The United States Federal Circuit Court of Appeals Tuesday affirmed a trial judgment against the U.S. for the destruction of timber and forest habitat in the Arkansas Game and Fish Commission’s Dave Donaldson Black River Wildlife Management Area, a result of the U.S. repeatedly flooding the area during 1993-2000.

The Federal Circuit’s unanimous decision affirmed a Court of Federal Claims trial judgment in favor of the AGFC for $5.8 million in damages. After adding accrued interest, attorney fees and litigation costs to which it is entitled, the AGFC anticipates it will ultimately recover a judgment total substantially exceeding that amount, to the benefit of the extraordinary natural resources that it holds in trust for the people of Arkansas.

This case has a lengthy history. The AGFC filed suit against the U.S. (Army Corps of Engineers) March 18, 2005, to recoup the value of destroyed and degraded timber and to restore habitat after years of flooding on the 25,000-acre WMA in Clay, Randolph and Greene counties.

Timber and habitat on the WMA were heavily damaged during 1993-2000 when the Corps deviated from a water control plan for Clearwater Lake Dam in southeastern Missouri, even though the AGFC repeatedly objected.

In Tuesday’s decision, the Federal Circuit held, “In sum, the evidence supports the trial court’s findings that the deviations caused a substantial increase in the periods of growing-season flooding in the Management Area and that the flooding caused widespread damage to the trees there. Those findings in turn support the trial court’s legal conclusion that the deviations caused an invasion, in the form of a temporary flowage easement, of the property rights enjoyed by the Commission and its predecessors since before the construction of the Clearwater Dam and until 1993.”

The AGFC was awarded a $5.8 million judgment after an 11-day trial in December 2008. The Court of Federal Claims found that 18 million board feet of timber had been destroyed or degraded and that some of the habitat could not regenerate. Because of this damage, the AGFC’s property rights and the public’s use and enjoyment of the WMA were significantly impaired. The U.S. appealed the trial court decision to the Federal Circuit, which reversed the judgment with a 2-1 decision in March 2011.

The AGFC appealed that reversal to the U.S. Supreme Court, winning a unanimous reversal and remand last December. Tuesday’s decision of the Federal Circuit on remand followed.

“We are pleased with the decision and look forward to receiving the United States’ long-overdue payment for the much-needed, just compensation for the damage done to the WMA,” said AGFC General Counsel Jim Goodhart.

The corridor of bottomland hardwood timber in Black River WMA is the largest contiguous block along the Black River in Missouri or Arkansas. The AGFC bought much of the WMA in the 1950s and 1960s to preserve the hardwoods and provide wintering grounds for migratory waterfowl along the Mississippi Flyway.

Logo courtesy Arkansas Game and Fish Commission

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