SUPREME COURT:

Ark. girds for showdown with Army Corps over forest flooding

BLACK RIVER WILDLIFE MANAGEMENT AREA, Ark. -- Poking his finger at the sky, Martin Blaney tried to explain why this forest in northeastern Arkansas is radically different from how it was before the floods.

His pale green brimmed hat shading his eyes from the sun, the forester pointed out the loss of the leafy canopy that was provided by the mature nuttall and overcup oaks that now lie rotting. In their place, he said, other species -- button bushes, green ash and elms -- have taken over, a riot of green growing rapidly in place of the older trees.

"This would have been wide open with real large oaks," Blaney said. "There's hardly any of that left."

What is there is a guilty party, at least in the eyes of the state of Arkansas.

"The fingerprints are here," Blaney said, surveying the forest the way a detective eyes a crime scene.

For a small group of state officials here on a sweltering day last month just before the remnants of Hurricane Isaac passed through, there was no need for a brainy sleuth to tie up the loose ends. The identity of the alleged perpetrator was common knowledge: the U.S. Army Corps of Engineers.

The federal agency operates the Clearwater Dam, 115 miles up the Black River in Missouri. It was a decision in the 1990s to change water management there that led to parts of the 23,000-acre wildlife management area here being radically degraded, the state maintains.

Partly in response to requests made by Missouri farmers, the Army Corps started to release excess water in a steady flow rather than in pulses. That meant the forest floor here was submerged for extended periods, much longer than usual. It was devastating for many of the mature oaks, explained Blaney, the habitat coordinator for the Arkansas Game and Fish Commission.

Among the observers was James Goodhart, the commission's general counsel, dressed casually in jeans and a white shirt displaying the agency's colorful logo.

Goodhart was visiting the forest, a sought-after destination for duck hunters, as part of his preparation for the biggest moment of his legal career.

On Oct. 3, he will be in Washington, D.C., to argue before the Supreme Court that under the "takings clause" of the Fifth Amendment, the Army Corps should compensate the state for loss of property as a result of its actions managing the dam. Although officials bemoan the overall ecological impact of the flooding, the claim is based on the millions of dollars the state says it has lost in income from commercial timber sales.

Silver of hair and sunny of disposition, Goodhart -- who has never argued before the high court -- seems cheerily confident.

"It's a big challenge," he acknowledged as he tramped through the undergrowth. "But I think I'm up to it."

Temporary flooding

The Supreme Court's job is to decide whether temporary flooding of the type that occurred at the Black River site can constitute a "taking," which is generally viewed as a permanent loss of property.

Or as Ilya Shapiro, a legal scholar at the libertarian Cato Institute in Washington, rephrased the question: "When a tree falls in a forest due to temporary flooding, does it make a sound for which you can recover under the takings clause?"

Although permanent government-caused flooding has been recognized as a taking by courts, temporary flooding has not. In those instances, property owners are encouraged to sue the government entity and seek damages -- a tough task, as the federal government is generally immune from such claims under the Flood Control Act.

For Goodhart and his colleagues, it appears to be a point of principle to pursue compensation. The agency even rejected a recent $13 million offer to settle the case (Greenwire, Sept. 5).

The commission wants to "make certain that constitutional safeguards will be followed to prevent the corps from taking similar actions in the future," Goodhart said at the time of the August decision to turn down the settlement offer. The state has the support of property rights advocates and some business interests.

The Army Corps declined to comment. In court papers, the administration maintains that any additional flooding was not sufficient to harm the trees and any damage that was done did "not rise to the level of a taking."

That was the same approach taken by the U.S. Court of Appeals for the Federal Circuit when it ruled in favor of the government (E&ENews PM, March 30, 2011). The appeals court, split 2-1, reversed the U.S. Court of Federal Claims, which had awarded almost $5.8 million to the state.

Judge Timothy Dyke wrote in the majority opinion that a taking only occurs if there is "an actual, permanent invasion of the land," which did not happen in this instance because the flooding was temporary.

"The undisputed facts are clear that the governmental action was designed to be temporary and that the Corps never approved of a permanent change in the pre-existing flow rates," Dyke added.

Property rights

The case could have implications beyond the narrow question of Army Corps-directed water discharges.

Those keen for the Supreme Court to become more active in the property rights area, like Jonathan Adler, a law professor at Case Western Reserve University School of Law, certainly hope so.

"We don't see many property rights cases," he said. "The language of the opinion will really matter."

Others are wary of the Supreme Court expanding the definition of what constitutes a taking.

John Echeverria, a professor at Vermont Law School, is concerned that any kind of ruling in favor of Arkansas could have "enormous implications" for local governments.

Although the federal government is the defendant in the case before the court, local governments are far more likely to be on the receiving end of such claims if the Supreme Court endorses the practice, Echeverria wrote in a brief in support of the Army Corps filed by the International Municipal Lawyers Association and other local government groups.

In an interview, Echeverria said property rights advocates would be keen for a broad ruling on "temporary takings" that could prompt challenges to such activities as government inspections of property.

"This is one front of a multifaceted debate over property rights," he added. "The property rights advocates see it as an opportunity to expand the doctrine."

Sending a message

Officials leading the tour of the Black River site emphasized that the state's management is geared toward creating the best possible habitat for ducks. That includes carefully regulating seasonal flooding. Too little and ducks won't thrive. Too much and the trees suffer.

As soon as the Army Corps started to talk about changing its management of the dam's water flow -- deviating from a plan that the state said had been in place since 1953 -- alarm bells started ringing in Little Rock.

"If you are a forester and you hear them talking about changing river flows, you get nervous," said Blaney, the habitat coordinator.

The state maintains that the longer-lasting flooding during the growing season led to the weakening of tree roots. That eventually led to some of the trees dying.

By 1996, the state was already telling the Army Corps to stop deviating from the plan. The agency eventually did so in 2001 after completing an environmental review.

"The word was getting back to them," Goodhart said. "It came to a stop because we hammered home the message."

But by then, as the state tells it, the damage had been done, exacerbated by a drought in 1999 and 2000.

As Blaney explained what had happened, he repeatedly lamented the fact that the state had lost control of its own land.

"It's devastating what we lost here," he said.

The federal government says other factors need to be taken into account before all the blame can be pinned on the Army Corps.

In the administration's most recent brief, Solicitor General Donald Verrilli pointed out that during the growing season, the land in question was usually flooded "a dozen or so days a month" even before the Army Corps deviated from the water flow plan. The resulting changes "increased that flooding by a few days per month" at most, he added.

With the Supreme Court argument swiftly approaching, Goodhart appeared relaxed as a convoy of pickup trucks and SUVs transported the group to various sites picked out by scientists to illustrate most colorfully the impact of the flooding.

He generally deferred to the scientists on the technical details, even joking at one point that if he faces a particularly tough question during the argument, he might ask one of them to stand up in court and answer it on his behalf.

Although Washington lawyers who regularly argue before the court were keen to offer their specialist services, Goodhart feels strongly about arguing it himself.

Put simply, Goodhart said as he ducked under a tree branch, "I have lived it and owned it."

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