Plaintiffs seek action in suit
Parties have awaited decision on motion in Albert Pike case since August 2015
TEXARKANA — A hearing has been requested in a federal lawsuit stemming from the 2010 flood at Albert Pike Recreation Area that took the lives of 20 men, women and children.
Roughly half of those who perished in the historic flood were from Texarkana and surrounding areas. In the pre-dawn hours of June 11, 2010, nearly seven years ago, the depth of the Little Missouri River in the Ouachita National Forest rose from 3 to 23 feet in a matter of hours. Recreational vehicles, cars, asphalt, concrete picnic tables and campers were swept away by the roiling water.
In the months following the flood, 11 different suits were filed in multiple federal jurisdictions, which have been consolidated into one case now pending before U.S. District Judge Susan Hickey in the Texarkana Division of the Western District of Arkansas.
Both sides fully briefed their positions on the government’s
motion to dismiss the cases as of August 2015. Hickey is tasked with deciding if the government’s argument that the suits are barred by the Arkansas Recreational Use Statute warrants outright dismissals or if the court will agree with the plaintiffs’ contention that an exception spelled out in the law means the cases should go forward.
“For some time, the parties and other family members of the victims of the flood have been asking questions of counsel about when the case will move toward a conclusion. Counsel has pointed out to them the extraordinary number of cases, the complexity of the procedure and issues, and number of witnesses involved. Notwithstanding those explanations, the clients are beginning to question the competence and commitment of counsel to move the case along to a conclusion. The parties and family members, while intelligent and fair-minded people, have begun to feel that justice is being denied to them through delay, and are demanding that action be taken by counsel to expedite these cases,” states a request for a hearing on the government’s motion to dismiss filed Thursday by lawyers representing the plaintiffs. “In addition to the complaints of the parties and family members of the victims, there is the problem inherent in all cases that the passage of time from the event giving rise to the case to the time of trial will result in loss of witnesses through disappearance, death or disease, and the loss of tangible evidence.”
The lawsuits allege the government knew the risks of camping in Albert Pike, particularly in the Loop D campground, where campers were trapped in the 2010 flood. A Forest Service soil expert recommended that Loop D be designated for primitive camping only, but the area was developed with electrical and water hook-ups desirable to RV owners.
A report from the U.S. Department of Agriculture noted many factors, including failure of the Forest Service to follow its own regulations, as contributing to the tragedy. Signs warning of the danger of flooding were required but never posted. Emergency communications equipment wasn’t working. No evacuation plan existed, and resident hosts weren’t trained to
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deal with a natural threat of the flood’s magnitude, the USDA report states.
The ranger who wrote the plan for developing Loop D wasn’t the usual author of environmental assessments for his district and penned a report that failed to include the soil engineer’s determination of the land as flood-prone. The ranger who wrote the plan for development of Loop D also approved it.
The U.S. government argued in earlier motions to dismiss the 11 suits that the Arkansas Recreational Use Statute prohibits claims for damages unless actual malice or the desire to harm others is present. Lawyers for the numerous plaintiffs in the suits argued the statute allows legal action when “malicious conduct includes conduct committed in reckless disregard of the consequences.”
In 2014, the Arkansas Supreme Court agreed with the plaintiffs’ definition of malicious conduct in a response to a certified question presented by Hickey. The government filed a new motion after the cases were consolidated, persisting in its argument that the ARUS should shield it from liability. That motion has been before the court since August 2015.
“The court has been very judicious, courteous and fair-minded to all parties, and counsel recognize the unique problems in managing a group of cases such as this. Counsel also recognize that much of the delay has been occasioned by the need to obtain the Arkansas Supreme Court’s ruling, and the need to conduct discovery on the critical issue of liability, all of which took considerable time,” the plaintiffs’ motion states.
The government’s lawyers filed a response Friday stating that a hearing on the motion to dismiss isn’t necessary because all of the information needed for a ruling is currently before the court.