Northwest Arkansas Democrat-Gazette
I-30 project defended; funding freeze denied
Action finally picked up in a lawsuit filed in early November questioning the legality of spending money under a 2012 amendment to the Arkansas Constitution on highways exceeding four lanes.
A bevy of documents filed in the Pulaski County Circuit Court case, mostly within the past week, included the state Department of Transportation’s first response to the assertion that a “plain reading” of Amendment 91, which governs much of the money spent under the agency’s $1.8 billion Connecting Arkansas Program, makes it illegal to work on some of the program’s high-profile projects, including the $631.7 million project to improve the Interstate 30 corridor through downtown Little Rock and North Little Rock, often known as 30 Crossing.
The department and the Arkansas Highway Commission, which has agency oversight, defended the spending as proper under the amendment and asked Circuit Judge Alice Gray to require a “substantial” bond should the judge grant injunctive relief to compensate the department and commission should they “prevail on the merits, for the harm that an injunction entered before the final decision caused them.”
If an injunction was granted, funding for several projects would be “severely limited and could jeopardize their completion” and “uncompleted highway projects present significant risks to the traveling public as well,” the department said in court documents.
Gray also weighed in on the case for the first time, denying the plaintiffs’ request, in advance of a hearing, to immediately freeze all spending under the Connecting Arkansas Program on projects exceeding four lanes, which also includes the $87.4 million project to widen a 2.2-mile section of Interstate 630 in west Little Rock to six lanes from four. That project began last summer. This past weekend, the contractor began demolishing one of the two bridges scheduled to be replaced as part of the work.
PLAINTIFFS’ CASE
An attorney for the plaintiffs, Justin Zachary, had asked for the freeze because the department continues and proposes to continue “to use substantial amounts of money from the fund for the expansion of interstate highways that are already four lanes or more.”
The lawsuit against the transportation department, its commission and Gov. Asa Hutchinson, as well as other defendants, was filed Nov. 7, but serving the lawsuit on several defendants, including the department and the five members of the state Highway Commission, didn’t happen until Dec. 26, which was the same day Gray issued her first order.
The lawsuit contends that the “obvious, common, plain and unambiguous language” of Amendment 91, which governs the money spent on 30 Crossing, the I-630 job and other projects under the Connecting Arkansas Program, limits improvements to fourlane highways or two-lane highways that are widened to four lanes.
Amendment 91 was approved by voters in 2012. Among other things, it put in place for 10 years a half-percent increase in the statewide sales tax to help fund the Connecting Arkansas Program, which focuses on regionally significant highway projects.
The amendment language defines “four-lane highway improvements” to include “four-lane roadways, bridges, tunnels, engineering, rights of way and other related capital improvements and facilities appurtenant or pertaining thereto, including costs of rights-of-way acquisition and utility adjustments.”
The language also includes “the maintenance of four-lane highway improvements constructed with proceeds of the bond” within the definition of “four-lane highway improvements.”
The amendment contains other references to four-lane highways, including that the bonds issued as part of the program are payable from the Arkansas Four-Lane Highway Construction and Improvement Bond Account.
The lawsuit asks to declare the way the state is using the money under Amendment 91 unconstitutional, enjoin the state from further expenditure of the money, account for all money spent under Amendment 91 and provide restitution to the Amendment 91 account, known as the Bond Account, of any money spent on projects exceeding four travel lanes.
The lawsuit also asks Gray to declare any money spent under Amendment 91 on projects exceeding four travel lanes to be an illegal exaction under Article 16, Section 13 of the Arkansas Constitution and thus consider the lawsuit, as a matter of law, a class action by the plaintiffs on behalf of all Arkansas taxpayers.
The lawsuit was filed on behalf of five Arkansas residents led by Richard Mason of El Dorado, a registered professional geologist, downtown developer, former chairman of the Arkansas Department of Environmental Quality board of commissioners and former president of the Arkansas Wildlife Federation. He writes a weekly column for the Arkansas Democrat-Gazette.
The other plaintiffs are Fayetteville residents Shelley Buonauito and Sara B. Thompson, Mary Weeks of Little Rock and Verlon Abram of the Cleburne County community of Wilburn.
DEFENDANTS ANSWER
Hutchinson and three other defendants — state Treasurer Dennis Milligan, state Auditor Andrea Lea and Larry Walther, director of the state Department of Finance and Administration — filed their responses to the lawsuit in December.
They said spending under the Connecting Arkansas Program was constitutional and, even if it wasn’t, the claims in the lawsuit are barred by the doctrine of sovereign immunity, the principle that the state cannot be sued as stated in the Arkansas Constitution. Last year, the state Supreme Court upended years of highcourt precedent in ruling that the General Assembly cannot pass laws waiving sovereign immunity.
The department and the commission — which includes chairman Dick Trammel of Rogers, Tom Schueck of Little Rock, Robert Moore Jr. of Arkansas City, Alec Farmer of Jonesboro and Philip Taldo of Springdale — also invoked the sovereign immunity defense.
But they also disagreed with the assertion that the Connecting Arkansas Program was limited to four-lane highways or two-lane highways being expanded to four lanes and referred to wording of a ballot measure.
“The ballot measure clearly states that the temporary sales and use tax were to be used for state highways and bridges without limitation,” Mark Umeda, a staff attorney for the Transportation Department, said in a pleading.
The first words of the ballot measure reads: For A Proposed Constitutional Amendment To Levy Temporary Sales and use Tax Of One-Half (0.5%) For State Highways and Bridges, County Roads, Bridges And Other Surface Transportation, And City Streets, Bridges And Other Surface Transportation.”
However, Umeda added, that the ballot measure “also allows for the procurement of bonds for ‘the purpose of constructing and improving four-lane highways in the state of Arkansas.’”
If Gray interpreted the “four-lane highway” as narrowly as the plaintiffs, Umeda said the department and commission were still acting within the scope of the amendment because the $500 million in bonds they secured already has been spent.
“The projects are currently being paid for as the funding becomes available as generated by the 0.5% temporary sales and use tax,” he said. “Accordingly, the Commission, the Director, and ArDOT have used the proceeds of the temporary sales tax property, and Plaintiffs suit should be dismissed.”