Arkansas Democrat-Gazette

Judge denies bid for dismissal of highway-spending challenge


A legal challenge to the way the Arkansas Department of Transporta­tion spends millions of its constructi­on dollars withstood an attempt by the agency and its co-defendants to get it dismissed.

Pulaski County Circuit Judge Mackie Pierce said in a letter to attorneys in the case Wednesday that he was going to deny the motion for dismissal, noting he is required to “treat the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff.

“After considerin­g this matter pursuant to the requiremen­ts of the law, I find the defendants’ motion to dismiss should be and is hereby denied.”

The judge directed Richard Mays of Little Rock, the attorney for the plaintiffs, to prepare an order consistent with the letter.

Pierce’s decision came three days after he presided over a hearing on the motion to dismiss the lawsuit brought by a coalition of downtown Little Rock neighborho­ods and residents.

They initially sought to have work halted on two projects on Interstate 30, including the $1 billion 30 Crossing project through downtown Little Rock and North Little Rock, until the department could “clearly demonstrat­e” that the projects could be “conducted and completed” in compliance with an Arkansas Supreme Court ruling and until their case was decided at trial.

The 30 Crossing project, which aims to revamp the

6.7-mile Interstate 30 corridor between Interstate 40 and Interstate 530, has drawn the ire of the coalition as well as litigation seeking to halt it.

In addition to replacing the bridge over the Arkansas River, the project will expand the corridor to as many as 10 lanes in places from six. Work began on the first phase in September.

The Supreme Court ruled in October that Amendment 91 to the Arkansas Constituti­on bars the 0.5% statewide sales tax collected under the amendment to be used on highways wider than four lanes.

That decision came in an earlier lawsuit seeking to stop Amendment 91 money from being used on 30 Crossing. Amendment 91, approved by voters in 2012, underpins the department’s $1.8 billion Connecting Arkansas Program, an initiative that targets work on regionally significan­t projects, including 30 Crossing.

In December, Pierce refused to issue an injunction to stop work on 30 Crossing, ruling that the plaintiffs did not have evidence to justify halting constructi­on.

The coalition filed an amended lawsuit in January to include nearly a dozen other road projects in which the coalition identified at least $780.4 million that it said had been illegally spent on the projects.

The amended complaint asked that the money be repaid to the Arkansas FourLane Highway Constructi­on and Improvemen­t Bond Account.

The Transporta­tion Department and other defendants have sought to have the case dismissed, arguing in briefs and during Monday’s hearing that the latest lawsuit was precluded from being heard because the matter already was decided by the Supreme Court’s October decision.

Mays, who specialize­s in environmen­tal law, said in a reply brief that he was withdrawin­g 30 Crossing and another completed widening project on a section of Interstate 630 because they were at issue in the case heard by the Supreme Court.

Another issue in the lawsuit is whether Amendment 101 to the Constituti­on is separate and distinct from Amendment 91. Voters approved Amendment 101 in November.

It extends the 0.5% sales tax in Amendment 91, which is set to expire in 2023 after 10 years — making the tax permanent.

Meanwhile, the Transporta­tion Department and other defendants, including Gov. Asa Hutchinson, are still in court over the case that led to the Supreme Court ruling.

The plaintiffs in that case are seeking to find the department in contempt for not providing proof it has reimbursed $121 million illegally spent on two highway projects, including 30 Crossing, under Amendment 91.

In a joint filing last week, the defendants said they are in compliance with a Feb. 1 judgment by Pulaski County Circuit Judge Chip Welch “because they have reimbursed the funds.”

They also said “plaintiffs cannot show that defendants’ actions pursued in good faith to restore the subject funds to the Amend. 91 Fund merit even an allegation—much less a finding—of civil contempt. Accordingl­y, defendants jointly and respectful­ly ask that this court deny and strike plaintiffs’ motion for contempt.”

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