LITTLE ROCK – This week, the U.S. Supreme Court ruled in favor of the Arkansas Game and Fish Commission in its lawsuit seeking just compensation from the United States Government for repeatedly flooding and, as a result, destroying thousands of acres of timber and habitat on Dave Donaldson Black River Wildlife Management Area. In an 8-0 opinion, the Court reversed the U.S. Court of Appeals for the Federal Circuit’s decision that overturned a $5.7 million trial court judgment for the AGFC.
      The Federal Circuit had held that compensation is due only when flooding is “a permanent or inevitably recurring condition, rather than an inherently temporary situation.” Justice Ginsburg writing for the Supreme Court disagreed and held “that recurrent flood¬ings, even if of finite duration, are not categorically ex¬empt from Takings Clause liability.” The Court remanded the case to the Federal Circuit for further proceedings consistent with the Court’s opinion.
      “Obviously we are thrilled with the Supreme Court’s decision,” AGFC Chief Legal Counsel Jim Goodhart said. “It’s been a long road to get to this point and we’ve still got a ways to go, but the 8-0 decision sends a strong message about what our agency has been litigating with the U.S. Army Corps of Engineers over the past seven years. Justice Ginsburg summed it all up when she wrote that there is ‘no solid grounding in precedent for setting flooding apart from all other government intrusions on property.’ Ultimately, this is a victory for the citizens of Arkansas and outdoor conservationists everywhere,” Goodhart added.
      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. The damages were caused when the Corps of Engineers deviated from the water control plan for Clearwater Lake and Dam in southeast Missouri between 1993 and 2000 over the AGFC’s repeated objections. After an 11-day trial in December 2008, the Court of Federal Claims awarded AGFC $5.7 million, plus interest, costs and attorney’s fees, finding that the Corps’ actions had destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate and prevented the use and enjoyment of the area.
      The Federal Circuit reversed the trial judgment on a single point of law. A sharply divided 2-1 panel ruled that the U.S. did not inflict a taking because its actions were not permanent and the flooding eventually stopped. The Federal Circuit denied rehearing en banc in a fractured 7-4 vote. The Supreme Court granted the AGFC’s request for review “to resolve the question whether government actions that cause repeated floodings must be permanent of inevitably recurring to constitute a taking of property.”
      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. “While flooding caused by the Corps has taken its toll on this valuable resource,” Goodhart remarked, “hopefully today’s decision will be a huge step towards the much needed recovery of one of our state’s most important wildlife management areas.”