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OPINION | ARKANSAS SPORTSMAN: Grudge bars progress in study

by Bryan Hendricks | August 11, 2022 at 1:59 a.m.


Noble intentions are no match for bureaucratic inertia and hard feelings.

The U.S. Army Corps of Engineers appears to be nursing a grudge against the Arkansas Game and Fish Commission for having won a landmark judgement against the Corps over damage at Dave Donaldson Black River Wildlife Management Area. Apparently that grudge runs deep, as evidenced by the Corps insisting that the AGFC sign a "hold harmless" agreement about a proposed hydrology study regarding Black River WMA.

To discuss these issues, AGFC Director Austin Booth and Col. Eric Noe, who recently retired as commander of the Corps' Little Rock District, attempted to arrange a meeting in early October that was delayed until early 2022. The Corps also insisted that the AGFC sign a non-disclosure agreement for that meeting.

At that point, a noticeable chill appeared in what had been warm and amicable communications between Booth and Noe.

The hold harmless agreement was intended to prevent the AGFC from using as evidence any findings from a hydrology against the Corps in future litigation. The AGFC is not planning further litigation, Booth said. It took almost a decade to adjudicate the original lawsuit. The Corps continues to damage timber at Black River WMA, and Booth said that for the time it would take to adjudicate a new lawsuit, the damage to the timber at the WMA would be irreversible.

The agreement that Noe's team proposed stipulates that the AGFC and Corps will cooperate in the defense of any action or claim brought against the other partners seeking the foregoing damages or relief. An additional paragraph says that each agency will cooperate with the other if any third party present any claims of the foregoing nature against the other partners in court or the Claims Commission of the State of Arkansas.

The subsections appear to ally the Corps and AGFC against any additional parties that claim damage in relation to the discussion items. A paragraph to that effect said, "This Agreement shall be deemed and construed as binding solely between the partners and shall not be deemed or construed as conferring any benefit or indemnification on behalf of any third party."

On Feb. 28, Booth asked Noe why the Corps insisted on a "hold harmless" agreement as a condition for joining the AGFC for the Black River hydrology study.

Noe replied, "Think the team wants to run down the field together without worrying about someone saying something off the cuff for which the agency is sued. Again, they are once bitten, twice shy from the last lawsuit. Think we have made a lot of good progress cracking the ice between our agencies recently."

Booth replied, "This is profoundly disheartening and a departure from running down the field together."

Booth later said that the AGFC is willing to fund and conduct a comprehensive White River Basin study in addition to a Black River study.

Since the Supreme Court case, a large painting of the AGFC's legal team arguing before the Supreme Court has hung in the downstairs lobby at the AGFC's headquarters in Little Rock. On June 8, Booth informed Noe that the painting had been removed, apparently as a good-faith gesture.

Noe responded, "A proud moment for AGFC's legal team ... A terrible moment in partnership and trust to talk and move together. You are moving the pendulum back. Keep going!"

"Keep going" appears to mean "surrender all your leverage." The AGFC did not win the Black River lawsuit because of careless comments uttered at a meeting. The lawsuit was about the Corps illegally taking public property in the course of deviating from its water management policy at Clearwater Lake in Missouri. The Corps is still damaging timber. Booth has no more chips to offer.

These discussions appear bound for their usual destination to oblivion, and that offends the interests of every taxpayer and hunting license holder in Arkansas.


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