AR-Land Comm: Davenport’s Role In The Continued Exploitation of Crooked Creek

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    With early voting for the June 8 preferential primary runoff election starting today and BP’s profits-over-protection methods still in the news, I thought it might be interesting to take a look at Monty Davenport’s record of putting himself and his income ahead of everything from the environment to the Arkansas tourism industry.  I apologize in advance for the length of this post, but I wanted to cover all of this in a way that made it as clear as possible.

    In 1993, Senate Bill 429 was passed and became Act 378, entitled “AN ACT TO AMEND ARKANSAS CODE TITLE 15, CHAPTER 57, SUBCHAPTER 3 TO EXEMPT THE NONCOMMERCIAL REMOVAL OF CLAY, BAUXITE, SAND, GRAVEL, OR OTHER MATERIALS BY A LANDOWNER FOR CONSTRUCTION, IMPROVEMENT OR MAINTENANCE OF ROADS ON SAID LANDS; AND FOR OTHER PURPOSES” (emphasis added).  In effect, Act 378 was designed to alter the Arkansas Open-Cut Land Reclamation Act, Arkansas Code Annotated § 15-57-301 to -320 (Supp. 1991), the noncommercial removal of certain materials, thus redefining “open-cut mining” to mean “the surface extraction of clay, bauxite, sand, gravel, soil, shale, or other materials for commercial purposes.”  Ark. Code Ann. § 15-57-303.

    The Act also amended Arkansas Code Annotated § 15-57-315 to read:

    (14)(A) The removal of gravel or other materials from streams or stream beds shall comply with the requirements of this subchapter and Regulation 15 of the Department of Pollution Control and Ecology.

    (B) There shall be no mining in streams designated as extraordinary resource waters as identified in Regulation 2 of the Department of Pollution Control and Ecology.

    Per the requirements of subsection 315(14)(A), and under Regulation 15 of the Arkansas Department of Environmental Quality, any person “desiring to remove gravel or other materials from stream beds must obtain a permit to do so from the Department.”

    This all seems straightforward enough, right?

    Well, here’s the rub: prior to Act 378, there really was no state regulation of gravel removal from the various waterways around the state.  As an unfortunate — though somewhat predictable — result, Act 378 was largely (in not entirely) ignored.

    [Former] State Sen. Wayne Dowd, D-Texarkana, […] recalls a canoe trip he and his wife took on the upper Ouachita River [in 1994] that spurred him to check on the impact of Act 378.

    “A guy came down to the river with a six- to eight-yard dump truck while we were putting in,” Dowd says. “By that afternoon he had eliminated a good-sized gravel bar

    “I reported that incident to [then-Land Commissioner] Charlie Daniels and his office concluded that that portion of the river wasn’t navigable and couldn’t be controlled,” says Dowd, adding that the Ouachita is not on the extraordinary resource waters list. “That’s when I figured out that Act 378 hadn’t been implemented.”

    [***]

    Dowd wouldn’t name names, but he says it was no accident that Act 378 was ignored.

    “Some legislators are opposed to stopping the mining,” Dowd says. “[Act 378] went from the Rules Committee to Agri to Public Health. It was obvious what the hell was going on. We decided we needed to say it again.”

    In response to this realization that Act 378 was having no effect, Dowd co-sponsored Senate Bill 418, which became Act 1345 of 1995, bluntly entitled “AN ACT TO PROHIBIT COMMERCIAL MINING IN EXTRAORDINARY RESOURCE STREAMS; AND FOR OTHER PURPOSES.”  That act repealed subsection 315(14)(A) – (B), and it amended subsection 310, which governed permitting requirements under the Open-Cut Land Reclamation Act, to include:

    (f)(1) The mining of gravel or other materials from streams or stream beds shall comply with the permitting requirements of this subchapter.

    (2) There shall be no mining in streams designated as ‘extraordinary resource waters’ of the State as established in water quality standards duly promulgated by the Commission for all surface waters of the State of Arkansas.

    (3) The Department shall develop regulations to implement the provisions of this chapter. The Department shall develop documentation that will guide an operator through the permitting process.

    A separate piece of legislation in 1995, Act 1110, created a

    task force [that] shall study the impact of stream bed mining on the economic and natural resources of this state, giving specific consideration to the effect of stream bed mining on fisheries, water quality, and the overall recreational, scenic, and economic potential of the state’s water resources. The task force shall report and make recommendations to the Governor and the Legislative Council by December 1, 1996.

    One of the more notable waterways where Act 378 was ignored was Crooked Creek, in Boone and Marion Counties.  Despite being a nationally recognized location for fantastic smallmouth-bass fishing, Crooked Creek was not designated as an “extraordinary resource water,” which would have stopped all mining under subsection 310(f)(2).  Once Acts 1345 and 1110 were promulgated, however, the ADEQ along with several conservation groups, recommended that Crooked Creek be added to that list in order to protect the fishing areas.

    Taking gravel from this scenic stream nationally known for its smallmouth bass fishing has gone on from generation to generation. Larry Bearden of Guy King and Sons in Mountain Home, one of three or four of the largest companies that mine on Crooked Creek, grew up on a farm on the creek in Marion County.

    Bearden wouldn’t reveal how much sand and gravel his company hauls from the creek, but says mining on Crooked Creek is not as extensive as is commonly thought.

    “The numbers I’ve seen in the paper are grossly exaggerated,” Bearden says. “There are four companies – Mountain Home Concrete, Marion County Sand and Gravel, Monty Davenport and us – then there are another half dozen or so small businesses that sell a truckload here and there to somebody building a house.”

    Bearden says if miners can’t take gravel from Crooked Creek, it will have to be trucked in from alternate sources, most likely the Arkansas River

    “Our plans will be to buy the aggregate [unwashed sand and gravel],” Bearden says. “Frankly, we have the financial resources to do that. When some of the smaller operators lose Crooked Creek, they will go out of business.”

    Dowd says the interests of the state far outweigh the commercial prospects.

    “They [miners] are making a ton of money, and they don’t want to stop making it,” Dowd says. “My guess is the local gravel owners will vigorously oppose [closing Crooked Creek to mining]. Environmental groups will be for it.”

    Those who make a living from tourists – canoeists, fishermen, sight-seers – also will be for it.  [Former] State Sen. Gary Hunter, R-Mountain Home, says common ground for miners, landowners, fishermen and environmentalists should be sought.  Hunter was quoted in The Baxter Bulletin after he took a float trip on Crooked Creek in April: “Tourism is the number two resource in Arkansas, but to us it’s number one.”

    (Interestingly enough, Crooked Creek Enterprises, Inc., whose registered agent was one James M. “Monty” Davenport was incorporated in 1983 and had its corporate designation revoked in 1987.)

    As things like this are wont to be, however, adding Crooked Creek to the list of extraordinary resources was not as simple as it sounds, and the first attempt to so designate the water died in the House in late 1997.  For their efforts to fight such a designation, Monty Davenport and other miners repeated their contention that the waters of Crooked Creek were not navigable and were, therefore, exempt from Act 1345 and other statutes.  Their primary line of attack early on was to claim that Crooked Creek was not navigable and was, therefore, not covered by Act 1345.  Using this same line of argument, in 1997, Davenport was again at the center of a controversy regarding Crooked Creek when then-Attorney General Winston Bryant filed suit seeking to have barbed-wire fences that had been strung across the waterway removed.

    Attorney General Winston Bryant, who says he opposes mining gravel from Crooked Creek in northern Arkansas, has targeted two barbed-wire fences across the creek in an effort to get the stream bed declared the property of the state.

    ”Crooked Creek is truly an Arkansas treasure,” Bryant said. ”If lost, it could not be replaced. But it is in danger today.”

    Gravel mining along the creek was at the center of an unsuccessful effort last winter and spring — both before the state Pollution Control and Ecology Commission and the Legislature — to have the stream declared an ”extraordinary resource.” That designation would have barred such mining.

    At a news conference Tuesday, Bryant announced he had filed suit against two owners of land along the creek in Marion County where the fences have been erected, and also sued the manager of one of those parcels.

    The suit seeks an order to remove both fences and to bar erection of any similar fences in the future. It also seeks a declaration that the state owns the creek’s stream bed, which Bryant said he believed was the case.

    If the court agrees, he said, that ruling be used by other state officials to stop mining of gravel from the creek.

    Defendants in the lawsuit, filed in Pulaski County Chancery Court, are Rodney Sharp of Yellville; Robert Gebert, no address listed; and Monty Davenport of Yellville.

    [***]

    Davenport said Tuesday that the fence was erected ”to keep the cattle off the neighbors’ (land) — and the neighbors will complain if they get out.”

    ”I’ve kept a fence across there for several years now,” Davenport said. ”Of course, the creek will wash it out, and when the creek gets low, the cattle will start crossing over, and we put it back.”

    Davenport […] also declined to say whether there were any plans to mine gravel along the creek where Gebert owns land.

    Davenport said Gebert lived out of state, but he declined to say where, so no comment could be obtained from Gebert.

    [***]

    ”Even if the fences were taken down tomorrow, that would still not answer the question of who owns the stream bed,” [Bryant] said.

    The fences, Bryant said, ”create a very dangerous situation for canoeists, floaters, boaters and anyone else who wants to navigate Crooked Creek.”

    Asked if a halt to gravel mining was his ultimate goal, Bryant said that decision ”is going to have to be made by the appropriate state officials. My first step is to determine who owns” the stream.

    ”Crooked Creek is by reputation one of the best small-mouth bass fishing streams in the country,” Bryant said, and also one of the last free-flowing streams in the area. The gravel mining, he said, endangers both reputations.

    [***]In-stream mining is banned in all or part of the approximately 30 rivers or streams that qualify as extraordinary resource waters. Crooked Creek, which runs through Boone and Marion counties before flowing into the White River, is one of the most heavily mined waters in the state.

    Before this case could be resolved, Winston Bryant had been replaced in the AG’s office by Mark Pryor, who stated upon taking office that he would re-evaluate this case and seek to find a position of compromise between the parties.  Before the case was heard in April 1999, Representative Mike Hathorn introduced HB 2256, which was designed to circumvent prior case holdings that included “recreational use” as a test for navigability and require Arkansas to apply the federal standard for navigability of a waterway.  Briefly, the federal standard is based on the Equal Footing Doctrine:

    The Equal Footing Doctrine provides that states admitted to the Union after the original 13 colonies were established, received title to the beds beneath the navigable water upon statehood.
    Pursuant to the Equal Footing Doctrine, the United States Supreme Court in Montana v. United
    States
    , held that if a river is navigable, the state owns the bed of the river subject to the
    paramount powers of the federal government, but if the river is not navigable, the abutting
    riparian landowners may own the adjacent river bed. Navigability determines ownership or title
    to the underlying beds.

    The federal test of navigability for title was judicially developed and is used by courts to establish whether a water body is navigable. In order for a court to determine whether a water body is navigable for title purposes, the court must figuratively go back in time and factually recreate the conditions and uses of the water body that existed at the time the state entered the Union. Navigability is determined by natural conditions at the time of statehood and evidence of the use of the water before statehood is relevant. The fact that a water body was navigable for a significant portion of time is sufficient to establish navigability. So long as the water body was capable or susceptible of being navigable (i.e., useable for floating logs), it is not necessary to show that the water body was actually used for commerce. It is important to emphasize here that the federal navigability test for title resides with a court with the jurisdiction and authority to make the fact specific navigability determination.

    Translation: Hathorn’s bill would have replaced the existing test for navigability, which the Arkansas Supreme Court said in 1980 includes considerations of whether the water is used for recreational purposes such as flat-bottomed boat fishing, with a test that would require a circuit judge to “figuratively go back in time and factually recreate the conditions and uses of” Crooked Creek to determine whether it was “capable or susceptible of being navigable” on June 15, 1836, when Arkansas entered the union.  If a body of water failed this test, it would be owned by the adjoining landowners and subject to their whims with regard to fencing, gravel mining, and the like.

    Thankfully, Hathorn withdrew his bill ten days after introducing it, due in part to a report from the Pollution Control & Ecology Commission committee formed to study the impacts of gravel mining on Crooked Creek, which was “shocked” by what they saw on an aerial and ground tour of mining sites along the creek and which called for changes to be made in mining and water quality regulations.

    Nevertheless, in April 1999, Judge John R. Lineberger ruled that, while recreational users of Crooked Creek had a prescriptive easement to enjoy the waters based on years of prior permissive use, the state did not prove that Crooked Creek was historically navigable and, thus, the portion of the lawsuit that would have given the state ownership of the creekbed was dismissed.  Attorney General Pryor did not appeal the ruling.

    Following this decision, public outcry over the damage being done to Crooked Creek by the gravel mining caused the ADEQ to strengthen Regulation 15.   As part of the strengthened Regulation 15, gravel miners applying to take gravel from the Crooked Creek streambed had to demonstrate that they could do so without violating water quality standards.  Under the stricter regulations, two parties applied to the ADEQ for permits to continue mining operations in Crooked Creek.  One of those parties was Monty Davenport.

    During the public comment period over the permit applications, the ADEQ felt that there were enough technical questions raised to warrant additional information from the applicants, and they gave Davenport and the other applicant 60 days in which to respond.  Neither furnished ADEQ with the requested information by the June 27, 2000 deadline, and ADEQ denied both the Davenport and the other applicant permits on June 29.

    Though there were several unsuccessful tries to get Crooked Creek designated as an extraordinary resource water in the years ensuing years, the next important developments in the saga came in 2004. First, effective January 1, 2004, a large portion of Crooked Creek was included in the nutrient surplus area designation, which required farmers whose lands abutted the designated waterways to implement plans to limit the amount of chicken waste and other contaminants that entered the water, thereby preventing those contaminants from entering Oklahoma and Missouri. Secondly, in 2004,

    [Crooked Creek] was declared an impaired water body, a designation under the Clean Water Act that must be approved by the federal Environmental Protection Agency [and which] allows the state to enforce more stringent regulations on the creek[.]

    Thirdly, and most forebodingly for Crooked Creek, Monty Davenport was elected to the Arkansas House of Representatives in 2004 to represent the people of Yellville.

    Davenport wasted little time in attempting to thwart efforts to regulate Crooked Creek in any form. On February 2, 2005, less than a month after taking his seat in the House, Davenport introduced a bill to remove portions of the upper White River watershed from the nutrient surplus designation area. The “logic” behind this measure was that only Oklahoma and Missouri were complaining about the extra waste in the water and Crooked Creek flows into the White River, which only flows across Arkansas and eventually dumps into the Mississippi River, so there was no need to regulate it.

    Nevermind the damage that had been done to Crooked Creek in the decade since the passage of Act 378, much of it a result of the direct actions of Monty Davenport.

    Nevermind the fact that, while the Crooked Creek watershed might not impact Missouri and Oklahoma directly, it is still an integral part of Arkansas’s larger ecosystem, to say nothing of its role as tourist attraction that might need whatever extra help it could.

    Nevermind that the only downside (as it were) to including Crooked Creek in the definition was a requirement that farmers implement a plan to limit the polluting runoff that entered the creek.

    No, sir, Monty Davenport was not about to sit idly by and make his constituents limit the pollution they put into the creek if he didn’t have to. He was going to see to it that they were free to flood that creek with all the chicken waste, fertilizer, and other pollutants that they wanted to.

    So, here we sit, a little more than five years later. Crooked Creek remains off the list of extraordinary resource waterways, though the ADEQ has been proactive in using the”impaired waterway” designation from the Clean Water Act to limit mining, going so far as to suspend mining operations in January 2007.  Monty Davenport, a man who has spent the last sixteen years fighting against laws that would protect that creek (and at least part of the last six years proposing measures that would remove existing protections for it) now wants you to vote for him for a statewide office responsible for overseeing the disposition of tax-delinquent properties.  Considering how Davenport’s long track-record demonstrates a huge concern for self and a minimal (at best) concern for Arkansas’s ecosystem or the effect of his actions upon Arkansans, why in the world would anyone expect any different from him if he is given that much more power over who gets certain tracts of land?

    This all reminds me of that old cliche about the inmates running the asylum.  Though, really, if Monty Davenport is elected Land Commissioner, its the voters who need to be in the nut house.