In Trashing Land, The EPA Has Nothing On The Forest Service

William Perry Pendley | President, Mountain States Legal Foundation

Americans now comprehend fully the disdain the Environmental Protection Agency (EPA) has for truth-telling, the rights of others, and the environment. Forget the last six spiteful years; the Colorado mine disaster suffices. The EPA’s wanton malfeasance — experts warned of a catastrophic blowout — unleashed three million gallons of orange arsenic-, cadmium-, and lead-laden wastewater into an Animas River tributary trashing public, private, and tribal lands and waters in Colorado, New Mexico, Utah, and the Navajo Nation. Even so, the EPA has nothing on the U.S. Forest Service.

In documents filed days ago in a federal district court in Arkansas, the agency and its lawyers demand dismissal of a $5 million lawsuit against the United States for decades of tortious use and abuse of a Scot-Irish family’s farmland settled one hundred years before the Ozark National Forest’s creation made the Forest Service the family’s neighbor. Worse yet, Conner Eldridge, the United States Attorney for Arkansas, argues that, because the Forest Service trespassed upon Matthew McIlroy’s farm for years, the government owns the land! The assertion, which has no factual or legal support, is asinine, absurd, and in conflict with an admonition of the Supreme Court of the United States.

In 1808, Mr. McIlroy’s family left Tennessee, crossed the Mississippi River, and homesteaded south of the Ozark Plateau’s Boston Mountains and north of the Arkansas River at Fly Gap, Beech Grove, and Cass. Arkansas Territory was established in 1819; Arkansas won statehood in 1836; and the million-acre Ozark National Forest, which surrounded the McIlroy farmland, was proclaimed in 1908.

In 1933, Congress created the Civilian Conservation Corps (CCC) and put a camp in the Ozark National Forest near Cass. After World War II, the CCC was discontinued, but in 1964 the newly created Job Corps took over the site. Soon, Mr. McIlroy’s grandfather, W.C. McIlroy, discovered Job Corps students trespassing on and littering his property, damaging his fences, and destroying his hay; his objections went unanswered. In 1971, W.L. McIlroy took over the farm and noticed the Forest Service had drilled a well on his property. He protested, but agency officials said the well was on federal land, a lie repeated for decades.

In 1973, unbeknownst to W.L. McIlroy, the Job Corps used heavy equipment to tear down a 100-year old levee built upstream of the farm at the confluence of Mulberry River and Fane’s Creek to protect the farm and the Jobs Corps site. The result was flooding and erosion downstream, alteration of the bed of Mulberry River due to silting and deposits of eroded rock, and destruction of 10 acres of farmland. The Forest Service’s “mitigation” exacerbated the damage, widening the channel across the farm.

In 1998, when Mr. McIlroy took over the farm, he discovered a section of fence had been flattened and a sewage effluent line installed over it and across 50-60 yards of farmland to discharge waste into Mulberry River. Then he found out the agency:  put a “temporary,” quarter-mile water line across his land that blocked entry to his farm; used the water well — even though a federal survey proved it was on the farm; brought heavy equipment onto the farm to blade dirt and drag drainage ditches; built a service road across the farm to access the well and the sewage effluent line and poured concrete on the road when it eroded; used the farmland for heavy equipment training — digging down to creek rock, causing serious erosion, destroying fences, and loosening livestock; and, dumped concrete and construction waste on its property near the farm, effluent from which washed onto the farm.

The Forest Service documented its “encroachment” but took no action. In 2013, Mr. McIlroy filed a claim that the United States ignored, so in October of 2014, he sued. As his case makes its way through the courts, he wonders whether his clansmen in William Wallace’s days ever saw greater abuses by “the King’s men.”

William Perry Pendley, an attorney, is president of Mountain States Legal Foundation in Denver and author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today (Regnery, 2013). MSLF represents the McIlroy family.

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