Ark. agency rejects chance to settle takings case

The Arkansas Game and Fish Commission has rejected a $13 million offer from the Obama administration to settle a dispute over timber damage that is due to be argued before the Supreme Court next month.

The commission claims it is due compensation under the takings clause of the Fifth Amendment for damage caused to timber in the Black River Wildlife Management Area in the northeast part of the state.

The damage was caused by the U.S. Army Corps of Engineers' management of the Clearwater Dam upriver. Between 1993 and 2000, the Army Corps tinkered with the water flow from the dam, which the commission said led to flooding that eventually killed off many mature oak trees in the preserve (Greenwire, April 2).

The Supreme Court decided to take up the case in April, but in the meantime the federal government attempted to resolve the dispute by offering the commission $13 million. The number was reached after negotiations between the parties. In 2009, the U.S. Court of Federal Claims had awarded the commission $5.8 million.

In a statement, a spokesman said the commissioners voted 4-3 to reject the offer at a meeting on Aug. 16 on the grounds that the Army Corps refused to give a written assurance that it would not order similar changes to the management of the water flow to those that caused the flooding.


The commission's chief legal counsel, James Goodhart, said the commission had made its decision in order to "protect the valuable natural resources of the state of Arkansas."

Commissioners wanted to "make certain that constitutional safeguards will be followed to prevent the Corps from taking similar actions in the future," he added.

A spokesman for the Justice Department declined to comment.

The case reached the Supreme Court after the U.S. Court of Appeals for the Federal Circuit, split 2-1, reversed the claims court in a March 2011 ruling.

Writing for the majority, Judge Timothy Dyk said that under Supreme Court precedent, a taking only occurs if there is "an actual, permanent invasion of the land," which did not happen in the Arkansas case because the flooding was temporary.

The legal question before the Supreme Court is under what circumstances persistent flooding can constitute a permanent taking that requires compensation.

Oral argument is scheduled for Oct. 3.

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