The 8th U.S. Circuit Court of Appeals issued a one-sentence order Thursday denying a request to expedite a hearing and enjoin Interstate 30 widening construction until an appeal can be heard of Judge Jay Moody’s preliminary finding that the Arkansas Department of Transportation had sufficiently studied the environmental harm of the billion-dollar concrete ditch project through the heart of Little Rock.

A final hearing is set in district court Oct. 20. Moody has indicated repeatedly that he sides with highway builders over the broader public interest, so the hearing is likely just a formality. Then there can be a full appeal to the 8th Circuit, but meanwhile, the construction will continue (the builders hope far enough to be impossible to undo.)

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There is a shred of hope for opponents of this poorly conceived project, which  ignores collateral damage to highways and neighborhoods and the changing nature of residence, work and commuting, particularly post-pandemic.

The Arkansas Supreme Court heard oral arguments Wednesday in the appeal of a separate lawsuit arguing that Amendment 91, which imposed a 10-year temporary highway sales tax, could not be used on the I-30 project because Amendment 91 said it was specifically for four-lane freeway construction. This project, which will get $650 million from Amendment 91 proceeds, will widen a six-lane freeway to as many as 10.

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The public interest lawsuit challenging this spending lost at the circuit court level. The appeal will test how serious the Arkansas Supreme Court is about strict construction of the language of statutes and amendments. In recent times, it has hewed strictly to language. For examaple, it has made it just about impossible to sue the state (“sovereign immunity”) and also in its strict interpretation of an ambiguous petition canvassing statute that led to the disqualification of two constitutional amendments and an initiated act.

Said the plaintiffs in their appeal:

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… the plain language of Amendment 91 could not be clearer in its pronouncement that Amendment 91 is limited to four-lane highways. Appellees cannot argue that this language is ambiguous or unclear

During oral arguments, justices asked highway department attorneys about the explicit limitation of tax funds to “four-lane highways.” The state offered little to demonstrate ambiguity in the term. Justices commented that, under rules, if there is no ambiguity, they are supposed to be guided by the words.

In a couple of weeks, we’ll see if the Supreme Court is willing to invoke strict construction in a case involving one of the mightiest and most financially powerful lobby combines in Arkansas, the highway construction industry and chambers of commerce. Or is strict construction only reserved for insurgent ballot petitions and damaged people making claims against the state?

A decision for strict construction would have a dramatic impact on the so-called 30 Crossing project, particularly for the state, which entered a groundbreaking contract that requires payment to the contractor even if they aren’t building anything.

 

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