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C~(l1996 W",t 1'\.obI,!h""9 6-9.!85-8/5-96 16365971

1-230-979-4

VOLUME 31, NUMBER 1PUBLISHER

Arkansas Bar AssociationPhone: (501) 375-4606 Fax: (501) 375-4901

Homepage: www.arkbar.comE-Mail arkbar®pita.com

ARKANSAS BAR ASSOCIATION400 W. Markham little Rock, Arkansas 72201

EDITORStacey DeWitt

ASSOCIATE EDITOR,LAYOUT & DESIGN

Sara Lalldis

EDITORIAL BOARDThomas M. Carpenter

Susan GoldnerSarah James

AI Schay

OFFICERSPresident

Ha.rry Truman MoorePresident-Elect

Jack A. McNultyImmediate Past President

Carolyn WitherspoonSecretary ·Treasurer

Daniel R. CarterExecutive Council Chair

J. Thomas RayYoung Lawyers' Section Chair

Denzil P. Marshall, Jr.Executive DirectorWilliam A. Martin

Assistant Executive DirectorJudith Gray

EXECUTIVE COUNCILRay Baxter

A. Glenn VasserR. Scott Morgan

Steve ShultsCharles L. Carpenter, Jr.

Stanley D. RaulsTom LedbetterRobert R. Estes

Louis B. Jones, Jr.Tom Donaldson

Mike EverettMichael E. Irwin

Lynn Manning FlynnMark CambianoLynn Williams

TIIt~ Arkansas Lawyer(USPS~)is published quarter~

Iy by the Ark..1.ns."lS Bar Association. Periooicals postagepaid at Little Rock. Arkan!>.l::'. POSTMASTER: sendaddress changes to Tile ArkallStlS Ltlwyer, 400 WestMarkham. Lillie Rock, Arkansas 72201. Subscription priceto I\on·membcrs of the Arkansas 13M Association $15.00 peryear and to members $10.00 per ye.lr included in annualdues. Any opinion expressed herein is tholt of th€> author.and not necessarily thai of the Ark.lns,ls Bar Association orTIlt' Arkmlsas Lawyer. Contributions to TIll' ArkanSllSL.awyer are welcome and should be sent in two ropiL>S toEDITOR. n,l' Ark(/llsas Ltlwyl'r, -400 Wesl Markham, LittleRock, Arkansas 72201. All inquiric:.. regarding adwrtisingshould be sent to 1111' ArknnSlts Lawyer al the .lb<)\'eaddress. Copyright 1996, Ark.1TlSo.1S Bar Association. Allrights rt'SCrwd.

Editor's Report

Getting Credit for Giving a DamnBy Stacey DeWitt

A newJearure appears in this issue.

Henceforth we will be highlighting the good

works, accomplishments and activities oj

local bars around the state. Our first kudos

goes to the Cr{1H10rd/Sebastian County BQI:

With David Vandergriff as their leader, fifty

lawyers formed a volunteer legal service operation to

help victims of the April tornado.

Theirs is a sincere effort to help the community. Th.ey

didn't do it to get recognition; but, as it turned out good

publicity was a welcorned by-product. It seems the self­

less concerns oja few did the image of many a lot of

good.

As some oj)'ou know, th.e mention ofattorney image

sends me grabbing for the soap box. Certainly, there has

been much on the topic in this column. But, I can't resist

the opporl!lIlity to encourage others to emulare the exam­

ple oj our Northwest Arkansas colleagues.

Any good trial attorney knows slick presentation will

Jail without substantive preparation. Such is also true

with the case Jar attorneys. Even the most brilliant ad

campaign can't save our reputation. In Jact, it might do

more harm than good. Rathel; the image problem will be

cured substantively, one on one with good attorneys. As

Randy Shock so eloquently put it "we do give a damn."

It's time we got credit for it.

Our new president Jrom northeast Arkansas, Harry

Truman Moore, is on board and he lives his advice to be

involved in service. The cover article in this issue is

devoted to his upcoming term. Take note of the title ­

"Leading By Example." The idea is one we should all

embrace.

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FeaturesPAGE

THE IRS PLows NEW GROUND IN THE TAX TREATMENT

OF ENVIRONMENTAL CLEANUP COSTS 10by Roy Wbitehead

On the Cover: Arkansas Bar AssociationPresident for 1996-97, Harry Truman Moore andhis wife, Linda Lou.

In Every Issue

COMMON SENSE AND RETROGRADE ENVIRONMENTAL

REFORM

by Steve Weaver

HARRY TRUMAN MOORE - LEADING BY EXAMPLE

by Sara Landis

LEGAL AIDE FOR TORNADO VICTIMS SPINS BETTER

IMAGE FOR ARKANSAS ATTORNEYSby Stacey DeWitt

WATER: A CHECKLIST OF ARKANSAS COMMON LAW

AND STATE GOVERNMENT CONTROLS ApPLICABLE

TO ITS USE

by Walter G. Wright, Jr. and Albert J. Thomas, III

16

22

30

34

EDITOR'S REPORT, by Stacey DeWittEXECUTIVE DIRECTOR'S REPORT, by William A. MartinLAW OFFICE TECHNOLOGIES, by Claudia DriverLAW, LITERATURE AND LAUGHTER, by Vic FlemingPRESIDENT'S REPORT, by Harry Truman MooreON ApPEAL, by D. P. Marshall, Jr.CLE DIRECTOR'S REPORT, by Charlotte Morrison GreerDISCIPLINARY ACTIONS/ADVISORY OPINIONS

IN MEMORIAM

1468

1545464752

Executive Director's Report

Within the Bounds ofLaw, Truth and Ethicsby Willial/1 A. Martill

do not belong to

we advise clients; we

to do what is wrong..."

telling a client: "The law lets you doit. but don·t...I(s a rotten thing to do."We must abhor the rotten. take seri­ously our permissible advisor dutyunder Rule 2.1 to refer ·' ...10 otherconsiderations such as moral. eco­nomic. social and political factors.that may be relevant to the client's sit­uation:' and in our lawyer role be. asShakespeare in Hamlet had Poloniusadvising his son: '"This above all: tothine own self be true," If we are to

be the type lawyers and the typehuman beings we ought to be, our eth- _

ical antenna must always be alluned to"We represent clients,'distinguish what is or is not moral,

proper. fair and honorable.As lawyers we arc not called on to

do unethical things to advance ourclient's cause. They are seeking a win,

an advantage, not necessarily the jllst clients. Zealous repre­or ethical result. We represent clients;

we advise clients; we do not belong to sentation is not licenseclients. Zealous representation is notlicense to do what is wrong. what isunethical, what is dishonorable.

Josephson in his slides at the 1996Annual Meeting had a multitude of statements about ethicsbeing beyond something than can be specifically requiredby any code or law. Among the many thoughts worth com­milling to memory were: "Ethics is about actions--It isabout what we do:' "Ethics is about doing what is right,""An ethical person often chooses to do more than the lawrequires and less than the law allows:' "Ethics is oftenabout self-restraint: Not doing what you have the POWERto do: ot doing what you have the RIGHT to do: NOldoing what you WANT to do:· ··Ethics is about right andwrong and how an honorable person should behave:'"Ethics is about character and courage and how we meetthe challenge when doing the right thing will cost marcthan we want to pay:' "The real test of our ethical integritycomes when we believe that doing the right thing is not inour self interest:'

On renection fony years after I first aniculmed mythoughts about the role of a defense counsel I believe morethan ever: Always as lawyers we l11ust make sure every­thing we do is well within the bounds of law, truth andethics. --And the most demanding of these is ethics,

When I was the senior lawyer in various Air Forcelegal offices new lawyers and members of the commander'sstaff would discuss the role of a defense counsel with me.The lawyers sought to reconcile being a military officerwith resisting prosecutions and discharge actions brought inthe name of the nited States. Lay senior officers had dif­ficulty understanding how an officer could vigorouslydefend someone the commander seemed to want to put injailor fire.

My basic response was that when a lawyer is assignedto defend an individual then that Judge Advocates duty tothe Air Force is to make the system work by providing thebest defense possible within (he bounds of law. truth andethics. Personally I found no conflict between the profes­sion of law and the profession of arms.

These comments about lawyers acting "within the

bounds of law. truth and ethics" were my paraphrase of theideals expressed in Canons 5 and 15 of the American BarAssociation Canons of Professional Ethics (6 Ark. L. Rev.404 (1952)) which existed when I was in law school.Cannon 15 uses the phrase "within.... the bounds of thelaw." The term is repeated several times in the next code(Ethical Consideration Cannon 7 of the Arkansas Code ofProfessional Responsibility, 33 Ark. L. Rev. 610. 686(1979)). It disappears in the Model Rules of ProfessionalResponsibility, effective January I. 1986. (Rules Volume,A.C.A. Page 919). but the Preamble contains the com­ments: A lawyer's conduct should conform to the require­ments of the law.. :' and: "virtually all difficult ethical prob­lems arise from connict between a lawyer's responsibilitiesto clients. to the legal system and to the lawyer's own inter­est in remaining an upright person while earning a satisfac­tory living:' Woven throughout all these canons and codesis the requirement lawyers be truthful and candid. Theseare minimum obligations. Being licensed professionalsrequires us. as Michael Josephson. a speaker at our 1992and 1996 Annual Meetings, tells us, to practice ethicsbeyond the code.

While each of the terms--Iaw, truth. ethics--encompasssomewhat different concepts. they are intertwined and inthinking about them I see a natural progression with eachrequiring adherence to ever higher standards. --And thecombination is but a threshold which all of us should

scrupulously observe.Law and truth are more capable of being measured

objectively than is ethics. An action or statement may belawful and truthful and not be ethical. Josephson remindedus: "Ethics requires us to give up the idea that an act isproper simply because it is permissible or that something isethical so long as it is legal:' Sol Linowitz in his excellentbook. Tlte Betrayed Profession. quotes Elihu Root as

Thr \,~al\lj l.all)I" Summrr 1996

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Law Office Technology

Report from the Electronic Data Network Committeeby Claudia Driver

The Electronic Data Network (ED )Comminee met in Hot Springs on Junet4 and made two recommendationsdescribed below. This column will recapthe work of the comminee during the pastyear, and describe the recommendationsmade to the House of Delegates duringthe Annual Meeting in June.Arkansas Bar Association Webpage

Over the past year, the Arkansas BarAssociation has established a homepageon the World Wide Web. Bar Associationinformation is now available in electronicformat through the webpage, which islocated at hnp://www.arkbar.com and hasbeen provided to the Association withoutcost by Kyle Parker and LOIS.

Webpages are always evolving, andthe Bar will continue to look for ways tomake the best use of this technology formembers. Suggestions may be e-mailedto the ABA via the webpage, or given toany member of the committee.Ark-Lawyers Listserv

An Ark-Lawyers listserv has been setup and publicized for anomeys to discussmatters of interest to the practicing bar in

the state. The Arkansas Supreme Court

posts a weekly summary of proceedingsto this list. Other discussions have beenslowly picking up. although the list isfairly quiet to date. To subscribe to Ark­Lawyers. send a message tolistserv@law.uark.edu with no subjectline. The texl should read

subscribe Ark-Lawyers youmame

Do not include a signature line. Youwill receive a confirmation message giv­

ing instructions on how to post messages,how to unsubscribe. and where lO directquestions. Save this message for futurereference.Information Network of Arkansas

ACI 1139 of 1995 established theInformation Network of Arkansas (INA).The Act provides for a board appointedby the Governor, to include one member

appointed from a list of three names sub­mitted by the Arkansas Bar Association.UALRIPulaski County Law LibraryDirector Lynn Foster was selected andhas gone on to chair the board. Lynnreported in Hot Springs that the boardwould soon submit Requests forProposals to various service providers.and is moving forward to put Arkansasgovernmental information online.

With Lynn Foster as the Arkansas BarAssociation's representative on the INAboard. the committee feels that the infor­mation needs of the Bar will be bestaddressed through that venue. rather thanhaving the Bar Association attempt toestablish a system apart from the officialstate network. Association informationwill be made available via the ArkansasBar Association webpage. Governmentalinformation will be the focus of theInformation Network of Arkansas.Internet Services for ABA Members

One of the Committees primary pro­jects this past year was to obtain a mem­bership package with a provider in theevolving marketplace of Internet ServiceProviders (lSP·s). With the explosion oflegal information available on the inter­net, we looked for a provider willing to

service all Arkansas lawyers. whetherurban or rural. The company selected isintellinet. which now provides a discount­ed service package for Arkansas BarAssociation members. The ISP market isvolatile to say the least. and we are seeingArkansas lawyers board the informationhighway through several companies. Inthe year past the number of providers hasgrown by multiples and prices have con­tinued to drop. For information about theABA package available from intellinet.contact the company at (Sal) 376-7676.Continuing Legal Education

Another means by which theCommittee has sought to encouragedevelopment of electronic resources forlawyers is by educating our membersthrough columns in The Arkansas Lawyer

and through CLE programming. TheCommittee has assisted with three tech­nology related CLE programs and con­tributed three columns for The Ark111JsasLawyer.Recommendations - Citation Refoml

The Committee voted to support rec­ommendations contained in the FinalReport of the American Bar AssociationSpecial Committee on Citation issues.Committee member Lynn Foster hasworked in this area for three years withinthe American Association of LawLibraries and provided the committeewith an overview of the issues. While thecommittee was not unanimous on this. lhevote was overwhelmingly in favor of theproposal.

The ABA Special Committee recom­mends a reform in the method of Cilalionto caselaw that would eliminate depen­dence 011 copyrighted page l1umbering.allowing increased competition and inno­vation in electronic publishing as well asmore precise pinpoint citation to authori­ties. I f adopted. the new citation methodwould utilize sequential case numberingand paragraph numbers. Both would beavailable for citation to any publishersproduct. Parallel cites would no longerbe necessary. The proposed citation for­mat is equally useful for paper (book) andelectronic formats.

For details on this proposal. see theFinal Report of the Special Committee.The report is available from either lawschool library.Recommendations - Renaming of theCommittee

The Committee voted to recommendthat the name of the committee bechanged to the Electronic InformationCommittee. renecting a broader currentmission. The original name. ElectronicData Network Committee. was assignedwhen an electronic bulletin board systemwas under consideration and pertained to

that project. Time constraints preventedContinued

discussion of a new mission statement.but all agreed to continue the subject onthe Arkbar-edn listserv. which has beenused during the past year for e-mail dis­cussion, and through other communica­tions.Where We Arc

The influence of new communicationstechnology is being felt in Arkansas. andBar members are at varied levels of easewith new technologies. This Committeewill focus efforts on promoting improvedaccess to vital information using networkand communicaLions technology, and oneducating members on the use and bene­fits of electronic technology in both com­munications and information access.

Chairing the group this year will beMargaret ewton, who contributed gener­ously during the past year as a committeemember. Another notable contributor hasbeen Bill Manin, who has proven beyondany doubt that law related use of cyber­space is not just a club for recent lawgraduates.

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Law Laughter & Literature

Toward Balance Through Healthy HumorCopyright /996 by Vic Fleming

It's no secret that I undertake many activities. I practicea Lot of Law. I write Humor columns, both weekly (somemight say weakly) and quarterly. I speak, occasionally(some might say incessantly). For the past three years Icoached 4th-6th-graders in creative problem-solvingcompetitions ("Odyssey of the Mind").

Diversity, I believe, is the key to Balance. Balance isgood. Balance is needed. And Balance is inextricablybound up with Humor.True Humor from the Real World

It's important to be able to spot and utilize True Humorin the Real World. For reasons that I still ponder, many tindthis a difficult task.

People laugh at True Humor, especially when it sneaksup on them. To test this proposition, approach someonenearby. Don't say. ""m gonna make you laugh." Say, ''I'mgonna read from actual legal case testimony":

Q. Please state the nature of your relationship to JohnnyDarrell Bai ley.

A. I'm his mother.Q. And you have been all his life?

Q. When was the last time you saw Walter?A. At his funeral.Q. Did he make any comments to you at that time?

Q. So. you were unconscious and they pulled you fromthe bucket. What happened then?

A. Mr. Sistruck gave me artificial insemination. Youknow, mouth to mouth.

Q. Doctor. as a result of your examination of the plain­tiff. is the young lady pregnant?

A. The young lady is pregnant. But not as a result of myexamination.

These are actual excerpts from transcripts and deposi­tions. I've used such excerpts in speeches for years. watch­ing adults fall from chairs in healthy, hearty, infectiouslaughter.Phenomena at Work

Several phenomena are at work in this LaughterExperience.

Courtroom dialogue is not expected to be funny. So.when it is, the giggle box flips rather violently. Laughterrushes in and provokes an unexpected release of tension.Endorphins run wild. popping adrenaline into spots thatwere ready for slumber. or at least a rest. This makes peoplefeel good and they like it. II energizes them in a positiveway.

Thr Irk"''' tall.lrr Suomlrr 1~~6

The above quotes would not befunny if they were jokes. Their beautylies in their Truth, proving: "Beauty'smore than skin-deep (oh, yeah!)."

True Humor usually has its mostmarked effects on those who need itmost. Overly-serious, narcissistic andhumorless people react with the mostuproarious laughter, often lingeringto regale the orator with compliments.But unless they make a concertedeffort to begin incorporating TrueHumor into their own lives. theyrevert to their old ways.Administrative Law Riot: A Historical Digression

An incident from my third year of law school illustratesthis phenomenon. Administrative Law was taught by a won­derful gentleman, who'd been house counsel to a govern­mental agency in a Prior Existence. A grandfatherly scholar.Ihis man exuded a serious type of seriousness, whichwas neither uncommon nor unexpected by law students.And he was an excellent instructor.

Toward the end of the semester we came to StateEmployees' Retirement System v. Industrial AccidentComm'n. 217 P.2d 292 (Cal. App. 1950), a case in whichthe widow of a game warden (a Mr. Lund) won workers'comp benefits despite unusual circumstances surroundinghis death. Reading the case, I was moved by the PoetryMuse (whose name I can never remember). The next day Igreeted the prof. saying I'd be glad to recite the Lund case.

Half-way through the hour. I was called upon. I stoodand dead-panned my "brief':

A certai n game warden out westWorked one night with an interesting guest.But in order to make it, he tirst had to fake itAnd put his wife's understanding to test.

''Tonight I will be working late,"He said to his gullible mate."My assistant and I will be lurking to spyOn some hunters we need to set straight."

He lOok his girlfriend on duty insteadIn a state car that made into a bed.Rather scantily dressed the warden and gueslWere found there the next day quite dead.

His widow claimed due compensationDespite the alleged deviation.

"He was oul on the job;' she said with a sob."Now he's dead. I demand reparation."

The case was a source of annoymentBecause of the corpus conjoinment.The heirs were squirming while the court was affirming:Death occurred in the course of employment.

There was a game warden named LundWho was prone on the job to have fun,But in the course of employment intercourse for

enjoymentCaused his death when he let the engine run.

This law teacher laughed as he had never laughed before,removing his glasses and wiping tears from his eyes, As did myclassmates. some of whom feared the professor might expirefrom hilarity. When order was restored, class was dismissed: tohave regrouped for serious discussion would have been impossi­ble.

I was called upon by the professor to remain after class.Friends feared for my future in the legal world. For surely a stu­dent who would limerick a case brief would be subjected to dis­cipline of the highest order. Or at least told to get his act togeth­er for the sake of the Bar.

But the professor thanked me for the humor, saying thm i[was a needed respite on that day. He asked both for a copy ofthe poem and permission to read it aloud to future classes. Igranted him license in perpetuity [0 do so. We became friends, arelationship was built, and a little bit ofmagic popped all around us.How to Make a Difference

From that day in 1977 forward I havetried to be attuned to ways in which TrueHumor can, and does. Make a Difference inthe lives of people who need that Difference.

In 1984. althe behest of Ruth Williams,then-editor of this magazine, I look the riskof taking Humor to the Bar in print. SinceOClOber of that year, this column that hasrun (some might say ambled). In 1993 myother column, "I Swear," which appears inpapers in more than two cities, achievedweekly status (though not without my assis­tance). Comments lead me to believe that aLegitimate Purpose is being served by mytreatment of the Lighter Side of Law.

I've tried to display. to Bar and non-Barcommunities, the need for a healthy Balancebetween the Sense of Humor and the Humorof Sense. In recent years I have taken thatmessage vocal. with speeches in over 27 ZipCodes.

It is one thing to write columns that peo­ple comment favorably upon and 10 makeoccasional keynotes. It is another 10 take thisMinistry of Humor 10 the proverbial NextLevel.

But I've accepted a New Challenge. A

ew Gauntlet has been laid down.I've created a workshop. Sometimes it has a catchy tille, like

"Gone With the Win" or "The Wizard of Ah's" or "The BriefestHistory of Time," It is an interactive seminar, stressing theneed 10 have an appropriate Sense of Humor in Life as WeKnow It, alk/a The Real World.

Results are guaranteed. Participants do learn the imponanceof Balance and the function of Humor in bringing aboutBalance. They are shown ways in which to increase their "Levelof Humor." They are given "Commandments," or "Canons;' ofHumor, which they can work on, via "home play" assignments.They are taught the difference between toxic and healthy humor.They are given tools for identifying and isolating the Sense ofHumor and suggestions on how it should interface with theHumor of Sense, so as to increase self-esteem, enhance produc­tivityand build relationships - objectives few people oppose.

It works. I'm on the verge of taking it "on the road," to lawschools everywhere, where it just mighl be most needed. I invitecomments from all who have an opinion as to how thisTraveling Humor Workshop mighl mosl effectively serve theBench and Bar of the Western World.

Vic Flemi"g practices i" LillIe Rock. COli/act him at 3801TeBY Tower, Lillie Rock AR 7220/; 101l1ree 888-SIVEAR88; e­mail swear88@aol.com; FAX 50/-372-3359.

by Roy Whitehead _

Roy Whitehead, 11:. received his J. D. and LL.M degrees from Ihe University ofArkansas, Fayelleville, He practiced as 1I trial llllomey for /5 years and has taughtBlIsil/ess Law at UCA for /0 years.

New Ground

"decisive distinctions between capital andordinary expenditures are those of degreeand not of kind", and a careful evaluation

of the facts of each case is required.3 Indetermining whether current deduction orcapitalization is the appropriate tax treat­m~nl fur any particular expenditure, it isimportant 10 consider the extent to whichthe expenditure will produce a significant

future benefit 4

In contrast, §263 of the Code allowsno deduction for a capital expenditure ­an "amount paid out for new buildings orfor permanent improvements or better­ments made to increase the value of anyproperty or estate."

The primary effect of characterizing apayment as either a business expense or acapital expenditure concerns the timing ofthe taxpayer's cost recovery. While busi­ness expenses are currently deductible, acapital expenditure usually is amortizedand depreciated over the life of the rele­vant asset. or. where no specific asset oruseful life can be ascertained. is deductedupon dissolution of the enterprise.

Section 1.162-4 of the Regulationsdealing with the repairs, states:

The cost of incidental repairs whichneither materially add to the value ofproperty nor appreciably prolong itslife but keep it in ordinary efficientoperating condition, may be deductedas an expense... Repairs in the natureof replacements. to the extent thatthey arrest deterioration or apprecia­bly prolong the life of the property.shall be capitalized and depreciat-ed....

Thus. it appears that the two keyissues raised by the regulations that mustbe examined in connection with anyexpenditures for cleanup costs arewhether the property's life is appreciablyprolonged, or whether the value of theproperty has materially increased as aresult of the expenditure. If neither ofthese conditions is present, and if theexpenditure merely reSlOres the propertyor keeps it in an efficient operating condi­tion, it is a maintenance or repair expense

and is therefore deductible.5

On the issue of whether an expendi­ture adds to or increases the value ofproperty. the tax court has ruled that theproper test is to compare the value afterthe repair has been completed with thevalue prior 10 the existence of the condi­tion necessitating the repairs. and not

nated by the taxpayer. t In stark contrast.however. two recent Technical AdviceMemorandums have again raised theissue of deductibility of remediation costswhen the property had been acquired bythe taxpayer in a contaminated condition.

CAPITAL EXPENDITURE OR ORDI­NARY AND NECESSARY EXPENSE

The distinction between a capitalexpenditure and one that can be currentlydeducted is often difficult and must bebased on the facts of each particular situ­ation. Section I62(a) of the InternalRevenue Code allows deductions of:

All the ordinary and necessaryexpenses paid or incurred during thetaxable year in carrying out any tradeor business.

Even though a particular taxpayermay incur an expense only once in thelifetime of its business, the expense maybe justified as ordinary and necessary if itis appropriate in carrying on the business,is commonly incurred, and is not a capital

expenditure.2 Moreover, as the SupremeCourt has specifically recognized. the

Environmental

The IRS Plows

Treatment ofin the Tax

Cleanup Costs

INTRODUCTIONOwners of real property are often

required to remove hazardous waste fromtheir property because of environmentallaws or because of a healthy desire tomaintain a clean environment. Further, itis desirable thal public policy. as reOectedby the Internal Revenue Service's inter­prclalion of the lax code. at least encour­age, if not actively provide an incentive torcmcdiate environmental problems. Oneof the issues, that until recently wasunsettled, is whether environmentalcleanup costs are currently deductible asordinary and necessary repair expensesunder § 162 of the Internal Revenue Codeor whether the costs must be treated as acapital expenditure that must be capital­ized under §263 of the Code. There arecurrently few court decisions thal providespecific judicial guidance concerning thetax treatment of cleanup costs. After pro­crastinating for several years the InternalRevenue Service has, however, finallyissued a definitive Revenue Ruling con­cerning the treatment of cleanup costsassociated with removal of hazardouswastes from property that was contami-

10 Thr \r~ll\lll.l\l}rr Su.mrr 1996

with the value immediately prior to themaking of the repair.

Concerning the second issue orrequirement for an expenditure to be cap­italized as whether it appreciably or sub­stantially prolongs the useful life of thepropeny. the Tenth Circuit has indicatedthat there is no absolute rule requiring theautomatic capitalization of every expendi­ture providing the taxpayer with a benefitenduring for a period in excess of one (I)

year6

THE IRS AND CLEANUP COSTSAs previously indicated. there appear

to be few cases or rulings directly involv­ing real property cleanup costs. OnFebruary 26. 1992. however. the U.S.Supreme Coun decided a case that theIRS adopted as analogous to a landcleanup case. In II/dopco. Illc. v.

Commissioner? the court held that a rax­payer has the burden of showing thatcosts for investment banking fees andexpenses incurred during a friendlyacquisition are not capital in nature anddeductible as ordinary and necessarybusiness expenses. Citing Commissionerl'. Lincoln Savings and Loan

Association8. the Court set out a five parttest to qualify for a deduction under§ 162(a) of the Code. The Coun stated"an item must (I) 'be paid or incurredduring the taxable year: (2) 'be for carry­ing on any trade or business: (3) 'be anexpense: (4) 'be a necessary expense: (5)'be an ordinary expense:" The Counstated that the term "necessary" imposes"only the minimum requirement thal theexpense be appropriate and helpful forthe development of the taxpayer's busi­

ness:'9

Prior to June. 1994. the IRS issuedtwo Technical Advice Memorandums(TAMs) on specific clean-up COSIS thatwere disappointing to most taxpayers.While the TAMs did not address thebroad issue of environmental cleanupcosts. they did provide the rationale theIRS initially adopted in determining capi­talization versus current deductibilityissues. On June 2. 1994. the IRS issuedRev. RuJ. 94-38 relating to the tax treat­ment of certain hazardous waste landcleanup costs. The IRS's position out­lined in the revenue ruling represents acomplete reversal on some of the issuesfrom the IRS's previous holdings in the

TAMs.In order to fully understand the impli­

cations of Rev. Rul: 94-38 and the IRS'significant depanure from its previous

position on deductibility of clean-upcosts. the specific facts of the TAMs andthe basis for the IRS's holdings are dis­cussed below. Some of the problemswith the IRS's rationale in the TAMs isalso presented. Finally. Rev. RuJ. 94-38is summarized.

Relying on the IlldofJcO case. theInternal Revenue Service released twoTechnical Advice Memorandums(TAMs). the first concerning the costs toremove and replace asbestos insulation inmanufacturing equipment and the second

on land cleanup costs. IO While the firstTAM did not specifically address environ­mental land cleanup costs. it did state thatthe cost of removal and replacement ofasbestos in equipment was in the natureof a capital expenditure because. by elim­inating the human health risks. the expen­ditures increased the value of the taxpay­er's equipment and made the propertymore marketable.

In the second TAM released inFebruary 1993. the IRS revisited the capi­talization of remediation costs in the con­

text of the cleanup of land. tl Althoughthe TAMs do not specifically address thebroad issue of environmental cleanupcosts for all situations. they eenainly pro­vide the taxpayer with the rationale theService had adopted in determining capi­talization versus current deductibilityissues.

In the second TAM the taxpayer useda synthetic lubricant in some of its equip­ment before 1972 which contained PCBs.The taxpayer was nOlified of the PCBcontamination in 1972 by the manufactur­er and ceased to use the lubricant. Thecompany. however. was faced with thetask of disposing of the waste generatedfrom the routine maintenance of theequipment. The waste was placed intonumerous earthen pits and trenches on itspropeny.

Subsequently. consistent with its reg­ulatory authority. the EPA required thecompany to perform tests to determinethe extent to which soil near the pits werecontaminated with PCBs. During thisprocess. it was revealed that the soil wascontaminated and the EPA filed a com­plaint alleging that PCBs had been ille­gally disposed of by the taxpayer. The

company and the EPA then reached anagreement that requires the company toinitiate a clean-up program.

In the TAM. the costs anticipatedbeing incurred by the company (relevantto this anicle) include the following:

J. Soil and groundwater assessmentto detennine the level and location ofPCB contaminated sites: and

2. Soil remediation that includesthe excavation and transportation of PCB­contaminated soil and backfilling.The cleanup program is expected to takeseveral years and cost millions of dollars.In addition, although the specific figure isnot known. the total projected e1ean-upcosts represented a significant percentageof the book cost of the taxpayer's system.

The taxpayer argued that all of theenvironmentaJ cleanup costs aredeductible as ordinary and necessarybusiness expenses under § 162 and fallunder the definition of "repairs." Thecompany also argued that the costs arenot for the acquisition of an asset andonly provide needed information aboutcontaminated sites in order to undertakeremedial actions. Finally, the taxpayerreasoned that because the costs wereincurred to correct activities undertakenin the past, rather than provide a futurebenefit, the amounts should be deductedcurrently.

The IRS rejected the company's posi­tion that the cleanup costs were ordinaryand necessary business expenses under§162. Specifically_ the IRS outlined thefour conditions that must be met under§ 1.162-4 for a repair cost to be taken as adeduction. The fOUf conditions includethat I) the repair is incidental; 2) therepair does not materially add to thevalue of the propeny: 3) the repair doesnOl appreciably prolong the useful life ofthe propeny: and 4) the purpose of theexpenditure is to keep the propeny inordinarily efficient operating condition.The IR concluded that the taxpayerfailed to meet conditions one. two. andfour.

Relying on Wolfsell Lalld & Caule.

Co. v. Commissioller l2 . the IRS statedthat the "costs of the clean-up project aremore appropriately classified as capitalexpenditures than as maintenance orrepair charges:" In Wolfsell, the taxpayerincurred the costs of draglining ditches ina farm irrigation system to clear them ofsediment in order to keep the ditches

11 TI~ lrhom L'"JIr Sum.~r 199i

functioning (Le., water flowing). Theditches were cleaned out every 10 yearsrather than every year. The court heldthat draglining the ditches constituted asystematic plan that had a significantimpact on the value of the irrigation sys­tem and thus, should be capitalized. Inother words, the draglining materiallyincreased the value of the property.

In the TAM, the IRS found the tax­payer's situation to be similar lO Wolfsen,in three ways. First, the taxpayer choseto do an extensive cleanup project ratherthan annual waste idemificmion and dis­posal. The fact that the company wasunaware that its method of disposalwould require clean-up in the future wasconsidered irrelevant to the proper char­acterizarion of the clean-up costs.Second, in both Wolfsen and the presentTAM, the costs were undertaken as partof a systematic plan. Third, based onWolfsen, the taxpayer's property will bemore valuable in its business after theclean-up of the PCB residues.

As in the first TAM issued in 1992.the IRS rejected the test used by the TaxCourt for determining whether an expen­diture increased the value of the property.In Plainfield-Union Water Co. v.

Commissioner I3, the tax court devised atest for determining whether an expendi­ture increases the value of the propertythus triggering a requirement to capitalizeclean-up costs. The court stated that theproperty's value after the expendituremust be cOl1lpan:~J tu its value prior to theexistence of the condition necessitatingthe ex.penditure in order to determine ifits value was enhanced.

The IRS distinguished the Plainfield­Union test by concluding that the clean­up operations were non-essential repairs;that the cleanup operations did materiallyadd to the value of the property; and thatthe purpose of the expenditures was notto keep the property in ordinary efficientoperating condition, but to effectuate ageneral restoration of the property whichshould be treated as an addition to thecapital investment.

INGENIOUS BUT INAPPROPRIATEThe reliance on the Illt/opeo and

Wolfsen cases was ingenious but inappro­priate for several reasons. First, recallthat the tax court in Plainfield-Union,held that the proper test is to compare thevalue after the repair has been completed

I~ n, Irkllllll,l!!yrr Summit 119&

with the value prior to the existence ofconditions necessitating the repairs, notwith the value immediately prior to themaking of the repair. Cleanup costs forhazardous wastes, one should contend,restore the land to its condition and valueprior to the existence of the conditionnecessitating the repairs and not to thevalue immediately prior to commencingthe cleanup. In other words, the cleanupmerely restores the land to its originalvalue prior to its contamination. Unlikemanufacturing equipment in the firstTAM, the value of land prior to its conta­mination and its value after cleanup canbe objectively determined by real estateappraisals.

Second, concerning the issue ofwhether the cleanup appreciably or sub­stantially prolongs the useful life of theproperty; there is no absolute rule requir­ing the automatic capitalization of everyexpenditure providing the taxpayer with abenefit enduring for a period in excess ofone year. Given that the cleanup onlyrestores the property to its original condi­tion it follows that the taxpayer has notactually received a benefit enduring for aperiod in excess of one year because theproperty owner only has regained the

asset he originally possessed. Finally,even if the cleanup is considered to be abenefit prolonging the life of the property,the Wehrli case indicates that there is noabsolute rule requiring an automatic capi­talization of every expenditure providingthe taxpayer with a benefit enduring for aperiod in excess of one year and that thequestion is one of fact for the court. Theone year rule discussion in the case wasmerely a guidepost rather than anabsolute rule.

Third, from a public policy perspec­tive. the Internal Revenue Service's posi­tion creates a very practical disincentivethat will resuh in the avoidance or delayof the cleanup of property. Given theposition of the current national adminis­tration on environmental policy, businessowners can expect greater opportunitiesto make contributions in the area ofcleanup costs and should be encouragedto make those contributions voluntarily.

Fourth. the IRS position that the prop­erty is somehow made more valuablebecause of the cleanup cannot be objec­tively supported. The more rational posi­tion is that the property is no more valu­able than it would have been had not the

hazardous waste condition occurred. Thelogical test. supported by the PloinfieldUnion case, is to compare the value afterthe cleanup with the value prior to theexistence of the condition necessitatingthe cleanup.

Fifth, the costs associated withcleanup should be considered as "ordi­nary and necessary expenses," deductibleunder § I62(a) because they are necessi­tated by governmental and environmentalpolicy. The purpose of the cost is toproperly utilize the land and protect thepublic rather than to create a more valu­able asset.

Sixth, the cleanup costs should becapitalized only if they produce a newand distinct stream of income that couldnot have been generated by the real estatein its condition prior to the existence ofthe condition necessitating the clean-up.

Finally, there is a striking analogybetween environmental cleanup costs andthe tax treatment of land reclamationcosts in the mining context. Cost.sincurred to reclaim mining land are clear­

ly deductible under tax court decisions. 14

After all the cleanup is a mere mendingof the property rather than an addition to

its value for its highest and best use. 15

THE IRS PLOWS NEW GROUNDThere were numerous flaws in the

IRS's arguments that supported its posi­tion concerning capitalization of clean-upcosts. It appears that the IRS has, at leastin part, conected its approach to land

cleanup costs in Rev. Rul. 94-38 16

The fuCIS outlined in Rev. Rul. 94-38are very similar to the facts present in thesecond TAM. The taxpayer was facedwith the need to conduct a soil andgroundwater assessment and conduct soilremediation including ex.cavation andremoval of contaminated soil.

In Rev. Rul. 94-38, the taxpayer wasan accrual basis corporation that operateda manufacturing plant purchased in 1970.Due to manufacturing operations, haz­ardous waste was discharged, and the tax­payer buried the waste on potions of itsland. In 1993 to comply with Federal.state, and local environmental require­ments. the taxpayer undertook soil andgroundwater remediation procedures andestablished a system for the continuedmonitoring of the groundwater to ensurethe remediation had removed all haz­ardous waste. The taxpayer also began

constructing groundwater treatment facili­ties to extract. treat, and monitor contami­nated groundwater.

An important fact stipulated in therevenue ruling is that "the effect of thesoil remediation and groundwater treat­ment will be to restore [the taxpayer's]land to essentially the same physical con­dition that existed prior to the contamina­tion:' This was the exact situation out­lined in the second TAM where the IRSconcluded that the costs should be capi­talized. The IRS's holding in the revenueruling, however, is completely opposite,and appears to remove the economic dis­incentives of the previous position.

Based on the circumstances presentedin the revenue ruling, the IRS concludedthat the costs incurred to cleanup landand to treat groundwater that a taxpayercontaminated with hazardous waste fromits business are deductible by the taxpay­er as ordinary and necessary businessexpenses under IRC Sec. 162. The costsattributable to the construction of ground­water treatment facilities are capitalexpenditures under IRC Sec. 263A.

In the revenue ruling. the IRS firststated that the IRC "generally endeavorsto match expenses with the revenues ofthe taxable period to which the expensesare properly attributable, thereby resultingin a more accurate calculation of netincome for tax purposes." In addition,relying on Indopco. the IRS acknowl­edged that in determining whether expen­ditures may be currently deductible orcapitalized, it is important to consider theextent to which the expenditure will pro­duce significant future benefits.

Applying the above points to the tax­payer's situation, the IRS held that thesoil remediation expenditures and ongo­ing groundwater treatment expenditures"do not produce permanent improvementsto Ithe taxpayer's] land within the scopeof IRC Sec. 263(a)( I) or otherwise pro­vide significant future benefits."Furthermore. the ruling concluded thatthe appropriate test for determiningwhether the expenditures increase thevalue of property is the test outlined inPlainfield-Union. In evaluating thepotential increase in value to the taxpay­er's land due to the soil remediationcosts, the IRS concluded that the taxpayer"merely restored its soil and groundwaterto their approximate condition beforethey were contaminated by fits] manufac-

turing operations:'In the ruling, the IRS also supports

the current deduction for the soil remedi­ation expenditures and ongoing ground­water treallnent expenditures by indicat­ing the costs are not subject to capitaliza­tion under IRC Sec. 263(a)(2)because thecontamination was not present when theproperty was acquired. Deductions werealso justified because the land was notsubject to an allowance for depreciation.amortization. or depletion. Finally, theIRS concluded that the expendilUres(other than the costs attributable to theconstruction of facilities) are "appropriateand helpful in carrying on [the taxpay­er's] business and are commonly and fre­quently required in [the taxpayer'sl typeof business."

As expected. the IRS concluded thatthe groundwater treatment facilities con­structed by the taxpayer have a useful lifebeyond the taxable year in which they areconstructed. Consequently, these costsare capital expenditures under IRe Sec.263(a). In addition, the taxpayer isrequired to capitalize the direct costs anda proper share of allocable indirect costsof constructing these facilities under IReSec. 263A.

PRE-CONTAMINATED PROPERTY(BUYER BEWARE)

The IRS has recently signaled that therationale of Rev. Rut. 94-38 on thedeductibility of cleanup costs will likelybe limited to situations where a taxpayercontaminates its own property. So whathappens when a taxpayer acquires by pur­chase or merger pre-contaminated proper­ty? In Technical Advice Memorandum9S-4100S,issued September 27, 1995, theIRS dealt with a situation where the tax­payer was thought to have purchased landin a contaminated condition. The Servicecarefully distinguished Rev. Rut. 94-38by contending it only applied to situationswhere the taxpayer first purchased orowned property in a clean condition andthen contaminated the property. TheService contended that the cleanup costsfor property acquired in a contaminatedcondition are not deductible because thecleanup produced a more valuable assetrather than merely restoring or mendingthe property to its original condition. Thecleanup costs, said the Service, failed thePlaillfield Union test because the value ofthe property, when restored, will material·

Iy increase in relation to its value whenacquired in a contaminated condition.

Interestingly, the IRS, in response to arequest for reconsideration. has with­drawn the holding but not the philosophyof TAM 9S-41 DOS. The withdrawal letterat the writing of this article has not beenofficially released. Surprisingly, and ofconcern 10 taxpayers, the withdrawal wasbased solely on a reconsideration of thefacts of the case. The taxpayer was ableto convince the Service that there was notan actual break in the ownership of theproperty and that the laxpayer did ownthe property when it was contaminated.The taxpayer owned and contaminatedthe property, sold it to a subsidiary, whodonated the property to a county, whodiscovered the contamination and con­veyed it back to the subsidiary. The IRS'reliance on the facts, rather than disavow­ing the philosophy expressed in the TAM,leads to a strong inference that the nonde­ductibility philosophy for pre-contaminat­ed property expressed in TAM 9S-41 OOSwill be followed in the future. Obviously.individuals involved in the acquisition ofproperty must carefully consider the pos­sible tax treatment of their liability forcleanup costs.

CONCLUSIONThe change in position expressed by

the IRS in Rev. Rut. 94-38 on cleanupcosts when the taxpayer has contaminatedits own property has corrected the eco­nomic disincentive present in its formerposition. Taxpayers (at least taxpayers insimilar circumstances discussed in thisarticle) who voluntarily comply withenvironmental laws may now currentlydeduct their expenses. The IRS' decisionto correct the economic disincentives cre­ated by its position in the previous TAMis good public policy for both the taxpay­ers involved and the general public.

The IRS's recent contention, however,that cleanup costs should only be deduct­ed when property is purchased in auncontaminated condition, then contami­nated. and only then cleaned up. is logi­cally inexplicable. If the purpose is toprotect the environment, and the public,what difference does it make, when a tax­payer is acting in good faith, whether ornot property has been acquired in a conta­minated condition. The Service's positioncan only lead to an increase in purchasecosts, a concern about predictability, and

Il n~ I,tuml,,"W Sunr, IIII

frankly, in some cases, an avoidance indealing with environmental concerns.This article is a revisioll ofall article in48 OKUI. L. REV. 4/7 (/995).

ENDNOTESI. Rev. Rul. 94-3R, 1994-1 C.S. 35 (Jun

2. 1994).2. Commissioner v. Tellier. 383 U.S. 687

(1966). Even when, as in this case, theordinary and necessary expenses was thecost of hiring a lawyer to represent thedefendant against mail fraud charges, thecourt quoted language from the 1913Senate debate on the first income tax billIhat. "[T]he objeci of this bill is to tax aman's net income; that is to say, what hehad at the end of the year after deductingfrom his receipts his expenditures orlosses:'

3. Welch v. Helvering, 240 U.S. 111,114(1933). The court decided that paymentof debts without legal obligation toheighten one's reputation is, rather thanbeing ordinary, to a degree extraordinary.and disallowed a deduction.

4. Indopco, Inc. v. Commissioner. 112 S.Ct. 1039, 1044 (1992).

5. Plainfield Union Water Co. v.Commissioner. 39 TC. 333 (1962).

6. U.S. v. Wehrli, 400 F. 2d 686 (10th Cir.1968). where thc court stated, "[T]hisconcept lthe one-year rule] has receivedrather wide acceptance. and we are urgedto make arbitrary application of it here.We think, however. that it was il1l.endedto serve as a mere guideposr for the reso­lution of the ultimate issue. not as anabsolute rule requiring the automatic

capitalization of every expenditure pro­viding the taxpayer with a benefit endur­ing for a period in excess of one year.Certainly, the expense incurred in thereplacement of a broken windowpane, adamaged lock. or a door. or even a peri­odic repainting of the entire structure,may well be treated as a deductiblerepair expenditure even though the bene­fits endure quite beyond the currentyear:' Emphasis added.

7. 112 S. Ct. 1039. The IRS used the casefor two propositions. First. that deduc­tions are exceptions to the norm of capi­talization, and second that the determina­tion of whether an expenditure is capitalrequires an inquiry into the duration andextent of the benefits resulting from theexpenditure.

8. 403 U.S. 345, holding that the creationof a separate and distinct asset may be asufficient condition for classification as acapital expenditure. not thal it is anabsolute prerequisile to such classifica­tion. Further. the case does not prohibitreliance on future benefits as a means ofdistinguishing an ordinary and necessarybusiness expense from a capital expendi­ture.

9. I 12 S. Ct. at 1043. The court wem on tosay that Lil1coln Savings stands for thesimple proposition that a taxpayersexpenditure that "serves to create orenhance a separate and distiller assetshould be capitalized:'

10. Tech. Adv. Mem. 92-40004 (JUIl. 29.1992): Tech. Adv. Mem. 93-15004 (Dec.17. 1992).

II. Tech. Adv. Mem. 93-15004 (Dec. 17.

1992).12. 72 TC. 1 (1979).13. 39 TC. 333. III Plainfield-Union the

court decided that the expenditures toclean and restore a water main to its orig~

inal waleI' carrying capacity merelyrestored the asset to its original conditionand did not create a new or separateasset, 33 TC. at 337.

14. Ohio River Collieries Co. v.Commissioner. 77 TC. 1369 (1981 ).allowed a deduction for the costs ofreclamation of land that had been strip­mined relying in part on the fact thatgovernment regulations required theexpenditure.

15. U.S. v. Wehrli. 400 F. 2d 686. (1968).characterizes n "repair" as an expenditureto restore to a sound state or mend onewhich keeps the property in an ordinaryefficient operating condition and does notadd to the value of the property norappreciably prolong ils life. The courtalso states that whether the life of theasset is prolonged is a question of fact.

16. The ruling specifically stated that theexpenditures incurred by the taxpayerrepresented necessary and ordinaryexpenses within the scope of § 162 of thecode. The clean-up of the land did notproduce permanent benefits to the tax­payer within the scope of §263 of thecode. The ruling cites. and appears toadopt. the holding of Plailzfield-U/1ioll atleast to the extent that the cleanup didnot increase the value of the land whencompared to its value in its original con­dition.

I'

John E. McAllister, P.E.Graduate Electrical Engineer, 34 Years Industrial Experience.Specialist in Industrial Machine Guarding and Safety.• Born 1921. B. Sc. in Electrical Engineering 1947.• 14 Years experience with General Electric Co. in engineering and indnstrial sales.• 11 Years President o( company involved with repair and rewinding of electric motors and

the manufacture, ales, installation and servicing of electrical control panels for industry.• 9 Years President of large distributor specialiZing in the sales, manufacture, installation

and servicing of all types o( safety equipment for industry with major emphasis on metalforming and stamping.

• Registered Professional Engineer in 3 stales.... Curriculum vitae and references on request.

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909·3214Phone; (501) 922·1709 Fax; (501) 922·4177

President's Report

On Getting One's Legsby Harry TrulIlall Moore

J 1.. '. , ,..

. ' .... ',' . .....'. .,. . :

,,', \., .... : ..•.

·····'<'1 L.;.·;>1

Something is missing frol1llhis President's Page and will befor the next three issues of The Arka"sas Lawyer - a photo ofthe President.

If you don't know what your new President looks like, lookelsewhere in this issue.

Now you are probably morc appreciative of the decision toshare with you some of my favorite photographs in lieu of amug shot.

Casey's Colt is this month's feature. Casey's Colt and yournew President have something in common - they're trying to"get their legs."

Casey's Colt has a real advantage. In the course of nature, acolt gets its legs within a number of days.Some Bar Presidents never get theirs.

The decision to seek this job was madewithout campaign promises or agenda.That's fortunate. Why? - Because your pastand current Bar Leadership already had inplace important projects which could nothave been completed within one Bar year.

Bobby Jones surveyed the membershipand found a genuine concern about the pub­lic's perception of lawyers and the effectsof lawyer advertising. A well balancedcommittee of lawyers with different viewson the issue. headed first by Henry Hodgesand now by Donis Hamilton, is formulatinga report that may (or may not) recommendproposed changes to our Model Rules ofProfessional Conduct. The committee isalso addressing and referring to other barcommitlees problems regarding "runners"and the unauthorized practice of law.

Carolyn Witherspoon recognized thelack of a concentrated efforr to address theissues of Domestic Violence. Her work in this field precededthe OJ. Simpson trial. The Domestic Violence Conference inApril brought to Arkansas both national experts and an array ofArkansawyers from many disciplines to discuss the issue andwhat we. as a state, should do about it. After sponsoring andcoordinating this effort, should the Bar now say "We've doneour job:' No! To do so would be an abdication of our responsi­bility to the men. women and children of this state affected bythis problem.

The support of the new Domestic Violence Task Force willbe a priority.

Colts are usually trained after their birrh for the racingcourse which may best suit them. Bar President's don't havethat good fortune. They have to run on a track created by eventsof the day.

Your new President will also have to work through a legisla­tive session year in a political climate which no one would haveexpected at the time of his election in November, 1994, Withthe alllicipated implementation of term limits, and the unexpect-

ed change in state political leadership, the upcoming legislativesession will require an incredible amount of time from Bar lead­ership, and staff. at all levels.

Your new President will not be the only one seeking his"legs" this year. Because of Bill Martin's announced retirement.we'll have a new colt or filly as Executive Director. Your newPresident looks forward to working through this time of transi­tion.

Don't get the idea that your new President has no goals, Heis committed to working with Membership Chairs, Bob Cearleyand Baxter Sharp, to inform you, and the lawyers in this statewho aren't members of this association, why "membership has

its privileges."The relationship between the Bar

Association and Bar Foundation is alsoimponant at a time when the two organiza­tions are separating their professionaJ lead­ership. Russ Meeks. Foundation President.has been promised a continuation of our his­torically excellent working relationship.

Your new President is commined toworking with all specialty bars toward ourmutual best interests. and he is dedicated toworking with the Judicial Council towardbetter benchlbar relations.

The continued efforts to curtail, orabolish, legal service programs will requireour leadership's allention and the renectiveconsideration by all members of this associ­ation of our individual responsibility to thepublic. Thank you, Maurice Mitchell, foryour agreeing to head this important TaskForce.

Your new President looks forward toworking with his NEARK counterpart, Price

Marshall. in finding ways to increase Young Lawyer participa­tion in the Bar. He also will call upon many "old war horses" torecapture their "strut" and start planning the Centennial of theArkansas Bar Association. Louis Ramsay will lead the fieldracing toward this celebration.

By the time this is printed, Casey's Colt will be weaned,He's high spirited. He'll be kicking up his heels.

Casey will be a great trainer for his colt. Your newPresident also will have a great trainer - Tom Ray, who willChair this year's Executive Council. He will also benefit from aBar staff which always isn't satisfied with a "place" or "show"finish.

Your new President hopes he has half the energy of Casey'sColt. He'll need it. More importantly, he'll need your help andsupport.

(footllote) Special thanks TO Harold C. "Casey" Hornet;President of Homer Motor Company in Paragould for sharinghis first col' ';after a string affilly's" with liS.

Ii Tbr IrlmlllJ"lrr Summrr 1l9i

Toleration of ambivalence is an essentialingredient of intellectual.

emotional, and political maturity.-James Boyd White I

According to Lon Fuller. Caligulahonored the Roman tradition that lawsshould be written and posted in a publicplace: he ordered, however. that his edictsshould be written in such fine print andposted so high that the people could notread let alone understand them 2 WithoutCaligula's perversity. the modern regula­tory state has bred similar results.Legislatures, courts. and administrariveagencies have created, with the best ofintentions, a process that scrupulollslyabides by due process but generates abody of law that utterly confounds thevast majority of the general public.

As Fuller noted in the I960·s. "Mostof the world's injustices are intlicted, notwith the fists, but with the elbows:'3 The1990's version of this truism is potentlystated by Phillip Howard in The Dealh ojCommon Sense: How Law Is SuffocatingAmerica.4 Howard's thesis is that lawhas become so voluminous. arcane. andinaccessible that only a select "handful ofMandarins" can navigate its complexities.As an example. Howard consistentlypoints to the encyclopedic body of envi­ronmental law as often missing the pointof pollution or forcing environmentallyirresponsible consequences.5

Howard's diatribe against bureaucrat­ic myopia immediately struck home.Within weeks of its release in 1994. bothPresident Clinton and Senator Dole weretripping over each other to be seen hold­ing up the dust cover of The Dealh ojComma" Sense on camera. FloridaGovernor Lawton Chiles ordered thebook by the case for distribution to hisstate agency heads. Howard became atalk show celebrity and "common sense"became a synonym for the latest wave ofregulatory reform proposals from the

Ii Hr Ir~lIm I.a")'f Su••1t 1191

Democrats and Republicans.In the political festivities of the mid-

I99O·s. however. the message of TheDem" of Common Sense has been lost.With the Democratic Administration andthe Republican Congress coopting theteml for their respective agendas. the con­cept of "common sense" is stripped ofany useful meaning. Proponents of the"Contract With America". for instance.invoked "common sense" in tandem withcharacterizing the EnvironmentalProtection Agency [EPA I as the "Gestapoof U.S. government." This rhetoricserved as the vehicle for launching themost concerted attack on environmentalregulation in its twenty-five year history.despite the fact that environmental preser­vation remains a popular public goal andthat environmental regulation has beendemonstrably successful in improving thequality of the nation's air and water.

All of this epic absurdity would be

fine entertainment if it were confined tothe Beltway. Concerted efforts by well­funded interests. however. have broughtthe same contrived wrestling match to thestate legislatures where gridlock is not somuch of a problem. Regulatory rollbackhas become a national obsession. threat­ening to tum some states into laboratoriesof pollution rather than democracy.

The banality of the backlash shouldnot obscure the fact that environmentalregulation has some growing up to do.While precociously successful during itsfirst twenty-five yems. environmental reg­ulation has reached its painful adoles­cence. As described by Justice Breyer inBreaki"g the Vicious Circle. environmen­tal regulation has collided with "the prob­lem of the final I0%:' the point of dimin­ishing returns where categorical "com­mand and control" rulemaking does notyield the SHme success that was achievedwhen rivers were nammable and smog

lethal.6 The challenge today is how todeal with the small polluting businessesthat do not have the resources to track theFederal Register or attend every staterulemaking session that may affect theirinterests. Also, the retreat from "com­mand and control" strategies may forcethe regulators and the regulated to finallyface the public's evolving environmentalconscience as a legitimate democraticimpulse rather than an inconvenient irri­tant.

This article examines what has creat­ed the unwieldy body of environmentallaw and suggests some guides for distin­guishing genuine from disingenuousreforms.

THE RULE OF LAW RUN AMOKThe architeclUre of environmental law

is, to a large extent, a symptom of aunique period in American legal history.Roscoe Pound observed in the first quar­ter of this century that law evolves incycles that alternately exalt bright-linerules or Oexible discretion 7 By 1923,Pound was decrying the lingeringNineteenth Ccntury tcndency "to makecourts judicial slot machines;' and prais­ing the trcnd toward empowering admin­istrative agencies to individualize theapplication of the law. 8 Seventy yearslater. Philip Howard describes how far thependulum has swung:

"All tough choices. indeed all choices,must be predetermined. As citizens andofficials, we are allowed to argue duringthe law-making stage. but. day to day. weare precluded from making sense of theproblems before us.'·9

In other words. the basic complaint ofThe Demh oj Common Sense is that themodern obsession with rulemaking hasturned administrative agencies into latterday versions of Pound's slot machines:"We ... have this egotistical belief that wecan make government operate like aSwiss watch. tolerating no exception oruncertainty:'IO

In examining how modern law cameto this juncture, both Howard and MortonHorwitz in The TrallsJormmioll ojAmericlIll Law hisrorically trace the pro­liferation of administrative rules to {heconservative reaction to the New Deal. I IThe explosion of the administrative stateunder Roosevelt was not accompanied bya nood of rules. but a sense of relentlessand activist experimentation captured byhistorian Arthur Schlesinger:

The problems are indeed complex.

The answers are not in the back ofanyone's books...... 1t is commonsense to take a method and try it."FDR said. If it fails. admit it franklyand try another. But above all trysomething. t2

In 1940 President Roosevelt vetoedan attempt to saddle his New Deal agen­cies with what he saw as crippling proce­dural strictures. After Roosevelt's death,New Deal critics regrouped and forcedthe passage of the AdministrativeProcedure Act (APA) in 1946. Duringthis period, conservatives were inspiredby the writings of Friedrich von Hayek.who offered a legal framework for com­bating the worldwide threat of totalitari­anism and collectivism. His vision was a"rule of law" in which "government in allits actions is bound by rules fixed andannounced beforehand." t3

Howard concedes that such motivesare unassailable in the abstract. Theproblem is, the "rule of law" systeminevitably became centralized beyond vonHayek's wildest nightmares once the pub­lic began demanding government's inter­vention to solve social problems:

Our regulatory systcm has become aninstruction manual. It tells us andbureaucrats exactly what to do andhow to do it. Detailed rule afterdetailed rule addresses every eventu­ality, or at least every situation law­makers and bureaucrats can thinkof14

By the 1970·s. when modern environ­mental law was born, the couns wereadjusting the "rule of law" concept to fitthe demands of a newly activist Congress.The federal statutes themselves werequite prescriptive and often set unreason­able schedules for more detailed rulemak­ing by EPA. Also during this period. theD.C. Circuit Court of Appeals took spe­cial interest in environmental issues,exacting a degree of administrative scruti­ny in rulemaking that was previouslyunheard of. See Vermont Yankee NuclearPower Corp. V. Natural ResourcesDefellse COllllcil. 439 U.S. 961 (1978).The result was layer upon layer of regula­tions that often had more to do with thebalance of political power during a partic­ular session of Congress than any defini­tive understanding of environmental haz­ards. For a good example of whereBoolean logic meets Rube Goldberg legalprecision. see 40 C.F.R. Parl261,"Identification and Listing of Hazardous

Wastes:'Whether under Republican or

Democratic administrations. the volumeof environmental regulations has explod­ed the last twenty years. and EPA stilllags far behind the expectations ofCongress and the courts. The law pro­duced by this system of regulating maybe inefficient and incomprehensible, buteven more disturbing is the effect ofexcruciating rulemaking on the process ofenvironmental decision-making. From itsinception. environmental law has beenmarked by exhaustive opportunities forpublic scrutiny and comment. In WhoWill Tell The People, William Greiderdescribes how this process. which onpaper is as egalitarian as possible, hasbeen turned into a closed-door session bybrute economics: "If fact-filled argu­ments and expensive expertise are theonly route to influencing governmentdecisions, then by definition most citizenswill have no access. This is the function­al reality. It cannot fairly be calleddemocracy'"15

Thus, populist critics can charge, withsome validity, that the environmentalintegrity of a common citizen's home­stead is reduced to an acronym ­NIMBY ("Not In My Backyard") - sothat it can be deftly discarded while thepublic and private sector experts ply theirtrade. According to Greider, privatizedscience - not power. money, politicalclout. or graft - has become the curren­cy of environmental decision-making, yetall but the most organized and well-fund­ed stakeholders are priced out of the dis­cussion.

The losers in this rule-bound versionof administrative decision-making are notjust populist instincts. In The Limits ofw\t'.16 Peter Yeager details how "com­mand and control" environmental regula­tion favors big business over small busi­ness. A large company or trade groupcan muster professional cunning in therulemaking process, where legal terms areparsed and scientific concepts are hedgeduntil the outcome coincides with big busi­ness's ability and inclination to comply.Small businesses do not have this luxury.and often find themselves on the muddyend of a "level playing field" constructedby their better financed competitors.

Even branded environmentalists likeVice President AI Gore and BarryCommoner have admitted thaI the rule­laden "command and control" strategy

1i nr Irtaolll LIII}rr Suntmr, 1991

has peaked as an effective tool of envi­ronmental protection. A replacement phi­losophy is not yet fully formed, but in1995 the Clinton Administration released"Reinventing Environmental Regulation",a blueprint for a regulatory regime basedupon flexibility with accountability.Unfonunately, this promising approach isbeing eclipsed by the clamor for otherdubious reforms.

RETROGRADE REFORMSAs noted above, environmental pro­

tection remains one of the most populargovernmental functions. ConservativeRepublicans have recently learned thatdirect assaults on environmental programsare politically self-destructive. Now, thefocus has shifted to these three so-calledreforms. All three are advanced as pleas­ant generalities, propositions no reason­able person could dispme. The intendedeffect, however, is to hobble agencies'ability to address environmental prob­lems without directly aaacking politicallypopular programs.Property Rights Vber Alles

During the Reagan Administration,Attorney General Ed Meese and his staffof eager young conservatives hatched aproject that then Solicitor GeneralCharles Fried considered quite radical:..... to use the takings clause of the FifthAmendment as a severe brake upon feder­al and state regulation of business andproperty."I? Finding only limited successin the courts, the alumni of this newschool of takings law have turned theirwell-financed attention to the RepublicanCongress and the state legislatures.Through their efforts, a novel conceptionof takings law is being peddled to legisla­tors as the true faith of the foundingfathers and the salvation of free enter­prise.

The intellectual headpiece of themodern takings movement is RichardEpstein, the eminent torts scholar fromthe Chicago School of Law. In 1985,Epstein published Takings, on the firstpage of which he admits that he is not aconstitutional law scholar. 18 Still,Epstein amends John Locke's politicalphilosophy of property rights to fit thepredilections of the Chicago School ofEconomics. Using his improvements onLocke's conception of property, Epsteinrewires two hundred years of jurispru­dence to reach the conclusion that practi­cally all of twentieth-century legislationdesigned to ameliorate the rough edges of

IS Thr lrhnSiS L," irr Summrr 1996

the Industrial Revolution (e.g., workers'compensation, minimum wage and maxi­mum hour laws, social security, andincome tax) constitutes an unconstitution­al taking19 Actually, the historicalprecedent for the modern takings move­ment is not the Founding Fathers, but thelegalistic rationalizations for the GildedAge when, according to Horwitz, "Thecourts came closest to holding that aproperty owner had a constitutional rightto an unchanging world."20

Jurisprudence aside, the marketabilityof Epstein's version of the law is self-evi­dent. Epstein's view of when the govern­ment owes compensation for a taking hasspurred such conservative organizationsas the "Defenders of Property Rights' andthe "American Legislative ExchangeCouncil" to tout model neo~takings legis­lation designed to stem the tide of"extreme environmentalism."

There are two versions of neo-takingslegislation currently being considered.The milder proposal requires a written"takings assessment" before governmentcan act, yet another procedural hurdlethat, according to a letter by AttorneyGeneral Winston Bryant and 32 otherstate attorneys general to the members ofCongress, "would do nothing to reducethe likelihood of unconstitutional tak­ings." The more radical proposal requiresgovernment to compensate landownerswhen property values have been reducedby a certain percentage because of a regu­latory program. Two bills currently pend­ing in Congress adopt this approach: H.R.925, already passed by the House as partof the "Contract With America", wouldrequire compensation for reduction inproperty values stemming from govern­ment efforts to protect wetlands andendangered species; S.B. 605, sponsoredby Senator Dole, would require compen­sation for a 30% reduction in propertyvalues caused by any federal regulatoryprogram.

In the states, twenty-two have passedsome version of takings legislation. Mostof these states have passed "assessment"statutes. In 1995, Texas and Floridapassed broad compensation statutes,while Mississippi and Louisiana enact­ments require compensation only for reg­ulatory takings affecting forestry or agri­cultural land.

The most notable state developmentswere in Arizona, which passed an assess·ment law, and Washington. which enacted

one of the most stringent compensationstatutes considered. In both of thesestates, these laws were submitted for pop­ular vote through referendum. In bothstates, the takings measures were rejectedby the voters in landslide margins. Astestimony to the influence and persistenceof the interests promoting the neo-takingstrend, legislators in both states vowed tobring back some form of regulatory tak­ings legislation even after a decisiverebuke by the voters.Cost/Benefit Analyses and RiskAssessments As Industry Trump Cards

Admittedly, reducing the COStS andbenefits of any governmental decision toa "<1>" equation is a practical decision~

making tool, and a methodical approachto comparing the relative risks of differ­ent kinds of economic activities is a nec­essary function of setting regulatory pri­orities. But in today's political climate,accepting these first premises surrendersthe fate of the environment to the con­trived world view of opportunistic conser­vative think tanks and their corporatesponsors.

Recent proposals in Congress wouldmandate extensive cost/benefit analysesand risk assessments for myriad regulato·ry actions, and would make these exercis­es subject to judicial review. As a practi­cal matter, these proposals would addmore paper shuffling to an already bur­densome process and create more oppor­tunities for litigation in a process alreadymired in the courts.

Making speculative exercises such asthese procedural mandates covers up theirfundamental shortcomings when analyz­ing environmental issues. For instance,the environment is at an immediate disad­vantage in the cost/benefit context. Whilecosts are relatively easy to calculate, envi­ronmental benefits are notoriously diffi­cult to reduce to dollar values. Thewhole exercise begs the question as (0

why economic theories should drivesocial policy any more than other humanvalues like altruism, aesthetics, or hus­bandry. As James Boyd White points outin JUSTice as Translation, any attempt toreduce social issues to equations withdollars as the currency of judgment isitself a moral choice that is far from uni­versally accepted:

Economics has the greatest difficultyin reflecting the reality of humancommunity and the value of commu­nal institutions. Its necessary lenden-

cy seems to be to destroy the idea ofpublic action. indeed the idea ofcommunity itself.21

A similar naw lies at the core of ri kassessment as a mandatory gatekeeper forthe government regulatory decisionprocess. 0 doubt, risk assessment is avaluable tool for discussing priorities ingovernment regulation. Yet preoccupa­tion with immediate human health is notthe only measure of environmental stew­ardship. What is lost in this exercise is theundeniable public perception that what isbad for the biosphere (e.g., fish kills, acidrain. global warming) is bad for us inways that we may not yet understand.Also, the risk assess­ment approachignores the politicalchoices, made in the1970's and neverpopularly rejected.that protection of theenvironment is anend in itself, not onenecessarily tied toimmediate humancomfort. It is nowunderstood thatwhatever inconve­niences the existenceof rain forests orwetlands mayimpose on entrepre­neurial instincts hasimportance beyondimmediate economicdesires.

Still. thesemethodologies doprovide valuableinformation andshould be used whenever resources per­mit. Done correctly, however, cost/bene­fit analyses and risk assessments are gru­eling exercises combining technical infor­mation that is difficult to compile andsophisticated models that can only beinterpreted by specialists in the dismalsciences. With this in mind. there is asimple, objective. and foolproof test fordetermining whether a so-called reformpackage touting costlbenefit analysis orrisk assessment is a sincere effon toimprove the decision-making process or aback-door assault on a politically popularregulatory program - check the appro­priations bill. If proposed legislationincreases the tasks government must per­form to make a decision without an

accompanying increase in appropriationsfor staff or resources. the intended effectis regulatory inertia, not efficiency.Consider then that the proposals pendingin Congress that would require EPA toprepare resource-intensive risk assess­ments and costlbenefit analyses wereadvanced in tandem with a cut in EPA'sbudget of 20% 10 33%.Devolution to (and in) the States

Currently, a bipartisan movement isgathering at the national level to transfermore autonomy to the states for settingenvironmental priori lies. From the state'sperspective, this is a welcome develop­ment. Admittedly, a strong Federal pres-

ence was necessary in the 1970's becausethe states had failed to develop Ihe regu­latory infrastructure necessary to dealwith environmental issues. By the1990's. however. most states have estab­lished regulatory programs that are moreattuned to local environmental issues thanthe federal regulators in the regionaloffices or in Washington D.C.

Generally. regulated interests supporteffons at the national level to grant moreregulatory autonomy to the States. Butlook al what some are doing at Lhe statelevel. A committee of the KentuckyHouse of Representatives recentlyapproved legislation Ihal would drastical­ly roll back water quality standards andpenalize private citizens who make com-

plaints to the state environmental agency.In Texas. recent enactments concerningtakings, immunity for performing envi­ronmental audits, and resLrictions on thepublic's slanding to challenge the stateagency's decisions have led EPA 10 ques­tion delegation of federal programs tothat state. Legislation in several stateseither discourages or prohibits environ­mental agencies from applying morestringent protection sl3ndards than thebare minimum required by federal law.In other words, as the trend at the federallevel is 10 put more trust in Ihe states,some states - al the behesl of regulatedinterests - appear to be proving that

such trust mighl not well­placed.

So far in Arkansas,devolutionary trends havebeen absorbed, but blunt­ed. In 1993 legislation,the costlbenefit craze wasaddressed by requirementsmore attuned to the state'sresources See A.CA. 8-1­203(b). Also in 1993,restrictions on citizens'standing to challengePC&E permitting actionswere enacted, but in tan­dem with very liberalpublic notice requirementsSee A.c.A. 8-4-203. In1995. Arkansas balked atpassing the most stringentneo-takings law in thenation; a Governor's TaskForce is currently study­ing whether such legisla-tion is needed inArkansas.

"CERTAINTY GENERALLY ISILLUSION, AND REPOSE IS NOT

THE DESTINY OF MAN."-OUYER WENDALL HOLMESIn a speech delivered when he was

Chief Counsel for the Senate JudiciaryCommittee, Justice Stephen Breyer notedIhal the first proposal for regulatoryreform at the national level was probablylaunched in 1881. simply because the firstmodem regulatory agency (the InterstateCommerce Commission) was founded in188022 In the environmental debates ofthe mid-1990's, few seem to realize thatsimilar regulatory reform themes havebeen debated for as long as administrativeagencies have existed, and the philosophi­cal issues at stake have hardly changed

Il Tb' IrlllltlllU"r Summrr 1m

since Roscoe Pound squared off against"mechanical jurisprudence" at the turn ofthe century.

Lost in all the rhetoric about "com­mon sense" environmental regulation isthe prescription offered by the man whocoined the term as a political icon. In aSeptember 1995 int.erview for WashingtonMOllthly, Howard disavowed many of thecurrent trends in the States and Congress.The remedy for regulatory overkiU is notmore regulations, Howard said: similarly,regulatory inflexibility can not be curedby placing more feuers on t.heregulators.23

These principles are especially applic­able to environmental regulation, whichmust calculate social policy at the fringesof scientific knowledge. The uncenaintyinherent in environmental protection can­not be cured by legal fiat. In fact, as LonFuller observes, an appropriate sense ofhumility may be the most important firststep toward mature environmental policy:

Sometimes the best way to achieveclarity is to lake advantage of, and toincorporate into the law, commonsense standards of judgment thathave grown up in the ordinary lifelived outside legislative halls .... [Wecannot be more exact than the natureof the subject mattcr with which weare dealing admits. A specious clari­ty can be more damaging than anhonest open-ended vagueness.]24

Similarly, Howard reminds us t.hat whilethe world and human nature are muchmore complicated than the "specious clar­ity" promised by volumes of regulations.this not necessarily reason for despair:"Uncenainty, the ultimate evil that mod­ern law seeks to eradicate, generally fos­ters cooperation, not t.he opposite:'

In The Death ofCommo" Sellse.25

Howard's prescription for reform of envi­ronmental regulation is simple. practical.and only superficially radical: "Relaxinga lillIe and letting regulators use theirjudgment is the only way to liberate ourjudgmenl...lllf there is no flexibility forthe regulator, there is no flexibility forus:'26

As discussed above, allowing the pen­dulum to swing back toward more discre­tion for administrative agcncies has his­torical precedent and may be the onlyalternative to adding another aisle in thelaw library for the Code of FederalRegulations.

The most promising developments in

~o Tbr \r~m'll.'l\!rr Sunlnlrr 199&

environmental regulation are not pendingrules, but innovations in implementing thebroad principles of environmentaJ protec­tion. At the national level, EPA'sCommon Sense Initiative focuses uponbreaking specific industries out of theone-size-fils·all regulatory regime and tai­loring regulatory standards to meet plant­specific potentials for pollution reduction.Programs such as Project XL andPerformance Partnerships seek a refinedfederalism attuned to the realities of envi­ronmental regulation at t.he state and locallevels. And through development of"environmental indicators:' EPA is finallylooking beyond bean-counting permitsand enforcement actions to the real worldof environmental improvements.

PC&E is developing nonadversarialways to address compliance problemsfaced by small businesses or other peoplenot otherwise privy to the arcane dialoguethat created the body of environmentalrules. New resources within PC&E, suchas the Ombudsman and the CustomerService Division, try to help ordinary citi­zens to comprehend and meaningfullycommunicate their concerns within theregulatory process. And in the actualenforcement of environmental regula­tions, PC&E is increasingly focusing onwhether real environmental improvementis being achieved, rather than whether afacility has been correctly filed under theappropriate regulatory acronym.

None of these innovations requireexcruciating rulemaking. Instead. suchmechanisms as strategic exercise ofenforcement discretion. efficiently mus­tering already available governmentresources. or just basic education andtechnical assistance effons are the linch­pin for achieving common sense results.These flexible approaches to environmen­tal protection would not be possible undera regime that ties up agency resourceswith perfunctory takings and costlbenefitanalyses or insists that the agency cannotact without reference to a detailed rule.

The Death of Common Sense calls foragency discretion that is accountable forits accomplishments and failures throughjudicial review, political oversight, andtraditional civil service principles. Thegoal is to release the expertise of agencystaff to actually practice their professions,and to allow regulated entities the latitudeto discover innovations in production aswell as pollution control. As environmen­tal regulation stumbles toward maturity.

hopefully the law books will find roomfor conscientious people in the public andprivate sectors to think for themselves.( ote: The author is currently serving asPolicy Advisor to the Director of theArkansas Department of PollutionControl & Ecology. The opinionsexpressed in this article, however, aresolely those of the author, and do not rep­reselll official positions of the Departmentof Pollution Control & Ecology)

*Wem'er is OIl affomey for the ArkansasDepartment of Pollution Control &Ecology

EndnotesI. James Boyd While. Justice As Translation:

All Essay ill ellllUral alld Legal Criticism33 (Uni\'. of Chicago Press 1990).

2. Lon Fuller, The Morality ofLalli 93 (YaleUniv. Press. Revised Edition, 1969)

3. ld. at 159.4. Philip K. Howard, The Death of Common

Sense: flow U1IV Is Suffocatillg America(Random House 1994).

5. Id. at 7-8.100-101.6. Stephen Breyer, Breaking the Vicious

Circle: Toward Effective Risk RegulationContinued on Page 44

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EXAMPLE

MOORE:

TRUMAN

BY

"What I discovered after a HARRYmorning full of stories on a myriad of

subjects was a guy with an office sowired for sound you would think

Manhattan Transfer, Roberta Flack and

Willie Nelson were performing LEADJrNGlive and in person right smack

in the middle of a brand newoffice building in Paragould,

Arkansas."

by Sara Landis

Photography by Thomas A. Moore

It's not a bad drive 10 Paragould. It allows one

lime to reneet 011 past experiences and ponder future

ones. I found myself pondering what J Iilollfiill I

already knew about Harry Truman Moore as I drove

along. Bowlies...cooking... l11usic...pholOgra-

phy...Dcmocrat...hr11lTIm-dul] guy.

What I discovered after a morning full of stories

on a myriad of subjects was a guy with an office so

wired for sound you would think Mallha1l31l

Transfer, Roberta Flack and Willie elson were per-

forming live and in person right smack in the middle

of a brand new office building in Paragould.

Arkansas. Someone who grills gourmet and collects

aprons. And a guy with a lot of bow-ties that match

his vibrant. eclectic personality.

So much for pre-conceived notions.

LEFT: H.T. has been In

hiS new offtce in

Paragould since July 31,

1995. This is a corner

of the library.

RIGHT: HT believes in

staying In touch with his

fflends and clients, no

matter where he IS.

Taken on the Main

Street of Killarney under

the sign post of The

Laurel's Singing Pub.

which was located

under the guidance of

Wayne Boyce H.T. was

calling him to let him

know he had Indeed

located Wayne's favorite

spot In Killarney.

., Thr \r~"", 1..\\).,. S,mmer 1996

t~ 1iIlrllllil uMlrr S•••rr 1m

Shown on this page

displaying the many

photographs he has

taken over the years.

Photography is one of

H.T.'s favorite pasttimes

had his professional integrity or personal

life quesfioned. Yeah - occasiollolly he

u'o/ild C/ISS like a sailor - picked Ihm up

in the miliwry ofcourse - occasionally he

let his feelings be (l

lot more public Ihan

they probably should

have been. bUI he

had a fierce loyalty

for his family and he

had a fierce loyalty

011 July 31. They met as slUdents at

Arkansas State. Wanting to be in close

proximity to their parents, they picked

Paragould as the plaee they wanted to

live.

,; I had the opportuJlity to look at com­

IIllmities all over the lSI Dislrict and all

over Northeast Arkansas and there were a

lot oj things abollt Paragollid I liked."

He's been there 21 ycars and has no plans

to leave.

Moore collects a lot of Harry Truman

memorabilia. He talks about Truman with

a twinkle in his eye and a rather melan­

choly grin - as if talking about an old col­

lege buddy.

"/ thillk one of the things I like /IIOSI

about him is he was always so straight

fOlward with evel)lthillg he did. He also

had a real affinity for Ihe C011lmOll lila1/.

He also was a personallol'er of the

arls...a IOl'er ofpolitics in a different H'ay

jivm a lot of olher people.

"/fyo/I look back ()1/ the Presidellls ­

here \I'as a person who. 10 fhis day. nel'er

Now about that name...

"My Jarher's name was Trul1JCl11

Moore and my family have always been

yellml' dog Democrats."

Moore was born in Lawrence County

Arkansas in 1947. He attended Arkansas

State University in Jonesboro and the

Memphis State University Law Sehool,

and the UALR Law sehool before gradu­

ating from the University of Arkansas

Law Sehool in Fayetteville. He was for­

lunaLe during his years aI ASU to have a

job as Student Spons Information

Director that allowed him to travel a 101

more than the average college student.

Even through all the traveling. he still

retained a strong tie to his community and

the people he grew up with.

"Myfirsl job out of college - I went to

lI'OrkJor Lambda Chi AIpllllJratel'llir.\'. I

Il'orked the Mid West regio" the first

semester alld then I packed my bags and

wellT 10 the west coast for ten weeks.

which was a real experience. So / gOi to

see all that part of the country."

He left that job and went LO the east

coast - Washington in pal1icular. to join

Represemativc Bill Alexander's sHIrr.

After a rew years law school beckoned.

He was admiucd to the American

University Sehool of Law. but waited a

year and returned home.

"I got fO see a lot. but / always felT I

H'allied to come back. "

He and his wife, Linda Lou, were

married on Moore's binhday 25 years ago

~I Th' IrLanm I,a"!,r Somm,r 1996

ABOVE: H.T. plays a private concert

for his wife, Linda Lou, at his 1933

Wurlitzer Baby Grand Piano. RIGHT:

H.T. and President Bill Clinton with

the Harry Truman bust in the White

House.

for his job. he had a fierce loyalty for his

COl/lIlly. He wasil', ashamed oj allY oj

those things. He wa.m'1 ashamelllO fell

people about it. YOli /lever had a question

about where he stood 011 an issue. And he

had a real deep belief in the commO/1 man

and the ability of lite COl1l11l01l mall [0

accomplish things."

Truman's directness and straightfor­

wardness and his affinity for the common

man are some of the values Moore trys lO

emulate in his own life. One of the things

Moore has always been interested in. for

example, is bar work. He wants to lry to

get a broader perspective of the people of

the state about bar activities and the

things the bar can give them. He also

feels there are a lot of things those same

people can give back to the bar.

"Trumall a/ways believed in public

service and believed public service was

lhe high callil/g." Moore believes there

are many different ways people can do

public service.

"~I considered for a I/I//nber of differ­

ent reasons n polilicnl career and lhe pos­

sibility ofpllblic sen/ice tllere. I made a

COJlscious decision a Jew years ago lhm I

did nol Irant 10 do lhat."

He decided instead to put his efforls

into community service first in Paragould

and later in service to the Bar. Believing

both of those to be important. he has tried

(0 give something back to his community

and the constituency he is now serving.

Both have benefited from his efforts.

LEFT: Grilling is another favorite

hobby. Shown here with his latest

culinary creation and one of many

colorful aprons. BELOW: Linda Lou

and H.T. in the doorway of their home.

After serving as PresidelH of the

Paragould-Greene County Chamber of

Commerce. Moore served two rare con­

secutive terms as Chair of the Chamber's

lndustrial Committee.

He had coordinated the acquisition of

over 700 acres of industrial properties, but

faced a real challenge when the

Chamber's Executive Director resigned in

the midst of negotiations with fOUf major

industrial prospects. Through his period

of leadership, Paragould added over 1000

jobs with fOUf new facilities and expan­

sions by several existing industries.

Capital investment by these industries

totaled over 36.5 million dollars.

Because of his efforts,Moore was

named the 1995 Volunteer of the Year by

~, The \r~'ilIs 1,'")" Summer 1996

~6 Thl' \r~aml tlll)'r SUUlmPl 1l9i

committee work. Bar work was simply

something a member of that firm was

going to do.

Fortunately, bar work was something

Moore enjoyed.

He has touched all the bases on his

way to the Bar Presidency, to which he

was elected without opposition in

November, 1994. As a young lawyer he

used his journalism background as a con­

tributor and editor of previous editions of

both the Senior Citizens Handbook and

Statute of Limitations guide. During his

year as YLS Chair, Arkansas won two

national awards from the ABA for special

project and overall achievement.

He has chaired the Family Law

Section, and was the Editor and a contrib­

utor to the recent revision of Volume I of

the Family Law system. He has chaired

and served on numerous other bar com­

mittees.

He has served on the Supreme Court

Child Support Chart and CLE

Committees. A frequent presenter on

Family Law issues, he has been honored

with five "Best of CLE" awards.

Moore says that the issue of the pub­

lic image of lawyers is terribly important.

It hurts him to read negative articles in

the papers about lawyers.

/< For every short story alld every blip

about good things lawyers do, tuzyt;me

lawyers do sometlll'ng they should /lot

have, llnytime lawyers make a mistake -

qualities.

"He was a person who always led by

example. And Ihat is one lhing people

don't realize. He became Caprain Harry

ofhis bara{{ion oul of Kansas City by

being elected. At that time the praCTice

was to elect officers. And even though

there were people with far superior physi­

cal abilities, he was the persoll who was

elected and he was elected for his leader­

ship abilities."

Moore stems from a father who was

very active in church and community and

always held positions of leadership there.

So from a very young age Moore and his

siblings were used to being involved in

something. From high school days in

student government to college days in

publications and fraternity, Moore has

always participated. He was taught at

home that if you are going to participate

in something, you need to give something

back.

When Moore went lO work for his

law firm, one of the things the firm was

involved in was bar activities. Maurice

Cathey was a former President of the

Arkansas Bar Association (1966-67) and

a member of the House of Delegates

when it was first organized. Gerald

Brown, a former partner of the firm. was

the first delegate from that bar district.

Senior firm partner Ray A. Goodwin and

fonner firm partner Donis Hamilton are,

with H.T.. Golden Gavel winners for barTruman's leadership

Moore says he has feelings of identity

to Truman because of the problems he

had as a "be-spectacled" person and the

trials and tribulations that caused him as

a frustrated young athlete and the prob­

lems of trying to wear glasses in a pre­

contact lens stage. Truman had those

same problems as he tried to work his

way up in the military. One of Truman's

biggest fears was being in a combat situa-

tion and losing his

glasses - which

aClUally ended up

happening to him.

Moore admires

the Industrial Developers of Arkansas,

becoming the first lawyer to win the

award in its 17 year history. He was also

honored for his work by the Southern

Industrial Developers Council last

October aI its 50th Anniversary celebra­

tion.

His community service also includes

a term as Chairman of the Arkansas

Science and Technology Authority and as

President of the ASU Alumni

Association.

He has held several positions of lead­

ership in the Democratic Party of

Arkansas, including a term as Treasurer.

He has served the First Presbyterian

Church of Paragould as an Elder, Sunday

School teacher, musician and choir mem­

ber.

OPPOSITE PAGE: H.T.

shares a laugh with visi­

tors in the library of his

new office.

ti l'hr .\rkanm I,lll}rr Summrr 1996

this is what makes from page news and I

don't think we have done a good enough

job talkil/g abow the good things lawyers

do. The things lawyers do not ollly for

their diems bw for their cOllll1l1mities."

According to Moore. he is very inter-

ested in what the Arkansas Bar

Association is doing for its members. He

plans to meet directly with as many local

bar associations as possible. He hopes to

continue dealing with a lot of issues that

are out on the table right now... lawyer

advertising... the delivery of legal ser-

vices... bringing back to the membership

the percentage of lawyers that once were

members.

Moore says he enjoys lawyering.

There are times when he thinks it would

have been fun to give himself to public

office, but when he sees what happens to

people who give themselves to public

office. he knows he's not missing out on

anything. There are times he still likes to

sit down and write and times he likes to

take out his camera and shoot pictures.

Lawyers do not always get to utilize their

creative sides. But Moore says he enjoys

helping people through their situations

and is doing what he has always want-

ed to do.

And now being the new bar presi-

EEOCDiscrimination

Consultantdent. he'll be able to do as his mentor

did and lead by example.

~I Thr \r~maj I.ltl)rr Sunlnlrr IlY6

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Legal Aide For Tornado Victims SpinsBetter Image for Arkansas Attorneys

by Stacey DeWittPhotography by Kaia Larsen/Press Argus Courier

"Most attorney's don "I bite:" jokes

David Vandergriff. President of the

Sebastian County Bar. The general

publics fear of lawyer:;. even when they

are trying to help, is something

Vandergriff has experienced personally.

ow. he is leading an effort that may help

at least the Fan Smith public overcome

its suspicions of well-inlcntioned bar

members.

After a devastating tornado deposited

millions in destruction in onhwesl

Arkansas. Vandergriff and the Sebastian

lO no \r~lIllS I.all)'t Su"." 1995

County Bar put together an assistance

program. Fifty area auomeys volunteered

and with the help of the Young Lawyers

Division of the Arkansas and American

Bar Association. the Federal Emergency

Management Agency (FEMA) and the

Crawford/Sebastian Volunteer Attorney

Project. Tornado Legal Services Project

(TLSP) was formed. Who better than a

lawyer to help victims unravel the red

tape of an out of state insurance compa­

ny? Especially if its free! Surely victims

arc standing in line for the service. But.

apparently not.

Due to attorney's image problem. citi·

zens are tentative about the well-inten­

tioned handout. Cathie Porter. the TLSP

coordinator. says that many times people

hang up when she suggests they talk to a

lawyer. They will tell Porter their prob­

lems. but fear a lawsuit beckons when an

attorney gets involved. After some reas­

surance and nudging. the ones who stay

on the line find just talking with an altor­

ney may help solve eviction problems.

disputes with contractors or simplify the

Volunteer lawyers

are prohibited from

charging anyone who

calls the TLSP refer­

ral hotline and most

attorneys attended a

training session organized by Vandergriff

so that real help was available when vic­

tims called.

The Crawford/Sebastian Bar efforts

could be a public relations coup. The one

to one contact can often convert a tenta­

tive victim into a cheerleader for the legal

profession or at least for the individual

attorney who helped.

Vandergriff has effectively used the

free media so that the multitudes will

know about the individual efforts.

KFSM-TV broad­

cast a story on the

effort as did the

Southwest Ti mes

Record. Vandergriff

has been quoted as

saying things like,

s:-.I!!!'!_~

"People need to understand that we're

here to work for them." Others who are

working with the project are spreading

the message that lawyers do a lot of free

legal work, but don't usually get credit

for it.

The TLSP is a substantive bar effort

that will put any slick advertising cam­

paign to shame. It's good people doing

good works and getting credit for it. It

would be hard to find a beller spin than

that.

People Deservinga Special Mention...

CATHIE PORTER is currently working witha victim who was in the hospital for 40days. She was blown by the tornado fromher rent house (which was destroyed) andlanded in an adjoining field. She had quitea bit of debris imbedded in her leg, andwhen she was just about ready to bereleased from the hospital, she suffered astaph infection, all of which necessitated40 consecutive days in the hospital.Cathie is trying to find someone who canassist her with a number of problemscaused by the tornado and has agreed to doall of this on a volunteer basis.

• GARY UOOUJ (Warner & Smith) paid$1,000 out of his own pocket to bring inIna DeLong, who is the leader of an orga­nization called United Policyholders. Shegave seminars and answered questionsabout policyholders' rights in a disaster.Gary contacted bar associations in otherarea where disasters struck and obtained agreat deal of information that helped to setup the Sebastian/Crawford County pro­gram.

• BODny WALLACE, a property claims super­visor for the Trinity Companies inAlexandria, Louisiana, flew commercially(at his company's expense) to Fort Smithfor the training and coordination session atWestark Community College on May 8,1996. Bobby had laryngitis and couldbarely speak, but he provided copies of anumber of policy forms and imparted valu­able information concerning the variouscoverages under different types of policies.

BILL RAHN, Director of The ResourceCoordination & Training Unit forArkansas Legal Services Program, puttogether an 8-page summary oflandlord/tenant issues and drove fromLittle Rock to Fort Smith to speak at thetraining and coordination session.

SHELLY MOORE, a lawyer with theArkansas Attorney General's officeConsumer Affairs Division, drove fromLillie Rock to speak at the training andcoordination session.

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Waterlilies/Monet 1914

A Checklist of Arkansas Common Law and State GovernmentControls Applicable to its Use

I. I TROD eTIONUnlike coal. natuTal gas, or oil, water is a nal­

ural resource that is often taken for granted. Wesometimes fail to recognize that an adequate sup­ply of quality water is needed 10 support agricul­tural and industrial operations along \Vilh residen­tial water users. Wildlife and many recreationalactivities are also dependent on water. The avail­ability of quality water for these and other uses isoften overlooked.

Some areas of the slale currently. or may in thefuture, find themselves with inadequate supplies ofwater of sufficient quality to support certaindesired uses. Even in areas generally perceived tohave sufficient water supplies. individual proper­ties or facilities may have deficiencies. The exis­tence of an adequate supply may not be the onlyissue. Also relevant may be the accessibility of thisresource.

The accessibility issue C~]Il have two aspects.Whether a propeny or facility has the physical

II Tit \ru'IilIJ~)/f S...ff Illi

capability to transport or has access to water isimportant. However. the question of whether thereis a legal right to a given quantity of water isequally imponanl.

The absence. availability, access to or presenceof water can therefore be an important attribute ofsome properties or facilities. Whether this is a pos­itive or negative depends of course on the circum­stances. For example, a property adjacent to a largestream may enjoy the benefits of access to waterfor industrial. agricultural or recreational purposes.In contrast. a facility that is nOI contiguous to sur­face or groundwater may be deemed disadvantagedbecause of its dependence on a water source overwhich it has no control. Of course. the movementof water such as wet weather nows across a prop­eny may in some instances constitute an opera­tional expense or liability.

Water related issues are accordingly a key con­cern for aLlorneys advising clients in relation to avariety of transactions and projects. Determining

the respective rights and obligations relat­ed (Q water can require the identificationand analysis of some often subtle legalissues. These issues range from a facili­ty's ability to divert and lise water (Q aclarification of access or property rightsrelated to a non-navigable stream. A col­lection of common law decisions.statutes, and regulations alone or in com­bination must be reviewed to addressthese and a variety of other issues.

Concerns about the availability ofwater in some areas of the state hasresulted in the enactment of limited stategovernmental controls. These statutory orregulatory controls could be expanded inthe future and should be considered inevaluating those projects or transactionsin which water use or management willplaya key role. Also potentially relevantare programs enacted by the Arkansaslegislature that provide incentives for cer­tain types of water resource facilities.These programs might playa positive rolein some projects.

The goal of this article is to list andbriefly summarize the key common lawdecisions. statutes. and regulations thataffect the use or management of surfacewater and groundwater. The interaction ofthese judicial decisions and governmentalcontrols, along with their potential impacton properties and facilities, is also brieflyaddressed. This anicle will not addressthe various federal and state pollutioncontrol statutes and regulations that pro­tect groundwater and surface water quali­ty.

Please note that this article is notintended to be an in-depth survey of thesubject. For a comprehensive analysis ofArkansas water law including detaileddiscussions of the various public policyissues, the reader is referred to the excel­lent series of articles by Professor l.W.Looney of the University of ArkansasSchool of Law1

II. USE AND AVAILABILITY OFWATERA.GENERAL

Available water exists in two forms:surface water and groundwater. Surfacewater is found in lakes, rivers, streams.bogs, and marshes2 Groundwateroccurs in aquifers and Inay be defined aswater in the saturated zone that is under apressure equal to or greater than allnos­pheric pressure. 3 An aquifer is a water­bearing layer of rock that will yield water

in useable quantity to a well or spring.4

Though a limited resource, water isneeded by many. Economies are depen­dent on it, as industry and agriculturecannot survive without it. Some industriesevaluating various sites for a facility willconsider the availability of quality waterjust as they do other factors such as ener­gy costs. Cities and individuals demand itfor drinking and other domestic purposes.Water is also in demand for its recreation­al and aesthetic value. As fishing, boat­ing, and other water-related activitiesbecome more popular, many peopledesire to live or vacation on lakes andrivers. Additionally, wildlife and vegeta­tion are dependent on water for their exis­tence. Though in some areas water isabundant. others have a limited amountwhich may not be able to satisfy multipleor inconsistent uses.

In determining which of these com­peting uses have priority, the water'squality, quantity, and availability must beconsidered. When faced with a proposeduse, the first concern is the availability ofwater for that use. Even if the area is onewith large amounts of water, the costs ofgaining access to the supply may some­times be prohibitive. If the water is in anaquifer, it must be pumped through awell, or if it is located off of a tract ofland, the water must be transpoJ1ed.Storage is sometimes a necessary compo­nent of the system, panicularly in thecase of surface water. Such alternativesmay not be economically or technologi­cally feasible in some instances.

Even if access to the water is possi­ble, the actual quantity or quality of theavailable water may be inadequate.Substances found naturally in a particularbody of surface or groundwater mayimpair certain uses. For example, theArkansas River contains high levels ofchloride due to naLUrally occurring salt­bearing rocks in Oklahoma.S Of course,pollutants generated by various humanactivities Illay also diminish the useful­ness of some water bodies: a streamreceiving an excessive amount of organiceffluent from manufacturing facilitiesmay not support a cold-water fisherybecause of the reduction in oxygen levels.Similarly. a groundwmer aquifer could bethreatened by contaminants generated bya variety of activities. 6

In addition to quality and availability,the quantity of available water must also

be considered. The source of the watermay be one that will be quickly depletedand slowly recharged. Additionally, thesupply may not be a constant one, butmay vary with the seasons. For example,during the hot summer Illonths a decreasein quantity may resull from evaporationlosses or from increases in demand byirrigators or other users. This may be akey consideration since some uses requireaccess to a minimum quantity of waterover the entire year.B. ARKANSAS

Arkansas has abundant amounts ofboth ground and surface water. 7However, the resource sometimes has tobe allocated among multiple competinguses, including agricultural, industrial,and municipal demands. 8 This humanactivity has a substantia] impact on boththe quantity and quality of Arkansas'water9 When these quantity and qualityissues are combined with the availabilityand location problems, Arkansas' supplyof useful water does not appear as plenti­ful. The Arkansas Soil and WaterConservation Commission ("ASWCC")and the Arkansas Depanment of PollutionControl & Ecology should be consideredtwo key sources of informmion aboutArkansas water resources.

Arkansas uses approximately 4.76million gallons of water per day, and thisuse is expected to increase by 140% asadditional cropland is put under irriga­tion. 1O Eighty percent of this demand issupplied by ground watern The majorityof these ground water withdrawals areused for irrigation purposes. 12 ThoughArkansas receives sufficient precipitationto recharge its ground and surface watersupply, excessive withdrawals may bedepleting ground water sources in someareas of the state .13 For example, thepumping rate of the alluvial aquifer ofeastern Arkansas exceeds the rate ofrecharge by as much as 17%14 If thisoverdraft continues, well yields may fall,and ultimately, the aquifer may be a lostsource. IS

Inseparable from these quantity issuesis the quality of water. The aquifer over­drafts are critical not only because thesource is being depleted, but also becausethey may degrade the quality of the water.The large withdrawals may increase thesalt uses. 16 Additionally,industrial discharges. as well as humanand animal wastes, can, if excessive,

II Hr .Irlllm 1,1.!rr Summrr 199&

harm water quality ,17 The use of waterto irrigate may in some instances,increase the sediment levels .18

Both Arkansas and federal programsexist whose goal is the protection of sur­face Waler quality through the attainmentof water quality standards. 19 Water qual­ity standards are provisions of federal orstate law that list or determine the use oruses of a certain segment of a waler body.The level of water quality that will benecessary to support the designated usesis determined by these standards. 20Arkansas, like other states. has set desig­nated uses for most water bodysegments.21 Anyone considering the useof a given water body may want to reviewits designated uses.

Unlike surface water, neither the fed­eral government nor Arkansas has a com­prehensive program in place whose pur­pose is to maintain groundwaler quality.Specifically, there are no mandatorygroundwater quality standards nor anypermitting program. Instead, groundwaterquality is somewhat haphazardly protect­ed by diverse stale and federal programsthal regulate specific activities that maygenerate potential contaminants. Thoseinclude. for example, sanitary landfillstandards, underground storage tankrequirements and pesticide use and dis­posal requirements. 22

While Arkansas has a shortage ofgroundwater in some areas, the state doeshave excess surface water. 23 There hasand continues 10 be interest in encourag­ing a greater use of surface water. Thedilemma has been the facl that utilizationof surface water is sometimes moreexpensive. The Arkansas legislalure hastherefore enacted a program that seeks toencourage greater use of surface water. IIis intended 10 mitigate somewhal the costof building the storage and collectioninfrastructure necessary to utilize surfacewater.III. APPLICABLE LEGALREQUIREMENTS

Water is clearly a resource necessaryto all and subject to conflicting demands.As a result. questions involving owner­ship and the priority of various uses ofwater can arise in many situations. Forinstance. an allorney advising a clientabout the acquisition of property or afacilily may need to determine whalrights exist, if any, to any contiguous sur­face or groundwater. The importance of

16 Th' Irhnl'l!',"),r Summrr 1996

this issue would be driven by the pro­posed use of the property or facility andthe corresponding WaleI' demand. Thequestion might become more complicatedif the proposed source of water is notcontiguous to the property or is localed in:I different watershed.

Research in this area begins with thecommon law. Various key principles stillgovern many issues. Various Arkansasstatutes and regulations supplement, andin some cases supersede, this body ofcase law. While they apply potentialrestrictions in limited instances, they alsoprovide an opportunity for clarifying orquantifying available water rights.A.COMMO LAWI. Right to se Water.

In the United States C' .5."), the useand allocation of surface water is general­ly governed by one of two common lawdoctrines: the prior appropriation doctrineor the riparian rights doctrine. The basicpremise of the prior appropriation doc­trine is that those who lise the water firsthave a legal right to the continued use ofthat water, The main limitation is that thewater be put to Hbeneficial use." Thisapproach is followed by the majority ofstates in the western U.S., where theresource tends (Q be more scarce.

The riparian righls doctrine, on theother hand, is followed by most of thosestates, including Arkansas, which are con­sidered to have a more abundant supplyof water. 24 Under this doctrine. Ihe rightto use water exists by virtue of the owner­ship of riparian land. Because all ownersof land abutting the water course haveequal rights to the water, each riparian islimited in terms of quantity and purposeto "reasonable use" of the water. This testgives due regard to the rights of the otherriparian owners and prohibits one riparianfrom using the water in a way thaI willcause "unreasonable damage to otherriparian O\vners:,25

In adopting the reasonable use theory.the Arkansas Supreme Court clarifiedthe doctrine. 26 Fishing. swimming, irri­gation. and recreation are all consideredlawful uses. Among the lawful uses, theright to use water for domeslic purposes.such as for household use. is superior toany other use; behind domestic use, how­ever. all other lawful uses are equal.When one lawful use of water interfereswith another, the reasonable use inquirywill be applied to the facts of that particu-

lar situation to determine if the interferinguse should be enjoined or an equitableadjustment made. The reasonable use testwill not allow one lawful use to destroyanother lawful use.

Under the common law, riparian own­ers were prohibited from transferringwater to an off-tract use. 27 In HarrellI'.

City of Conway. the city impoundedwater by constructing a dam acrossCadron Creek. The City of Conway want­ed 10 use that water as its municipal sup­ply, and thus sought to enjoin rice farmersfrom taking water from the creek when­ever the water depth fell below 6 feet.Wi thouI specifically adopting the reason­able use theory of riparian rights. thecourt noted the city's plan to remove thewater from the watershed and sell it com­mercially would not pass the reasonable­ness test. 28

Though such transfer restrictionswere intended to protect riparians. theyalso have the potential to discourageinvestment and economic developmcm,and prevent maximum beneficial use ofthe water. Accordingly, the prohibitionson water Iransfers were slowly relaxed,29and presently, Arkansas, like Illany states,has statutory and regulatory provisionsthat may, to a certain extent, supersedethese common law restrictions. 30

Consistent with its approach to sur­face water, the Arkansas Supreme Courthas also adopted the reasonable use rulefor ground water. 31 Landowners canmake reasonable usc of undergroundwater. As demonstrated in Jones v. 0:.­Ark-Val POLlltry Co.. this doctrine pre­vents one landowner from unreasonablyharming other landowners. In that case.the Arkansas Supreme Court found that apoultry processing plant's use of subter­ranean water was unreasonable where itcaused the defendanl's well to run dry.The uncertainty and expense associatedwith groundwater modeling has probablylimited the number of disputes to thispoint.

Though the reasonable use approachto surface and groundwater appears fair.the doctrine arguably sacrifices pre­dictability. The reasonableness test is asubjective balancing of particular facts 011

a case-by-case basis.32 As a result. ariparian owner's rights are difficult toquantify. When a riparian tract is sold andthe water put to a different use. the rightsof the neighboring riparians may have to

change to accommodate that new use solong as it is reasonable.

Even if the circumstances enable oneto reliably quantify Ihe available waterrights at a given point of time, circum­stances can change. Events beyond thecontrol of the landowner could changethe components used in the calculation.Such events might include the arrival ofadditional users of the water body.Likewise a drought or other event mightreduce the amount of water deemed avail­able under the reasonable use theory.Because of this difficulty in quantifyingwater rights, advising a client whorequires access to a specified volume ofwater cannot be done with certainty insome instances.2. Access and Ownership Issues.

Though a riparian owner does notown a property interest in the water itself,ownership of the land underlying a bodyof water is an issue. The answer to thisqueslion turns on whelher Ihe body ofwater is considered "navigable". The testfor navigability is whether the body ofwater is potentially useful for commercialpurposes, not whether it has actually beencommercial purposes in the past. 33

The previously cited definition wasexpanded in State v. MelII'oy, whichinvolved the Mulberry River. TheArkansas Supreme Court held that therecreational value, as well as the commer­cial value of a water body, can be consid­ered in determining navigability. 34Moreover, a body of water does not haveto be floatable year round. Rather, a waterbody is deemed navigable if it is capableof transporting materials for part of theyear35

With a non-navigable stream, thecommon-law presumption is that a ripari­an landowner's property extends to thethread, or center, of the stream. 36 Torebut this presumption. a grantor mustexpressly reserve rights to the stream inthe deed; describing the property as run­ning "to the bank" of the stream is notenough to indicate such an intent.37

The riparian owner of a navigablestream has rights only to the high-watermark.38 which demarks Ihe bed from thebank. 39 The stale holds the ownershipinterest in the bed. 40 The high-watermark is indicated by the existence of veg­etation and the state of the soi1.41 Thus, ariparian's rights include the right to freeingress and egress from his property to

the water. However, unlike a landowneralong a non-navigable body of water, ariparian owner on a navigable stream maynot have the righl to keep others out ofthe water in front of the riparian propertyor even the right to prevent others fromusing the shore between the high-watermark and the water's edge, as long as thatuse does not unreasonably interfere withthe riparian owner's use.42 An interestingissue that has not been squarely addressedby the Arkansas courts is whether andunder what circumstances the public maygain access to a non-navigable waterbody through a prescriptive easement.In addition to considering the issue ofwho owns the bed, the determination ofnavigability may also answer the questionof who may use the surface of the water.Because the bed of a navigable waterbody belongs to Ihe state, the public has aright to use the surface.43 A riparianowner may not prevent anyone from suchuse unless that use unreasonably inter­feres with thepropertyowner's use.Unlike a navi­gable waterbody, the pri­vate owner­ship of a non­navigablewater bodybed limits theuse of thesurface toriparian own­ers. However,Ihe method inwhich suchuse is allocat­ed amongthose ownersis unclear.Wilh regardto nonnaviga­ble lakes,some jurisdic­tions followthe rule lhatall riparianowners ownto Ihe centerof the lake ina pie-shapedfashion andall possessequal rights

to the enjoyment of the lake. However,some jurisdictions have recognized anexception for lakes which provides thatwhen the deed describes property alongeasily identifiable boundaries, such asland lines or metes and bounds, the partyowns the bed along those lines and mayexclude others from the portion of thelake lying upon the landowner's land.Arkansas case law does not definitivelyaddress this issue.3. Drainage Management.

Water and its movement sometimesposes a problem for landowners. This isparticularly true for wet-weather flows. Acommon dispute is the ability of alandowner to prevent surface water fromflowing across his land. Because of thecosts sometimes related to run-off,landowners sometimes view water in thisform as an unwanted expense.

The law of surface water run-off inArkansas gives a landowner the right toprevent surface water from coming onto

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his property, as long as he does notunnecessarily damage any neighboringland.44 In Pirrle v. Opeo. Inc., a ricefarmer constructed a road thaI preventedrUIl-off from flowing across his fields.This obstruction caused the plainliff'sland to flood and made it unfit for naturaluse. Referring to other, less injuriousalternatives, the court found that the damdid unnecessarily damage the neighbor'sproperty. The defendant was ordered toprovide for the natural drainage of thewater from Ihe plaintiff's land.

Though a landowner may defend hisproperty against surface run-off to a rea­sonable extent, he has no right to obstructthe flow of water within a natural waler­course.45 In Boyd v. Greene Coullly, afarmer caused the flooding of a countyroad when he built a levee to divert run­off. Greene County brought suit, claimingthaI the run-off water was actually awatercourse, and the farmer, therefore.had no right to obstruct the flow withoutpaying for the resulting damage. Stalingthat a natural watercourse has a definitivechannel with a bed and banks, the courtconcluded Ihat the evidence at trial indi­cated that the flow at issue was nothingmore than surface run-off. The court,therefore, remanded the case for a deter­mination as to whether the defendantcould have chosen a less damaging way10 defend against the run-off waleI'.B. ARKANSAS STATUTORY/REGULATORY PROGRAMS1. Governmental Controls.

The state of Arkansas has had inplace limited statutory authority overwaleI' use since Ihe 19505. These authori­ties have been expanded somewhat in thelast ten years. The ASWCC is the agencythat administers the key water use author­ities. It has promulgated several sets ofregulations to implement these statutoryauthorities.(a) The General Use and Allocation ofWater Resources: Ark. Code Ann. § 15­22-20 I er seq. (1994) and Ark. Code Ann.§18-15-702 er seq.Ark. Code Ann. § 15-22-20 I er seq.(1994) establishes the power of theASWCC to issue permits for the con­struction of dams, issue certificates ofregistration for waleI' diverted fromstreams, allocate water from streams dur­ing times of shortage, and conduct hear­ings and issue orders related to theseother powers. Ark. Code Ann. § 15-22-

~S Thrlrkanm tall.ltr Summrr 1995

205. A pennit issued by the ASWCC isneces ary for the construction of a damwhich impounds more than 50 acre-feetof water or which is morc than lwemy­five feet high. Before granting a permitfor a dam. the ASWCC must give noticeand allow imerested pan ics to make theiropinions known concerning the construc­tion of the dam. 46 Other statutesaddressing the erection of dams can befound at Ark. Code Ann. § 18-15-702 elseq.

Anyone who owns the land on eitherside of a non-navigable stream may erecta dum across the stream. Ark. Code Ann.§ 18-15-703. However. if the dam is like­ly to cause overflow of the stream toproperty owned by others. the buildermust first file a peLition in circuit court.and the judge may then issue an orderproviding for the erection of the dam. or.in his discretion. may consult a jury toget its opinion.

Ark. Code Ann. § 15-22-20 I el seq.requires any person diverting water froma stream. lake. or pond to register thatdiversion with the ASWCC. The statutealso gives the ASWCC the power to allo­cate water in periods of shortage, lakinginto consideration the priorities of sus­taining life. maintaining health. andincreasing wealth.

The ASWCC is also provided theauthority to allow transfer of surface

water (0 a non-riparian under specifiedconditions. The ASWCC Illusl considerwhether excess surface water is availablefor transfer to non-riparians in light of thefuture water needs of the basin of origin.A key issue is. therefore. what constitutes"excess surface water." This is defined bythe ASWCC regulations.

The Title III regulations provide theprocedures for operating these programsand further delineate a variety of keyterms. It addresses water diversion. regis­tration allocation during shortages. and

permits for intrabasin and interbasintransfers to non-riparians. Affected waterusers should recognize the need to main­

tain compliance with the relevant proce­dures. For example. a failure to register acovered diversion may jeopardize waterrights during a shortage. Further. the pro­cedural requisites for transfers to non­riparians should be carefully considered.This authority may provide the opportuni­ty to avoid the common law uncertaintyrelated to transfer to Ilon-riparians.

Another set of ASWCC regulationsrelevant to water resources projects arefound in Title VI (Rules for WaterDevelopment Project Compliance withthe Arkansas Water Plan). An example ofa mailer recently before the ASWCC pur­suant to the Title VI rules is III TheMaffer Or Benton COli"')' RuralDeI'elopmellt Authority. Area ··B:· WPC#950727-375 (Final Determination­Arkansas Water Plan Compliance). Itinvolved a review of an application by awater authority 10 determine compliancewith the Arkansas Water Plan for a pro­posal to serve an area that includes theproposed regional airport in northwestArkansas.(b) Arkansas Groundwater Protection

and Management Act. Ark. CodeAnn. § 15-22-90 I el seq. (1994).

The Arkansas Groundwater Protectionand Management Act. Ark. Code Ann. §15-22-901 et seq. (1994). gives theASWCC the power to develop "a com­prehensive groundwater protection pro­gram:· Ark. Code Ann. § 15-22-906. Thisstatute allows the ASWCC to designatecertain areas as "critical groundwaterareas" and to require that a propertyowner have special '·water rights'· beforehe can withdraw groundwater from theproperty.

If the ASWCC designates an area as acritical groundwater area, property own­ers who already regularly take water fromwells in that area may apply for a waterright from the ASWCC and receive theright to withdraw water equal to the aver­age quamity of water withdrawn over thepast three years. For property owners whodo not already take water from wells inan area designated as critical but whoapply for water rights within the area. theASWCC has broad discretion in deter­mining whether any new water rightsshould be issued. The statute does notempower the ASWCC to regulate thewithdrawal of groundwater from any wellwith a maximum flow rate of less than50.000 gallons a day or for individualhousehold wells used exclusively fordomestic use. An example of theASWCCs work in addressing the criticalgroundwater area issue is found in theJanuary 1996 Record of the DesignationProcess I" Re: The Desig"lIfion of theSparta Aquifer Within Bradley. CalhounColumbia, Ouachita and Union COl/lltiesAs A Critical GroufldwlIfer Area No.

CGWA 1995-1.2. Governmental Incentives and RelatedPrograms.(a) Water Resource Conservation and

Development Incentives Act. Ark.Code Ann. § 26-51-1001 elseq.

This program was enacted by theArkansas legislature to provide incometax credits 10 farmers and other users ofgroundwater to encourage them to usesurface water when available and to useall water more efficiently. An importantdistinction to keep in mind when review­ing this stalule is whether the particularwater-conservation project is locatedwithin a "critical groundwater area."which is defined as "those areas that aredesignated by the ASWCC pursuant tothe Arkansas Groundwater Protection andManagement Act, § 15-22-90 I:·Al'ailable ({Lf credits. The available taxcredits fall in three general categories:(i) Wmer impolllldmell1s. Sections 26-51­1005 and -1006 provide an income taxcredit equal to 50% of the cost of con­structing and installing an impoundmentstructure of 20 feel or higher to be usedfor storing water for agricultural irriga­tioll or industrial processing. Key pointsinclude:Limits all the credit. The credit cannotexceed in one year the lesser of the totalincome tax due or 59.000.Carry-Ol'er. The tax credit. if unused. canbe carried over for up 10 nine years fol­lowing the year in which it originated.

ote that unlike other sections of thisstatute. the credit is worth 50% of thecost of construction regardless of whetherthe water impoundment project is locatedin a "critical area·' or nol.(ii) Swface water COlll'ersioll. Sections26-51-1007 and -1008 provide incometax credits for costs involved in imple­menting projects which reduce use ofgroundwater and substitute the use ofgroundwater. in industrial. agricultural.and recreational settings. Key pointsinclude:The credit is worth 50'i!- of the cost of theproject if the project is in a ··critical area:'The credit is worth 10% of the cost of theproject if the project is not in a criticalarea.Carry-over. The tax credit. if unused. maybe carried over for a maximum of twoyears after the year in which it originated.Limits on t!le credi/. The credit cannotexceed in one year the lesser of the total

income tax due or $9.000.(iii) Lal/d levelil/g. Seclion 26-5 I-I 009provides income tax credits for costsinvolved in leveling agricultural land inorder to conserve irrigation water. Thecredit is wonh 10% of the costs associat­ed with leveling the land.

Umits 011 the credit. The credit cannotexceed in one year the lesser of the IotaIincome tax due or $9,000.Carf)'·ol'er. The tax credit. jf unused, maybe carried over for a maximum of twoyears after the year in which it originated.In order to obtain the tax credit under thisstatute. the taxpayer must obtain a certifi­cation from Ihe ASWCC. If Ihe ASWCCapproves the lax credit. the taxpayer mustfile the cenification with his/her laxreturn the first year in which helsheclaims the credit The water impound­ment. surface water conversion. or landleveling project must he completed withinthree years after the ASWCC issues thecertification or the tax credit will have tobe repaid to the state RevenueDepartment. Costs associated with run­ning the water project incurred after theinitial issuance of the certification may beclaimed for the tax credit. subject to theother limitations mentioned above.(b) Arkansas Private WeIland andRiparian Zone Creation and RestorationIncentives Act. Ark. Code Ann. § 26-5 1­1501 el seq. (Supp. 1995).

The Arkansas Private WeIland andRiparian Zone Creation and RestorationIncentives Act. Ark. Code Ann. § 26-51 150 I el seq. (Supp. 1995). providesincentives to any taxpayer who developsprojects to restore or protect wetlands andareas along the banks of rivers andstreams. "Wetland" is a term defined bySection 404 of the Federal WaterPollulion Control Act ("FWPCA"). 33U.S.c. § 1404.

The provisions of this program aresimilar in many respects to the terms ofthe Water Resource Conservation andDevelopment Incentives Act. Any taxpay­er who spends money developing or pro­tecting wetlands or riparian areas is enti­tled to a credit in the amount of moneyspent. Ark. Code Ann. § 26-511505(b)( I).The annual credit may not exceed thelesser of the amount of corporate or indi­vidual income tax owed or $5,000.

In order to obtain the credit, the tax­payer must first obtain approval from theASWCC and. when the tax return is filed,

it must include with it a certificate of taxcredit approval. If a taxpayer claims thiscredit, the conservation project must befunctioning within three years of obtain­ing approval from the ASWCC and mustbe maintained for len years.(c) The Arkansas Wetlands MitigationBank Act. Ark. Code Ann. § 15-22- 1001el seq. (Supp. 1995).

In order to promote the restorationand conservation of wetlands in Arkansas.the Arkansas Wetlands Mitigation BankAct. Ark. Code Ann. § 15-22-1001 et seq.(Supp. 1995). creates "mitigalion banks:'or publicly owned and managed weIlandareas to offset losses to wetlands causedby activities which olherwise complywith state and federal law. Under thisstatute, when a permittee, operating undera permit issued pursuant to Section 404of the FWPCA. is required 10 mitigaledamages caused by dlcdging or filling ina wetlands areas. the permiuee may fulfillhis obligation to mitigate through the pur­chase of credits issued by Ihe ASWCC.Ark. Code Ann. §§ 15-22-1002 - 1004.The credits are Ihen 10 be used by IheASWCC to restore and maintain the pub­licly owned miligalion banks. Id. at § 15­22-1004.(d) Regional Water Distribution Act. Ark.Code Ann. § 14-116-102 el seq. (1987).The Regional Water Distribution Act.Ark. Code Ann. § 14-116-102 el seq.(1987). passed by Ihe Arkansas legislaturein 1957. provides for the crealion of pub­lic. nonprofit regional water distributiondistricts for the purposes of acquiring.purifying and treating. lransponing. anddistributing water resources. Ark. CodeAnn. § 14-116-102. The ArkansasSupreme Court in Lyon \'. White Rh'er­Grand Prairie Irr. Dist. clarified thatbesides municipal and industrial uses. thestatute included the establishment ofwater districts for agricultural purposes. 47

To establish a water district. one hun­dred or more qualified voters living orowning propeny within Ihe boundaries ofa proposed district must petition the cir­cuit court in the county in which the pro­posed district is located. The petitionmust include a statement demonstratingthe need for the water district, the loca­tion of the district, and the expected bene­filS of Ihe dislrict.

The circuit clerk must send the peti­tion to the ASWCC who will review thepetition and make findings as to whether

the water district can achieve its purposesand whelher il would promole Ihe generalwelfare and aims of this statute. TheASWCC is then required to send its find­ings to the circuit court. which will givenotice in the newspaper to residents ofthe district and will detennine. after apublic hearing. whether the water districtshould be established. Ark. Code Ann. §14- 116-205. Before or after the circuilcourt issues an order approving a pro­posed district. any propeny owner maypetition the circuit court to have his prop­erty excluded from the district for agri­cultural irrigation purposes.

Under the lerms of Ihe slatute. aregional water district is governed by aboard of no fewer Ihan Ihree directors.each of whom is a registered voter resid­ing within the district. Ark. Code Ann. §14-116-301. After it is created and theboard established, the water district hasthe power to acquire. store. and sellwater: to construct facilities to storewater; to acquire property for use in dis­tributing water: to borrow money andissue bonds: and to exercise the right ofeminent domain.(e) Arkansas Water ResourcesDevelopment ACI of 1981, §§ 15-22-60 Iel seq. (1987).

The Arkansas Water ResourcesDevelopmenl Act of 198. §§ 15-22-60 I etseq. gives the ASWCC broad powers 10

develop and regulate water resources pro­jects and provides for the issuance ofbonds to finance its projects. Ark. CodeAnn. §§ 15-22-606-605. To issue thebonds. the ASWCC must first submil aplan to the Governor detailing how therevenue from the bonds would be used.After consulting with the ArkansasLegislative Council. the governor thenhas discretion as to whether to order thatbonds be issued.

The bonds are payable from Ihe gen­eral revenue of the state as defined by theRevenue Stabilizalion Act. Ark. CodeAnn. § 19-5-101 el seq. Ark. Code Ann. §15-22-616. Thcse bonds are exempt fromstate income. inheritance. and propertytaxes.IV. CONCLUSION

An examination of water right issuesshould involve a review of both Arkansascommon law along with relevant statestatutes and regulations. These issues maybe relevant to transactions involving facil­ities or properties where the use or man-

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agement of water will be important Thenewly created programs intended 10

reward certain types of water resourceprojects should also be of interest

Walter G. Wright, if; is a member andAlbert 1. Thomas, III is an associare ofthe LillIe Rock law finn of Mitchell,Williams, Selig, Gates & Woodyard,PL.L.c. They are members of the finn'sEnvironmental and Natural ResourcesPractice Group. Wright also serves as all

adjuncI professor 01 Ihe UALR School ofLaw. Also assisting in the preparation ofthis article were Robert F. Thompson,11/, and Holly Larkin, bOlh of wholll are3rd-year law students at the UniversityofArkansas and Vanderbilt Universityrespectively.

EndnotesI. See, Enhancing the Role oj WaterDistricts ill Groundwater Manageme1l1 andSurJace Water Utiliz.ation in Arkamas, 48Ark. L. Rev. 643 (1995); An Updale onArkansas Water Law: Is the RiparianRights Doctrine Dead? 43 Ark. L. Rev. 573(1990); Modification ojArkansas WaterLaw: Issues Gild Alternatives, 38 Ark. L.Rev. 221 (1984).

2. Charles J. Meyers & A. Dan Tarlock,Water Resource Manageme1l1, 7 (2d Ed.1980).

3. Heath, Basic Groundwater Hydmlogy ii

(U.S. GPO 1983).4. Id.5. Arkansas Soil and Water ConservationCommission, Arkansas Water Plan:Executive Summary 9 (1990) [hereinafterArkansas Water Plan].

6. Activities potentially causing groundwa­ter pollution are numerous and diverse.

They range from defective landfills and sur­face impoundmel1ls to leaking underground

slorage tanks. See Wright, In Storage TanksWe Trust: An Analysis oJ Their Role {ll

Protecting The Environmelll and SmallBusiness, 13 U. Ark. Little Rock L.J. 417(1991) (discussion of underground storagetank issues).

7. Arkansas Water Plan, supra note 5, at 2.8. Id.9. Id. at 9,12.

10. Id. at 15.

II. Arkansas Water Plan, supra note 5, at15.12. Id.13. Id. at 21-22.14. Id. at 12.15. Arkansas Water Plan, supra note 5, at

17.16. Id. at 12.17. Id.18. Id.19. Clean Water Act, 33 U.S.c. § 1251 elseq.; Arkansas Water and Air PollutionControl Aet. Aet 472 of 1949 (as amended.eodifled at Ark. Code Ann. §8-4-1 0 I. eI

seq.) Any facilily discharging a pollutantthrough a point source into a navigable bodyof water must have a National Pollution

Diseharge System ("NPDES") permit. See33 U.S.c. § 1301. The terms "pollutant" and';poinl source" are broadly defined.

Arkansas administers this program pursuantto ADPC&E Regulation No.6. A permit'seffiuent limitations are based initially on

categorical technological controls.However, where necessary for the relevant

segment of the water body to achieve speci­fied water quality standards, the permit may

contain more stringent effluent limitations.20. See generally Clean Water Act 33U.S.c. § 1303 el seq.21. See ADPC&E Regulation No.2.22. See ADPC&E Regulation No. 22 (sani­tary landfill standards), ADPC&E

Regulation No. 12 (underground storagetank standards), Federal InsecticideFungicide and Rodentieide Aet 7 U.S.c. §

136 et seq. (pesticide use and disposal statu­tory requirement).23. Arkansas Water Plan, supra note 5, at

22.

24. See Harris v. Brooks, 225 Ark. 436(1955).

25. Id. at 442.26. Id.27. See Harrell v. City of COl/way, 224 Ark.100 (1954).

28. Id. at 104.29. See Lingo v. City ofJaeksol/ville, 258

Ark. 63 (1975) (indicating that a transfer ofgroundwater would be permissible if noharm resulted to the overlying landowners);see also Miller II. United States, 492 F.Supp. 956 (ED. Ark. 1980) (suggesting thatan interbasin water transfer can take placewhen a surplus exists).30. See Seetion III (8) of this article.31. Jones v. Oz-Ark-Val Poultry Co., 228Ark. 76 (1957).32. See Harris v. Brooks, supra note 24.

33. Barbaro v. Boyle, 119 Ark. 377 (1915).34. Stale v. Mcilroy, 268 Ark. 227 (1980).A recent Arkansas Attorney General's opin­

ion addressing various issues related to lakeownership is found at Gp. Att'y Gen. No.95-226 (1995).

35. Id.36. Nilsson v. Latimer, 281 Ark. 325(1984).37. Id. at 327.

38. Barbaro v. Boyle, 119 Ark. 377, 380(1915).39. Anderson II, Reames, 204 Ark. 216

(1942).40. Barbaro, supra note 38, at 380.41. Anderson, sl/pra note 39.42. Id.43. State v. Mcilroy, supra nOle 34.44. Pirtle v. Opco, Inc., 269 Ark. 862 (App.

1980).45. Boyd v. Greel/e County, 7 Ark. App.110 (1983). An interesting decision

addressing the scope of a flowage easement

and Lake Catherine is Carsin v. ArkansasPower & Light Co., 14 F. 2d 399 (8th Cir.1993).

46. An interesting case involving a dam dis­pute between differem property owners

involving the ASWCC is Styers v. Johnson,119 Ark. App. 312, 720 S. W.2d 334 (1986).47. 281 Ark. 286, 664 S.W.2d 441 (1984).

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Defense Trial LawyerJonesboro defense firm is seekingtrial lawyer with at least 2 to 5 yearsexperience. Salary commensuratewith experience and ability. Jurytrial experience is required.Response strictly confidential. Sendresume to Jonesboro, c/o ArkansasBar Association. Attn: Sara Landis,400 West Markham. Lillie Rock, AR7220 I.

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D MEDIATIO

BUMPASS, J.D.ARBITRATIO

RONALD E.

PROFESSIO AL ASSOCIATIO S:

Arbitration Panel of the U.s. Department of Labor's Federal Mediation and Conciliation ServiceAmerican Arbitration Association's Labor Commercial Panels

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10-19 (Harvard Univ. Press 1993).7. Roscoe Pound, All IlIIrodllction to tlie Philosophy ofUIW 70-71 (Yale

Univ. Press 1922).8. Roscoe Pound, Law and Morals 75 (Rothman 1924).9. Howard. supra at 185.10. Huward. slIpra at 51.II. Howard. supra at 24-29: Morton Horwilz. The Tran!-'fomullioll of

AmericllII Law 1870- I960: The Crisis of Legal Orthodoxy 230-246(Oxford Univ. Press 1992).

12. Quoted in Howard. supra at 184.13. Howard. supra at 229.14. Howard, sllpra at 10-11.15. William Greider. Who Will TelJ The People: The Betra.val of

Americall Democracy 46 (Simon & Schuster 1992).16. Peter C. Yeager, The Limits of Law: The Public Regulation of

Private Pollution 284-292 (Cambridge Univ. Press 1991).17. Charles Fried, Order and Un,,: Arguing the Reagan Revollition 183

(Simon & Schuster 1991).18. Richard Epstein. Takings vii (Harvard Univ. Press 1985).19. {d. at 28420. Horwitz. supra at 151.21. White. supra at 84.22. Stephen Breyer. "The Lessons of Airline Deregulation," Reforming

Regulation 93 (American Enterprise Institute 1980).23. "Regulalory Reform: The Case for Common Sense (An Interview

with Philip K. Howard)" The Washington MomMy. September 1995 at23.

24. Fuller. supra at 64.25. Howard, supra at 179.26. Howard. supra al 180.

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NOTICE OF AVAILABILITY OF

COMPETITIVE GRANT FUNDS

The Legal Services Corporation (LSCannounces the availability of competitive grant funds to provide civil legalservices to eligible clients during caledar year 1997. The amount of fundsand date and terms of their availabiliare not known. A Request for Proposmay be obtained from LSC by calling(202) 336-8900; Internet;URL:http:/ /www.lsc.gov/;HAND-SET: HN 3555; LSC BBS: (202) 336-8950. Grant Proposals must bereceived at LSC by 5:00 p.m. EDT,August 21,1996.

II Thr \r~mas I,a.!" Summrr 199i

On Appeal

Amicus Curiaeby D.P. Marshall, Jr.

(D.? (Price) Marsh"II. 11:. is Ch"iro!rhe YOllng Lawyers

Section of 'he Arkansas Bar Association.)

"Beware ofone timing

trap, Our Supreme

Court's Rules tie the

due date for an amicus

brief to the parties' due

dates, Coordinating an

agreed filing date is

therefore essential,"

One of your best cliems is the local newspaper. You

learn. from a lawyer friend in another part of the state. that

another newspaper has filed a notice of appeal from a libel

verdict. The case involves allegedly defamatory material in

an editorial; it will clarify the law in an imponam way. You

tell your client. the local publisher. about the appeal. "Is

there anything we can do," she asks. "other than just wait­ing for the appeal to be decided?"

Yes there is: consider an amicus curiae brief. Our

Supreme Court's Rules provide for "amicus curiae aLtor­

neys:" The Rules provide. that is, for friends of the court 10

file additional briefs. ASCTR 4-6. As a maller of serving

our clients. we need to keep this option in mind. An amicus

curiae brief can provide, in our newspaper case for exam­

ple. a way of getting your client's views heard by the Coun.

Looking out from inside the case, counsel for appellant or

appellee should also welcome another voice in support of

the right result.What are the logistics? Arkansas Supreme Court Rule

4-6 and a handful of cases light the way. Amicus curiae

status is not a matter of right. You must move the court for

permission to file the brief. Despite some loose language in

the annotation for Yares v. SllIrgis, 312 Ark. 397. 849

S.w'2d 523 (1993), your amicus brief is not due when you

move the Court for permission to file it. The brief is due

when the main brief of the party you are supporting is due.

If it remains "neutral" in Rule 4-6's word, taking no posi­

tion on the merits, the amicus brief is due when appellant's

brief is due. Amicus in Arkansas may not participate in

oral argument. ASCTR 4-6.

Beware one timing trap. Our Supreme Court's Rules tie

the due date for an amicLis brief to the parties' due dates.

Coordinating an agreed filing date is therefore essential. If

you are an appellant with an amicus in the wings, for exam­

ple. do not file your brief without confirming a date with

the amicus. The same goes for appellees. An unannounced

filing of one of the main briefs risks rendering the amicus

brief untimely.

Arkansas appellate advocates have been understandably

shy about filing amicus briefs. Our shyness stems from

Fergmall v. Brick. 279 Ark 168,649 S.w'2d 397 (1983). In

that decade-old per curiam decision, our Supreme Court

seemed to frown on amicus briefs. The Court traced the

decent of amicus briefs from helpful friendships. to

unabashed advocacy. and on to mere lobbying. Ferguson,

279 Ark. at 169-73. Concerned that the Court not appear

susceptible to political pressure. the Court announced a new

attitude toward amici: "1 H lenceforth. we will deny perm is-

sian to file a brief when the purpose is nothing more than to

make a political endorsement of the basic brief:' Ferguson.

169 Ark. at 173.

As well-founded as the Ferguso1l Court's concerns

were, they are no bar to effective appellate advocacy as

amicus curiae. The traditional role of amici - aiding the

Court in its search for the right to

result - remains intact. Ferguson.

279 Ark. at 169.

Support one party or the other. as

Rule 4-6 contemplates. but do not

merely parrot a party's arguments, or

attempt to stand in for one of the par­

ties. Gmlllo,.s v. Employers Natio1lal

Insurance COllJOHJtio1l, 318 Ark. 171.

172, 884 S. W,2d 591 (1994). Take

the issues as you find them. Like the

Court, amicus may not expand the

points raised on appeal by the parties.

Mears \~ Lil1le Rock School District.

268 Ark. 30, 34, 593 S.W.2d 42

(1980). Strike out instead for the

essential legal principles involved in the case. Explore the

policy choices animating those principles. And. most

importantly. show the Court the many ways in which this

decision will affecl your client and others. The last point is,

I believe, the difference between an amicus brief that will

be filed and read. and one that will be rejected. E.g..

Arkansas Department of Hilman Services v. Couch. 36 Ark.

App. 241, 242-243, 821 S. W.2d 67 (1991) (motion to file

amicus brief denied where movants were interested only in

the outcome of the case at bar).

Put yourself in the appellate judge's place. In addition

to handling motions, writing opinions. and oral argument.

most every week you face a stack of fifteen or twenty

briefs. Great, you think. this case has an extra brief. But

the amicus brief turns out to be worth (he read. II is shaft.

It is incisive. cuning to the main issue and laying it open.

A bit detached from the particulars of this dispute. it

emphasizes the effect of this decision on future cases. Ittalks policy without being political. Here. then. is a true

friend of the Coun, and an effective advocate for your

client.

\; Tbr Irlanm L311yrr Summrr 1996

CLE Director's Report

An Organization Is Only As Strong As the Commitment,Contribution and Participation of its Individual Members...

by Char/aile Greer

Senior Allomeys 10% Discount(Over 70 or admilled 10 practice 40 years)

Summary of Seminar Registration FeesApprol'ed by the £rel:U1i1'e Council

Congratulations 10 Virginia Hardgra\'e. CL£ Secretary, forcelebrming 15 years with the Arkansas Bar Association.

Regular Fee·

Regular Fee Plusa Surcharge

Meal and coursematerial charge only

Law Students

Discounts Provided Only To:

Basic Registration Fee for Members

Basic Registration Fee for on-Members(Including Non-Lawyen;)

As we bid farewell to another CLE reponing year. it is fit­ting to renect upon the imponant role that our members play inproviding high quality education to Arkansas lawyers. We. theBar Association staff. are proud of the timely seminars and pub­lications produced by the hundreds of volunteer Section andCommiuee members. speakers. program planners. editors andauthors. I would like to thank our many members that gave gen­erously of their time and talents over the past year. We appreci­ate their contribution and realize without their efforts the CLEDivision of this organization would cease to exist.

CLE is essentially members of the bar educating each otherand sharing practical tips on how to better serve their clients.We all know that an organization is only as strong as the com­mitment. contribution and participation of its individual mcm·bers. So, I need your help to ensure the continued vitality ofArkansas Bar Association CLE.

In addition to the usual solicitation of panicipation throughcommittee and section involvement. I'd like your candid inputall a broader issue: is OUf current CLE programming workingfor you? As bar executives we know that CLE seminars canout-grow or out-live their original purpose. Do we have anyseminars like that? Conversely. are there other needs that couldbe met through new CLE seminars?

I'm interested in your preference regarding content anddelivery of continuing legal education. as well as your need forspecific technology based serviccs. products and education.Please share your ideas. compliments or complaints. The resulLswill play an imponant role in the kinds of programming wedevelop as well as the ways we deliver information and services.We can only be successful when we are fulfilling your educa­tional needs.

Thank you for your continuing suppon of your Association'seducational efforts. We look forward 10 your comments.r-----------------------------------------------,: I'd like to share these ideas with the Bar regarding CLE.l Arkansas Bar Association Continuing Legal Education

Send to ABA by fax at (501) 375-3961 or mail to 400 W. Markham.Suite 600. Little Rock. AR 7220 I

Newly Admilled Auomeys 10% Discount(Admitted to practice within 2 years of seminar)

Program Chairs and Facully No Charge

Name (oplional): _

'Normal Charge is $20 per CLE hour. Other rates may apply tocertain programs including the Annual Meeting, Best of CLE,Bridging-the-Gap. CNA. District Trial Praclice. and Co-spon­sored Seminars.

L _

Kenneth L. EdwardsA letter of caution was issued to

Kenneth L. Edwards for violation ofModel Rules 1.2 (a) and 1.4 (a) upon thecomplaint of Matthew S. Dame. Theserules state, in part, that a lawyer shallabide by a client's decisions concerningthe objectives of representation and shallconsult with the client as to the means bywhich they are to be pursued. In a crimi­nal case, the lawyer shall abide by theclient's decision. after consultation withthe lawyer. as to a plea to be entered,whether to waive jury trial and whetherthe client will testify; and, shall keep aclient reasonably informed about the sta­tus of a matter and promptly comply withreasonable requests for infonnation.

In his affidavit, Dame stated that inovember 1993. he was issued a citation

for Underage Driving Under theInfluence and retained Edwards to repre­sent him. He explained the facls and cir­cumstances to Edwards and left with theunderstanding the case would be contin­ued until sometime in March 1994.

Dame stated that Edwards was confi­dent that a negotiation could be workedout and he believed that Edwards wouldcontact him when a plea bargain had beennegotiated. Following the discussion.Dame attempted to contact Edwards onseven occasions. When Edwards failed torespond Dame's father sent him a letter.Having received no response, the elderDame contacted the Court and learnedthat three weeks earlier Edwards entereda guilty plea on behalf of his son. Thejudge suspended his license and assesseda fine and costs. This was done withoutEdward's client's knowledge, consent orauthorization. Finally, Edwards sent aletter to Dame wherein he asserted thatexpungement is available one year fromthe date of entry of the judgment.

For Edwards response, he stated thatsince he was retained a few days beforethe court date he attempted to get thematter postponed to allow time to investi­gate and, perhaps. negotiate with theprosecutor. The case was put off untilearly February. Edwards stated that hisclient initially advised him that he did notwant his parents to know about this cita­tion. Therefore, he did not believe it per­missible to discuss the matter with hisfather. At the time of the court dateEdwards had worked out a deal, but was

disciplinary actions

unable to speak with his client for hisapproval. Edwards decided to emer aconditional plea of guilty on his behalfand sent a letter advising him of thenegotiation. When Edwards received noresponse, he wrote again. Thereafter,Edwards was advised that new counselhad been retained. Edwards concludedby stating that the course to be pursuedwas explained to his client and, at thattime, all parties were satisfied. He addedthat his attempts to communicate with hisclient and his father were unsuccessful.

Donald F, SeayA letter of caution was issued to

Donald F. Seay for violation of ModelRules 1.1 and 8.4 (d) upon the complaintof Wilma M. Hogue Brand. These rulesstate. in part, that a lawyer shall providecompetent representation to a client: and,shall not engage in conduct that is preju­dicial to the administration of justice.

In her affidavit, Mrs. (Hogue) Brandstated that her husband had a daughter,Shirley Renae, by a previous marriage.Shirley Renae went to prison shortly afterthe birth of her son. With her permissionand consent, Mr. and Mrs. Hogue adoptedthe son. Subsequently, Mrs. Hoguedivorced Mr. Hogue and was awardedcustody of their adopted son. ShirleyRenae then filed a Petition To RevokeConsent and Annul the Adoption basedon the fact that the consent did not com­ply with Arkansas law in that it failed tostate that she had ten (10) days withinwhich to withdraw her consem. As aresult of Seays failure to include therequired statutory language in the con­sent, Mrs. Brand stated that she had beenforced into lenghthy and expensive legalbattles to retain custody of her son caus­ing a financial burden and a great deal ofstress.

For his response, Seay stated that [heentire family came to his office desiringto do what was best for the minor child.Seay avers that Shirley Renae had herrights fully explained to her includingthat she would have ten (10) days to with­draw her written consent. Seay admitted.however, that the written consent did notcontain the ten (10) day withdrawalnotice. Seay asserted his belief that theallegations should be denied due to thepassage of time and, in any evem, hedenied the allegations of misconduct.

Don TrimbleUpon the complaint of Linda

Williams, Don Trimble was issued a letterof caution for violation of Model Rules1.8 (e) and 1.8 U). These rules state, inpart that, a lawyer shall not provide finan­cial assistance to a client in connectionwith pending or contemplated litigation;and. a lawyer shall not acquire a propri­etary imerest in the cause of action orsubject matter of litigation the lawyer isconducting for a client.

Ms. Williams stated that Trimble wasretained to represent her in legal mattersarising from a car accident. Williams wasalso under the jurisdiction of the bank­ruptcy court. She continued experiencingfinancial difficulties and received a loanfrom Trimble with which to pay her rent.She stated that Trimble also advanced aportion of her medical expense to herdoctor. The complainant averred that themonies advanced were to be deducted byTrimble from any settlement she mightobtain from her legal matter.

For his response Trimble stated thatWilliams came to him one day andadvised that she and her child would "beput out" of their home unless she paid therent on that day. Bel.ieving her to be ingreat need Trimble advanced the moneyto her. Trimble also stated that he paidthe doctor a consultation fee sinceWilliams was unable to do so, because heneeded the doctor's opinion to evaluatethe case for settlement and/or trial.

John Frank Gihson, Jr,A letter of reprimand was issued to

John Frank Gibson, Jr. for violation ofModel Rules 1.1, 1.3 and 8.4 (d) upon thecomplaint of Charles B. Patton. TheseRules state, in part, that a lawyer shallprovide competent representation to aclient; a lawyer shall act with reasonablediligence and promptness in representinga client; and, a lawyer shall not engage inconduct that is prejudicial to the adminis­tration of justice.

Charles Panon was Gibson's client intwo separate criminal trials in BradleyCounty, Arkansas. In one of the maners,Gibson was retained by Patton and in theother Judge Stark Ligon appointed him.Following the first trial in which Gibsonrepresented Patton, he was required to filehis own Notice of Appeal to preserve hisappellate rights because Gibson would

Ii TIt Ir~lI111 LIW)lr S.lIlr Illi

not do so on his behalf. In correspon­dence to Patton, Judge Ligon explained tohim that Gibson was responsible for theappeal unless he was relieved by theappellate court. Again in his Order deny­ing Patton's Rule 37 petition, JudgeLigon pointed out that Gibson was stillresponsible for the appeal. Because ofJudge Ligon's statements and because nomotion to be relieved was ever presentedto the appellate court, Patton believed hisappeal was proceeding. After Gibsonfiled a Motion for Extension of Time lOFile the Brief, he was notified that thebrief was due August 3, 1994. Gibsonfailed to file a brief on that date.Honorable Leslie Steen wrote Gibson onJanuary 10, 1995 explaining that he need­ed lO take some action. Gibson took noaction and the appeal was dismissed.

The second criminal maHer in whichGibson represented Patton was concludedby conviction on January 5, 1994.Gibson next filed an affidavit for compen­sation but not a Notice of Appeal. Pattononce again filed his own Notice ofAppeal. The first action that Patton wasaware of having been taken care of byGibson was on March 9, 1995 whenGibson filed a Motion for Rule on theClerk. The Supreme Court's Per Curiamon this Motion explained that Gibsonimpermissably merged Panon's two caseson appeal in his motion. Gibson's nextpleading was a Motion forReconsideration which was denied by PerCuriam with the court again explainingwhat Gibson needed to do to have hismotion granted. At the time of Patlon'sexecution of formal complaint, Gibsonhad taken no action. The ExecutiveDirector wrote to Gibson about Patton'sconcerns in an attempt to handle the mat­ter informally but Gibson lOok no actionpursuant to that correspondence.

In responding, Gibson explained firstof all that Patton had not made him awareof all his criminal charges when he hiredhim. Gibson asserted that Patton wasinformed of his right to appeal. Gibsonaverred that he never refused lO file aNotice of Appeal but rather that heexplained to Patton that someone elsewould have to represent him if he choseto appeal. Gibson also acknowledgedthat Patton filed his own Notice of Appealfrom his second criminal maller in whichGibson represented him. Gibson pointed

IS fbI Ir~lIl1ll~"'lr S.lllr 1191

disciplinary actions

out that until the date of his affidavit ofresponse he was operating under theimpression that the transcript his secre­tary filed in March of 1994 was the tran­script of the second trial. He was totallyunaware that the transcript for the firstproceeding had been filed. Gibson alsostated that he was totally confused andbafned by the language in the SupremeCourt's Per Curiam. Even after contact­ing the Clerk's office, he was unable tolearn that the other transcript had beenfiled. In concluding his response, he stat­ed that after ransacking old files in hisoffice he was able to determine what hadhappened. Gibson also stated he was fil­ing the appropriate motions in bothappeals. Subsequent to his response,Gibson sent a supplemental response inwhich he acknowledged the only mis­takes in the matter were his.

Q. Byrum Hurst, Jr.Upon the complaint of Ruthie

Robinson, Q. Byrum Hurst, Jr. was issueda letter of reprimand for violation ofModel Rules 1.3, 1.4 (a) and 1.16 (d).

These Rules state, in part, that alawyer shall act with reasonable diligenceand promptness in representing a client;and, a lawyer shall keep a client reason­ably informed about the status of a matterand promptly comply with reasonablerequests for information; and. upon termi­nation of representation, an attorney shalltake steps to the extent reasonable practi­cable to protect the client's interests, suchas giving reasonable notice to the client,allowing time for employment of othercounsel, surrendering papers and propertyto which the client is entitled and refund­ing any advanced payment of fee that hasnot been earned. The lawyer may retainpapers relating to the client to the extentpermitted by other law.

In her affidavit, Ms. Robinson statedthat she met with Hurst in April 1992 todiscuss representation of her husband,James W. Robinson, an inmate at theArkansas Department of Correction. Mr.Robinson, sentenced to life imprisonmentwithout parole for two counts of murder,was seeking transfer within theDepartment of Correction or having thesentence reduced or vacated. In a letterfollowing the meeting, Hurst indicatedthe matter could be completed within sixto nine months and quoted a fee of

$3,500. In May 1993, Hurst was retainedby Ms. Robinson, acting on behalf of Mr.Robinson, when she paid one half of theretainer. In December 1993, HUTSl melwith Ms. Robinson to discuss the matter.Following receipt of letters from Ms.Robinson, Hurst wrote and apologized fornot responding sooner but assured herthat he was in the process of drawing up awrit of Habeas Corpus and that it wouldbe filed within the near future. InDecember 1994, Ms. Robinson wrote toinquire of the status of the matter. InMarch 1995 Hurst met with Ms.Robinson and advised her that thePetition would be filed immediately. OnNovember 21, 1995, Hurst met with Ms.Robinson to discuss the matter and Ms.Robinson informed him of her decision toterminate his representation. He indicat­ed that he would refund most of theretainer and it would be mailed rightaway. Hurst also represented that hewould deliver the case file to Ms.Robinson by November 30, 1995. InDecember 1995 Ms. Robinson wrote aletter requesting the file and refund byJanuary I, 1996. It was not returned andneither was the partial refund.

Hurst was provided a copy of Ms.Robinson's complaint on February 6,1996, and submitted a response on March7, 1996. For his response, Hurst statedthat Ms. Robinson's affidavit was sub­stantially t:urrec( in all aspects but thatthere were extenuating circumstances thatshould be considered in regard to thematter. Hurst stated that he was reluctantto take the case because Habeas Corpusmatters and civil actions under 28 USC2255, involving the setting aside of con­victions or sentences for constitutionalinfirmities, are very time consuming andvery expensive. Hurst stated that it wasdecided the best, most reasonable relief toobtain with success would be to try tofind a way to make Mr. Robinson's lifemore comfortable. In his affidavit heindicated he then discovered that Mr.Robinson had been convicted twice ofcapital murder, that the first convictionhad been reversed, a new trial ordered,and that he was again convicted at thenew trial. Hurst stated he then contactedprison authorities concerning what typeof "jobs" Mr. Robinson could have andfound that, due to Mr. Robinson's sen­tence, reassignment might be unlikely.

Hurst stated that it was his normal policy torequest payment in full before work beginsbut that he did agree to draw up a writ ofHabeas Corpus because he was thinking withhis heart instead of whether or not Ms.Robinson could pay the balance of theretainer. Specifically. in regard to Rule 1.3,he stated that since Ms. Robinson had notpaid the initial retainer of $3,500 that therewas no time frame in which to pursue theremedies available and that the best thing todo was to wait for an opportune time to getthe relief requested. In regard to 1.4 (a)Hurst stated that he felt as if Ms. Robinsonwas kept reasonably informed. In regard to1.16 (d) Hurst stated that Ms. Robinsonrequested that he surrender Mr. Robinson'sfile to her but he told her that he neededsome time to review the file and arrange it inproper order. Hurst stated that he volun­teered to deliver the file to Ms. Robinson'shome in Little Rock but he had not had timeto do so. Ms. Robinson received her refundand files in March 1996.

a.c. "Rusty" SparksA lener of reprimand was issued to O.c.

"Rusty" Sparks for violation of Model Rules4.2 and 4.4 upon the complaint of William

disciplinary actions

H. Pattison. These rules state, in part, that inrepresenting a client, a lawyer shall not com­municate about the subject of the representa­tion with a party the lawyer knows to be rep­resented by another lawyer in the matter,unless the lawyer has the consent of theother lawyer or is authorized by law to do so;and, in representing a client, a lawyer shallnot use means that have no substantial pur­pose other than to embarrass, delay, or bur­den a third person, or use methods of obtain­ing evidence that violate the legal rights ofsuch a person.

Mr. William H. Pattison, Jr. is an attorneypracticing in Maryland. He represents AnnaM. Marsh in proceedings relating to theEstate of Thomas S. Venable, Sr. Pattison'sclient and Thomas Venable, Jr. were namedas Co-Beneficiaries and Co-PersonalRepresentatives in the Estate. Sparks beganto represent Venable after Pattison's clienthad filed the Will and petitioned for judicialprobate. On October 25, 1995, Pattisonreceived a copy of a letter Sparks wrotedirectly to his client. His letter to Pattison'sclient deals specifically with the distribulionof the estate. Sparks did not have Pattison'sconsent to contact his client. The delay andburdensome intent of Sparks correspondence

is evidenced by his statements concerninghow much Pattison's client would have topay for legal services while Venable, Jr.would receive full legal service.

Sparks asserted that Venable, Jr.approached him during September 1995 toadvise him in regard to a probate situation.Venable, Jr. explained to Sparks his reasonsto believe there had been undue influence oradditional wrongdoing by Mr. Pattison'sclient in regard to his father's estate.Venable, Jr. also explained that his initiallyretained counsel had failed to present theadditional evidence of wrongdoing toPanison. Sparks also asserted that heexplained he could not represent Venable, Jr.in Maryland because he was not licensedthere. Because Venable, Jr.'s belief that ifPanison and his client were both apprised ofhis evidence of wrongdoing they would con­sider settlement, Sparks agreed to write bothPattison and his client simultaneously.Sparks pointed out that at no time did heever attempt to contact Pattison's client bytelephone or any other manner. Sparksasserted that he gave direct consideration toRule 4.2 and determined that writingPattison's client did not violate the purposeof the Rule. It is also Spark's assertion that

Professional Mediation­Arbitration Service

• An Arkansas private dispute resolution company providing mediation and arbitration services throughout theState of Arkansas

• Serving the legal profession, business community and insurance industry• Mediations are scheduled to occur within 30 days• Areferral to mediation or arbitration is at no cost to the parties if the session does not take place• Statewide Arbitration Panel of Retired Judges

Fpr further inform,1tilH1, \1 bl\h:hun.' or to refer a di ....pute to l111'diatiPI1 or ,nbitr,ltipll (Ont,llt:

Professional Mediation - Arbitration Servicel'roSpL'ct Building • l:iOl 1\0. LnilL'rsit\· A\L'. • SuitL' 206 • LittlL' Rock, :\rkans,ls 72207

TL'IL'phonL': (:iOl) 666-2121 Fax: (:i0l) 666-2122

Frank S. HamlinDirector, Attorney-Mediator

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his actions in writing the letter as he didshould not be considered as violating Rule4.4.

Carole Diane SextonA letter of caution was issued to Carole

Diane Sexton for violation of Model Rule4.2 upon the complaint of Tom Floyd. ThisRule states, in part, that in representing aclient, a lawyer shall not communicate aboutthe subject of the representation with a partythe lawyer knows to be represented by anoth­er lawyer in the matter, unless the lawyer hasthe consent of the other lawyer or is autho­rized by law to do so.

Tom Floyd was the opposing party in adivorce action in which Sexton representedthe defendant. During the pendency of thisaction, Sexton approached Floyd as he wason his way from the parking lot to his attor­ney's office. At that time Sexton attemptedto discuss with Mr. Floyd various propertymatters which directly related to the divorcesettlement. Sexton also advised Floyd thathe could contact her anytime to discuss thispending matter. Floyd's attorney had nevergiven her his consent to discuss any of thepending matters with his client. Further,Sexton has never consulted with Mr. Floyd'sattorney about such contact.

Sexton's response began by questioningthe delay in the affidavit being initiated.However, closer inspection may have demon­strated to her that it was initiated monthsprior to service. The delay in service result­ed from Sexton's not having receipted hermail. In responding to the substantive alle­gations of the complaint, Sexton averred thatshe did not recall such contact with Floyd.Further, she questioned why Floyd and hisattorney failed to bring this matter up beforethe Court at the time of the divorce hearing.

Richard L. MaysA letter of reprimand was issued to

Richard L. Mays for violation of ModelRules 1.4 (b) and 5.5 (b) upon the complaintof Vanessa Conley. These Rules state, inpart, a lawyer shall explain a matter to theextent reasonably necessary to permit theclient to make informed decisions regardingthe representation; and, shall not assist a per­son who is not a member of the bar in theperformance of activity that constitutes theunauthorized practice of law.

Conley alleged in her affidavit of com­plaint and her testimony at the evidentiaryhearing of January 19, 1996, that she was

~O Tbr "'klllil IJ"yrr SUIi.rr 1991

disciplinary actions

involved in a motor vehicle accident on July18, 1994. A gentleman, Tim Mason,approached her at the scene, inquired abouther injuries and if she intended to seek med­ical treatment. He then stated that he hadoverheard the driver of the other vehicle saythat he resided outside the state and wasleaving Arkansas that night. Mason toldConley that if she would authorize him to doso, he would gather information from theother driver. He presented an "Agreement"which Conley signed, thinking it was forinvestigative services. He also gave her abusiness card, told Conley to call the num­ber, speak with Catherine Stevens and shewould recommend a doctor. When she madethe call, Conley learned that the "agreement"was, in fact, a contract for legal services withthe Mays and Crutcher Law Offices. Stevensdid make a doctor's appointment for Conleyand told her that although Mays was herattorney, she should expect to communicatewith Stevens. Stevens testified that she is theClaims Manager for Mays office and herduties include the interviewing of witnesses,negotiation of claims and various otherduties as instructed by the attorneys in thefirm. In that connection she began corre­sponding with the insurance company where­in she referred to Conley as "my client."Eventually, a settlement was negotiated, butConley had not authorized a senlement andrejected the offer on belief she needed addi­tional medical attention. Immediately there­after. communication broke down causingConley to terminate her relationship withMays firm. At that point in time Conley hadnever met nor conversed with Mays. despiteher efforts to do so. In fact, she saw Maysfor the first time at the hearing on January19. Following dissolution of the anomey­client relationship, Mays put an attorney'slien on the settlement.

Mays denied knowing or being acquaint­ed with Tim Mason. According to affidavitsand testimony offered in support of Maysresponse, Jimmy Morris, formerly employedby Mays firm at the time of Conley's acci­dent, purportedly had an employment con­tract in his possession for delivery to a per­son in Pine Bluff who had requested legalrepresentation. Morris supposedly was afriend of Mason, and it was averred thatMorris had given the contract to Mason fordelivery to the Pine Bluff client as a courtesysince Mason was going there anyway. Therewas no evidence adduced as to how Masonhappened to come into contact with Conley

since Morris and Mason were unavailable forservice of subpoena to testify at the hearing.In any event, Mays conceded that Conley'semployment contract undoubtedly showedup in his oHioes no later than July 19, 1994.since Conley received a letter of that datefrom Mays firm regarding the initiation ofwork on her case. However, no one was ableto recount specifically how or when theagreement was received by his firm.

Mays also stated in his response and tes­tified at the evidentiary hearing that his casewas handled according to office procedure.Specifically, Mays testified that an attorneyat the firm always decides whether to accepta case but not having brought this file to thehearing he was unable to say which attorneyaccepted this case. Mays testified that histrained support staff is monitored and super­vised by an attorney who coordinates thisentire process. Accordingly, Mays autho­rized his staff to accept an offer later rejectedby the client. Subsequent timing and cir­cumstances precluded him from personallymeeting with Conley in an effort to work thisout with her. Mays dropped his lien and tes­tified to his recent attempts to contact Conleyin an effort "to become a person with her."

George J. StoneGeorge J. Stone was issued a lener of

reprimand for violation of Model Rules 1.2(a), 1.3, 1.4 (a), and 8.4 (d) as a result of aPer Curiam from the Arkansas SupremeCourt. appellant Dinzel E. Norman. Theserules state, in part, that a lawyer shall abideby a client's decision concerning the objec­tives or representation; that an attorney shallact with reasonable diligence and promptnessin representing a client; that a lawyer shallkeep a client reasonably informed about thestatus of a malter and promptly comply withreasonable requests for information; and.shall not engage in conduct that is prejudicialto the administration of justice.

On September 6, 1994, Dinzel EarlNorman was found guilty of conspiracy tomanufacture a controlled substance. metham­phetamine, and manufacturing a controlledsubstance. Stone filed a Notice of Appeal onSeptember 27, 1994. On December 13,1994, the Circuit Court of Newton Countyextended the time for filing the record untilMarch 27, 1995. The record was tendered tothe Clerk's office after the extended time forfiling had lapsed. A Motion For Rule OnThe Clerk was filed 011 April 6, 1995, assert­ing failure of the Newton County Clerk's

office to deliver a copy of the lranscript lOStone or lO file the lranscripts with the Clerkof the Court as grounds for the MOlion. Aper curiam opinion was entered April 24,1995. denying the MOlion unless Slone pro­vided a Motion and Affidavit accepting fullresponsibility for nOl limely filing the lran­scripts. Slone did not respond to the Coun'srequesl in the 30 day period. Norman wasnOlified by Sue ewberry, Criminal JusliceCoordinator. that the Motion was denied.

orman filed a grievance with theCommittee on Professional Conduct. A copyof the complaint was sent by cenified mail,restricted delivery on ovember 6, 1995. toStone's address. Stone received his copy ofthe complaint on ovember 8. 1995. andfiled a response to the complaint on

ovember 30, 1995.In his response, he assened lhat he did

file a MOlion For Rule On The Clerk onApril 6, 1995. Slone's motion was denied onApril 24, 1995. In his MOlion For Rule OnThe Clerk, hc slaled: (I) the Circuit Coun ofNewlon Counly extended the lime for filinglranscripts to March 27. 1995; (2) theNewlon County Clerk's office had posses­sion of the transcripts until March 28, 1995;(3) the Newton Counly Clerk's office failedto turn the transcripts over to him or to filethem Wilh the Clerk of the Coun; and (4) hecould nOl meet the deadline of March 27,1995. Stone also stated in his response thalthe only way lO gel the Coun lo granl hismotion would be to admit responsibility forthe failure lO file the transcripl and thatwould be in his opinion a falsity and anuntrUlh.

Charles L. HoneyA letter of reprimand was issued to

Charles L. Honey for violation of ModelRules 3.5 (a) and 8.4 (d) upon the complainlof Charles E. Black.

Thcse rules Slate. in pan. lhat a lawyershall nOl seek to influence a judge. juror,prospective juror or other official by meansprohibited by law: and, thal a lawyer shallnot engage in conduct that is prejudicial tothe administration of justice.

Charles Black, Deputy ProsecutingAttorney for Miller County, Arkansas initiat­ed this complaint pursuant to his obligationunder Rule 8.3 (a), Model Rules ofProfessional Conduct. Black WHS H trialattorney in a criminal matter in which Honeywas the accused. The Judgc initiallyassigned to the case was Judge Phillip

disciplinary actions

Purifoy. Following the probable cause deler­mination in the criminal matter Honey madean unsolicited visit to Judge Purifoy's home.During this visit Honey attempted to discussthe pending criminal maner with JudgePurifoy, including the underlying factsinvolved in the charges. Honey even went sofar as to suggest certain pretrial actionsJudge Purifoy could lake in the case. All ofthis information about the visit and conversa­tion was provided by Judge Purifoy in sworntestimony on multiple occasions. JudgePurifoy's first recorded interview about thisincident occurred four days after the inci­dent. According to Judge Purifoy Honeybrought up Slalements of all alleged victimsof the criminal charges taken by ArkansasStale Police Invesligators which Honeyasserted were old and not true. Then Honeystarted talking about facts in the case andprovided Judge Purifoy Wilh his version ofthe alleged criminal conduct. In discussingpretrial matters, Honey suggested that ifJudge Purifoy held a hearing on the stale­ments of other witnesses and suppressedthem then he could recuse and another judgewould be assigned. Honey explained lOJudge Purifoy thal he could lhen successfullyallack the credibililY of the alleged viclims,and the successor judge would have lo dis­miss the case. A he was leaving he toldJudge Purifoy lhis matter needed lO be dealtwith quickly. In addilion, Honey expressedto Judge Purifoy that if these lhings could beaccomplished, he fell assured he could con­lact the individuals requesting the grand juryin regard lO the matter discussed below, andconvince them a grand jury was not needed.Judge Purifoy also provided this informationin teslimony before Honorable TomSmitherman pursuant to a Motion in Limineand lhereafter Judge Purifoy provided testi­mony about Honey's visit to his home inopen coun proceedings.

Honey's response began by reference loseveral suspicious deaths in recent years inNevada Counly. for which no criminalcharges resulted. Honey funher explainedlhal lhere have been approximately 13 deathswhich were ruled either murder. suicide oraccidental and no arrests had been made in[he cases determined to be murder. Basedupon client and family connections, Honeyand his law firm were very close to the situa­tion. Some of the families had discussedwith him the possibilily of gelling a grandjury empaneled since [hey were extremelydissatisfied with the criminal investigations

and results. In his explanation, Honey alsopointed out lhal the families had the supponof the evada Counly Judge, the evadaCounty Coroner and several Quorum Courtmembers but nOl the evada County Sheriff.Honey also discussed how the communitywas divided on the issue of having a grandjury convened and that strong feelings exist­ed on both sides. Honey also assened lhat itwas about this time when the sheriff obtaineda statement from an alleged victim makingcharges of sexual misconduct againsl him.In ovember 1993, Honey was aware of theaccusations again t him and he met withJudge Purifoy and Prosecutor Brent Hallomto discuss the possibilily of empaneling agrand jury to examine the allegations. Thenon ovember 15. 1993. Judge Purifoyadvised Honey's son there would be nogrand jury. That afternoon Judge Purifoyheld the probable cause hearing in Honey'scriminal matter and the following day Honeywas arresled and charged with the crime ofrape. Honey also pointed out that aboul thesame time a petition demanding a grand juryhomicide investigation was completed. Hefunher assened that since he knew JudgePurifoy was going to recuse from his crimi­nal case, he didn't feel it was a problem toinformally delivcr the petition for a grandjury to him and that doing so was Honey'spurpose for going lO his home. In hisresponse Honey also avers that Judge Purifoywas wrong in certain of his testimony.Honey acknowledged discussing hi casewith Judge Purifoy but said he was talking tohim as an old friend and nOl as the Judge inhis case. In concluding his response. Honeyalso stated lhal he regrelted Judge Purifoymisunderstood his intentions and the purposeof his visit to his home.

Upon their verified petitions for voluntarytransfer to inactive status, the followingnamed attorneys were placed on voluntaryinactive slalliS by the Committee duringMarch 1996: Davis G. Fitzhugh, andKerry Layne Kilpatrick.

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ANNOUNCE THE OPENING OF THEIR l.J\W FIRM.

T. SCOTT CLEVENGER, RICHARD L. ANGELAND STUART P MILLER

Neva Bennett Talley-Morris

N e v aBennell Talley­Morris died inJune ofAlzheimer's dis­ease. The formerLillie Rocklawyer was 86.

Sheachieved a mile­stone in 1969 bybeing electedchair of the

Arkansas Bar Association's family law sec­tion - the first time a woman was elected chairof one of the association's sections.

Talley-Morris was president of theational Association of Women Lawyers in

1956-57 and received that association'snational achievement award. She was aFellow in the Arkansas Bar Foundation andreceived a Special Award from theFoundation in 1970 and the OutstandingLawyer-Citizen Award in 1978.

While married to her second husband,Cecil C. Talley, a lawyer. she apprenticed inhis law oftlce and became knowledgeableenough 10 pass the Arkansas bar exam. Shewas licensed to practice law in all U.S. andArkansas district courts in 1947 and beforethe U.S. Supreme Court in 1950. Later, shereceived a doctorate in law at the Universityof Heidelberg in Germany.

Talley-Morris remained active in lawuntil Alzheimer's disease began taking over.She then moved to Judsonia to live in a nurs­ing home closer 10 her brother.

In Memorium

A. Haynes Richardson, III

A. Haynes Richardson. III, 74, of LillieRock, died in April.

He was a graduate of Little Rock HighSchool and received his law degree from t.heUALR Law School in 1949. He was an allor­ney for the U.S. Brewers Association for 33years before retiring in 1982.

He was a charler member of the ArkansasSociety of Association Executives and mem­ber of the Arkansas Bar Association and theAmerican Bar Association.

He is survived by his wife of 44 years,Dorothy Padgett Richardson: one son, RobertPreston Richardson; one daughter, Patti LeaBoccarossa; two sisters: one brother: threegranddaughters; and one grandson.

Chester Leonard

Chester P. Leonard, 82, of Fayetteville,died in May at his home.

Leonard received an LL.B. and JurisDoctorate degree frolll the University ofArkansas and was a member of the ArkHnsasBar Associatioll. the Gravette United

Methodist Church and the American QuarterHorse Association. He owned and trainedregistered quarter horses.

He is survived by his wife, Cleo anetaLeonard; one son, James M. Leonard ofFayetteville; two brothers: and two grandchil­dren.

Robert Vann (Bob) Light

Robert Vann Light of Little Rock died inMay. Mr. Light was a senior member ofFriday, Eldredge and Clark law Firm since1955.

He was a member of the Pulaski CountyBar Association, Arkansas Bar Association.American Bar Association, ExecutiveCouncil. Fellow International Society ofBarristers, and a Fellow in the Arkansas BarFOlll1dalion. He is a graduate of theUniversity of Arkansas-Fayetteville and theUniversity of Arkansas Law School with anLLB in 1955.

He is survived by his wife, Cherry HarkeyLight and one son, Louis (Whit) Light. bothof Little Rock.

John "Jack" Fitzhugh

John H. "Jack" Fitzhugh, 83, of FortSmith died in February in a Fort Smith hospi­t.al.

He was an attorney retired from Bryan &Fitzhugh Atlorneys, a member of S1. John'sEpiscopal Church. Noon Civic Club and theArkansas and American Bar Associations.He was honored by the Sebastian County BarAssociation for 50 years of service and wasadmitted to practice before the federal courts,the Eighth U.S. Circuit Court of Appeals andthe U.S. Supreme Court.

He is survived by One daughter. SusanFitzhugh of Conway; one step daughter,Robbie Foster of Oklahoma City: one stcp­son, Jim Blackard of Carrollton. Tcxas. twonieces: four stepgrandchildren and four step­great-grandchildren.

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