Audubon Soc. of Cent. Arkansas v. Dailey

• Decision Date: 13 October 1992
• Docket Number: No. 91-1764,91-1764
• Citation: 977 F.2d 428
• Parties: , 23 Envtl. L. Rep. 20,271 AUDUBON SOCIETY OF CENTRAL ARKANSAS; Alice B. Andrews; David F. Gruenewald; Barry H. Haas; Robert H. McKinney, Plaintiffs-Appellees, v. Jim DAILEY; Cyril Hollingsworth; John Lewellen; Sharon Priest; Hampton Roy; Lottie Shackleford; Tom Dalton; City of Little Rock; Defendants-Appellants, United States Department of The Army, Corps of Engineers; Charles C. McCloskey, III, Colonel, District Engineers, Corps of Engineers; Defendants, Joyner-Ford & Burke Construction Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 428

977 F.2d 428

35 ERC 1892, 23 Envtl. L. Rep. 20,271

AUDUBON SOCIETY OF CENTRAL ARKANSAS; Alice B. Andrews David F. Gruenewald; Barry H. Haas; Robert H McKinney, Plaintiffs-Appellees, v. Jim DAILEY; Cyril Hollingsworth; John Lewellen; Sharon Priest; Hampton Roy; Lottie Shackleford; Tom Dalton; City of Little Rock Defendants-Appellants United States Department of The Army, Corps of Engineers; Charles C. McCloskey, III, Colonel, District Engineers, Corps of Engineers; Defendants, Joyner-Ford & Burke Construction Company, Defendants-Appellants.

No. 91-1764.

United States Court of Appeals, Eighth Circuit.

Submitted April 13, 1992.

Decided Oct. 13, 1992.

Thomas M. Carpenter, Little Rock, Ark., argued, for defendants-appellants.

William C. Adair, Little Rock, Ark., argued, for defendant-appellant City of Little Rock.

Webster L. Hubbell, Little Rock, Ark., argued, for plaintiffs-appellees.

Before JOHN R. GIBSON and BEAM, Circuit Judges, and HUNGATE, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

The City of Little Rock, Arkansas, and various city officials ¹ appeal from the district court's ² order enjoining them and their contractor, Joyner-Ford & Burke Construction Company, from proceeding with construction of a bridge over Jimerson Creek until the Army Corps of Engineers ³ has prepared an environmental impact statement (EIS) regarding its grant of a permit to build the bridge. 761 F.Supp. 640. The district court held that the Corps had ignored the considerable effect increased traffic resulting from the bridge and its connected project would have on recreational use of Murray Park, Rebsamen Park, and other recreational areas on the south bank of the Arkansas River at Little Rock. The City argues that the Corps considered the effect of the traffic and that this court has no power to require the Corps to do anything further. Alternatively, the City requests that this court remand the matter to the Corps instead of affirming the order requiring an EIS. We affirm the judgment of the district court.

In 1987 the voters of Little Rock approved a capital improvement bond issue to build streets. At the time of the bond election, the city's list of top twenty street projects included an extension of Rebsamen Park Road permitting access to Murray Lock and Dam and Murray, LaHarpe View and Rebsamen parks from the west, where previously the only entrance had been from central Little Rock. These parks run alongside the Arkansas River near downtown Little Rock. The City has plans eventually to connect these parks to others in a "chain of parks." After the election, the City submitted an application to the Corps for a permit to put fill in along Jimerson Creek, a tributary of the Arkansas River, which would have to be bridged as part of the road extension. It was necessary to apply for a permit because of section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (1988), and section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1988). Under the National Environmental Policy Act (NEPA), federal agencies must prepare an EIS before approving "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (1988). The Corps determined that, though the only action affecting national waters was the placement of the fill in Jimerson Creek, NEPA required the Corps to consider the environmental impact on the entire area of "the proposed road extension plus the existing Rebsamen Park Road from gateway to gateway."

In connection with its review, the Corps gave notice to various state and federal agencies. In response to the notice, the Arkansas Department of Parks and Tourism identified as a potential problem the effect of increased traffic on recreational use of the Parks. The Department gave conditional approval to the project:

The Department of Parks and Tourism will support the referenced project if the project's applicant, the City of Little Rock, makes every effort to ensure the safety and enjoyment of the users of this recreational area.... This Department recommends speed limits along the length of Rebsamen Park Road be set at no greater than 35 mph and reduced to 20 mph through the activity areas. Much of the danger introduced from this road extension would result from high speed traffic. As the plans are currently proposed, bicycles and pedestrians will be exposed to incredible risks if cars are passing at high speeds.

Joint Appendix at 360.

The Corps also gave public notice of the permit application, and received 64 public responses, 12 in support of the proposed road, 49 opposed to it, and 3 not expressing an opinion. The principal concern stated in the public responses was that the new road would be used as a commuter route from West Little Rock to downtown and spoil recreational use of the areas though which it passed. The Corps sent a letter to Little Rock's mayor, asking that the City provide traffic volume statistics for the road as it existed before the proposed extension and for the road with the proposed extension. The Corps also asked for average travel times from western Little Rock to downtown on the proposed Rebsamen Park Road compared with travel times for the same trip on the existing parallel route, Cantrell Road.

The Mayor responded that traffic on the existing Rebsamen Park Road was about 2,500 vehicles per day (vpd) on the weekend and 2,900 vpd on week days. The City estimated travel times from west Little Rock to downtown at 12.5 to 15 minutes on Cantrell Road and 13 minutes "or greater" on the proposed Rebsamen Park Road. If the City maintained a posted 35 mph speed limit on the proposed Rebsamen Park road, the City projected traffic volume on the road at 4500 vpd shortly after completion. The City projected traffic volume in the year 2010 as 19,000 to 30,000 on Cantrell Road and 8,600 to 9,000 on the proposed Rebsamen Park Road if the speed limit were 35 mph. If the speed limit on Rebsamen Park Road were 45 mph, the prediction for 2,010 would be 15,000 vpd or greater.

The Corps then hired Peters & Associates, consulting engineers, to study the effect of the road extension. Peters issued a report concluding that the traffic volumes anticipated by the City would include commuter traffic and would pose a threat to the recreational use of the areas along the Arkansas River. The report stated:

Traffic volumes increasing to only 4,500 vpd and compliance with a 35 MPH speed limit would be tolerable on the roadway as planned.... The Pulaski Area Transportation Study (PATS) has made volume projections for this section of Rebsamen Park Road to be between 8,600 and 9,000 vpd. If volumes of this magnitude materialize, it will most likely be a result of increased thru traffic use not a greater than three-fold increase in use of recreation facilities.... As a two-lane road the facility can accommodate, from a capacity standpoint, traffic volumes of the magnitude projected by PATS, but likely not without adverse impact on the recreational uses it is intended to serve. Although the route may not attract much thru traffic initially, as traffic volumes increase and congestion worsens on arterials and expressways, motorists will seek what they perceive as more attractive alternate routes, such as Rebsamen Park Road, even though travel times may not be significantly different. I believe this will eventually occur, probably over a five to six year period after completion, and volumes could easily grow to 8,000 to 9,000 vpd as projected by PATS.

Joint Appendix at 391. Peters made some remedial suggestions, including providing separate bridges over Jimerson Creek for autos, on the one hand, and bicycles and pedestrians, on the other; and "curvilinear alignment" and use of stop signs on Rebsamen Park Road.

The City responded to the Peters report by asking the Arkansas Highway and Transportation Department to project traffic volumes for the proposed road. The Department came up with a figure for the year 2010 of 5,384 to 9,265 vpd depending on the respective speeds at which traffic could travel on Rebsamen Park Road and Cantrell Road. (Traffic volume on Rebsamen Park Road would increase in response to a higher speed limit on Rebsamen Park Road and a lower speed limit on Cantrell Road.) The City rejected the Peters proposal for a separate bridge for pedestrians and cyclists and the inclusion of sharp curves and stop signs in the road to slow down traffic. The City proposed "one mild curve near the [Murray Lock and Dam] to reduce through traffic." Joint Appendix at 414.

Another response to the Corps' public notice came from the Corps' own resident engineer, who recommended against the road because it would bring in commuter traffic, posing a security threat to Murray Lock and Dam and creating traffic control problems.

Because of the unresolved opposition to the City's plans, the Corps held a public hearing on the permit application to enable the Corps to determine whether an EIS would be necessary.

At the public hearing those who spoke in favor of the proposed road were primarily people from nearby neighborhoods who saw the proposal as a way to relieve their own streets of excessive traffic. These citizens referred to the residential streets near the park as "freeway[s]". One said the "traffic is insufferable." Many citizens who identified themselves as park users opposed the road extension on the grounds that it would introduce commuter traffic into the parks and ruin the recreational value of the area. They stated that they currently used the area for jogging, bicycling, bird watching, walking and nature observation. Several stated that even on the existing road the City did not enforce the posted 45 mph speed limit and motorists drove as fast as 60 mph.

Corps personnel's first draft of its Environmental Assessment ⁴ made several new points regarding the traffic situation. First, the draft stated that since the commute...