by William Perry Pendley
for the Washington Times
Posted 11/7/2013
During the course of the government shutdown now over, for now, Americans learned the federal government is a terrible landlord and worse neighbor. Federal officials closed 22 privately run campgrounds in New Hampshire’s White Mountain National Forest, shut down a privately run inn along the Blue Ridge Parkway in North Carolina, and barred 450 logging operators from accessing their timber in 150 national forests in Oregon and elsewhere. Unlike other landowners, the federal government is a kinglike sovereign that makes the rules by which it binds its neighbors. As a result, there is nothing more arrogant and less neighborly than federal officials, their lawyers and employees. Just ask Matthew McIlroy.
In 1808, Mr. McIlroy’s Scot-Irish family heard news of the Louisiana Purchase and farmland that was plentiful there, left their home in Tennessee and headed west. Across the Mississippi River, 200 miles west of Memphis, south of the Ozark Plateau’s Boston Mountains, and north of the Arkansas River, the family homesteaded three parcels of land 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 more than 300 miles of trails. After World War II, the CCC was discontinued, but in 1964 President Johnson signed the Economic Opportunity Act — part of hisGreat 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, Mr. McIlroy’s grandfather, 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 the Mulberry River owing 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, Mr. McIlroy, who had taken over the farm from W.L., discovered part of his fence had been flattened, a sewage-effluent line installed over it and across 50 to 60 yards of the farm, and Job Corps sewage effluent discharged from his property into the 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. The Forest Service also 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. He will sue if it is denied. Meanwhile, he wonders whether his Scottish clansmen in the days of William Wallace ever saw greater abuses by “the king’s men.”
William Perry Pendley, an attorney, is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).