Guest writer

A flood of reason

Agency lawyers deserve raise

Last month, Arkansas Democrat-Gazette writer Bryan Hendricks seemed to suggest that the Arkansas Game and Fish Commission cap salaries or perhaps eliminate private legal staff, apparently because Jim Goodhart, the commission’s lead counsel, had asked for a pay raise.

I believe Game and Fish needs more, not less, legal staff in dealing with the Corps of Engineers. My views come from having chaired Arkansas Wildlife and Yell County committees on the Corps’ eight-year Arkansas River Navigation Study and 1990 Land Impact Studies where I raised the “takings” without compensation issue.

In December, Goodhart won a U.S. Supreme Court decision against the Corps regarding timber flood damage at the 23,000-acre Dave Donaldson/Black River Wildlife Management Area. The Corps had claimed the created flooding must be permanent to be a “takings” violation under the Fifth Amendment to the U.S. Constitution.

The Supreme Court disagreed 8-0, and Justice Ruth Bader Ginsburg wrote: “recurrent floodings, even if of finite duration, are not categorically exempt from takings clause liability.” That essentially means that when the Corps of Engineers builds a levee or creates project flow regimes that flood the property of another, it’s an illegal property taking for which the government is liable.

The circumstances of this case aren’t new. The Corps often spends taxpayer money to knowingly create flood damage downstream to avoid using upstream flood storage, and I believe the need to settle the Corps’ flow-regime takings is long overdue.

Little Rock District staff have admitted creating such violations along the Arkansas River as far back as the 1980s. Current Deputy District Engineer Randy Hathaway, project manager during the 1996 Arkansas River Land Impact Study, declared: “A taking in this project has occurred when the government has placed water on the property on a intermittent, frequent or inevitably recurring basis, even though it may not be constantly flooded”-exactly the court’s December finding.

Would it not then be reasonable for those who admittedly violated constitutional law for so long to be investigated by the Inspector General? I believe Congress needs to appoint a special prosecutor to clean up this mess, instead of expecting Arkansas sportsmen to do it.

The recent court decision also fits with the Corps’ flow-induced damages at other wildlife management areas, private lands and floodplain-sharing communities who participate in federal flood insurance.

It seems the Corps’ district military commanders come, stay about three years, solve little, and kick problems along to their replacements. I believe six Little Rock District commanders had to have known they were creating flood-induced takings but failed to correct it.

Common-sense persuasion doesn’t seem to work with the Corps-often called a “rogue” agency by Time magazine writer and editor Michael Grunwald.

During a 1996 Arkansas River Land Impact Study meeting with Corps staff regarding flood-induced takings disputes on the Petit Jean Wildlife Management Area, their attorney declared, “if you don’t like it, sue us,” which we later found they apparently preferred rather than tackle the problem themselves.

The attorney general at the time, Winston Bryant, sued, asking the Corps to prove-through an environmental-impact statement to identify sources of flooding and how to fix it-“need” along the Arkansas River for more flood-easement acreage. The Corps would later drop the condemn-and-take project. Our investigation revealed downstream flood damage in Arkansas was largely created by the Corps’ own flood management at 11 Oklahoma projects.

In a confusing 4-3 vote, the Game

and Fish Commission made the

right call to shift the recent wildlife management area flood-damage matter to the Supreme Court rather than accept a $13 million buyout. I think it is dumbfounding as to what the other three commissioners were thinking.

Hendricks proposes that the money spent to pay for private legal representation of the commission could be used to “[fix] a lot of tractors and [cultivate] a lot of food plots.” Given that the Corps of Engineers, without an administrative appeal process, apparently expects federal courts to settle disputes, if Hendricks has a better solution, Arkansas sportsmen need to know what it is.

Arkansas sportsmen and floodplain communities should thank Jim Goodhart and his legal section. They deserve a pay raise. This case solves upstream versus downstream problems more vital than Hendricks’ tractors and food plots.

I believe this Arkansas takings case reveals the need for congressional or Inspector General review, and could perhaps reopen debate on whether water management should continue as a military activity or be reinvented into a totally civilian mission.

Evidence seems to favor civilians. -

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Jim Wood is a River Valley duck hunter and for 12 years represented the Arkansas Wildlife Federation to the National Wildlife Federation.

Editorial, Pages 11 on 07/22/2013

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