HIGHWAY 79 BRIDGE: Another loss for preservationists.

HIGHWAY 79 BRIDGE: Another loss for preservationists.

The Arkansas Supreme Court today dismissed a suit aimed at blocking demolition of the old U.S. Highway 79 bridge over the White River in Clarendon.

The court upheld a lower court ruling dismissing the lawsuit against the Arkansas Department of Transportation and Arkansas Highway Commission.

A new bridge has been built over the White River. Under an agreement between the state and the U.S. Fish and Wildlife Service for an easement for the new bridge, the state agreed to demolish the old bridge and restore the river channel to its original state.

Advertisement

An effort began to save the old bridge to convert it for pedestrian and bike use as a tourist attraction. But efforts in both state and federal court have so far failed, despite some support from state politicians and a willingness of the state to pay for ongoing maintenance. The Fish and Wildlife Service has said the agreement to remove the bridge and restore Cache River Wildlife Refuge river flow was ironclad

Judge Chris Piazza had dismissed the state lawsuit and the Supreme Court upheld his decision today.  The Supreme Court said the suit against the state could proceed, despite sovereign immunity protection, only if the plaintiffs could demonstrate the expenditure was an “illegal exaction,” such as a misapplication of public money. The court wrote, however:

The complaint does not allege any wrongdoing on the part of the state at all.  Instead, it alleges that USFWS took advantage of the Department’s highway-expansion project to force unreasonable terms on the state and attempts to assert various contract defenses on the state’s behalf.  This is not sufficient to establish a claim for an illegal exaction.

Justice Jo Hart dissented and Special Justice Meredith Switzer, replacing Justice Courtney Goodson, joined the majority decision. Justice Karen Baker again concurred to repeat her argument that if the Supreme Court is to enforce sovereign immunity precedent as recently written, that alone was enough to dismiss this suit. There are no exceptions.

Wrote Justice Hart:

When the government is engaged in wasteful and fiscally irresponsible activity, an illegal-exaction lawsuit brought by a taxpayer is often the only thing that can stop it.  Here, a group of taxpayers asserts that the Arkansas Department of Transportation (ARDOT) is about to destroy one of our state’s historic structures, the old U.S. 79 White River Bridge at Clarendon, Arkansas (the Clarendon Bridge), at a cost of no less than $10.8 million.  According to the complaint, ARDOT insists on this course of action, even though the bridge’s destruction (1) is unnecessary and will not serve its intended purpose; (2) is expressly illegal for lack of federally required workability assessments, which would show that the destruction of the bridge is unnecessary and will not serve its intended purpose; and (3) will eliminate a substantial and ready-to-implement economic-development plan featuring the Clarendon Bridge that would bring tourism revenue to a region of our state that could use it.  The complaint sufficiently states an illegal exaction claim.[4]

I’m seeking comment on what avenues remain for those seeking to preserve the bridge. There are no other legal actions pending. The Highway Commission had earlier accepted a bid on the demolition, but it was delayed by the court appeal. I’m awaiting a call from the Highway department on what the next step will be.

UPDATE: Danny Straessle of the department responds:

Advertisement

The Pulaski County Circuit Court granted the Arkansas Highway Commission and the Arkansas Department of Transportation’s Motion to Dismiss and on appeal, the Supreme Court stayed demolition of the bridge pending resolution of the appeal.

 

The Supreme Court has now affirmed the dismissal, holding that the Circuit Court was correct in finding that complaint failed to state a cause of action for an illegal exaction.

 

With a final decision from the Supreme Court, ARDOT will be able to proceed with the demolition project as contracted.

 

We anticipate establishing a timeline for this within the next three to four weeks.