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AGFC considers appealing Federal Circuit’s decision in Dave Donaldson Black River WMA case


LITTLE ROCK – The Arkansas Game and Fish Commission may be appealing yesterday’s opinion by the U.S. Court of Appeals for the Federal Circuit that overturned a lower court award on millions of dollars of timber damage to its Dave Donaldson Black River Wildlife Management Area.

On July 1, 2009, Judge Charles F. Lettow of the U.S. Court of Federal Claims decided in a 61-page order that the AGFC was entitled to $5.8 million plus accrued interest and costs of litigation from the U.S. Government. Yesterday’s 2-1 vote by a 3-judge panel of the Federal Circuit Court of Appeals nullified the trial judge’s decision.

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, “Yesterday’s opinion apparently allows the United States to escape all liability for its super-induced flooding that permanently destroyed or degraded thousands of hardwood trees on the WMA, totaling nearly 18 million board feet of timber.”

Goodhart said the AGFC agrees with dissenting Judge Pauline Newman that the Fifth Amendment to the U.S. Constitution requires compensation for such a taking. “We are carefully studying both the majority and dissenting opinions and considering options for continuing this fight on behalf of the sportsmen and citizens of our state” Goodhart said. Commission attorneys anticipate recommending to the Game and Fish Commissioners and Director that the agency petition for a rehearing by the full 16-member Federal Circuit Court of Appeals and, if necessary, seek review by the United States Supreme Court.

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 the Missouri boot heel region.  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. In the Federal Claims Court ruling, Judge Lettow agreed that had the Corps “performed a reasonable investigation of the effects the deviations would have on downstream water levels, it would have been able to predict both that the deviations would increase the levels of the Black River in the management area and that the flooding caused by these increased levels would damage timber.”

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.