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Moss v. United States

United States District Court, W.D. Arkansas, Texarkana Division

March 28, 2016



          Susan O. Hickey, United States District Judge

         Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Defendant United States of America (“the government”). ECF No. 31. After the parties conducted limited jurisdictional discovery, Plaintiffs filed a response to the government's motion. ECF No. 52. The government has filed a reply. ECF No. 58. The Court finds the matter ripe for its consideration.

         I. BACKGROUND

         This is a consolidated action comprised of eleven similar cases arising from the deaths of twenty campers in a tragic flood incident in June 2010 at the Albert Pike Recreation Area (“APRA”). The APRA is located adjacent to the Little Missouri River in the southern portion of the Ouachita National Forest in Arkansas. The APRA is a public recreation area managed by the United States Forest Service, an agency of the United States Department of Agriculture. In 2000, Congress made a special $600, 000.00 appropriation to renovate and expand the facilities at the APRA. The Forest Service decided to renovate existing APRA campsites and to develop new campsites in an area that would be known as Loop D.[1]

         A. The NEPA Process

         The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq., requires federal agencies to assess the environmental effects of their proposed actions prior to planning and decision-making. Typically, a NEPA coordinator at an agency would oversee all aspects of the NEPA process. The NEPA coordinator would assemble an interdisciplinary team to assess and provide input as to all of the environmental aspects implicated by the proposed project. The NEPA coordinator would then combine the team's findings and recommendations into an environmental assessment, which is a formal document disclosing the effects a proposed project will have on resources. Once the public and the interdisciplinary team had an opportunity to weigh in on the environmental assessment, the responsible official would issues a decision notice.

         The Forest Service was required to employ the NEPA process prior to the development of Loop D at the APRA. In this case, District Ranger James Watson acted as the NEPA coordinator for the Loop D project by identifying the proposed action, assembling the interdisciplinary team, and authoring the environmental assessment. As the District Ranger, pursuant to Forest Service Policy, Watson was also responsible for issuing the decision notice to proceed with the Loop D project. Although it was uncommon for one person to assume both roles, Ranger Watson was not prohibited from doing so.[2]

         The first step in the NEPA process requires the submission of a scoping letter to generate public comments. The only public comment in the project file regarding the development of Loop D came from the owners of a private recreational vehicle (“RV”) campground located across from the proposed Loop D. These owners were concerned that the Forest Service would charge a lower fee for use of the proposed APRA RV sites than they were charging at their private RV park.

         Ranger Watson assembled an interdisciplinary team of Forest Service Specialists to consider the biological, social, and economic factors pertinent to the decision on the improvements at the APRA. He engaged both Ken Luckow, a soil scientist, and Alan Clingenpeel, a hydrologist, to provide input on the project.[3] After evaluating the proposed site, Luckow submitted a written report finding that Loop D was located within the 100-year floodplain. Mr. Clingenpeel separately conducted a field evaluation and determined that Loop D was not within the 100-year floodplain, [4]but he did not issue a written report.

         1. Luckow's Report

         The APRA project was Luckow's first time conducting a soil analysis for a recreation project. Luckow visited the proposed site in 2001 and prepared a report based on his observations and information gleaned from soil maps. Luckow determined that most of the area where the new Loop D campsites were proposed should be considered as being within the 100-year floodplain. ECF 52-10, p. 2. Luckow estimated that this area was “subject . . . to only rare flooding events (i.e. 1-2 times per 100 years).” ECF 52-10, p. 2. He recommended that signs be posted warning campers of possible flash floods and that the proposed additional campsites should be developed as primitive camping only with no electricity, water, or sewer hookups. ECF 52-10, p. 2.

         2. Clingenpeel's Opinion

         In his deposition, Ranger Watson testified that he knew Luckow's report was based on soil maps and that soil maps were created on such a scale that it could make it difficult to determine where the floodplain begins and ends. Thus, following receipt of Luckow's report, Ranger Watson requested that Alan Clingenpeel, the District Forest Hydrologist, visit proposed Loop D and give his opinion as to the location of the floodplain at the proposed campsite. As part of his work, Clingenpeel had conducted field assessments of floodplain locations and had determined the location of 100-year floodplains at least one dozen different times. Ranger Watson and District Recreation Technician Tom Ledbetter were present for Clingenpeel's assessment of the Loop D site. The exact location of the proposed site was not identified for Clingenpeel, but Ranger Watson provided Clingenpeel with a rough identification of the proposed site.

         In evaluating the floodplain at Loop D, Clingenpeel used the double bankfull method, which was generally used by forest hydrologists at the time to determine the location of 100-year floodplains. Relying on this double bankfull field method for determining the upper edge of the 100-year floodplain, Clingenpeel concluded that Loop D was not within the 100-year floodplain. At the end of the assessment, Watson told Clingenpeel that the location of the 100-year floodplain, as measured by Clingenpeel, was at the elevation of the lowest of the proposed campsites. Clingenpeel never submitted a written report documenting his findings. Clingenpeel, however, told Ranger Watson that, based on the 100-year floodplain elevation Clingenpeel had measured, he did not see any problems with the project.

         3. Environmental Assessment and Decision Notice

         After receiving input from forest specialists and performing other work related to the assessment, Ranger Watson drafted the environmental assessment (“EA”). In accordance with the NEPA, Ranger Watson addressed the reasons for the renovation and the creation of Loop D. He cited the heavy use and lack of upkeep of the APRA developed campsites as a reason for undertaking the project. He also noted that there was great demand for electrical and water hookups by APRA campers. The EA outlined a proposal in which Loops A, B, and C would be improved, and Loop D would be built with electrical, sewage, and water hookups.

         The EA addressed the environmental, socio-economic, and public safety impacts of the project. Regarding the daily camping fees, the EA stated that the private campground bordering the APRA had electrical, water, and sewage hookups and noted that improvements to the APRA would result in competition with the private campground for those services. Ranger Watson stated that because of the improvements, the daily camping fees in the federal area of the APRA would be increased to make the fees comparable to the rates charged at the private campground.

         Concerning public safety and the proposed Loop D, the EA contained the entirety of Luckow's soil analysis and his determination that most of the area where Loop D was proposed should be considered in a floodplain. ECF No. 52-12, p. 15. The EA noted Luckow's recommendation that the campsites remain primitive. In the next section, however, Ranger Watson concluded that the proposed Loop D was not within the 100-year floodplain, presumably relying on Clingenpeel's assessment.[5] ECF No. 52-12, pp. 13 and 16. The EA stated that, as a mitigation measure, signs would be posted warning the public of possible flash floods.

         Watson circulated a draft of the EA among members of the interdisciplinary team, including Luckow and Clingenpeel. Luckow reviewed the soils portions of the EA and offered some minor corrections. Clingenpeel also reviewed the portions of the EA addressing water quality and did not offer any comments. On December 9, 2002, the Forest Service issued the EA, and a 30-day comment period was opened.

         After the comment period closed, on January 17, 2003, Ranger Watson signed a Decision Notice approving and implementing the preferred course for the APRA renovation project outlined in the EA, which included the development of Loop D. The Decision Notice listed nine reasons for the action, one of which was the increase in recreation fee revenue. The Decision Notice outlined the process for administrative appeal, but no one challenged the decision. In July 2003, the APRA renovation project was completed, but signs warning the public of possible flash floods were never posted.

         B. The ...

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