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Taylor Bay Protective Ass'n v. Administrator

ELR Citation: 20 ELR 20086
Nos. No. 88-2027, 884 F.2d 1073/(8th Cir., 09/01/1989)

The court holds that operation of the Village Creek Flood Control Project near Taylor Bay, Arkansas, constitutes a nuisance. The Taylor Bay Protective Association brought suit against the improvement districts that operate the project and federal agencies that regulate the project, after problems with sedimentation and turbidity occurred in Taylor Bay, which reduced fishing and other recreational activities. The court first holds that its review of the district court's factual determinations is under the clearly erroneous standard. Next, the court holds that the district court was not clearly erroneous when it found that flood control project pumps were operated improperly, that the pumps were operated excessively, that the lack of maintenance of a creek and diversion ditch was a cause of sedimentation in Taylor Bay, and that the improvement districts' failure to maintain a sump area contributed to the difficulties in Taylor Bay. The court holds that the improvement districts' negligent operation of the project caused sedimentation in Taylor Bay, constituting a nuisance.

The court next upholds the district court's order to acquire the sump area, maintain the diversion ditch and streams within the project area above a levee, and follow proper pumping procedures. These orders do no more than conform the improvement districts' conduct to the operation and maintenance manual they were bound to from the beginning. The court also finds no abuse of discretion in the order to solicit the Corps of Engineers and the Game and Fish Commission's assistance in devising means to abate the nuisance and in invoking preventive measures. Further, the order to solicit the aid of the Soil Conservation Service, while the districts are not responsible for the erosion of lands downstream from the levee, is not burdensome and is upheld. Next, the court holds that the mandate to the improvement districts to institute measures for removing the debris, silt, and sediment in the Taylor Bay Stream is unnecessary at this point, since other aspects of the abatement order may remedy the problem. If the problem does not abate after the other orders have had time to work, the court can order the sediment removed from Taylor Bay, but only after a hearing to determine each party accountable and the amount of harm each has caused.

Finally, the court holds that judicial review of the Corps §216 report, mandated in the Flood Control Act, is neither necessary or advisable. Congress intended §216 reports to serve an advisory role, and thus it is Congress', not the courts, role to determine their adequacy.

Counsel for Appellants
Tim F. Watson Sr.
209 Walnut St., P.O. Box 988, Newport AR 72112
(501) 523-8420

Counsel for Appellees
Thomas Bay Fitzhugh
116 Main St., Augusta AR 72006
(501) 347-5991

O.H. Storey III
Hoover, Jacobs & Storey
Ninth Fl., Savers Federal Bldg., Little Rock AR 72201
(501) 372-4125

Before FAGG and BEAM, Circuit Judges, and DUMBAULD,* District Judge.