U.S. Supreme Court to hear AGFC case on Dave Donaldson Black River WMA timber damage

The Arkansas Game and Fish Commission made a major advancement in its7-year-long lawsuit against the United States Government for cost recovery oftimber damages to its Dave Donaldson Black River Wildlife Management Area. TheU.S. Supreme Court agreed with AGFC’s argument to review the U.S. Courtof Appeals for the Federal Circuit’s decision that overturned a lowercourt award in favor of AGFC.

Inits brief to the high court, the AGFC argued it is entitled to compensationfrom the United Statesunder the Takings Clause of the Fifth Amendment for physically taking itsbottomland hardwood timber on Dave Donaldson Black River WMA through sixconsecutive years of protested flooding during the sensitive growing season.

TheCourt of Federal Claims had awarded $5.78 million, plus interest, costs andattorney fees, finding that the U.S. Army Corps of Engineers’ actionsdestroyed and degraded more than 18 million board feet of timber, left habitatunable to regenerate and prevented the use and enjoyment of the area.

TheFederal Circuit reversed the trial judgment on a single point of law. A sharplydivided 2-1 panel ruled that the United States did not inflict ataking because its actions were not permanent and the flooding eventuallystopped. The Federal Circuit denied rehearing en banc ina fractured 7-4 vote.

The AGFC filed suitagainst the U.S.on March 18, 2005, to recoup the value of dead and dying timber and to restoreareas where timber died on Dave Donaldson Black River WMA, which covers about24,000 acres in Clay, Randolph and Greene counties. During the 11-day trial inDecember 2008, which included a site inspection of parts of the WMA, the AGFCwas able to prove that the Army Corps of Engineers’ management of waterfrom the Black River and Missouri’s Clearwater Lake caused significant damage to theWMA’s bottomland hardwood timber.

AGFC Chief Legal CounselJim Goodhart said he was very pleased with the Supreme Court’s decisionto hear the case. “We’re also happy for the people of Arkansas. The Black RiverWildlife Management Area is one of the crown jewels of our state’s great wildlife managementheritage,” Goodhart said. “We just want to right the wrong causedby the U.S. Army Corps of Engineers’ flooding and subsequent timberdamage to one of Arkansas’s – and this country’s –celebrated waterfowl habitat areas,” he added.

The case involves the Clearwater Lakewater-control plan of 1950 that the Corps was following until 1993, when theCorps began deviating from the plan to accommodate farming requests from withinthe Missouriboot heel region.  The water deviations caused increased flooding on BlackRiver WMA, particularly during the summer growing season.

By the mid 1990s, theAGFC had repeatedly warned the Corps about flooding and potential hardwood damageon Black River WMA. In the Federal Claims Court ruling, Judge Lettow agreedthat had the Corps “performed a reasonable investigation of the effectsthe deviations would have on downstream water levels, it would have been ableto predict both that the deviations would increase the levels of the BlackRiver in the management area and that the flooding caused by these increasedlevels would damage timber.”

Instead, it was only in2001 that the Corps performed actual water testing near the WMA of the modifiedwater-control plan it had been using since 1993 and determined it could nolonger continue the practice because of the potential for significant impact onnatural resources. The Corps then returned to the water management plan usedbefore 1993.

From late 1999 to thefiling of the lawsuit in early 2005, the AGFC attempted to negotiate with theCorps, hoping to receive compensation and avoid a lawsuit before the statute oflimitations ran out. In the end, the lawsuit was unavoidable.

The corridor of bottomlandhardwood timber in Dave Donaldson Black River WMA is the largest contiguousblock of forest along the Black River in Missouriand Arkansas, and is among the largestcontiguous areas of bottomland hardwood timber remaining in the Upper MississippiAlluvial Valley.Much of the WMA land was purchased by the AGFC inthe 1950s and 1960s to preserve bottomland hardwoods and provide winteringhabitat for migratory waterfowl. The AGFC operates the WMA as a wildlife andhunting preserve, placing special emphasis on the waterfowl that pass throughthe area in the late fall and early winter on the Mississippi River flyway.

Flooding of this green treereservoir at specific times during the winter months enhances waterfowl huntingopportunities and serves as a valuable food source for wintering migratingbirds.  It was the long term flooding caused by the Army Corps ofEngineers that AGFC had no control over that has taken its toll on thisvaluable resource.

The Supreme Court isexpected to schedule oral argument in the case for either this fall or early2013.