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The late G. Thomas Eisele, U.S. District judge (who died Nov. 26), was possessed of courage, wisdom and fairness. Fortunately, his memory and his jurisprudence will live on.

Though well-known for high-profile rulings, his shining moment of combining fairness with courage came in 1979. In a case that didn't even make the news.

In U.S. v. Bailey, 467 F. Supp. 925, he precluded the United States from enforcing a height restriction in a dispute over a breakwater dike on the Arkansas River.

It may be the only case in history where the federal government was deemed barred by the doctrine of equitable estoppel from enforcing its own laws against citizens who were technically in violation.

Calvin and Billy Bailey, brothers, owned Little Rock Marina. When starting the business in the mid-1960s, they applied to the Corps of Engineers for a permit to construct a dike. Informally, without assistance of experts, Calvin estimated the dike needed to be 235 feet in height, measured from the river's "ordinary high water mark."

Though that height was written on the permit, no emphasis was placed on it. Corps agents were amiable and amicable, encouraging the Baileys' endeavor.

As ultimately constructed, the dike was a couple of feet higher, though no one from the Corps ever cited this discrepancy, until 1973.

The Baileys received other permits--to pump gas, install power lines, build a moorage for barges, etc. Corps employees regularly interacted with the Baileys; they even rented slips for their own boats.

The evidence showed Corps agents visited Little Rock Marina "innumerable times" between 1968 and 1973, all without objection to the elevation of the dike. During that time, the Baileys poured heart, soul and capital into the business--detrimentally relying on governmental silence as to any dike-height issue.

In 1973, the Corps initiated action to enforce the 235-foot restriction. The Baileys were told this type of encroachment posed navigability issues. The Baileys knew that if the dike were lowered by two feet, their business would be underwater nine months of the year.

They'd be sunk. Literally.

Their application for an "after-the-fact" permit to allow the actual height of their dike was summarily denied, even though they correctly claimed that their structure, per se, had zero measurable impact on navigability.

The Corps sued for a mandatory injunction to force compliance with the terms of the permit--the United States of America versus the Bailey Brothers. What a mismatch!

The Baileys retained counsel and refused to comply with the demand. O.H. "Bud" Storey III was lead counsel for the defense. Having joined Bud's firm a few months earlier, right after law school graduation, I was assigned "second chair." This was my first appearance in federal court.

When all the evidence was in, after a three-day trial, Judge Eisele found, in a brilliant, scholarly opinion, that the Baileys' dike "does not constitute in any significant way an obstruction to the flow, or to the capacity, of the river, or to navigation."

Therefore, said this courageous and fair jurist, the "the Corps is indeed estopped to assert a height violation of the permit in question" because it "acted arbitrarily, capriciously, and abused its discretion in denying to defendants an after-the-fact permit or a modification of the extant permit incorporating the present height of the dike."

Thirty-eight years later, U.S. v. Bailey remains the most memorable case of my career, because of Judge Eisele's courageous and fair handling of the ultimate issue.


Vic Fleming has served as judge of Little Rock District Court since 1997.

Editorial on 12/07/2017

Print Headline: Impartial judge

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