The power to condemn private property for a large-scale infrastructure project is one that is, one hopes, reserved for only those projects that will truly serve the greater good. But even in cases where such a move is warranted, condemnations rarely sit right with property owners whose land is taken, especially when they feel the remainder of their land has been damaged or lessened in value in the process.
Such was the case with the condemnation of a 9-acre strip of the Wild Wilderness Drive-Through Safari in Gentry by Southwestern Electric Power Co., or SWEPCO, to build a high-voltage power line. The first time the case was tried, a jury awarded the owners of the park $87,539 in damages. Remanded to the lower court for retrial by the Arkansas Court of Appeals in March 2015, a jury in the second trial, decided Oct. 24, awarded the park's owners $916,745, an amount their lawyer said was an indication that the jury had been swayed by the argument that habitat set aside for the park's collection of animals — some of them critically endangered — had been harmed by the construction.
Josh Wilmoth, a spokesman for the family that has owned Wild Wilderness since the 1960s, wouldn't comment directly on the verdict or the case, citing ongoing legal action. He said his grandfather started collecting animals when his wife bought him buffalo and elk as a gift. The park opened to the public, on a donation admission basis, in the 1970s. Today, Wilmoth said, it provides sanctuary for several dozen species, including endangered Gaur bison from India; Pere David's deer, a species from China that's extinct outside of zoos; wild Mongolian horses; Persian onagers, an endangered species of wild donkey; Hartmann's mountain zebras; scimitar-horned oryx from North Africa, now extinct in the wild; and other, more common animals like hippos, kangaroos and emus.
"Our goal is to provide an establishment for wildlife conservation, education and care, and connection," Wilmoth said. "Connection is a better word than entertainment. We just want people to be able to go out and see the animals."
Little Rock attorney Sandy McMath handled the case for the Wilmoth family. McMath said that he became involved in the Safari Park case after clients he'd worked with on the successful effort to fight SWEPCO's Shipe Road-Kings River transmission line project suggested his name to the Wilmoths.
For years, McMath said, SWEPCO "had pretty well gotten whatever they wanted" in North Arkansas. Thanks to grass-roots opposition by landowners who feared SWEPCO's Shipe Road-Kings River project would ruin Ozark views, the power company withdrew its proposal for the project from consideration by the Arkansas Public Service Commission in December 2014. McMath said he believes the days of SWEPCO getting its way without question may be over. "I think the power company is on notice now that they can't just run roughshod over folks like they used to," McMath said.
In the second trial, McMath introduced into evidence claims of harm to the rest of the Safari Park property from the power line project.
McMath said there were three parcels at issue: the narrow 9-acre, half-mile-long sliver of property taken for the power line in the northernmost portion of the park; the 109-acre "quadrant four" in which the 9 acres were located; and the park as a whole, which covers about 300 acres.
"The harm done to the remaining portion of the property, aside from that which was taken, was critical to showing the true impact of the taking on the whole property," McMath said. "It's called severance damage."
McMath said the acreage that SWEPCO condemned and eventually built its line across was "critical" to the park because it was on a portion of land set aside for those species that are the most vulnerable to human contact, including wild Asian donkeys, sables and Pere David deer. He said the project required moving those animals because of the heavy construction traffic and noise, including clearing the right of way and bringing in what McMath said were "large, hammering derricks" to sink the footings for the transmission towers.
"The right of way is not just stringing up lines," he said. "This is a 345-megavolt transmission line ... [The right of way is] 150 feet across from one side to the other, and these pylons are over 150 feet high. Some of them are over 200 feet."
SWEPCO originally offered the Wilmoth family a settlement of $37,000 for the 9 acres taken for the project.
At trial in October, witnesses called by the Wilmoth family, including a veterinarian who has overseen the animals in the park for several years, argued that the Safari Park had been developed and planned over the past 50 years as a wildlife refuge, and that construction had upset that balance.
"They carefully collected these animals over time, and they assigned each one to a particular area of the park," McMath said. "As time went by, they were able to see where best to put each species and where not to put them. Quadrant four became sort of the backup repository for those that were most endangered, most sensitive, most vulnerable to human contact. If [SWEPCO] had looked to try to put it across the most damaging part of the park, that's where they would have done it."
The jury in the case appears to have agreed, though McMath said the award wasn't actually that large, given evidence that the most vulnerable animals of quadrant four would have to be permanently moved because they couldn't co-exist with the power line right-of-way. McMath said the Wilmoths were precluded from asking for funds to buy more acreage to provide sanctuary for the displaced animals.
Though McMath said the process of condemning land for large infrastructure projects is sometimes necessary, it must be done fairly and wisely. He said in the Safari Park case, SWEPCO had not given enough thought to the impact on the park from construction and the power line itself.
"The jury, I think, saw that the park had been damaged in a great way by the intrusion of the line into this very fragile sanctuary habitat," he said. "This is not just a farm. This is not just pasturage. This was a very carefully nurtured and developed zoological sanctuary for 85 species of wild animals, about 15 of which were up there [in quadrant four]. A lot of effort had gone into building this up and making it a refuge. The jury saw that losing that was a real blow in value to the property as a whole."
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