Watkins v. Lawrence Cnty.
| Decision Date | 19 May 2020 |
| Docket Number | Case No. 3:17-cv-00272-KGB |
| Parties | CLEO WATKINS, et al. PLAINTIFFS v. LAWRENCE COUNTY, ARKANSAS, et al. DEFENDANTS |
| Court | U.S. District Court — District of Kansas |
Before the Court is a motion for partial summary judgment filed by plaintiffs Cleo Watkins, Pyles Family Farms, LLC, Victor Hutcherson, Alevlla Hutcherson, Helen Knight, Michael Watkins, Betty Watkins, and George Carney (Dkt. No. 48). Defendants Lawrence County, Arkansas; John Thomison, in his official capacity as County Judge of Lawrence County; and William Powell, Donald Richey, Lloyd Clark, Heath Davis, Ernest Briner, Ronald Ingram, Tracy Moore, Kenney Jones, and Alex Latham, in their official capacities as members of the Lawrence County Quorum Court filed a response in opposition (Dkt. No. 59), and plaintiffs filed a reply (Dkt. No. 66). Additionally, defendants filed a separate motion for summary judgment (Dkt. No. 53). Plaintiffs filed a response (Dkt. No. 63), and defendants filed a reply (Dkt. No. 69). For the following reasons, the Court denies plaintiffs' motion for partial summary judgment and grants, in part, and denies, in part, defendants' motion for summary judgment (Dkt. Nos. 48, 53).
This matter concerns a bridge in Lawrence County, Arkansas, over the West Cache River Slough ("the Slough") (Dkt. No. 17, at 2). Plaintiffs, Craighead County farmers with agricultural fields in the East Cache River Basin, allege that defendants' actions have turned the bridge into a de facto dam causing substantial sediment buildup, choking off most of the Slough from the Cache River proper, and causing substantial flooding of plaintiffs' lands and destruction of their crops (Id.).
Defendants assert that the Arkansas Department of Transportation ("ADT"), District 10, conducted a bridge inspection of the old wooden bridge ("the wooden bridge") on Lawrence County Road 717 ("Road 717") on July 28, 1997, and noted numerous structural deficiencies in the wooden bridge (Dkt. Nos. 55, ¶ 1; 55-2). Defendants maintain that, as part of the inspection process, the ADT prepared a cross-section drawing of the wooden bridge as it existed, and they ran soundings from the top of the wooden bridge to the streambed bottom (Dkt. Nos. 55, ¶ 1; 55-2; 55-6, at 3). According to then-Lawrence County Civil Attorney Dick Jarboe, the wooden bridge was condemned by the State, and the only way the County could make Road 717 accessible was with a bridge featuring railroad car culverts (Dkt. No. 63-10, at 124). The current bridge ("the culvert bridge") was constructed by the Lawrence County Road Department in August 1997, the month following a report concerning the bridge (Dkt. Nos. 54, at 2; 55, ¶ 2). The original bridge construction had four railroad car culverts (Id.). Local farmers questioned the four-culvert bridge, and the United States Army Corps of Engineers ("the Corps") determined that a fifth culvert should be added (Dkt. Nos. 54, at 2-3; 55, ¶ 2). Defendants modified the culvert bridge in 2003 by adding this fifth culvert in accordance with the Corps' determination (Dkt. Nos. 50, ¶ 17; 55-2). Defendants assert that the Corps believed this fifth culvert would create adequate flow, but plaintiffs dispute that the Corps conducted any proper analysis to arrive at this determination (Dkt. Nos. 55, ¶ 2; 64, ¶ 2). The Corps conducted a compliance inspection on April 30, 2003, determined defendants were in compliance with Sections 301 and 404 of the Clean Water Act, and issued a permit under Section 404 of the Clean Water Act, Nationwide Permit No. 14, for the culvert bridge on May 13, 2003 (Dkt. Nos. 55, ¶ 3; 63-13). The permit was conditioned on maintenance fordebris removal as needed, to allow for the passage of normal or expected high flows (Dkt. Nos. 54, at 3; 55-3).
In 1991, Lawrence County Quorum Court adopted Ordinance 1991-3, which established a flood ordinance for Lawrence County pursuant to Arkansas Code Annotated § 14-268-101, et. seq. (Dkt. No. 55, ¶ 4). Ordinance 1991-3 established the rules and regulations for construction of buildings within a floodplain (Id.). The area involved in this suit is all in the floodplain of the Cache River Basin (Id.). Defendants state that the Cache River Basin is an area of special flood hazard according to the ordinance, meaning that it is land in the floodplain within a community subject to a one percent or greater chance of flooding in any given year, but plaintiffs dispute this characterization and maintain that "an area of special flood hazard" is a term of art defined by the Federal Emergency Management Agency ("FEMA") and reflected by FEMA's Flood Insurance Rate Maps (Dkt. Nos. 55, ¶ 4; 64, ¶ 4). Ordinance 1991-3 defined "structure" as "a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home." (Dkt. No. 55, ¶ 5). The term "substantial improvement" and the term "new construction" both referred to structures as the objects which were subject to the regulations (Id.). Ordinance 1991-3 remained in full force and effect from its passage on March 11, 1991, until it was replaced in November 2012 by Ordinance 9 of 2012 (Dkt. Nos. 50, ¶ 1; 55, ¶ 6).
Defendants claim that they were never presented with any scientific evidence that the culvert bridge may be restrictive of the flow of water until plaintiffs presented a hydrology report from Marc Johnson1 during the course of discovery in this case (Dkt. No. 55, ¶ 8). Plaintiffs assert that separate plaintiff George Carney, who previously worked as a civil engineer for the Corps andcurrently works for FEMA, submitted a detailed study to Lawrence County showing that the culvert bridge restricted the flow of water in 2009 and sent Lawrence County a letter to the same effect in 2002 (Dkt. Nos. 63-1, ¶¶ 16, 18-19, 26; 64, ¶ 8). Defendants acknowledge that Mr. Carney sent a letter in September 2009 expressing concern about the culvert bridge's configuration and that the Corps made a field inspection on September 5, 2009, in response to this letter (Dkt. No. 54, at 4). The Corps' representative indicated that it was noticeable during the survey that the pipes were mostly clogged and regular maintenance would be required to keep the pipes open, though the representative also noted that since the culvert bridge was over five years old it was past the Corps' statute of limitations to proceed with further enforcement action (Dkt. Nos. 54, at 4; 55-5).
Defendants state that Mr. Johnson's engineering report is based off a design model which appears as Figure 4 in his report and that based upon this diagram and the flow rates derived therefrom, Mr. Johnson projects that anytime the Cache River gage at Egypt, Arkansas ("the Egypt gage") shows flow rates of between 2,000 and 5,500 cubic feet per second ("cfs"), then plaintiffs' parcels are being flooded to some unstated degree (Dkt. Nos. 55, ¶¶ 9-10; 55-7). When the flow is over 5,500 cfs, Mr. Johnson projects that plaintiffs' property remains flooded, but the water at that level would be present regardless of the type of structure over the Slough (Dkt. No. 55, ¶ 10). Defendants claim that Mr. Johnson's opinions are made without having spoken with any plaintiff about flooding conditions on their properties relative to flow rates as determined by the Egypt gage on the Cache River (Id., ¶ 11). Plaintiffs state that Mr. Johnson used FEMA's Base Level Engineering two-dimensional unsteady flow HEC-RAS hydraulic model in creating his report for the Cache River Basin ("HEC-RAS model") (Dkt. No. 64, ¶ 9). Plaintiffs assert that this model requires extensive computing power and is too large to be placed on a piece of paper, that Mr.Johnson did not place Figure 4 into the HEC-RAS model, and that Figure 4 constitutes a separate opinion from Mr. Johnson that is unrelated to the HEC-RAS modelling or model results (Id.). Accordingly, plaintiffs maintain that Figure 4 had no impact on the HEC-RAS modelling results (Id., ¶ 10). Plaintiffs claim that Mr. Johnson found that the culvert bridge caused flooding on plaintiffs' properties, that the flooding is most likely to occur when the Egypt gage reflects flows between 2,000 and 5,500 cfs, and that Mr. Johnson's report contains results for plaintiff's parcels showing increased flood duration and height (Id.). Plaintiffs also state that Mr. Johnson has talked with one or more plaintiff about flooding conditions on their properties (Id., ¶ 11).
Plaintiffs bring this action pursuant to Arkansas Code Annotated § 14-268-105; Arkansas Code Annotated § 18-15-703; the Takings Clause of the Fifth Amendment to the United States Constitution; the Takings Cause of Article Two, Section 22 of the Arkansas Constitution; 42 U.S.C. § 1983; the Arkansas Civil Rights Act ("ACRA"), Arkansas Code Annotated § 16-123-105(a); and Ex parte Young, 209 U.S. 123 (1908) (Dkt. Nos. 17, ¶¶ 55-190; 54, at 4). Plaintiffs ask this Court to award them judgment against defendants in the form of injunctive relief; actual damages; consequential damages; double damages pursuant to Arkansas Code Annotated § 18-15-702 and any other applicable statutory penalty; all other fees, costs, and expenses to which they may be lawfully entitled, including pre- and post-judgment interest; and other just and proper relief to which they may be entitled (Dkt. No. 17, at 26).
Summary judgment is proper if there is no genuine issue of material fact for trial. UnitedHealth Group Inc. v. Executive Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017) (citing Fed. R. Civ. P. 56). Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact andthat the defendant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In ruling on a motion for summary judgment ...
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