Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00381-CFL

Document 40

Filed 12/13/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ARKANSAS GAME & FISH COMMISSION v. NO. 05-381L JUDGE CHARLES F. LETTOW

PLAINTIFF

THE UNITED STATES

DEFENDANT

RESPONSE TO DEFENDANT'S MOTION TO REQUEST PERMISSION TO MOVE ONE WATER-LEVEL GAGE ON THE DAVE DONALDSON-BLACK RIVER WILDLIFE MANAGEMENT AREA Comes now the Arkansas Game & Fish Commission ("AGFC" or "the Commission"), through its undersigned attorneys, and submits this Response to Defendant's Motion to Request Permission to Move One Water-Level Gage on the Dave Donaldson-Black River Wildlife Management Area (the "WMA"). On December 1, 2006, Defendant filed a Motion requesting permission to move one water-level gage on the WMA. Defendant states that it was unable to access one area of the WMA, the Gar Slough area, due to wet conditions during its two day visit to the site on November 6 & 7, 2006. Defendant states it can install a water-level gage in Gar Slough with the appropriate equipment and asks the Court's permission to (1) remove the gage it installed at Schaffer's Eddy Landing during its November site visit and (2) place that gage in Gar Slough. In its Order of November 16, 2006, the Court granted Defendant's Motion to Compel allowing the installation of ten water level piezometers on the WMA under certain conditions. One of the conditions attached to the installation of the ten gauges was that the installation be complete by November 10, 2006. AGFC objects to Defendant's request because the installation is after the deadline for installation as ordered by the Court, and AGFC will incur additional expense due to Plaintiff's

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Case 1:05-cv-00381-CFL

Document 40

Filed 12/13/2006

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lack of preparation for its November site visit. Defendant knew the area was flooded prior to their travel to the site on November 6 & 7, 2006, and could have brought the necessary equipment for installation. Dr. Jerry Overton, AGFC's expert who attended the November site visit with Defendant's experts contacted AGFC personnel prior to the site visit to obtain water levels on the WMA and was advised that the levels would be two to three feet deep on some areas of the WMA. See Affidavit of Dr. Jerry Overton ("Overton Affidavit") ¶ 3, attached hereto as Exhibit A. It is likely that Defendant's information regarding water levels of 6 to 8 inches came from our telephonic hearing of October 24, 2006 in which the undersigned counsel conveyed the water depth information to the Court and opposing counsel. The water level information conveyed during the telephone conference was accurate at the time but, as discussed in our conference, water levels were subject to increase due to the rainfall and the AGFC's winter flooding activities. Defendant's experts could have inquired prior to the site visit to obtain current water level information. They did not do so. According to Dr. Overton, Lou Hausman had an aluminum boat with motor available at all times but the Defendant's experts only had a rubber boat with no motor and never requested to use the AGFC's equipment. See Exhibit A, ¶ 3 & 4. The Gar Slough area could have been accessed with an aluminum boat and motor. Exhibit A, ¶ 4. Additionally, the late installation of a gauge at Gar Slough will not provide the same data set as provided by the other gauges as the amount of time the data will be collected is shorter for the Gar Slough gauge than the other nine gauges. AGFC paid an expert to be present during the two days of installation and will now have to pay AGFC's expert again to travel to the site and observe the second installation. The additional trip to the site will be an added and unnecessary expense to AGFC caused by

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Case 1:05-cv-00381-CFL

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Filed 12/13/2006

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Defendant's lack of preparation prior to its November 6 & 7, 2006 trip to the site. If the Court allows Defendant to install the water level gauge as requested, AGFC moves the Court to order Defendant to compensate AGFC for its expert expense for this additional trip to the site. Respectfully submitted Date of Signing: December 13, 2006 By: /s/ Julie D. Greathouse PERKINS & TROTTER, PLLC P. O. Box 251618 Little Rock, AR 72225-1618 501-603-9000 Phone /501-603-0556 Fax

Of Counsel G. Alan Perkins PERKINS & TROTTER, PLLC Post Office Box 251618 Little Rock, AR 72225-1618 Telephone: (501) 603-9000 Telefax: (501) 603-0556 James F. Goodhart ARKANSAS GAME & FISH COMMISSION #2 Natural Resources Drive Little Rock, AR 72205 Telephone: (501) 223-6327 Telefax: (501) 223-6463

ATTORNEYS FOR PLAINTIFF ARKANSAS GAME & FISH COMMISSION

CERTIFICATE OF SERVICE I certify that I have on this 13th day of December 2006 served a copy of the foregoing document on the party hereto by electronic filing: HelenAnne Listerman Natural Resources Section Environment & Natural Resources Division United States Department of Justice P. O. Box 663 Washington, DC 200044-0663

/s/ Julie D. Greathouse

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