Friday, August 17, 2012

Game and Fish pursues case against Corps

Posted By on Fri, Aug 17, 2012 at 11:20 AM

The state Game and Fish Commission, which has been in court for seven years seeking damages from the U.S. Army Corps of Engineers for flood damage to the bottomland hardwoods of Dave Donaldson Black River Wildlife Management Area, has turned down a settlement in the case.

The settlement would provide $13 million to the agency, but would not provide written assurance stating the Corps wouldn't manage water from the Black River and Clearwater Lake in Missouri to avoid future flooding. A news release from the agency said Game and Fish filed suit in 2005 to recoup the value of dead and dying timber in teh 24,000-acre wildlife management area, proving that the Corps' water management caused the damage.

The case is before the U.S. Supreme Court; oral argument is set for Oct. 3.

Full release on the jump.

AGFC rejects timber settlement

U.S. Supreme Court to hear case involving Dave Donaldson Black River WMA damage
LITTLE ROCK — Today, the Arkansas Game and Fish Commission rejected an offer to settle a 7-year-long lawsuit against the United States Government for cost recovery of timber damages to its Dave Donaldson Black River Wildlife Management Area.

The settlement offer to AGFC was for $13 million. However, the United States has declined AGFC’s requests to provide written assurance, that would become legally binding and enforceable, stating the Corps of Engineers would not repeat in the future its river flow actions that originally caused the flooding and massive timber destruction.
Earlier this year, the U.S. Supreme Court agreed with the AGFC’s argument to review the U.S. Court of Appeals for the Federal Circuit’s decision that overturned a lower court award in favor of AGFC.

In its brief to the high court, the AGFC argued it is entitled to compensation from the United States under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber on Dave Donaldson Black River WMA through six consecutive years of protested flooding during the sensitive growing season.

The AGFC filed suit against the U.S. on March 18, 2005, to recoup the value of dead and dying timber and to restore areas where timber died on Dave Donaldson Black River WMA, which covers about 24,000 acres in Clay, Randolph and Greene counties. During the 11-day trial in December 2008, which included a site inspection of parts of the WMA, the AGFC was able to prove that the Army Corps of Engineers’ management of water from the Black River and Missouri’s Clearwater Lake caused significant damage to the WMA’s bottomland hardwood timber.

AGFC Chief Legal Counsel Jim Goodhart said he was pleased with the Commission’s decision to move forward. “We are doing this to protect the valuable natural resources of the state of Arkansas for the present and the future. The Dave Donaldson Black River Wildlife Management Area is one of the finest waterfowl hunting areas found anywhere in the country,” Goodhart said. “The Commission wants not only to receive just compensation for the extensive property damage caused by the Corps of Engineers’ previous activities, but also to make certain that constitutional safeguards will be followed to prevent the Corps from taking similar actions in the future — at Black River or any of the many other state wildlife management areas located along rivers or lakes in Arkansas,” he added.

The case involves the Clearwater Lake water-control plan of 1950 that the Corps was following until 1993, when the Corps began deviating from the plan to accommodate farming requests from within southeastern Missouri. The water deviations caused increased flooding on Black River WMA, particularly during the summer growing season.
By the mid-1990s, the AGFC had repeatedly warned the Corps about flooding and potential hardwood damage on Black River WMA. Instead, it was only in 2001 that the Corps performed actual water testing near the WMA of the modified water-control plan it had been using since 1993 and determined it could no longer continue the practice because of the potential for significant impact on natural resources. The Corps then returned to the water management plan used before 1993.

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

The corridor of bottomland hardwood timber in Dave Donaldson Black River WMA is the largest contiguous block of forest along the Black River in Missouri and Arkansas, and is among the largest contiguous areas of bottomland hardwood timber remaining in the Upper Mississippi Alluvial Valley. Much of the WMA land was purchased by the AGFC in the 1950s and 1960s to preserve bottomland hardwoods and provide wintering habitat for migratory waterfowl. The AGFC operates the WMA as a wildlife and hunting preserve, placing special emphasis on the waterfowl that pass through the area in the late fall and early winter on the Mississippi River flyway.

Flooding of this green tree reservoir at specific times during the winter months enhances waterfowl hunting opportunities and serves as a valuable food source for wintering migrating birds. It was the long term flooding caused by the Army Corps of Engineers that AGFC had no control over that has taken its toll on this valuable resource.

The Supreme Court has set the oral argument in the case for Oct. 3 with the court expected to hand down a decision early next year.

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