City of Dardanelle v. City of Russellville

• Decision Date: 28 February 2008
• Docket Number: No. 07-195.,07-195.
• Citation: City of Dardanelle v. City of Russellville, 372 Ark. 486, 277 S.W.3d 562 (Ark. 2008)
• Parties: CITY OF DARDANELLE, Appellant, v. CITY OF RUSSELLVILLE, City Corporation, and Arkansas Dept. of Environmental Quality, Appellees.
• Court: Arkansas Supreme Court

277 S.W.3d 562

372 Ark. 486

CITY OF DARDANELLE, Appellant, v.CITY OF RUSSELLVILLE, City Corporation, and Arkansas Dept. of Environmental Quality, Appellees.

No. 07-195.

Supreme Court of Arkansas.

February 28, 2008.

Richard H. Mays Law Firm, by: Richard H. Mays, Little Rock, AR, for appellant.

Russellville City Attorney, by: William F. Smith, III, Russellville, AR, for appelleeCity of Russellville; and Streett Law Firm, by: Alex G. Streett, Russellville, AR, and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Marshall S. Ney, Rogers, AR, for appelleeCity Corporation.

Dustin McDaniel, Att'y Gen., by: Charles Moulton, Sr. Ass't Att'y Gen., and Kendra Akin Jones, Ass't Att'y Gen., Little Rock, AR, for appelleeArkansas Department of Environmental Quality.

ANNABELLE CLINTON IMBER, Justice.

The instant appeal arises out of a longstanding dispute between Appellant City of Dardanelle and Appellees City of Russellville and City Corporation.Dardanelle filed a breach-of-contract action in the Pope County Circuit Court asserting that a joint resolution reached by the cities in May 2002 was a binding contract, which Russellville had breached.The circuit court dismissed the complaint pursuant to Arkansas Rule of Civil Procedure 12(b)(6)(2007), based on the reasoning that the joint resolution was not a contract.Dardanelle now appeals the circuit court's order, arguing that the circuit court erred in dismissing its complaint and in finding that the joint resolution was not a contract.Because the instant appeal involves an issue of substantial public interest, we have jurisdiction over the instant case.Ark. Sup.Ct. R. 1-2(b)(4)(2007).

City Corporation is the operator of Russellville's wastewater treatment facility.For several years, City Corporation has been discharging its sewage effluent into Whig Creek, a nearby body of water.In the mid-1990s, City Corporation became aware that it would no longer be able to meet the effluent discharge requirements under its permit from the Arkansas Department of Environmental Quality(ADEQ) unless extensive improvements were made to the treatment facility, or the discharge of sewage effluent was redirected into a larger body of water.In 1996, City Corporation and Russellville applied to the ADEQ for a permit to build a pipeline that would discharge the effluent from the plant directly into the Arkansas River.

Russellville's permit application met considerable opposition from Dardanelle because the proposed pipeline outfall would be located downstream from the Dardanelle Dam, directly across the river from the Dardanelle City Park.The outfall would also have been across from a well that provided part of the city's water supply, and, apparently, the hydrology of the well water correlates to the water in the river.In addition, Dardanelle contended that the water in the area of the proposed outfall barely flows during the summer months.

To avoid the possible contamination of its lands and water, Dardanelle recommended that Russellville build the pipeline downstream of the Dardanelle city limits.A downstream pipeline, however, would cover a longer distance and would require a pumping system.The suggested adjustments would add almost six million dollars to the cost of the project.Because the extra funding was not available, Russellville declined to adopt Dardanelle's plan.

On May 10, 2002, after years of disagreement, city council members for both cities and members of City Corporation's board of directors signed a "Joint Resolution."The complete resolution is quoted below:

WHEREAS, the cities of Dardanelle and Russellville, Arkansas and City Corporation, operator of the Water and Sewer Systems for the City of Russellville, Arkansas, have agreed with each other to cooperate in the pursuit of all avenues of funding for the proposed municipal outfall sewer line from the City of Russellville Treatment Plant to a point downstream of the present city limits of Dardanelle on the Arkansas River, and

WHEREAS, the parties are in agreement with the proposed location for the municipal outfall sewer line from the City of Russellville Treatment Plant to a point downstream of the present city limits of Dardanelle on the Arkansas River, and

WHEREAS, in order for this endeavor to be a successful venture, the cooperation of all concerned will be necessary.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dardanelle, and the City Council of the City of Russellville, and the Board of Directors for City Corporation that we go on record as approving this agreement and urge all citizens of Yell and Pope County to work together in a united effort to obtain funding and approval for the municipal outfall sewer line for the City of Russellville.

Russellville also compiled a document that was circulated to the public, entitled "Russellville/Dardanelle Cooperative Construction Effort for a Wastewater Outfall Line to the Arkansas River."The plan contained a copy of the resolution, an explanation of the ongoing dispute between Russellville and Dardanelle, an estimate of the cost for the downstream pipeline, and maps showing the proposed location of the downstream pipeline.Governor Mike Huckabee wrote a letter addressed to the Arkansas Congressional delegation lending his support to the cities' resolution and urging an allocation of federal funds for the project.Representatives from both Russellville and Dardanelle traveled to Washington, D.C., to obtain federal funding for the downstream-pipeline project, but no funding was available.

On March 29, 2005, Russellville ceased efforts to obtain funding for the downstream pipeline and applied to the ADEQ for a permit to allow a pipeline outfall at the original, upstream location.On May 18, 2006, the ADEQ issued a draft permit for public comment, indicating its intent to issue a final permit.¹Dardanelle then filed a complaint in the Pope County Circuit Court, against Russellville, City Corporation, and the ADEQ, alleging that the joint resolution was a contract that Russellville breached when it reapplied for the upstream-pipeline permit.Dardanelle requested specific performance of the joint resolution and an injunction preventing Russellville from building the pipeline upstream.

Russellville filed a motion to dismiss under Arkansas Rule of Civil Procedure 12(b)(6), arguing that the joint resolution was not a contract; rather, the resolution was merely a non-binding agreement to cooperate in the effort to obtain funding for the downstream pipeline.After a hearing on the motion, the circuit court entered an order dismissing Dardanelle's complaint, based upon its conclusion that the joint resolution did not contain the essential elements of a contract.

Under Ark. R. Civ. P. 12(b)(6), a circuit court may, upon a party's motion, dismiss...