort Smith. In support of this argument, the plaintiffs’ expert suggested that some study should be made of the impact on the highway area immediately south of Fayetteville. On the other hand, the defendants argue that the Fayetteville-McKissick Creek project has utility independent of any improvements that might be made south of Fayetteville. At this time there are no plans to improve this section of the highway.

The plaintiffs also attack the EIS for failing to adequately consider the alternative of improving existing Highway 71. Considerable time was devoted to this argument by the plaintiffs’ expert. In substance Mr. Lazar claimed that a detailed study of the feasibility of adding lanes to Highway 71 should have been undertaken. While the EIS does contain a study of this alternative, it also contains the conclusions that such an addition would not relieve congestion and would be prohibitively expensive.

Additionally, the EIS section on archeological sites is criticized by the plaintiffs. While the testimony of the State archeologist highlighted certain deficiencies, she did state that her belief that the handling of archeological finds was an ongoing process and any problems would undoubtedly be worked out to the satisfaction of her department.

After finding fault with the EIS for failing to consider alternatives, the plaintiffs’ expert suggested that the impact statement should have included the final design details. Instead the defendants’ exhibits reveal that Arkansas has adopted a two-step approach to presenting the public with proposed construction plans. This approach provides for design public hearing after the location of the highway has been approved.

Finally the plaintiffs take issue with the role of the Federal Government as it relates to the EIS. It is claimed that the Federal Government did not conduct an independent study and review of the State’s plan. Records of meetings between the State and Federal Government and the testimony of the State Director of the FHWA were introduced by the defendants to refute the plaintiffs’ allegations.

The Environmental Impact Statement, which is the only issue in this case, is required by the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. In summary, this act sets forth the following:

[tjhere must be included in every federal recommendation for major federal action significantly affecting the quality of the human environment a detailed written statement dealing with (1) the environmental impact of the proposed action; (2) any adverse environmental effects that cannot be avoided should the proposal be implemented; (3) alternatives to the proposed action; (4) the relationship between the local short-term use of the environment and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. (Farmland Preservation Ass’n v. Goldschmidt, 611 F.2d 233, 236 (8th Cir. 1979).)

FINDINGS OF FACT

1. The construction of the bypass has been realigned so that it will avoid archeo[399]*399logical sites 3WA 262 and 3BE 270 and will have no effect on these sites, which have been identified as potentially significant sites. Ten other sites identified as potential archeological locations are not in the path of the right-of-way, except for two possible sites near the proposed right-of-way. Both the defendants and State archeologist have stated that the discovery and mitigation of archeological sites is an ongoing process and that problems connected with such sites are handled or mitigated as they arise. We find that the State and Federal authorities have adequately explored and taken into consideration the possible disturbance of the area’s archeological resources.

2. The State archeologist criticised the EIS on the ground that it did not specifically require the contractor to cease work in progress pending proper evaluation, in the event that archeological evidence was unearthed. This requirement is covered by a Federal regulation and is part of the standard bid specifications for the project. When the State archeologist was apprised of the bid specification on cross-examination, she withdrew this objection to the EIS. We therefore find this objection to be without any basis.

3. We further find on the basis of the candid testimony by the State archeologist that a good relationship exists between her and the Highway Department archeologist and that this relationship will continue to the end that no significant archeological sites will be endangered by the work on this bypass.

4. The alignment was changed to avoid destruction of Johnson’s Mill, a very significant historical site. From her testimony it was apparent that the State archeologist did not clearly understand that this route change had been made, but she has now been satisfied, and the Court finds that this historic mill dating from 1867 will not be disturbed.

5. We find the EIS gave adequate consideration to the alternative of upgrading the existing roadway of Highway 71 between the present Fayetteville bypass and Bella Vista. The plaintiffs contend that the study of this alternative should have been pursued in greater depth. We find that pursuit in greater depth was completely unjustified. The EIS shows 500 businesses along this route, with which the Court is very familiar. The Court takes judicial knowledge that there is almost complete business development along both sides of Highway 71 in its present location, which traverses the center of three large and rapidly growing northwest Arkansas cities — Springdale, Rogers and Bentonville. Not only would a multitude of large and highly successful businesses be affected by the widening of the present highway or its conversion to an expressway, but some of the largest manufacturing plants in the State of Arkansas would also be seriously affected. We find it obvious, as did the EIS, that upgrading the present location of Highway 71 is not feasible from an economic standpoint.

6. In addition to the considerations mentioned above in Finding No.

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Related

County of Bergen v. Dole
620 F. Supp. 1009 (D. New Jersey, 1985)
Citizens Expressway Coalition v. Lewis
685 F.2d 437 (Eighth Circuit, 1982)

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Bluebook (online)
523 F. Supp. 396, 12 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1981 U.S. Dist. LEXIS 18536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-expressway-coalition-inc-v-lewis-ared-1981.