Arkansas Community Organization for Reform Now v. Brinegar

No. LR-73-C-292 (398 F. Supp. 685) (E.D. Ark. July 25, 1975)

ELR Digest

A citizens group and some of its members brought this action challenging a proposed interstate highway connector in Little Rock, Arkansas under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., ELR 41009, and the Department of Transportation parkland provisions, 49 U.S.C. § 1653(f), ELR 41605, and 28 U.S.C. § 138, ELR 41602. The east end of the proposed six-lane divided highway, I-630, would abut one park and pass very close to another. Plaintiffs' delay of about 11 months in filing suit does not constitute laches, for it was adequately explained and defendants have not shown prejudice. The Secretary of Transportation did not err in failing to file a statutory § 4(f) statement respecting the parks in question. Although the question is close, plaintiff have not met their burden of establishing constructive use of one park; as to the other, no § 4(f) statement is required since the park was created after the highway was located. Contrary to plaintiffs' allegations, defendants have complied with applicable federal relocation law, 42 U.S.C. §§ 4601 et seq. Because the project's impact statement is inadequate, the court does not reach the issue of asserted improper delegation of impact statement preparation to the state highway department. The main weakness in the EIS is its failure to discuss practical alternatives to the proposed highway, such as narrowing or shortening it, or moving it further from the parks. The EIS also lacks adequate detail in discussion of impacts on the parks. Exercising its discretion to frame appropriate relief, Environmental Defense Fund v. Froehlke, 477 F.2d 1033, 3 ELR 20383 (8th Cir. 1973), the court enjoins further construction and restricts future land purchases only in the eastern half of the project; the western half may proceed normally.

Plaintiffs' claim for court costs is granted as to the federal defendants under 28 U.S.C. § 2412, but its prayer for attorneys fees is denied under the authority of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 5 ELR 20286 (U.S. 1975).

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1006).

Counsel for Plaintiffs
John T. Lavey
Philip D. Peters
Pyramid Life Bldg.
221 W. 2d Street
Little Rock, Ark. 72201
(501) 376-2269

Counsel for Defendants
Thomas B. Keyes, U.S. Attorney
W. H. Dillahunty
O. H. Storey Asst. U.S. Attorneys
600 W. Capital
Little Rock, Ark. 72201
(501) 378-5346

Henley, J.

[OPINION OMITTED BY PUBLISHER, IN ORIGINAL SOURCE]