Arkansas Game & Fish Commission v. United States

74 Fed. Cl. 426, 2006 U.S. Claims LEXIS 340, 2006 WL 3333771
CourtUnited States Court of Federal Claims
DecidedNovember 16, 2006
DocketNo. 05-381L
StatusPublished
Cited by7 cases

This text of 74 Fed. Cl. 426 (Arkansas Game & Fish Commission v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Game & Fish Commission v. United States, 74 Fed. Cl. 426, 2006 U.S. Claims LEXIS 340, 2006 WL 3333771 (uscfc 2006).

Opinion

OPINION

LETTOW, Judge.

This case involves a claim by the Arkansas Game & Fish Commission (“Arkansas Game”) against the United States for a taking of Arkansas Game’s property without just compensation in contravention of the Fifth Amendment of the United States Constitution. Arkansas Game avers that the United States Army Corps of Engineers (“Corps”) deviated from a water control plan for Clearwater Lake, a reservoir the Corps operates to control flooding along the Black River in southeastern Missouri and northeastern Arkansas. Specifically, Arkansas Game alleges that the Corps made unauthorized releases of water from the lake, resulting in damage to bottomland hardwood timber and other bottomland resources at the Dave Donaldson Black River Wildlife Management Area (“Black River Management Area”). In its original complaint, Arkansas Game sought $8,000,000 in damages and an injunction preventing the Corps from deviating from the water control plan.

Previously, the government sought a partial dismissal of the complaint insofar as in-junctive relief was concerned, and Arkansas Game subsequently moved for a partial voluntary dismissal of the complaint in that regard. After dismissing the part of the complaint relating to injunctive relief, the court adopted a plan and schedule for discovery. Taking into account two extensions, fact discovery closed on October 2, 2006. Thereafter, on October 17, 2006, the government filed a motion to compel Arkansas Game to permit the government’s representatives to install seven to ten piezometers in the Black River Management Area for the purpose of testing and measuring water levels during winter flooding that is used to enhance waterfowl habitat.1 The government requested an expedited consideration of its motion. Arkansas Game responded on October 23, 2006, opposing the government’s motion, and this court held a telephonic hearing on the motion on October 24, 2006. At the conclusion of the hearing, this court granted the government’s motion to compel, attached certain conditions to its grant of the motion, and provided a brief explanation of its reasoning. This opinion provides a more detailed explication of the court’s reasons for granting the government’s motion.

BACKGROUND

A. Arkansas Game’s Claims

In 1938, Congress passed the Flood Control Act of 1938, Pub.L. No. 75-761, 52 Stat. 1215, 1218, approving plans and projects to control flooding in several regions of the country, including the White River Basin in [428]*428Missouri and Arkansas. Compl. at 3. The Act authorized the construction of Clear-water Lake and Clearwater Dam on the Black River, a tributary of the White River that runs through southeastern Missouri and northeastern Arkansas. See 52 Stat. at 1218; Compl. at 3; Arkansas Game & Fish Comm’n, Clearwater Lake/Black River Water Control Plan Issue Brief at 1 (Feb. 27, 2002), available at http://www.agcf.com/pdi7 issue-briefs/Clearwater-BlackRiver.pdf. Clearwater Dam, located about 32 miles northwest of Poplar Bluff, Missouri, regulates the flow of the Black River and reduces flooding of nearby agricultural lands. Compl. at 3.

Downstream from the Clearwater Lake and Dam lies the Black River Management Area, a 25,000-aere tract that spans parts of Clay, Randolph, and Green counties in northeastern Arkansas and is owned by Arkansas Game. Compl. at 2. Arkansas Game purchased the bulk of the lands that constitute the Black River Management Area in the 1950s and 1960s to preserve bottomland hardwood habitat and to provide wintering habitat for thousands of migratory waterfowl. Id. at 2.

Clearwater Lake is governed by a water control plan set forth in the Clearwater Lake Water Control Manual (“Clearwater Lake Manual” or “Manual”), which was originally published in 1953 and revised in 1995. Compl. at 3; Answer at 2-4. The Manual states that releases of lake water, coupled with uncontrolled flows entering the Black River from tributaries below the Clearwater Dam, must not exceed a stage of 11.5 feet from December 1 to March 31 or a stage of 10.5 feet from April 1 to November 30, as measured by a central gauging station at Poplar Bluff. See Compl. at 4; Answer at 3-4. The growing season for the bottomland hardwood trees basically extends from April through November. Compl. at 4. Arkansas Game alleges that from 1993 to 2000 the Corps intentionally deviated from the water control plan in violation of regulatory and statutory requirements, including 33 C.F.R. § 222.5(f), (g), and the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (codified, as amended, at 42 U.S.C. §§ 4321-43701). Compl. at 4-5.

Arkansas Game avers that prior to 1993, the Corps’s controlled releases from Clear-water Lake allowed the water in the Black River Management Area to recede by late-May, but that the Corps’s subsequent deviations from the water control plan—greater releases of lake water from mid-May through November—allowed flooding to extend until mid-to-late August, well into the growing season of the bottomland hardwood trees. Compl. at 4-5. Arkansas Game contends that much of the soil on the Black River Management Area remained saturated for ten or eleven months of the year, leading to dramatically higher mortality rates among oak trees and the emergence of adverse symptoms in other living trees that indicated premature mortality. Id. at 5, 7. Arkansas Game seeks compensation for the damage to timber within the Black River Management Area and for the costs of restoring and revitalizing the soil necessary to sustain the type of bottomland timber allegedly taken by the Corps’s actions. Id. at 7-9. The government denies that the Corps deviated from the water control plan and that the Corps’s water-release practices at Clearwater Lake caused the timber damage that Arkansas Game alleges. Answer at 5, 7.

B. The Government’s Motion to Compel

On September 22, 2006, the government requested by telephone that Arkansas Game permit the government to install seven to ten water-level piezometers in the Black River Management Area. Def.’s Motion to Compel Testing and Measuring on the Dave Donaldson-Black River Wildlife Management Area and Request for Expedited Review (“Def.’s Mot. to Compel”) at 1; Hr’g Tr. 32:19 to 33:11 (Oct. 24, 2006). The government later put this request in writing in a letter to Arkansas Game’s counsel, dated September 25,2006. Def.’s Mot. to Compel at 1-2 & Ex. A (Letter from HelenAnne Listerman to Julie Greathouse (Sept. 25, 2006)). On October 5, 2006, Arkansas Game’s counsel refused the government’s request, stating that the installation of the piezometers would constitute fact discovery and that fact discovery had ended on October 2, 2006. Def.’s Mot. to [429]*429Compel at 2 & Ex. B (Letter from Great-house to Listerman (Oct. 5, 2006)). The government subsequently reiterated its request by serving a formal notice on Arkansas Game on October 11, 2006, pursuant to Rule 34(a)(2) of the Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Compel at 2. The government’s notice requested a response within two days, but Arkansas Game did not respond. Id. at 2; Pl.’s Resp. to Def.’s Mot. (“Pl.’s Resp.”) at 3.

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Bluebook (online)
74 Fed. Cl. 426, 2006 U.S. Claims LEXIS 340, 2006 WL 3333771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-game-fish-commission-v-united-states-uscfc-2006.