7 ELR 20800 | Environmental Law Reporter | copyright © 1977 | All rights reserved

Buffalo River Conservation & Recreation Council v. National Park Service

No. 76-2029 (558 F.2d 1342, 10 ERC 1428) (8th Cir. August 3, 1977)

ELR Digest

The court affirms the trial court's dismissal of a complaint challenging the constitutionality of the creation of the Buffalo National River as a national park and asserting that the public has no prescriptive easement for use of the Buffalo River and its bed. In 1972, Congress established the Buffalo National River as a park in Arkansas by P.L. 92-237, 86 Stat. 44, but appropriations ran out after 60 percent of the acreage was acquired. The acquired portion was opened for public use, but park officials exercised no possessory rights over the nonacquired property and have not encouraged use of it by the public. Public users, however, have trespassed on the land of private owners and caused damage. Plaintiffs are owners of nonacquired land.

The district court dismissed the complaint and found that the public had acquired a prescriptive right to float down the river.It also ruled that the owners of nonacquired property could fence off their shore lines but could not obstruct the river. Finally, if plaintiffs' property is taken by the United States, they are entitled to compensation for their portion of the stream bed encumbered by the easement.

The Eighth Circuit concludes that the lower court's findings are supported by substantial evidence and that its decision is not erroneous. Convening a three-judge panel to test the constitutionality of P.L. 92-237, which established the park, is not proper because there is not a substantial federal constitutional issue involved. Lack of substantiality can be found if the question is obviously without merit or if previous decisions foreclose the subject. California Water Service Co. v. Redding, 304 U.S. 252 (1938). The court adopts the trial court's dismissal of the constitutional issue because the power of the United States to create parklands is a recognized and popular function of the government. United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896). There is no evidence to support an unlawful taking by the government in creation of the Park so as to justify injunctive relief, and plaintiffs are entitled only to just compensation under theTucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. Hurley v. Kincaid, 285 U.S. 95 (1932). Regarding the prescriptive easement issue, the lower court found that usage of the river has been open and adverse for more than the seven years required by Arkansas law for the establishment of a prescriptive public easement over the non-navigable stream and its bed. The Eighth Circuit finds substantial evidence to support the finding of open and adverse use. Although the cases deal with prescriptive rights-of-way over land, the analogy to rights-of-way over non-navigable streams and their beds is proper. The lower court's judgment is affirmed.

The full text of this opinion is available from ELR (4 pp. $0.50, ELR Order No. C-1144).

Counsel for Appellants
Randell Templeton
Rowland & Templeton
604 Three Hundred Spring Bldg., Little Rock AR 72201
(501) 375-3384

Counsel for Appellees
Michael A. McCord (with Peter R. Taft, Ass't Attorney General, and Edmund B. Clark)
Department of Justice, Washington DC 20530
(202) 739-2774

Robert E. Johnson U.S. Attorney; Sam Hugh Park, Ass't U.S. Attorney
P.O. box 1524, Fort Smith AR 72901
(501) 783-5125

Van Oosterhout, J., with Heaney and Webster, JJ.


7 ELR 20800 | Environmental Law Reporter | copyright © 1977 | All rights reserved