Flash-flood suits’ dismissal upheld by court of appeals

The 8th U.S. Circuit Court of Appeals affirmed on Friday a district court’s dismissal of lawsuits from the flash flood at the Albert Pike Recreational Area that killed 20 campers in June 2010.

The court upheld U.S. District Judge Susan Hickey’s March 2017 ruling the plaintiffs of 11 consolidated lawsuits didn’t have jurisdiction to sue the federal government under the Federal Tort Claims Act for negligence and malicious conduct related to the development and maintenance of the Loop D campsites at the recreation area.

Seventeen of the campers who were killed were camping in the Loop D section, the opinion said.

Heavy rain upstream of the Little Missouri River on June 10, 2010, caused the floodwater to roar through the campgrounds, sweeping away campers unable to escape the rapidly rising water. A U.S. Geological Survey expert described the flood as a 500-year flood event, the court wrote.

The government’s environmental assessment in developing Loop D concluded it wasn’t in a flood plain, and no signs warning of flood danger were ever posted when the campsites opened in 2004, the opinion said.

Under the Federal Tort Claims Act, the government could have been stripped of its immunity in circumstances under which an individual landowner would be liable, according to the opinion.

The government argued, the opinion said, it had immunity under the Arkansas Recreational Use Statute that could be removed only if the campers had been charged to use the area or if the government had maliciously failed to guard or warn against ultra-hazardous conditions.

The appeals court ruled campsite rental fees at the recreation area weren’t charges and camping in a 100-year flood plain, which the court determined Loop D to be in, was “not an uncommon recreational activity in Arkansas” and not ultra-hazardous, the opinion said.

“Because we conclude that under Arkansas law a private landowner would be immune from plaintiffs’ claims, we affirm the district court’s dismissal for lack of subject matter jurisdiction,” the court wrote in its conclusion.