Free Response - District Court of Federal Claims - federal

Case 1:05-cv-00381-CFL

Document 37

Filed 11/17/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ARKANSAS GAME & FISH COMMISSION v. NO. 05-381L JUDGE CHARLES F. LETTOW

PLAINTIFF

THE UNITED STATES

DEFENDANT

RESPONSE TO DEFENDANT'S NOTICE AND AMENDED NOTICE OF INSTALLATION OF WATER LEVEL GAUGES ON THE DAVE DONALDSON BLACK RIVER WILDLIFE MANAGEMENT AREA Comes now the Arkansas Game & Fish Commission ("AGFC" or "the Commission"), through its undersigned attorneys, and submits this Response to Defendant's Notice and Amended Notice of Installation of Water Level Gauges on the Dave Donaldson Black River Wildlife Management Area. On November 16, 2006, Defendant gave notice that it intends to enter upon the land of AGFC at the earliest possible time to install an additional water level gauge on the Gar Slough area. Defendant states that it was unable to access the Gar Slough area due to wet conditions during its two day visit to the site on November 6 & 7, 2006. On November 17, 2006, Defendant filed an Amended Notice of Installation of Water Level Gauges on the Dave Donaldson Black River Wildlife Management Area. In its Amended Notice, Defendant states it intends to move one of the gauges it previously installed in the Schaeffer's Eddy area on November 6 or 7, 2006, to the Gar Slough area. It is unclear to AGFC if Defendant intends to install only this relocated gauge or if Defendant intends to install additional gauges in excess of the ten previously requested by Defendant and allowed by the Court.

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Case 1:05-cv-00381-CFL

Document 37

Filed 11/17/2006

Page 2 of 3

Defendant initially requested permission to install 7-10 water level gauges on the WMA. In its Notice, Defendant represented that it installed 10 gauges during its two full days on the WMA. In its Order of November 16, 2006, the Court granted Defendant's Motion to Compel allowing the installation of ten water level piezometers on the WMA under certain conditions. One of the conditions attached to the installation of the ten gauges was that the installation be complete by November 10, 2006. AGFC objects to Defendant's request for the following reasons: (1) the installation may involve additional gauges in excess of the number initially requested by Defendant and allowed by the Court and (2) installation is after the deadline for installation as ordered by the Court. Defendant knew the area was flooded prior to their travel to the site on November 6 & 7, 2006, and could have brought the necessary equipment for installation. AGFC paid an expert to be present during the two days of installation and will now have to pay AGFC's expert again to travel to the site and observe the second installation. The additional trip to the site will be an added and unnecessary expense to AGFC caused by Defendant's lack of preparation prior to its November 6 & 7, 2006 trip to the site. If the Court allows Defendant to install the water level gauge as requested, AGFC moves the Court to order Defendant to compensate AGFC for its expert expense on this additional trip to the site. Respectfully submitted Date of Signing: November 17, 2006 By: /s/ Julie D. Greathouse PERKINS & TROTTER, PLLC P. O. Box 251618 Little Rock, AR 72225-1618 501-603-9000 Phone /501-603-0556 Fax

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Case 1:05-cv-00381-CFL

Document 37

Filed 11/17/2006

Page 3 of 3

Of Counsel G. Alan Perkins PERKINS & TROTTER, PLLC Post Office Box 251618 Little Rock, AR 72225-1618 Telephone: (501) 603-9000 Telefax: (501) 603-0556 James F. Goodhart ARKANSAS GAME & FISH COMMISSION #2 Natural Resources Drive Little Rock, AR 72205 Telephone: (501) 223-6327 Telefax: (501) 223-6463

ATTORNEYS FOR PLAINTIFF ARKANSAS GAME & FISH COMMISSION

CERTIFICATE OF SERVICE I certify that I have on this 17th day of November 2006 served a copy of the foregoing document on the party hereto by electronic filing: HelenAnne Listerman Natural Resources Section Environment & Natural Resources Division United States Department of Justice P. O. Box 663 Washington, DC 200044-0663

/s/ Julie D. Greathouse

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