From:                              Mountain States Legal Foundation
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Sent:                               Tuesday, October 01, 2013 6:06 AM

To:                                   John R. Venrick

Subject:                          Summary Judgment - October 2013

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October 1, 2013

From William Perry
Pendley

Dear Mr. and Mrs. Venrick,

I thought that, as a friend of Mountain States Legal
Foundation, you would enjoy reading my monthly column, “Summary
Judgment.”

I welcome your comments and suggestions.

Sincerely,

William Perry Pendley, Esq.

President and Chief Operating Officer

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SCOTS-IRISH ENCOUNTER THE KING’S MEN IN THE OZARK
FOREST

In 1808, a Scots-Irish family named
McIlroy heard news of the Louisiana Purchase and farmland that was
plentiful there, left their home in Tennessee, and headed west.
Across the Mississippi River, two hundred miles west of Memphis, south of
the Ozark Plateau’s Boston Mountains, and north of the Arkansas
River, the family homesteaded three parcels 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 farm, was proclaimed in 1908.

In 1933, Congress created the Civilian
Conservation Corps (CCC), units of which were located on federal land
managed by, among other entities, the U.S. Forest Service.  One CCC
camp was placed in the Ozark National Forest and was responsible for
constructing over 300 miles of trails.  After World War II, the CCC
was discontinued, but in 1964 President Johnson signed the Economic
Opportunity Act—part of his Great Society campaign and War on
Poverty, which created the Job Corps, modeled after the CCC, to provide
“vocational and academic training.”  A Job Corps camp was
established in the Ozark National Forest near Cass.

Beginning in the late 1960s, W.C. McIlroy complained that Job Corps
students were trespassing on and littering his property, damaging his
fences, and destroying his hay; his objections went unanswered.  In
1971, he died and his son, W.L. McIlroy, took over the farm only to
discover that the Forest Service had drilled a well on his property.
He protested, but Forest Service officials said the well, used as a water
source for Job Corps facilities, was on federal land.  Over the years,
a string of Job Corps directors, Forest Service rangers, and Forest Service
officials repeated that statement, over the family’s protestations.

In 1973, unbeknownst to W.L. McIlroy, the Job Corps used heavy equipment to
tear down a 100-year old levee built just upstream of the farm at the
confluence of Mulberry River and Fane’s Creek to protect the farm and
the site of the Job Corps facility.  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 the farm.
Subsequent actions by the Forest Service, which included removing fill,
laying culverts, and pouring concrete, only exacerbated the problem:
the water widened the channel across the farm to Mulberry River.

In 1998, Matthew McIlroy, W.L.’s son, who had taken over the farm,
discovered part of his fence had been flattened, a sewage effluent line
installed over it and across 50-60 yards of the farm, and Job Corps sewage
effluent discharged from his property into Mulberry River.
Subsequently, he discovered the Forest Service installed a
“temporary” water line that ran a quarter mile across his land
and blocked entry to his farm; continued to use the water well—even
though a later federal survey proved the well was on the farm; trespassed
with 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 parts of
the farm for heavy equipment training, digging down to creek rock, causing
serious erosion, destroying fences, and resulting in the loss of escaping
livestock; and, dumped concrete and construction waste on its property near
the farm, effluent from which washed onto the farm.

In January 2013, a Forest Service official “document[ed] the
encroachment on [the McIlroy’s] property.”  Nonetheless,
the Forest Service refused to compensate Mr. McIlroy or remove those
encroachments.  Under the Federal Tort Claims Act, which permits
recompense when the government’s employees commit torts, Mr. McIlroy
filed an administrative claim on which he will sue if it is denied.
Meanwhile, he wonders whether his clansmen in the days of William Wallace
ever saw greater abuses by “the King’s men.”

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