The Arkansas Lawyer Spring 2024

Lawyer The Arkansas

PUBLISHER

Arkansas Bar Association

Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com

EDITOR

Anna K. Hubbard

EXECUTIVE DIRECTOR

Karen K. Hutchins

PROOFREADER

Cathy Underwood

EDITORIAL BOARD

Caroline R. Boch

Anton L. Janik, Jr.

Jim L. Julian

Drake Mann

Tyler D. Mlakar

Gordon S. Rather, Jr.

William A. Waddell, Jr., Chair

Brett D. Watson

Amie K. Wilcox

David H. Williams

Nicole M. Winters

OFFICERS

President

Judge Margaret Dobson

President-Elect

Kristin L. Pawlik

Immediate Past President

Joe F. Kolb

President-Elect Designee

Jamie Huffman Jones

Secretary Glen Hoggard

Treasurer

Brant Perkins

Parliamentarian

Brent J. Eubanks

YLS Chair

Caroline Kelley

BAR ASSOCIATION STAFF

Executive Director

Karen K. Hutchins

Director of Operations

Kristen Frye

Finance Administrator/CPA

Staci Clark

Director of Government Affairs

Leah Donovan

Publications Director

Anna Hubbard

Executive Administrative Assistant

Michele Glasgow

Office & Data Administrator

Cynthia Barnes

Professional Development Coordinator

Lisa McCormick

Information Specialist

Rachel Henderson

Lawyer The Arkansas

and the Arkansas Recreational Use Statute

Michael A. Thompson

In a Name: Preserve-ing the Buffalo River

Tyler Mlakar

Nature: A Guide to Arkansas's Conservation Use Easements

J. Cliff McKinney II

Public Stream Access in Arkansas: Balancing the Right of Access with the Imperative of Conservation

Silas Heffley

Bicycles Can Travel By Dean John DiPippa

Cover photo credit: Buffalo River at Roark Bluff, Arkansas Department of Parks, Heritage, and Tourism

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2024, Arkansas Bar Association. All rights reserved.

Lawyer The Arkansas

President: Judge Margaret Dobson; President-Elect: Kristin L. Pawlik; Immediate Past President: Joe F. Kolb; President-Elect Designee: Jamie Huffman Jones; Secretary: Glen Hoggard; Treasurer: Brant Perkins; Parliamentarian: Brent J. Eubanks; YLS Chair: Caroline Kelley

Trustees:

District A1: Geoff Hamby, William M. Prettyman, Timothy R. Scott, Lindsey C. Vechik

District A2-A3: Matthew Benson, Evelyn E. Brooks, Jason M. Hatfield, Christopher M. Hussein, Michelle Rene' Jaskolski, Sarah C. Jewell, George Rozzell, Russell B. Winburn

District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge

District B: Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, John A. Ellis, Bobby Forrest, Michael K. Goswami, Steven P. Harrelson, Michael M. Harrison, Jim Jackson, Anton L. Janik, Jr., Victoria Leigh, William C. Mann III, Skye Martin, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, Meredith S. Moore, John Ogles, Casey Rockwell, Aaron L. Squyres, Jessica Virden Mallett, Danyelle J. Walker, Brett Austin Whitley, Patrick D. Wilson, George R. Wise

District C5: William A. “Bill ” Arnold, Joe A. Denton, John T. Henderson, Todd C. Watson

District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Jeffrey W. Puryear

District C7: Kandice A. Bell, Robert G. Bridewell, Sterling T. Chaney, Taylor A. King Delegate District C8: Carol C. Dalby, Amy Freedman, Connie L. Grace, Wm. Blake Montgomery

Ex-officio Members: Judge Mackie Pierce, Judge Chaney W. Taylor, Michael H. Crawford, Dean Cynthia Nance, Dean Colin Crawford, Denise Reid Hoggard, Eddie H. Walker, Jr., Christopher M. Hussein, Karen K. Hutchins

Support & Guidance

2024 Arkansas High School Mock Trial Competition

Thank you to all of the volunteers who made the competition a success.

On Saturday, March 2, Har-Ber High School defeated Conway High School in the Championship Round of the Arkansas High School Mock Trial Competition. Arkansas Supreme Court Chief Justice Dan Kemp presided over the final round. Margaret Dobson, Jamie Huffman Jones, and Adrienne Griffis served as scoring judges.

Har-Ber High represented Arkansas at the 2024 National High School Mock Trial Championship in Wilmington, Delaware, on May 2-4, 2024.

We appreciate the members of the Mock Trial Committee as well as all of the volunteers who served as judges at the competition. Thank you to the Arkansas Bar Foundation for sponsoring the program, to the U.S. District Court for the Eastern District of Arkansas for hosting the event, and to the Arkansas Chapter of the American Civil Liberties Union for providing lunch to the students on Friday.

Anthony McMullen and Judge Margaret Dobson

Mock Trial Committee

Anthony L. McMullen, Chair

Beverly I. Brister

Robert S. Coleman, Jr.

Daniel A. Curtis

Brooke Jackson Gasaway

Sarah E. Greenwood

Adrienne Morris Griffis

Michael McCarty Harrison

Michael B. Heister

Johnathan D. Horton

Lori D. Howard

Christopher M. Hussein

Adam Donner Jackson

Ryan W. Lazenby

Gabriel D. Mallard

William C. Mann, III

Richard Bryant Marshall

Hon. Mary Spencer McGowan

Barrett S. Moore

Ashley Elizabeth Norman

Constance Brown Phillips

Natalie Elizabeth Ramm

Jordan Brown Tinsley

Timothy F. Watson, Jr.

Nicole Marie Winters

Volunteers

Josh Ashley

Evangeline Bacon

Kandice Bell

Caroline Boch

Marcus Bozeman

Tenesha Brown

Erin Cassinelli

Nikki Clark

Brian Clary

Robert Coleman

Ben Davis

Maggie Davis

Judge Margaret Dobson

Richard Craig Downing

Daniel Ford

Bobby Forrest, Jr.

Lana Fraser

Brooke Gasaway

Adrienne Griffis

Tammera Rankin Harrelson

Liz Harris

Michael Harrison

Kat Hodge

Glen Hoggard

Max Horner

Nick Hornung

Jackson

Judge Shanice Johnson

Alexander Jones

Jamie Huffman Jones

Katy C. Jones

Justice Dan Kemp

Ross King

Dominique Lane

Jennifer Liwo

Barbara Mariani

Eliza Meredith

Barrett S. Moore

Matt Morgan

Tracye Mosley

Evan Nelson

Lynette Perez

Connie Brown Phillips

Taylor Pray

Dixie Quinn Nelson

Deanna Siria

Barrett Smith

Stephanie Smith

Verona Swaniga

A. J. Teotia

Jordan Tinsley

Courtney Umeda

Johanna Wade

B. J. Walker

Kelly Ward

Brittany Web

Andy Wilson

Caroline Winningham

Thomas A. Daily of Daily & Woods, P.L.L.C. in Fort Smith was honored at ArkBar’s 62nd Annual Natural Resources Institute for his many years of service and support of the Natural Resources Law Section.

Public Service Academy

Thank you to the Public Service Academy Chairs pictured from left Skye Martin and Madhav Shroff and co-chairs Caitlin Campbell and Trent Miner for a successful third class of the Public Service Academy. Congratulations to the participants for completing the second session in Fayetteville March 8-9, 2024. The Public Service Academy is designed to provide service-minded lawyers and law students the tools they need, both for service in elected office and as volunteers.

Adam

Tom Daily Honored

Oyez! Oyez!

ACCOLADES

UA Little Rock presented Dr. Casey Rockwell with a Faculty Excellence Award. UA Little Rock William H. Bowen School of Law awarded Faculty Excellence Awards to: Anastasia Boles, Jordan Wallace-Wolf, and Rebecca Feldmann and andré cummings. Independence County District Judge Chaney Taylor was recently named Specialty Court Judge of the Year. E. B. (Chip) Chiles IV, a Managing Member of Quattlebaum, Grooms & Tull PLLC, was inducted as a Fellow of the International Academy of Trial Lawyers.

WORD ABOUT TOWN

Rose Law Firm announced that Seth Hampton and Carla G. Spainhour have joined the firm as members. J.S. Held appointed John Peiserich as the new practice lead of Environmental Health and Safety. Wright Lindsey Jennings announced Jane A. Kim as its new Labor & Employment Team leader.

Send your oyez to ahubbard@arkbar.com

Rachel Henderson joins ArkBar as the Information Support Specialist, bringing her computer knowledge to enhance the association’ s operations. With a background in software development and IT support, Rachel is well-equipped to aid with managing technological infrastructure and streamline processes.

“Rachel is a real asset,” said Kristen Frye, Director of Operations. “Her proficiency and enthusiasm for technology bring a fresh perspective to ArkBar.” Originally from Arkansas, Rachel holds a bachelor’s degree in computer science from the University of Arkansas. In her free time, she enjoys exploring the arts, watching dramas and reading.

Excited to contribute to ArkBar’ s mission, Rachel looks forward to leveraging her skills to drive technological initiatives and foster collaboration within the association.

Kristen Frye recently celebrated her 15-year anniversary with the associaton.

“Kristen is a pillar of the Arkansas Bar Association,” said Executive Director Karen K. Hutchins.

“As Director of Operations she leads staff through membership renewals, Annual Meeting planning, continuing education, and section and data management. Her efficient management skills lead staff through daily duties making sure the Association's priorities and timelines are met.”

ArkBar President-Elect

Jamie Jones and ArkBar Executive Director Karen K. Hutchins met with bar association leaders from across the country at the American Bar Association’s Bar Leadership Institute held in Chicago March 13-15, 2024.

ArkBar Welcomes New Staff Member and Celebrates Two Milestone Anniversaries

“Cynthia is the quiet force behind the Association’ s ondemand CLE and membership data systems,” said Executive Director Karen K. Hutchins. “She enables and monitors these online processes to help make our members’ online experiences seamless.” ArkBar at

Cynthia Barnes, ArkBar’s Office and Data Administrator, recently celebrated her 5-year anniversary with the associaton.

Henderson

Frye

Barnes

Reflection on the Arkansas Bar Association: A Journey of Growth and Service

Judge Margaret Dobson is the President of the Arkansas Bar Association. She is a Circuit Judge for the Seventh Judical District.

Near the end of his life, my father, Justice Conley F. Byrd, Sr., harvested trees on his farm and paid to have the ground replanted with trees: trees he would never see. Why? He was planting so his children and grandchildren would have a harvest some day.

As I stand at the threshold of a new chapter in my legal career, transitioning from a private practitioner to a circuit judge, I find myself immersed in reflections on the role the Arkansas Bar Association has played in shaping my journey over the past 25 years and on the importance of planting a harvest for those who come after us.

When I first opened my law practice, armed with little more than determination and a stack of form books from the Arkansas Bar, I could hardly have foreseen the transformative impact the Association would have on my professional development. The Arkansas Bar has been a cornerstone of my growth as a legal professional.

Through engagement in sections, committees, the Board of Trustees, and ultimately, the presidency, the Association has not only provided leadership opportunities but also a platform for collaboration, learning, and advocacy.

Networking facilitated by the Association broadened my horizons, forging enduring relationships with colleagues and enhancing my ability to serve my clients. The upcoming Annual Meeting in Hot Springs presents an invaluable opportunity for attorneys and judges statewide to convene outside the courtroom, fostering civility and camaraderie. (Plus it is going to be a lot of fun!)

The Association’s CLE programs, case law summaries, and legislative updates have

been pivotal in my ongoing professional development, equipping me with knowledge and skills, and empowering me to stay abreast of emerging trends and best practices in our profession.

Beyond professional enrichment, the Arkansas Bar Association has instilled in me a profound sense of civic duty through its commitment to support attorneys, advance the practice of law, advocate for the legal profession, protect the rule of law, and foster professionalism, civility, and integrity. Programs like the Legal Hall of Fame, Public Service Academy, and Wills for Heroes have underscored the transformative impact lawyers can have on their communities beyond the confines of the courtroom, reinforcing the importance of giving back and making a tangible difference in the lives of others.

Thank you for allowing me to serve as President this year. It has been an honor to serve you and to pay a debt I owed to those who have mentored me over the years.

As I embark on this new chapter as a circuit judge, I carry with me the important lessons and values instilled by the Arkansas Bar Association and the giants in the legal profession who have gone before me. And I am acutely aware that, just like my father, we need to plant not just for us, but for the generations that are coming after us.

I urge you to engage actively with the Association, whether through committee involvement, legislative advocacy, or participation in sections and events. Our strength lies in unity, and by collectively supporting and advancing the Association’s mission, we can make a difference and provide a harvest for generations to come. ■

Top photo: Judge Dobson and Chief Justice Dan Kemp; Bottom photo: Karen K. Hutchins, Jamie Jones, Bob Estes, Judge Dobson, Denise and Glen Hoggard

ArkBar President Margaret Dobson was sworn in as Circuit Judge for the Seventh Judicial District serving Grant and Hot Spring counties.

Arkansas Supreme Court Chief Justice Dan Kemp administered the oath to Judge Dobson at the Grant County Courthouse with her family and ArkBar leaders in attendance. Congratulations, Judge Dobson! This is the first time an Arkansas Bar Association president has been sworn in as judge during her term as president, the first time a female judge has served as ArkBar president, and the first time a woman has served as circuit judge in the Seventh Judicial District.

Margaret Dobson Sworn in as Circuit Judge

ANTON JANIK

DAVID BINGHAM CAROLINE KELLEY CARA BUTLER

LITTLE ROCK | ROGERS | JONESBORO | AUSTIN

Spirit of Collaboration

As we approach the culmination of another eventful year within the Arkansas Bar Association, I find myself filled with gratitude for the opportunities we’ ve seized and the camaraderie we've fostered. With June 1st fast approaching, we eagerly anticipate our upcoming Wills for Heroes event, a poignant reminder of our commitment to serving those who serve our communities.

I am thrilled to share highlights from our recent collaboration with the Benton County Bar Association and the Washington County Bar Association. Our gathering at Goat Lab Brewery in Lowell on April 30th was a testament to the power of unity within the legal community. The exchange of ideas, shared experiences, and newfound connections underscored the

strength of our collective purpose.

Looking ahead, mark your calendars for Thursday, June 13th, as we come together for the Mitchell Williams YLS party. This celebration promises to be a night to remember, open to all members of the bar Association. Join us for an evening filled with live music by Mayday by Midnight, delectable appetizers, refreshing drinks, and the sparkle of a disco ball illuminating the dance floor. Let us revel in the bonds we've forged and the successes we've achieved.

Our Annual Meeting stands as a testament to the vitality of our organization, offering a multitude of social events to engage and inspire. From CLEs to networking opportunities, this gathering serves as a cornerstone of our professional growth and development.

Caroline Kelley is the Chair of the Young Lawyers Section. She is an attorney at the Mitchell Williams Law Firm.

As my tenure as Chair draws to a close, I extend my heartfelt gratitude to each of you for your unwavering support and dedication. It has been an honor to serve in this capacity, and I am immensely proud of all that we have accomplished together.

I am excited to pass the torch to Frank LaPorte-Jenner, confident in his ability to lead with integrity and vision.

In closing, let us embrace the spirit of collaboration and community that defines our association. Together, we will continue to uphold the principles of justice, equity, and service that lie at the heart of our profession.

For inquiries or further information, please feel free to reach out to Caroline Kelley at ckelley@mwlaw.com. ■

Liability and the Arkansas Recreational Use Statute

By Michael A. Thompson

Michael Thompson is a partner at Wright, Lindsey & Jennings LLP, where he practices in the areas of personal-injury defense, commercial litigation, and appeals.

Arkansas prides itself on its abundant opportunities for outdoor recreation. For example, Arkansas recognizes a constitutional right of its citizens to hunt and fish.1 Arkansas further has officially adopted the nickname of “The Natural State” based on “our unsurpassed scenery, clear lakes, free-flowing streams, magnificent rivers, meandering bayous, delta bottomlands, forested mountains, and abundant fish and wildlife.”2 Outdoor recreation is a core part of this state’s identity, and ensuring that its people are able to engage in outdoor recreational activities is a fundamental public policy of this state.

But Murphy’s Law being what it is, people engaged in outdoor recreational activities will, on occasion, be injured—or worse. There is some level of risk inherent in almost any activity and, therefore, some level of potential exposure from allowing almost any activity to occur on property you own.

“[T]o encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes,”3 the Arkansas General Assembly passed the Arkansas Recreational Use Statute (“ARUS”).4 Similar statutes exist in all 50 states.5 The ARUS “eliminates the primary obstacle to opening property for recreational use: fear of liability.”6 More specifically, the ARUS provides immunity to “owners,” as defined, “who make their property available for the recreational use of others, except when (1) the landowner charges the person entering the land for recreational use, or (2) when the landowner maliciously fails to guard or warn against an ultrahazardous condition, structure, use, or activity actually known to the landowner to be dangerous.”7

This article provides a primer on the ARUS, its scope, and its two primary exceptions.

I. The scope of the ARUS and its liability protections.

The ARUS provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”8 The ARUS further provides:

Except as specifically recognized or provided in § 18-11-307, an owner of land who, either directly or indirectly, invites or permits without charge any person to use his or her property for recreational purposes does not thereby:

(1) Extend any assurance that the lands or premises are safe for any purpose;

(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons; or

(4) Assume responsibility for or incur liability to the person or property caused by any natural or artificial condition, structure, or personal property on the land.9

Generally, then, the protections of the ARUS apply when (1) an “owner” (2) “invites or permits without charge” (3) “any person” (4) “to use his or her property for recreational purposes.”10 When the protections of the ARUS apply, the “owner” is immune from liability for any injury to person or property, whether that injury is caused by other people or things found on the property.11

The ARUS defines “owner” to include “the possessor of a fee interest, a tenant, lessee, holder of a conservation easement as defined in § 15-20-402, occupant, or person in control of the premises.”12 This broad definition provides immunity to anyone who could otherwise be held liable on a premises-liability claim.13 Thus, any argument that might be raised to suggest that a given defendant—say a settlor of a trust or shareholder of a corporation—was not an “owner” for purposes of the ARUS would, if accepted, mean that defendant could not be liable under Arkansas law on a premises-liability claim and therefore, would have no need for the protections of the ARUS.14 As such, a court need not consider the ARUS when, independent of that statute, the defendant owes no duty to the plaintiff.15 However, the ARUS does not confer any common-law status on the plaintiff (like that of a licensee or invitee) or create any duties to the plaintiff.16 In fact, as noted, the ARUS modifies the common law by providing that the act of holding one’s land open to the public for recreational purposes does not “[c]onfer upon the person the legal status of an invitee or licensee to whom a duty of care is owed.”17 The ARUS further provides no liability protections to and does not otherwise alter any duties owed by the persons using the land of another for recreational purposes.18

There has been limited litigation as to what an owner must do to “make their property available for the recreational use of others,” as described by the Arkansas Supreme Court as being necessary for the ARUS to apply.19 One could imagine arguments that the ARUS should not apply if someone other than the “owner,” and acting without authority from the “owner,” invited the plaintiff to the property. These arguments, however, should fail under the text of the statute.The ARUS provides that an “owner” “owes no duty of care . . . to persons entering for recreational purposes,” without any indication that the “owner” must take some action to cause

those persons to enter their land for those purposes.20 While the additional protections of Section 305 do state that they apply to an “owner” “who, either directly or indirectly, invites or permits . . . any person to use his or her property for recreational purposes,” that provision, like the broad definition of “owner,” appears intended to capture the full scope of anyone who could be liable on a premises-liability claim.21 For this reason, as with arguments that a given defendant is not an “owner,” arguments over whether the “owner” made the property available would likely be self-defeating to a plaintiff in a premises-liability claim. If the “owner” did “not directly or indirectly, invite[ ] or permit[ ]” the plaintiff to be on the property, then the plaintiff would be a trespasser to whom, as a general matter, no duties are owed.22

The term “recreational purpose” includes, but is not limited to, “Hunting,” “Fishing,” “Swimming,” “Boating,” “Camping,” “Picnicking,” “Hiking,” “Pleasure driving,” “Nature study,” “Water skiing,” “Winter sports,” “Spelunking,” “Aviation,” “Viewing or enjoying historical, archeological, scenic, or scientific sites,” and “[a]ny other activity undertaken for exercise, education, relaxation, or pleasure on land owned by another.”23 For example, in a tripand-fall case, a visitor to the annual Prairie Grove Clothesline Fair was held to be engaged in “recreational purposes” because the “Fair involved the display of arts and crafts by vendors” and the injured plaintiff “was walking to a dance performance at the time of her injury.”24

Finally, the “person” to whom the property must be held open for recreational purposes and whose claims may be barred by the ARUS includes individuals and “the Young Men’s Christian Association, Young Women’s Christian Association, Boy Scouts of America, Girl Scouts of the United States of America, Boys and Girls Clubs of America, churches, religious organizations, fraternal organizations, and other similar organizations.”25

Note that while some states’ recreational use statutes impose a public-access requirement, the ARUS has no such requirement.26 Instead, by its plain language, the ARUS applies when property is made available for recreational purposes to “any person.”27 “Any person” refers to “one, some, every, or all without specification.”28 “In extending specific protection to landowners, the recreational-

Recent Case Update:

On March 15, 2024, Hon. Jay Moody, U.S. District Judge for the Eastern District of Arkansas, applied the ARUS to dismiss failure-to-warn claims against a landowner and confirmed that the 2015 amendments to the ARUS modified the definition of “malicious” conduct that provides an exception to the ARUS. Allen v. The Nature Conservancy, No. 4:23-CV-661-JM, 2024 WL 1141109, at *5 (E.D. Ark. Mar. 15, 2024). The Court further allowed a direct action to proceed against the immune defendant’s insurers. Id. at *6.

use statute has no requirement that the land be open to everyone.”29 “[A]s long as at least ‘one’ person is using the land recreationally for free, the owner is not liable for negligence ‘to th[at] person,’ regardless of whether others are welcome to use it too.”30

For example, at Little Rock Air Force Base, soccer fields are made available for use without charge.31 The fact that those soccer fields are made available to only military personnel and their families did not prevent the ARUS from applying to and barring the claims of a child who was injured when a soccer net fell on him.32

II. Exceptions to the liability protections of the ARUS.

By its terms, the ARUS does not limit “in any way liability which otherwise exists:”

(1) For malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous; and (2) For injury suffered in any case in which the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state, a subdivision thereof, or to a third person, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.33

These two exceptions to the ARUS are discussed in turn.

A. The “malicious” conduct exception to the ARUS.

As noted, the ARUS does not limit “in any way liability which otherwise exists: (1) For malicious, but not mere negligent, failure to guard or warn against an ultrahazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.”34 The ARUS currently defines “malicious” to mean “an intentional act of misconduct that the actor is aware is likely to result in harm,” and it “does not mean negligent or reckless conduct.”35 This definition was adopted in 2015, in apparent response to a contemporaneous decision from the Arkansas Supreme Court concerning the definition of that term.36

In addition to the “malicious” element, for this exception to apply, a landowner must “fail[] to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.”37

A condition is ultrahazardous if it (1) “necessarily involves a risk of serious harm to the person or chattels of others that cannot be eliminated by the exercise of the utmost care” and (2) “is not a matter of common usage.”38 “Common usage is defined as an activity customarily carried on by the great mass of mankind or by many people in the community.”39 In determining

whether an activity is of “common usage,” it is important not to define the activity at too high a level of generality (e.g., camping), which will almost always result in a finding of common usage, or too low (e.g., camping at this particular location on this particular time and date), which will almost always result in a finding that an activity is uncommon.40 Instead, “Arkansas law indicates that the appropriate level of generality takes into account some particularizing factors, such as distinct and appreciable risks that might arise from engaging in an activity in a specific area,” such that “camping in a 100-year floodplain” was the appropriate level of generality in determining that the plaintiffs were injured while engaged in a common activity.41

B. The “charge” exception to the ARUS. The second exception to the ARUS arises when an owner charges the public an entry or use fee.42 The ARUS defines such a “charge” as “an admission fee for permission to go upon or use the land.”43 This provision marks the ARUS as a “charge or fee” recreational use statute, and with such statutes, “most courts have declined to apply the exception to immunity unless an actual fee has been charged by the landowner for entry onto the land.”44 By contrast are “consideration” statutes, which “do not extend immunity to landowners where the permission to enter the land for the recreational purpose was granted for a ‘consideration.’”45 “Under the consideration statutes, almost any form of benefit to the landowner will act to trigger the immunity exception.”46

Consistent with the fact that the ARUS is a “charge or fee” statute, “the ARUS, by its plain terms, removes immunity only when a fee is charged to enter a particular area.”47 As such, “consideration under the Act should not be deemed given unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.”48 Fees other than entrance or admission fees, even those charged by the landowner, do not remove the protections of the immunity statute.49 Likewise, the ability of the public to spend money at businesses or concessionaires operating on or adjacent to the property does not affect the immunity

provided by the statute.50 This is true even if the landowner charges the business or concessionaire a fee to be there or receives a percentage of the concessionaire’s gross receipts.51 For example, in the case involving the woman injured while walking at the Clothesline Fair, the “charge” exception did not apply because “patrons could access the park and attend the Fair without paying any entrance fee or making any purchase.”52 “Any decision by patrons to purchase goods from vendors was an optional fee subsequent to entry, and therefore the ‘charge’ exception to the ARUS” did not apply.53

Determining whether a given charge is an entrance or admission fee should be based on the substance of that charge, and not its form. To use the example of a duck club, charges nominally associated only with room and board, a guide, or other services— and not the hunt itself—could be held to constitute an entrance or admission fee if, as is often the case, only paying customers of such services were allowed to hunt on the duck club’s property.54 On the other hand, if the duck club permitted someone to hunt without requiring that person to spend any money at the club, the ARUS would likely apply to claims brought by that person, even if that person had the optional ability to purchase lodging, dining, a guide, or other services at the club.55

Conclusion

If you are a trial lawyer in this state, at some point it is likely that a potential client will walk through your door, or a complaint will land on your desk, with a claim that may be barred by the ARUS. Whether for the plaintiff or defense, understanding the ARUS and its exceptions is vital for Arkansas attorneys in evaluating their cases and advising their clients.

Endnotes:

1. Ark. Const. amend. 88, § 1.

2. Ark. Code Ann. § 1- 4-106.

3. Ark. Code Ann. § 18-11-301.

4. Ark. Code Ann. §§ 18-11-301 to -307.

5. States’ Recreational Use Statutes, The National Agricultural Law Center, available at https://nationalaglawcenter.org/ state-compilations/recreational-use/ (last accessed Feb. 28, 2024).

6. Hutchinson v. United States, 71 F.4th

1115, 1120 (8th Cir. 2023) (quoting Cudworth v. Midcontinent Commc’ns, 380 F.3d 375, 380 (8th Cir. 2004)) (cleaned up).

7. Roeder v. United States, 2014 Ark. 156, at 2, 432 S.W.3d 627, 630 (citing Ark. Code Ann. § 18-11-307).

8. Ark. Code Ann. § 18-11-304.

9. Ark. Code Ann. § 18-11-305.

10. Ark. Code Ann. § 18-11-305.

11. Ark. Code Ann. § 18-11-305.

12. Ark. Code Ann. § 18-11-302(5).

13. See Hunt v. Int’l Ass’n of Lions Clubs, Inc., No. 5:21-CV-05100, 2021 WL 4066328, at *2 (W.D. Ark. Sept. 7, 2021), aff’d, No. 21-3250, 2022 WL 893739 (8th Cir. Mar. 28, 2022).

14. Id.

15. Powell v. ISC N., LLC, 2017 Ark. App. 394, at 11–12, 524 S.W.3d 458, 465.

16. See Ark. Code Ann. §§ 18-11-303(1), -305(2).

17. Ark. Code Ann. § 18-11-305(2); see Noel v. Cox, 2019 Ark. App. 70, at 4, 570 S.W.3d 510, 513 (“A public invitee is invited to enter or remain on the property as a member of the public for a purpose for which the property is held open to the public, such as a hospital or a library.”).

18. Ark. Code Ann. § 18-11-303(2) (“Nothing in this subchapter shall be construed to . . . Relieve any person using the land of another for recreational purposes from any obligation which he or she may have in the absence of this subchapter to exercise care in his or her use of the land and in his or her activities thereon or relieve any person from the legal consequences of failure to employ such care.”).

19. See Roeder, 2014 Ark. 156, at 2, 432 S.W.3d at 630.

20. Ark. Code Ann. § 18-11-304.

21. See Ark. Code Ann. § 18-11-305.

22. See Ark. Code Ann. § 18-60-108.

23. Ark. Code Ann. § 18-11-302(7).

24. Hunt, 2021 WL 4066328, at *2.

25. Ark. Code Ann. § 18-11-302(6); see Hutchinson, 71 F.4th at 1121.

26. Hutchinson, 71 F.4th at 1120.

27. Ark. Code Ann. § 18-11-305.

28. Hutchinson, 71 F.4th at 1120 (quoting The American Heritage Dictionary of the English Langauge 81 (5th ed. 2016)) and (citing Webster's Third New International Dictionary 97 (2002)).

29. Id. (emphasis in original).

30. Id. (citing Ark. Code Ann. § 18-11305(4)).

31. Id. at 1118.

32. Id. at 1120.

33. Ark. Code Ann. § 18-11-307.

34. Ark. Code Ann. § 18-11-307(1).

35. Ark. Code Ann. § 18-11-302(4).

36. See 2015 Ark. Acts 1112; Roeder, 2014 Ark. 156, at 12, 432 S.W.3d at 635 (holding that “malicious” conduct, as then defined by the ARUS, “includes conduct in reckless disregard of the consequences from which malice may be inferred”).

37. Ark. Code Ann. § 18-11-307(1).

38. Moss v. United States, 895 F.3d 1091, 1099 (8th Cir. 2018).

39. Zero Wholesale Gas Co. v. Stroud, 264 Ark. 27, 33, 571 S.W.2d 74, 78 (1978).

40. See Moss, 895 F.3d at 1099.

41. Id. at 1100.

42. Ark. Code Ann. § 18-11-307(2).

43. Ark. Code Ann. § 18-11-302(2).

44. Howard v. United States, 181 F.3d 1064, 1068 (9th Cir. 1999) (citing, inter alia, Ark. Code Ann. §§ 18-11-305, -307).

45. Id. at 1069.

46. Id.

47. Moss, 895 F.3d at 1099.

48. Carlton v. Cleburne Cty., Ark., 93 F.3d 505, 510 (8th Cir. 1996) (quoting Wilson v. United States, 989 F.2d 953, 957 (8th Cir. 1993)) (cleaned up).

49. See Moss, 895 F.3d at 1099 (holding that landowner’s charging fees to use campsites does not remove the protections of the ARUS).

50. See Carlton, 93 F.3d at 510 (holding that presence of diner adjacent to property did not remove protections of the ARUS).

51. See Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982) (user paying private concessionaire for service was not fee for use of land, despite concessionaire paying percentage of gross receipts to government); Cox v. United States, 827 F. Supp. 378, 384 (N.D. W. Va. 1992) (government charging concessionaire for use does not remove recreation-use immunity when plaintiffs were not charged for use).

52. Hunt, 2021 WL 4066328, at *2.

53. Id.

54. See Carlton, 93 F.3d at 510.

55. See Moss, 895 F.3d at 1099. ■

What's in a Name: Preserve-ing the Buffalo River

By Tyler Mlakar

Tyler Mlakar is a litigation associate at the Rose Law Firm.

The Buffalo River is Arkansas’s Garden of Eden. Its towering limestone bluffs, crystal-clear waters, and vibrant foliage inspire awe in all who behold them. The river boasts abundant wildlife and world-class recreational opportunities for outdoor enthusiasts of all stripes. And it is an area chock-full of history, culture, tradition, and— believe it or not—politics. The Buffalo River has engendered some of Arkansas’s most potent political crises of the past half-century.

In the 1960s, the U.S. Army Corps of Engineers sought to dam the river in furtherance of a hydroelectric project (the “Dam Crisis”). The issue provoked so much controversy that Congress stepped in—passing a law that made the Buffalo River America’s first national river in 1972.1 Of course, such recognition came at a substantial price: many locals lost generational family farms in the process. Then, in the 2010s, C&H Farms (backed by Cargill, Inc.), obtained a permit to operate a concentrated animal feeding operation (“CAFO”) near one of the Buffalo’s tributaries.2 Once the public realized what was happening, allout war ensued for nearly a decade. It ended only after extensive legal wrangling and an agreement by the State of Arkansas, in conjunction with the Nature Conservancy, to pay C&H Farms $6.2 million.

Arkansans are jealous of the Buffalo, and it is against that backdrop that we enter the present controversy. On October 5, 2023, the Madison County Record ran a story titled, “Changes floated for land on Buffalo River,” immediately igniting the dormant embers of past Buffalo River controversies.3 In it, journalist Ellen Kreth reported that a group called the “Coalition for Buffalo River National Park Preserve” (the “Coalition”) was floating the idea of redesignating the Buffalo National River as the Buffalo River National Park and Preserve.4 According to proponents, such redesignation would bring additional funding to the Buffalo and economic benefits accompanying increased tourism.5 This and subsequent reports revealed the involvement of the Runway Group, a Walton-owned enterprise; Congressman Bruce Westerman’s office; and the Sarah Huckabee Sanders administration.6 Once the story broke, many Arkansans—particularly Buffalo River locals—were up in arms, especially because talks about redesignating

the Buffalo had begun in secret as early as July 2022.7 Consequently, on October 26, 2023, the Remnants Project, a historical and cultural heritage preservation group, held a town hall in Jasper at which more than 1,000 people appeared to voice their dissent.8 Dissidents primarily complained about the Coalition’s (i) lack of transparency regarding the project and (ii) refusal to involve local stakeholders.9 Opponents also complained that a redesignation could involve substantial land-use restrictions.10 Not long after the town hall, the Runway Group retracted the idea of redesignating the Buffalo.11

Notwithstanding this retraction, many questions remain regarding the legal consequences of redesignating the Buffalo National River. This Article attempts to answer them. Like many Arkansans, I was skeptical of redesignation given the secrecy with which the initial conversations were shrouded. But my research has belied my skepticism. Hopefully, after reading this Article, you will find that redesignating the Buffalo National River as the Buffalo River National Park and Preserve is not such a bad thing after all. Provided, of course, that we do it the right way.

I. The National Park Service, Congress, and names.

The National Park Service (“NPS”) currently manages 429 individual “units”—

commonly referred to as “parks”—covering more than 85 million acres of land in all 50 states, the District of Columbia, and U.S. Territories.12 It boasts an annual budget exceeding $3 billion and hundreds of millions of visitors every year from all corners of the globe.13 Most do not realize that this sprawling colossus of conservation—the impetus for the worldwide national park movement and concomitant salvation of the most beautiful lands, waters, and animals on the planet— all began in Arkansas. Long before the NPS (1916), Yellowstone National Park (1872), or even the Department of the Interior (1849), the 22nd Congress passed a law establishing the “Hot Springs Reservation” in “the territory of Arkansas” as the very first protected area in the United States in 1832.14 Why name it the “Hot Springs Reservation” you ask? Simple: Congress could not think of a better name. Almost 100 years later, following Congress’s creation of the NPS in 1916, the 67th Congress redesignated the Hot Springs Reservation as the “Hot Springs National Park” in 1921.15

Since then, surprisingly not that much has changed regarding the establishment and redesignation of National Park System units. Now, as then, the federal government cannot create a new unit or redesignate an old one absent Congressional act, often known as “enabling legislation.”16 And,

in the enabling legislation, as Congress did with Hot Springs, Congress can refer to a unit by whatever name it desires. In other words, no law limits the designations available to Congress, and Congress has the discretion to create a new designation whenever it pleases. For example, following the Dam Crisis on the Buffalo in the 1960s, Congress passed Public Law 92-237 providing:

That for purposes of conserving and interpreting an area containing unique scenic and scientific features, and preserving as a free-flowing stream an important segment of the Buffalo River in Arkansas for the benefit and enjoyment of present and future generations, the Secretary of the Interior . . . may establish and administer the Buffalo National River.17

This was the first time Congress ever used the “National River” designation.18 New designations abounded during this period. Perhaps that is why, today, there are more than 20 different designations for National Park System units.19 Some of the more popular designations include National Park, National Preserve, and National Historic Site, while lesser-known designations include National Scenic Trail

Cover photo credit: Buffalo River at Roark Bluff, Arkansas Department of Parks, Heritage, and Tourism

or Ecological and Historic Preserve.20 A single unit, such as the New River Gorge National Park and Preserve, can even have multiple designations.21

Relatedly—and this is crucial, as there is no statute limiting the designations available to Congress, neither is there an overarching statute governing the activities that may occur within any particular designation, nor is there any automatic funding increase simply because a unit receives a new designation.22 What this means is that, notwithstanding a particular unit’s formal designation, Congress can mandate, authorize, or restrict essentially any activity it wants in the unit’s enabling legislation—regardless of what activities Congress has mandated, authorized, or restricted in an identically designated unit in the past. So too can Congress authorize whatever appropriations it desires for a particular unit, regardless of that unit’s designation.23 In other words, a unit’s name is just a name; it has no legal effect in and of itself. If you take one thing away from this entire Article, it should be this: a unit’s enabling legislation controls regardless of the formal designation Congress gives the unit, and Congress can make that enabling legislation say whatever Congress—acting through the People—wants that legislation to say.24

Importantly, however, there is a caveat. A unit’s designation, while having no direct legal consequences, can nonetheless be meaningful in at least three ways. First, in practice, “Congress has grouped similar units under similar titles, and often has followed precedents regarding the activities authorized in particular types of units.”25 In other words, units with like designations often have like enabling legislation. Second, the NPS, in interpreting its mandate to “promote and regulate the use of [designated units] by such means and measures as conform to the fundamental purpose of the said [designated units] by such means as will leave them unimpaired for the enjoyment of future generations[,]” looks to how identically designated units are and historically have been managed (including the types of activities typically authorized or restricted in such units) when determining how to govern the unit at issue.26 And third, as some proponents

of the Buffalo River National Park and Preserve have claimed, a unit’s designation can influence visitation patterns, particularly if the unit is designated as a National Park.27 Thus, it is worth looking into what secondary legal effects can result from redesignating the Buffalo National River as the Buffalo River National Park and Preserve.

II. Land-use restrictions in National Parks and

National Preserves.

The NPS’s Organic Act gives the NPS extraordinary discretion in managing land and its accompanying uses, especially when those uses might damage or consume limited resources (often referred to as “consumptive-use activities”—hunting or mining, for example).28 However, that discretion is cabined by the unit’s enabling legislation. There are essentially three categories of uses Congress can refer to in the enabling legislation: (i) mandated, (ii) authorized, and (iii) restricted. In administering mandated uses—i.e., when Congress states in the enabling legislation that the NPS shall or must allow a certain use within a particular unit—unit managers “must allow the use; however, they do have the authority to and must manage and regulate the use to ensure, to the extent possible, that impacts on park resources from that use are acceptable.”29 When a use is mandated, the NPS’s discretion on limiting that use is severely restricted. A prime example of a mandated use is in Section 3 of the Buffalo National River’s enabling legislation, in which Congress provides that “[t]he Secretary shall permit hunting and fishing on lands and waters under his jurisdiction within the boundaries of the Buffalo National River.”30

In administering authorized uses—i.e., when Congress provides that the NPS may allow a certain use within a particular unit—the NPS has “the discretionary authority to allow and manage the use, provided that the use will not cause impairment or unacceptable impacts.”31 In other words, the NPS can exercise its discretion to entirely disallow an authorized use if the NPS finds that such a restriction is in the best interests of the unit. A good example of an authorized use is found in Section 4 of the Oregon Caves National Monument and Preserve enabling

legislation, in which Congress states, “the Secretary may allow the grazing of livestock within the National Preserve.”32 Finally, as to restricted uses, if Congress merely imposes a limit on the use, the NPS has the discretion to permit it. But if Congress prohibits the use entirely, the NPS must abide by the statute.

The NPS also has certain guideposts for when Congress is silent as to a particular use. For example, if Congress does not expressly provide that hunting, trapping, or other methods of harvesting wildlife by the public are authorized or mandated within a unit, the NPS generally prohibits such uses.33 Similarly, the NPS generally bars mineral exploration unless Congress specifically authorizes it.34 Thus, although the NPS’s website states that “the extraction of minerals and fuels may be permitted [in National Preserves] if they do not jeopardize natural values,” that is only true under specific circumstances, and such uses would be outright prohibited if Congress restricted them within the unit’s enabling legislation. Let’s turn to what Congress and the NPS typically allow and prohibit in National Parks versus in National Preserves. In the enabling legislation for National Parks, Congress is often silent as to consumptiveuse activities. For example, in Grand Teton National Park’s enabling legislation, Congress does not mention hunting.35 Consequently, the NPS generally prohibits hunting in Grand Teton National Park.36 That has not always been the case in National Parks, however. In the Mount McKinley National Park enabling legislation (later redesignated as Denali National Park and Preserve), Congress provided, “[t]hat prospectors and miners engaged in prospecting or mining in said park may take and kill therein so much game or birds as may be needed for their actual necessities when short of food[.]”37 Even today, Congress permits “subsistence uses by local residents,” to include hunting and trapping, in many of Alaska’s National Parks.38

In the enabling legislation for National Preserves, Congress almost always mandates hunting and fishing and typically authorizes a wide variety of other consumptiveuse activities. My study of the enabling legislation for National Preserves revealed the following examples:39

Unit Enabling Legislation

All Alaska National Preserves (including Denali National Park and Preserve)

Public Law 96-487: “A National Preserve in Alaska shall be administered and managed as a unit of the National Park System in the same manner as a national park except as otherwise provided by this Act and except that the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed in a national preserve.”

As to the Bering Land Bridge National Preserve, the legislation even authorizes the Secretary to issue regulations “to continue reindeer grazing” in certain areas.

Great Sand Dunes National Park and Preserve

Mojave National Preserve

New River Gorge National Park and Preserve

Timucuan Ecological and Historical Preserve

Public Law 106-530: The Secretary “may permit the continuation of grazing” and “shall permit hunting, fishing, and trapping on land and water within the preserve in accordance with applicable Federal and State laws.”

Public Law 103-433: “Notwithstanding any other provision of law, the Secretary shall permit the holder or holders of mining claims identified on the records of the Bureau of Land Management . . . to continue exploration and development activities on such claims for a period of two years after the date of enactment of this title.”

Public Law 116-260: “Hunting within the New River Gorge National Preserve shall be administered by the Secretary— (i) in the same manner as hunting was administered on the day before the date of enactment of this Act in those portions of the New River Gorge National River” and “Fishing within the New River Gorge National Park and Preserve shall be administered by the Secretary— (i) in the same manner as fishing was administered within the New River Gorge National River.”

Public Law 100-249: “The Secretary shall permit boating, boating-related activities, hunting, and fishing within the Preserve in accordance with applicable Federal and State laws.”

All this to say: redesignating the Buffalo National River as the Buffalo River National Park and Preserve does not necessarily mean strict land-use restrictions will follow. Rather, the extent and nature of such restrictions primarily depends on the enabling legislation. Even then, using history as a guide, while Congress can restrict consumptive-use activities (such as hunting) within the Buffalo River National Park portion, it will not necessarily do so if Arkansans petition for the enabling legislation to say otherwise. And, in any event, Congress is almost certain to expressly mandate such uses within the Buffalo River National Preserve portion.40

III. Would the redesignation lead to entrance fees or permitting requirements?

Part of what makes the Buffalo National River so special is its ease of access; the river is for all people at all times. There are no entrance fees and few restrictions on when and where people can access the river. The Buffalo stands for everything a public treasure should be. Will that change with redesignation? It depends.

Long story short, the NPS’s Organic Act, the Federal Lands Recreation Enhancement Act (“FLREA”),41 and regulations

promulgated under Title 36 of the Code of Federal Regulations afford the NPS wide discretion in deciding whether to charge fees, such as entrance fees or general recreation fees, and whether to impose public-use limits42 on certain recreational activities. Importantly, however, the NPS already has this discretion in the Buffalo National River and has simply decided, in interpreting the previously-referenced authorities, that no such fees or limits should be imposed at this time

Redesignating the Buffalo National River as the Buffalo River National Park and Preserve will not necessarily change that decision. Just look to the New River Gorge National Park and Preserve, for example. Under the formerly designated New River Gorge National River, the NPS did not charge entrance fees, and it likewise does not charge entrance fees for the New River Gorge National Park and Preserve today.43 That being said, if the redesignation of the Buffalo National River as the Buffalo River National Park and Preserve caused a spike in visitor activity—which it almost certainly would—that could cause the NPS to exercise its discretionary authority to start charging entrance fees and impose public-use limits in order to protect the river’s limited resources.

IV. Moving forward.

Looking ahead, it is important to consider the potential consequences of redesignating the Buffalo National River as the Buffalo River National Park and Preserve. While the redesignation would not result in an automatic funding increase, it would result in additional funding if the enabling legislation required it. The redesignation might result in additional land-use restrictions and fees, but it does not have to result in additional land-use restrictions and fees. It is all in the enabling legislation, and, as a condition of any redesignation of the Buffalo National River, Arkansans can petition for that enabling legislation to say what they want it to. For example, Arkansans can petition for it to say, “the Secretary shall permit hunting, fishing, trapping, boating, camping, and other recreational uses to the fullest extent as previously enjoyed under the formerly designated Buffalo National River.” Arkansans can petition for additional funding for roads, infrastructure, and boat launches as a condition of the Act’s passing. And, as a first step, Arkansans can petition Congress to require an NPS area study44 before any formal efforts to redesignate the Buffalo National River are undertaken.

Such studies require public involvement, an assessment of “the level of local and general public support,” and an analysis of a litany of other important factors such as the potential impact to the area’s resources.45

At the end of the day, redesignating the Buffalo National River as the Buffalo River National Park and Preserve could be a great thing for Arkansas, but only if we do it the right way. On the one hand, that means having robust, wide-open public discussions about the costs and benefits of redesignation and ensuring that the Buffalo River remains true to itself and what makes it special—not operating in secret. On the other hand, and equally important, it means staying disciplined to the opportunity, engaging in the process, and avoiding emotionally-charged positions without the benefit of complete understanding and analysis. Let’s really think about the potential that redesignation has for the Buffalo River and not get stuck in the short term. We all want what is best for the Buffalo, and we have the grave responsibility of protecting it for present generations and all posterity. Redesignating the Buffalo National River as the Buffalo River National Park and Preserve might not be the right answer, but I hope that after reading this article, you will conclude that saving the Buffalo River and preserving it are not mutually exclusive.

Endnotes:

1. Act of Mar. 1, 1972, Pub. L. No. 92-237, 86 Stat. 44, 44-46.

2. Brian Thompson, Save the Buffalo River Again: A Story About a National River and a Hog Farm 9-12 (2022).

3. Ellen Kreth, Changes Floated for Land on Buffalo River, Madison Cnty. Rec., Oct. 5, 2023, at 10A.

4. Id.

5. Id.

6. Ellen Kreth, Buffalo River Land Tangled in Crosscurrents, Madison Cnty. Rec., Oct. 26, 2023, at 10A.

7. Id.

8. Bill Bowden, More than 1,100 People Attend Meeting on Redesignating Buffalo National River, Ark. Democrat Gazette, Oct. 26, 2023. Another 2,000 appeared online via Zoom and Facebook.

9. Id.

10. Id.

11. Kreth, supra note 6, at 1A, 10A.

12. About Us, Nat'l Park Serv. (Feb. 14, 2024), https://www.nps.gov/aboutus/ national-park-system.htm.

13. NPS Budget, U.S. Dep’t of Interior (May 10 2023), https://www.doi.gov/ocl/ nps-budget-2#; National Park Visitation Sets New Record as Economic Engines, U.S. Dep’t of Interior (Aug. 21, 2023), https:// www.doi.gov/ pressreleases/national-parkvisitation-sets-new-record-economic-engines.

14. Act of Apr. 20, 1832, ch. 70, 4 Stat. 505; S. Res. 160, 110th Cong. (Apr. 18, 2007).

15. Act of Mar. 4, 1921, ch. 161, 42 Stat. 1367, 1407.

16. Laura B. Comay, National Park System: Establishing New Units, Cong. Rsch. Serv. (Apr. 6, 2022), chrome-extension:// efaidnbmnnnibpcajpcglclefindmkaj/https:// crsreports.congress.gov/product/pdf/RS/ RS20158. There is one exception to this general rule. The President may proclaim National Monuments on federal lands under the Antiquities Act of 1906. 54 U.S.C. § 320301(a).

17. Act of Mar. 1, 1972, Pub. L. No. 92-237, 86 Stat. 44, 44-46.

18. Congress could have designated the Buffalo River the “National Best Place on Earth,” with the same net effect.

19. About Us, supra note 12.

20. Comay, supra note 16.

21. The enabling legislation then refers to maps of the land in question, designating part of the property as a National Park and the remainder as a National Preserve.

22. An automatic funding increase would only occur if a unit’s redesignation sparked increased visitation, which in turn sparked the payment of additional fees. Such is not the case for the Buffalo River, where the NPS currently does not charge entrance fees.

23. For example, even absent redesignating the “Buffalo National River” as the “Buffalo River National Park and Preserve,” nothing stops Congress from immediately appropriating much-needed funds for the improvement of roads, visitor centers, etc. in the Buffalo National River. Of course, equally as true, it would be easier to muster the national political will necessary to appropriate such funds if the Buffalo were redesignated as a National Park and

Preserve. Something about the National Park title gets folks fired up.

24. As an extreme example, Congress could redesignate the “Buffalo National River” as the “Woo Pig River,” and, if the enabling legislation contains the same provisions, nothing would change substantively. Congress’s discretion in this regard is of course cabined by the U.S. Constitution.

25. Laura B. Comay, National Park System: What Do the Different Park Titles Signify, Cong. Rsch. Serv. (Nov. 15, 2023), chrome-extension:// efaidnbmnnnibpcajpcglclefindmkaj/https:// sgp.fas.org/crs/misc/R41816.pdf.

26. National Park Service Organic Act, 39 Stat. 535 (1916) (emphasis added).

27. Ray Rasker, National Monuments Redesignated as National Parks, Headwaters Econs. (May 2018), chrome-extension:// efaidnbmnnnibpcajpcglclefindmkaj/https:// headwaterseconomics.org/wp-content/ uploads/national-monuments-redesignatednational-parks-white-sands.pdf.

28. Comay, supra note 25.

29. Management Policies 2006, Nat’l Park Serv. (2006), chrome-extension:// efaidnbmnnnibpcajpcglclefindmkaj/ https://www.nps.gov/subjects/policy/ upload/MP_2006.pdf.

30. Act of Mar. 1, 1972, Pub. L. No. 92-237, 86 Stat. 44, 44-46 (emphasis added).

31. Management Policies 2006, supra note 29.

32. Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act, Pub. L. No. 113-291, § 3041, 128 Stat. 3789, 3789-92 (2014).

33. Management Policies 2006, supra note 29. 34. Id.

35. Act of Feb. 26, 1929, ch. 331, 45 Stat. 1314, 1314–16.

36. That being said, legislation in 1950 added certain lands to Grand Teton National Park and permitted the NPS to jointly administer an elk reduction program with the Wyoming Game and Fish Department. Pursuant to this legislation, the NPS sometimes allows hunters to take elk in limited areas of the National Park.

See, e.g., Elk Reduction Program Begins November 18, Nat’l Park Serv. (Nov. 14, 2023), https://www.nps.gov/grte/learn/ news/ elk-reduction-program-beginsnovember-18.htm.

37. Act of Feb. 16, 1917, ch. 121, 39 Stat. 938, 938–39.

38. Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371, 2383 (1980).

39. This is not an exhaustive list.

40. The National Park portion of a National Park and Preserve is typically much smaller than the National Preserve portion. For example, the National Park portion of the New River Gorge National Park and Preserve consists of only about 7,000 of the approximately 70,000 total acres.

41. 16 U.S.C. §§ 6801, et seq.

42. See, e.g., 36 C.F.R. §§ 1.5–1.6 (2024).

43. New River Gorge: Fees & Passes, Nat’l Park Serv. (May 11, 2023), https:// www.nps.gov/neri/planyourvisit/ fees. htm#:~:text=There%20is%20NO%20 FEE%20to,not%20available%20for%20 purchase%20here.

44. Such a study requires “specific authorization of an Act of Congress.” 54 U.S.C. § 100507(b)(4).

45. 54 U.S.C. § 100507. ■

Landex Research, Inc

Preserving Nature: A Guide to Arkansas's Conservation Use Easements

By J. Cliff McKinney II

J. Cliff McKinney II is a Managing Member of Quattlebaum, Grooms & Tull PLLC. His practice focuses on real estate law, and he is also an adjunct professor at UALR’s law school.

The Natural State has vast natural resources, including an array of state parks, wildlife management areas and refuges, and national parks. In addition to these public lands, private landowners play a crucial role in preserving natural habitats through conservation easements. Conservation easements achieve the twin goals of conserving nature and saving taxes.

The Uniform Conservation Easement Act

Arkansas adopted the Uniform Conservation Easement Act (“the Act”) in 1983, which is the same conservation easement act adopted in half of the states.1 The primary purpose of the Act is to allow landowners to impose an easement on their property that restricts future uses that would harm the natural condition of the property. Governmental or charitable organizations can then enforce these easements to ensure the future protection of the property. Landowners form conservation easements by granting the easements to a qualified governmental agency or a charity. The landowner and easement holder negotiate the terms of the conservation easement for each property, which vary in their restrictiveness and permitted uses. Conservation easements can be for any length of time, though they are typically perpetual.

Landowners are willing to enter into these easements for two primary reasons, or a blend of both: (1) purely altruistic devotion to preserving the environment; or (2) significant tax advantages. A properly structured conservation easement qualifies as a charitable contribution for income tax purposes under 26 U.S.C. § 170. Additionally, the conservation easement permits a reduction in estate taxes, with heirs permitted to exclude 40% of the value of the land, up to $500,000, protected by the conservation easement from estate taxes.2 Unsurprisingly, there are extensive requirements to perfect the charitable contribution qualification, which are too extensive to cover in this article. Since Arkansas has the Uniform Conservation Easement Act, our act provides the essential framework to ensure that a conservation easement satisfies the IRS’s requirements.

A conservation easement is especially useful for agricultural and recreational land. Unlike a traditional donation of land, the donor of a conservation easement retains title to the land and can continue to use the land for purposes not inconsistent with the conservation easement.3 For instance, the landowner may continue to use the land for farming, timber, hunting, fishing, and low-density housing. This makes conservation easements perfect for farmers and hunters who anticipate never using their land for some other purpose.

A conservation easement can also be used to preserve “historical, architectural, archaeological, or cultural aspects of real property.”4 This makes conservation easements attractive to owners of historic properties who do not wish to change the nature of the property in the future. Arkansas has a unique addition to the Act in Ark. Code Ann. § 15-20-410, which is a special provision permitting the Old State House Commission to hold conservation easements.5 Conservation easements for historical properties can also be granted through the Arkansas Historic Preservation Program, sometimes in exchange for tax credits and historic preservation grants.6

While there are advantages to granting conservation easements, landowners should be mindful of two major disadvantages. First, by their design, conservation easements are difficult to terminate or modify, even if conditions change or the desires of the landowner (or heirs) no longer align with the conservation purpose. Second, by their nature, conservation easements result in a reduction in privacy because the conservation easement holder has an interest in regularly inspecting the property to ensure compliance with the easement.

To elaborate on the first disadvantage, the Act expressly states that it “does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.”7 Arkansas has no reported cases interpreting this portion of the Act, and Arkansas’s statute still incorporates the original 1981 official commentary from the Uniform Law Commission, which guides courts in interpreting the meaning of the Act. The 1981 commentary focuses on the doctrines of changed conditions and the cy pres doctrine. As stated in the commentary:

[I]f the purposes of a charitable trust cannot [be] carried out because circumstances have changed after the trust came into being or, for any other reason, the settlor’s charitable intentions cannot be effectuated, courts under their equitable powers may prescribe terms and conditions that may best enable the general charitable objective to be achieved while altering specific provisions of the trust. … The Act leaves intact existing case and statute law of adopting states as it relates to the modification and termination of easements and the enforcement of charitable trusts.8

In 2007, the Uniform Law Commission officially adopted a new version of the commentary to this section of the Act, which discusses in greater detail the considerations for modifying or terminating a conservation easement.9 The 2007 commentary does not fundamentally change the approach to termination or modification, but the 2007 commentary

is more than twice as long and provides significantly more direction for applying the cy pres doctrine to preserve a conservation easement. The new commentary refers to the approach of the 2000 Restatement (Third) Property: Servitudes, which provides that “in lieu of the traditional real property law doctrine of changed conditions, the modification and termination of conservation easements held by governmental bodies or charitable organizations be governed by a special set of rules modeled on the charitable trust doctrine of cy pres.”10

The 2007 commentary also ties back to the Uniform Trust Code, which Arkansas adopted in 2005. The Uniform Trust Code’s section on the modification or termination of uneconomic trusts specifically excludes conservation easements.11 The commentary to this portion of the Uniform Trust Code clarifies that, unlike traditional trusts, “[m]ost creators of such easements, it was surmised, would prefer that the easement be continued unchanged even if the easement, and hence the trust, has a relatively low market value.”12

To the author’s knowledge, there have been no efforts in Arkansas to adopt the 2007 version of the Act’s commentary. Courts, however, could reasonably take judicial notice of the existence of the newer commentary in crafting decisions. After all, one of the greatest advantages of uniform laws is the ability to draw upon national scholarship and persuasive decisions from other states interpreting the same law.

Conclusion

The Act is a state-of-the-art framework that allows landowners to impose an easement on their property that restricts future uses that would harm the natural condition of the property. Appropriate governmental or charitable organizations can enforce these easements to ensure the future protection of the property. Landowners may enter into these easements for altruistic reasons or to take advantage of significant tax benefits. Conservation easements are especially useful for agricultural and recreational land, as well as for preserving historical, architectural, archaeological, or cultural aspects of real property. However, landowners should be

mindful of the potential disadvantages, including the difficulty of terminating or modifying the easement and the reduction in privacy. The Act provides a valuable tool for landowners to preserve the natural beauty of their property while also potentially benefiting from tax advantages.

Endnotes:

1. Ark. Code Ann. §§ 15-20-401 to -410. As a note of historical interest, the Uniform Conservation Easement Act was developed by the Uniform Law Commission during the presidency of Jack Deacon of Jonesboro.

2. 26 U.S.C. § 2031.

3. Ark. Code Ann. § 15-20-402.

4. Ark. Code Ann. § 15-20-402(1).

5. In full disclosure, the author is both a Uniform Law Commissioner and an Old State House Commissioner.

6. https://www.arkansasheritage.com/ arkansas-preservation/programs/services/ easements (accessed 2/4/24).

7. Ark. Code Ann. § 15-20-409(b).

8. Ark. Code Ann. § 15-20-409(b).

9. https://www.uniformlaws. org/viewdocument/final-act40?CommunityKey=4297dc671a90-4e43-b7047b277c4a11bd&tab=librarydocuments (accessed 2/4/24).

10. https://www.uniformlaws. org/viewdocument/final-act40?CommunityKey=4297dc671a90-4e43-b7047b277c4a11bd&tab=librarydocuments (accessed 2/4/24).

11. Ark. Code Ann. § 28-73-414. 12. Ark. Code Ann. § 28-73-414. ■

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By Silas Heffley

Public Stream Access in Arkansas: Balancing the Right of Access with the Imperative of Conservation

My friend and I had only waded about a hundred yards upstream from the bridge where we parked the truck when the stranger motored down to the water’s edge in his UTV to politely run us off. It was a good smallmouth spot, and we fished it often under the assumption that the creek was accessible to the public, but the man in the UTV believed the creek was his private property because he owned the land on both banks. In his view, we were trespassing. Standing in the cool, waist-deep current in swim trunks and old sneakers and facing opposing counsel on the cut bank above us, it didn’t feel like the time or place—and we didn’t feel appropriately dressed—to litigate the contours of his right to exclude the public from the stream and our right to fish it. Disappointed, we reeled in, apologized and headed back downstream. It had been a good spot, but it was a probably a little too accessible to the burgeoning ranks of fishermen in Bentonville and Rogers to stay good much longer.

Silas Heffley is a tax associate at the Rose Law Firm.

Arkansas's renown as a destination for outdoor recreation has surged in recent years. Many of these opportunities center on the state’s rivers and streams. Riverfront and creekside property in our state is becoming increasingly coveted and valuable, with more and more homes cropping up near these waterways. People long for a private slice of an Arkansas stream, but many of these property owners are unaware of the relatively public-friendly stream access law that protects the public’s right to use these streams in Arkansas. As a result, confrontations like the one that I experienced are becoming more frequent, and they do not always end so civilly. In this fight over access, we must be careful not to throw out the baby with the bath water.

Public Stream Access: The Navigational Servitude

The determination of whether an inland waterway is public hinges on the question of navigability.1 Generally speaking, the public has the right to use navigable waterways for recreation and navigation, but riparian landowners may exclude the public from nonnavigable waterways.2 Long-settled case law stipulates that the determination of navigability for purposes of local property rights is left to the several states.3 Therefore, unless a dispute implicates federal maritime jurisdiction, the federal government’s power to regulate waterways pursuant to the Commerce Clause, or a title dispute between a state and the federal government, a state may formulate and apply its own definition of navigability for waters within its borders.4

But the inquiry cannot stop there. To deem a river navigable, and therefore public, raises more questions than it answers. Is public access restricted to the water, or does the public also have the right to use some portion of the bank? If the public can go on the bank, where is the line

Photo of the Buffalo River taken by the author

between public and private property?5 May the public wade the river and tread on the riverbed, or must it stay in watercraft? Having determined that the public can use a given stream for recreation, what sorts of recreation are permitted?6 The answers to these questions vary from state to state.

The classic test for navigability looks only to a river’s commercial utility. Known as “navigation in fact,” Arkansas courts applied this rule until 1980:

The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then in the American sense, it is navigable, although the annual time may not be very long.7

Within the last century, a growing number of states have expanded the definition of navigability to consider a river’s recreational usefulness. Arkansas joined this number in 1980.

In State v. McIlroy, the Supreme Court of Arkansas considered for the first time an access dispute involving a stream “which has recreational value but lacks commercial adaptability in the traditional sense”—the Mulberry River.8 The plaintiffs, W.L. McIlroy and his late brother’s estate, owned land along the Mulberry in Franklin County.9 They sought a declaration that the river was not a navigable river and that their rights as riparian landowners were therefore superior to the rights of the public.10 The defendants included two canoe liveries, Neil Compton’s Ozark Society and the State of Arkansas, as intervenor.11 They argued that the stream was navigable, and the Court agreed:

Arkansas, as most states in their infancy, was mostly concerned with river traffic by steamboats or

barges when cases like Lutesville, supra, were decided. We have had no case regarding recreational use of waters such as the Mulberry. It may be that our decisions did or did not anticipate such use of streams which are suitable, as the Mulberry is, for recreational use. Such use would include flatbottomed boats for fishing and canoes for floating or both. There is no doubt that the segment of the Mulberry River that is involved in this lawsuit can be used for a substantial portion of the year for recreational purposes. Consequently, we hold that it is navigable at that place with all the incidental rights of that determination.12

Arkansas courts have considered access disputes similar to the one at the center of McIlroy only a handful of times since it was decided 44 years ago.13 Their commitment to the McIlroy rule has been steadfast. An Arkansas waterway is legally navigable, and therefore held in trust by the state for public use, if it is susceptible to use by the public for a substantial portion of the year

in small recreational craft (e.g., canoes, kayaks and small jonboats). As for scope, under McIlroy, the public is entitled to ‘all the incidental rights’ of the determination of navigability. It is a broad standard, and Arkansas courts have not had occasion to refine it since 1980.14

The Buffalo River, crown jewel among Arkansas’s float streams, was the subject of a public access dispute in 1977 just five years after it became our nation’s first national river.15 In the park’s enabling legislation, Congress approved the acquisition of 95,730 acres along the Buffalo.16 By 1977, the National Park Service had acquired roughly 60% of this acreage before running out of appropriations, creating a checkerboard pattern of acquired (public) land and non-acquired (private) land.17 Despite conspicuous no-trespassing signs, public users trespassed on the non-acquired land, cut fences, left gates open and littered.18 The Buffalo River Conservation & Recreation Council, a body composed of the owners of the non-acquired land, filed suit against the Park Service.19 The single cause of action that survived dismissal and went to trial contemplated the right of the public to float the Buffalo through private land.20 The trial court determined

Photo of Elephant Head Bluff taken by the author

that the public had acquired a “prescriptive public easement over the course of the stream and its bed” by virtue of the long history of open and heavy canoe traffic on the Buffalo.21 Trial testimony indicated that approximately 1,200 canoes passed the Pruitt ranger station on a single day. The Eighth Circuit agreed, opining that “a prescriptive right [had] been obtained by the public to travel over the non-navigable stream and its bed.”22

This case clarifies the line between the old and new navigability rules. Under the McIlroy rule, which would not become law for another three years, the Buffalo River would be the quintessential example of a river that is navigable by virtue of its recreational utility. It is one of the premier canoe streams in the United States. In 1977, though, the legal navigability of an Arkansas stream was only a question of commercial usefulness. Without evidence of commercial utility, the Court instead relied on a more familiar servitude—prescriptive easement. Reasoning that public usage of the Buffalo and its bed had been open and adverse for more than seven years, the Court determined that the public had established a prescriptive easement; therefore, riparian landowners had no right to exclude the public from the river. Today, of course, the Buffalo’s legal navigability is largely a moot question. Its banks are publicly owned for its entire floatable length from Boxley to Buffalo City.

A Responsibility to Keep it as God Made It

My Grandpa spent his boyhood summers visiting family in the small Newton County town of Mount Judea.23 The community is situated on Big Creek, which runs into the Buffalo River about four-and-a-half miles north of town (a fact much more widely known now than it was before the hog farm kerfuffle). Cave Creek is over the ridge in the next valley to the east, and Richland Creek drains the next valley east of Cave Creek. All three creeks flow north into the Buffalo River. It was Eden for a boy who loved to fish and hunt in the 1940s. My Grandpa’s favorite pastime was wade fishing the Buffalo and these three tributaries for smallmouth bass with his cousins. In the 1940s, the land along the length of each

of these streams was privately owned— primarily by subsistence farmers. These streams were also assuredly nonnavigable under Arkansas law in 1940. Nonetheless, over the years and the hundreds of river miles they waded together, not once were my Grandpa and his cousins told they were trespassing and asked to leave.

When wading these Ozark streams, a large part of the experience is the smallness of the water. Compared to trout fishing the Bull Shoals tailwater in a 20-foot flatbottom or trolling for stripers on Lake Ouachita, it is an intimate experience to wade the upper reaches of Crooked Creek in search of the indigenous smallmouth bass that have occupied the pools and eddies since time immemorial. Nobody questions the public’s right to use the White River or Lake Ouachita, but the streams that feed these larger bodies of water, and the streams that feed those streams, are a closer question. Legal professionals are uniquely positioned to clarify this question and the applicable legal standard for the broader public.

In the Newton County of my Grandpa’s youth, everybody knew everybody, and nobody was suspicious of a few boys wade fishing in the creek. Under those circumstances, the legal standard governing public stream access was largely irrelevant—the community had developed its own informal code of access rights, and it worked. Circumstances have changed. Today, the region’s pristine rivers, and other opportunities for outdoor recreation, attract droves of visitors from around the country. A knowable legal standard governing stream access is essential to the protection and the safe enjoyment of our rivers, but it is not the whole answer.

The State alone does not have all the tools necessary to guard the private property rights of riparian landowners, protect public river access rights and also preserve the wild beauty of our waterways. In McIlroy, Justice Hickman concluded his opinion with these poignant words:

We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others . . . . While there are laws prohibiting such conduct, every

branch of Arkansas’ s government should be more aware of its duty to keep Arkansas, which is a beautiful state, a good place to live. No doubt the state cannot alone solve such a problem, it requires some individual effort of the people. Nonetheless, we can no more close a public waterway because some of those who use it annoy nearby property owners, than we could close a public highway for similar reasons.

In any event, the state sought a decision that would protect its right to this stream. With that right, which we now recognize, goes a responsibility to keep it as God made it.24

Justice Hickman was right to admonish the public, and his admonition is just as appropriate today as it was in 1980, perhaps more so.25 The plaintiffs in McIlroy filed their lawsuit in part because they had grown tired of the litter that river users left behind and the general annoyance they caused. Some of them were very evidently abusing the resource. The plaintiffs in Buffalo River Conservation and Recreation Council adduced strikingly similar evidence. These abuses still occur today. Fishermen, canoeists, kayakers, campers and hikers who exercise their right to use Arkansas’s navigable streams and rivers must shoulder some part of the responsibility to conserve these waterways. The outdoor recreation industry is booming in Arkansas, but to love our streams to death in the name of economic growth would be a shame on us all.

Endnotes:

1. State v. McIlroy, 268 Ark. 227, 595 S.W.2d 659 (1980).

2. The public has no right to trespass through privately-owned riparian land to access a waterway by mere virtue of the waterway’s status as a navigable river or stream. “It is not disputed that riparian landowners on a navigable stream have a right to prohibit the public from crossing their property to reach such a stream.”

McIlroy, 268 Ark. at 238, 595 S.W.2d at 665.

3. Donnelly v. United States, 228 U.S. 243, 262 (1913).

4. McIlroy, 268 Ark. at 234, 595 S.W.2d at 663.

5. See Southern Idaho Fish and Game Ass’n v. Picabo Livestock Inc., 528 P.2d 1295, 1296–97 (Idaho 1974) (holding that the public use right on a navigable river extends to the high-water line). But see Day v. Armstrong, 362 P.2d 137, 145–46 (Wyo. 1961) (holding that wading the riverbed and walking on the banks, except to the extent necessary to navigate the stream in a boat, constitutes an unlawful trespass on property belonging to the riparian landowner).

6. See Galt v. State Dept. of Fish & Wildlife, 731 P.2d 912, 915 (Mont. 1987) (holding that camping is permitted on some, but not all, navigable rivers, and that big game hunting is prohibited on all Montana rivers). But see Munninghoff v. Wisconsin Conservation Comm’n, 38 N.W.2d 712, 715–16 (Wis. 1949) (holding the public use right embraces boating, bathing, fishing, hunting, and recreation; however, it does not include muskrat trapping where a

navigable river flows through private land).

7. Lutesville Sand & Gravel Co. v. McLaughlin, 181 Ark. 574, 26 S.W.2d 892, 893 (1930).

8. McIlroy, 268 Ark. at 226, 595 S.W.2d at 664.

9. McIlroy, 268 Ark. at 229, 595 S.W.2d at 660.

10. Id.

11. Id.

12. McIlroy, 268 Ark. at 237, 595 S.W.2d at 664–65.

13. See, e.g., State v. Hatchie Coon Hunting & Fishing Club, Inc., 372 Ark. 547, 279 S.W.3d 56 (2011); see also Arkansas River Rights Committee v. Echubby Lake Hunting Club, 83 Ark. App. 276, 126 S.W.3d 738 (2003); see also Nichols v. Culotches Bay Navigation Rights Committee, LLC, 2011 Ark. App. 730, 387 S.W.3d 199; see also Five Forks Hunting Club v. Nixon Family Partnership, 2019 Ark. App. 371, 584 S.W.3d 371.

14. McIlroy, 268 Ark. at 237, 595 S.W.2d at 664–65.

15. Buffalo River Conservation and

Recreation Council v. National Park Service, 558 F.2d 1342 (8th Cir. 1977).

16. Id. at 1343.

17. Id.

18. Id.

19. Id.

20. Buffalo River, 558 F.2d at 1343–44.

21. Id. at 1344–45.

22. Id. at 1344 (emphasis added).

23. The author thanks his Grandpa, Dr. Billy Frank Hefley, for instilling in him a deep love for the people, the culture and the streams of the Ozarks. I love you, Grandpa.

24. McIlroy, 268 Ark. at 238, 595 S.W.2d at 665.

25. Id. (“We are equally disturbed with that small percentage of the public that abuses public privileges and has no respect for the property of others. Their conduct is a shame on us all.”). ■

Where Bicycles Can Travel

By Dean John DiPippa

My wife and I are avid cyclists. (Actually, she’s more than that having recently won medals in national competitions.) We’ve ridden thousands of miles on Arkansas’s bike trails and roads. We’ve seen just about every situation confronting drivers and cyclists.

Cycling is a great activity, but it is not without its risks. Although cycling injuries are down nationwide, cycling fatalities are increasing.1 While Arkansas has made great progress in recent years, our state still lags behind others in promoting bicycling and making it safer. Arkansas ranks 39th out of 50 nationwide and 10 out of 13 states in the Southern region in bicycle safety.2

Sometimes drivers are frustrated because they don’t know the rules that apply to cyclists or don’t understand what cyclists are doing, but sometimes cyclists unnecessarily aggravate drivers by ignoring those rules and common sense. In this article, I want to lay out the basic rules of the road for bicycles,3 some written and some unwritten. I hope this article will reduce the misunderstanding and frustration and help make the roads safer for drivers, pedestrians, and cyclists.

Basic principles

Be visible.

Drivers sometimes fail to notice bicycles because they aren’t looking for them.4

Cyclists should wear the brightest, most garish clothes possible,5 and drivers should start including cyclists in their mental checklist of what might be on the road.

Be predictable.

Cyclists and drivers should ride in ways that let each other know what to expect: e.g., travel in a straight line, use signals, follow all traffic rules.

Be under control.

For cyclists and drivers, this includes riding at safe speeds (especially on shared

use trails), being cautious in bad weather, and not taking unnecessary risks.

Be extra careful.

Cyclists will always lose in a collision with a car. As a rider, I always try to make sure that I know exactly what a driver is doing, and I always try to let drivers know what I am doing. Drivers should return the favor.

Bikes aren’t vehicles but can ride on all public roads (but not sidewalks usually!)

In Arkansas, bicycles are allowed to ride on all public roads, streets, and highways except interstate highways, their on and off ramps, and other controlled access highways.6 In some cities, cyclists must ride on a usable bike path or bike lane if it is adjacent to the road.7

Bicycles are not defined as vehicles.8 Nevertheless, cyclists must obey all traffic rules unless they are specifically exempt, or it wouldn’t make sense to apply the rule to a bicycle.9 For example, cyclists may treat stop signs as yield signs, i.e, slow down and proceed safely through the intersection.10 Similarly, cyclists can treat steady red lights the same way motorists treat stop signs.11

Cyclists may ride on sidewalks unless they can’t! Some cities like Little Rock, North Little Rock, and Bentonville expressly prohibit cyclists from riding on sidewalks in business districts.12

Give bikes three feet.

Drivers must allow at least three feet between their car and bicycles. This applies even when a bike is traveling in a bike lane. Many drivers are not aware of how scary it is for a car to pass close to a cyclist. The important words here are “at least.” Give riders more room if it’s safe. There is a graphic making the rounds on the internet. It has three columns with pictures of a car overtaking a bicycle. The first is titled “Isn’t a Cyclist” and shows the driver

leaving the minimum distance. The second is titled “Knows a Cyclist” and shows the driver moving over into the middle of the road. The third is titled “Is a Cyclist” and shows the driver moving all the way over to the left side of the road.

Cyclists ride to the right unless it’s not safe to do so.

Cyclists must ride as far to the right as practicable.13 The key word here is practicable. It’s dangerous for cyclists to hug the far-right side of the lane or shoulder. Debris, like gravel, glass, etc., renders that area unusable for most road bikes. Even when there is an apparently clear, wide shoulder, cyclists may have to ride more toward the middle of the travel lane. For example, on some rural highways, like Highway 10 out of Little Rock, rumble strips along the shoulder might cause a flat or destabilize the bike. When I ride that route, I position myself in the travel lane just to the left of the rumble strips.

There are other times when riding on the right is not practicable: On a narrow lane when there is no room for a car to safely pass a bicycle, or on a one-way street.14 Or along a line of parked cars with gaps between some of the cars, or on a one-way street riding with traffic.15

Take the lane.

Sometimes it is safer for a cyclist to “Take the Lane”: when a rider occupies the travel lane because it is the safest place to ride. Here are some examples: When there is no shoulder (especially if there is a curb or rough dirt or gravel off the road), when the lane is too narrow to allow a car to pass safely, or on the sharrow (an image with two arrows above a bike).

A cyclist should take the lane to avoid a “right hook.” That happens at an intersection when a car making a right turn cuts the cyclist off. Here a cyclist is better off “taking the lane” to be more visible

to the driver and to prevent the driver from passing the cyclist. Similarly, a cyclist should take the lane when making a left turn, positioning the bike so a driver cannot pass on the left.16

Signal, signal, signal.

Like drivers of cars, cyclists must signal all turns; however, like drivers of cars, many, if not most cyclists don’t do so. Here’s the thing: it’s easy to do and it takes a second. Signaling lets a driver know that you’re aware of the car’s presence and you have a plan. Signaling is especially important before a cyclist takes the lane to avoid a right hook or making a left turn.

Ride two abreast or single file.

Cyclists are allowed to ride two abreast on most roadways.17 In fact, it is safer for a large group to do so. It will take a car less time to pass a group of 10 riders riding two abreast than to pass those 10 riders if they were single file. At the same time, I have seen large groups of cyclists riding in bunches and taking up the entire travel lane and shoulder. In fact, I have often seen two cyclists taking up the entire lane when there was a usable bike path with room for both. While drivers need to share the road, cyclists need to be willing to share the road, too.

At the same time, it is safer and more courteous for cyclists to ride single file on shared use paths. Most paths aren’t wide enough to accommodate cyclists riding two (or three) abreast and pedestrians or cyclists coming in the opposite direction.

Let pedestrians and other cyclists know you’re passing.

Cyclists should always announce their presence when passing a pedestrian or another cyclist. That’s why some cities require bikes to have bells. But even without a bell, it’s easy and there’s a recognized formula: Say “On your right/ left” with enough time for the other person to prepare and for you to safely pass. In the last few years, we have noticed that fewer cyclists let others know they are passing. When cyclists pass us without any notice, my wife will proclaim “Announce Please” as they go by.

Bike specific equipment rules

There’s no state law about what equipment a bike must have, but some

cities specify certain equipment. Generally, bikes must have workable brakes,18 lights in the front and reflector or a light in the back,19 and, sometimes, a bell or other device to signal (but not a siren or whistle).20

Today, most good bikes from bike stores don’t come with reflectors and none come with lights. They’re a good idea to add whether the law requires them or not. You can buy small, inexpensive lights for the front and the back. After a recent crash, I added a light/camera combination on the front and the back.

Helmets are not required, but really, don’t be stupid. Cyclists won’t need a helmet’s protection on every ride, but when they do, helmets are lifesavers. My wife has had three crashes where the helmet prevented more serious injuries and probably saved her life.

Conclusion

Cycling can make us healthier and reduce our carbon imprint. Following the rules of the road and our common sense can make it safer, too. See you on the road!

Endnotes:

1. See https://bikeleague.org/new-fatalitydata-for-2021-shows-increase-in-bicyclist-

deaths/ (cycling deaths gradually increasing since 2010 lowpoint).

2. See https://bikeleague.org/bfa/states/statereport-cards/.

3. I will limit my discussion to road cycling and won’t discuss other cycling like mountain and gravel riding.

4. In a famous experiment, people were told to watch a video and count the number of times a group of people passed around a ball. During the video a person in a gorilla suit walks through the group. Most people failed to notice the gorilla. See Christopher Chabris and Daniel Simons, The Invisible Gorilla: And Other Ways Our Intuitions Deceive Us (2010). For the original video of the Selective Attention Test, see https://www. youtube.com/watch?v=vJG698U2Mvo.

5. Countermeasures that work: A highway safety countermeasures guide for State Highway Safety Offices [PDF – 641 pages] (Report No. DOT HS 813 097), Washington, DC: National Highway Traffic Safety Administration (10th ed. 2021).

6. This right seems to be created by implication. Ark. Code Ann. § 27-511802 (2020). See Arkansas Rules for Cyclists https://www.ardot.gov/wp-content/ uploads/2021/02/Arkansas_Traffic_Rules_

(“Cyclists can use any public road, street, or highway in Arkansas, with the exception of the freeways and other controlled-access highways.”).

7. Little Rock, Ark., Code of Ordinances § 32-489. The key word here is “usable.”

8. Ark. Code Ann. § 27-51-1801(1):

“Bicycle” means a human-powered vehicle:

(A) With two (2) or more wheels in tandem, designed to transport by the act of pedaling one (1) or more persons seated on one (1) or more saddle seats on its frame; and

(B) Used on a public road, bicycle path, or right-of-way.

9. Ark. Code Ann. § 27-51-1802:

A person operating a bicycle has the rights and duties applicable to a driver of a vehicle, unless:

(1) A provision of this subchapter alters a right or duty; or

(2) A right or duty applicable to a driver of a vehicle cannot by its nature apply to a person operating a bicycle.

10. Ark. Code Ann. § 27-51-1803(a):

(1) A person operating a bicycle approaching a stop sign shall:

(A) Slow down;

(B) If required to avoid an immediate hazard, stop at the stop sign before entering the intersection; and

(C) Cautiously enter the intersection and yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.

(2) If a person operating a bicycle meets the requirements provided in subdivision (a)(1) of this section, he or she may cautiously make a right or left turn, or proceed through the intersection without stopping at the stop sign.

11. Ark. Code Ann. § 27-51-1803(b):

(1) A person operating a bicycle approaching a steady red traffic control light shall:

(A) Make a complete stop at the steady red traffic control light before entering the intersection; and

(B) Yield the right-of-way to all oncoming traffic that constitutes an immediate hazard during the time that he or she is moving across or within the intersection.

(2) If a person operating a bicycle meets the requirements as provided in subdivision (b)(1) of this section, he or she may proceed through the steady red traffic control light with caution.

12. See, e.g., Little Rock, Ark., Code of Ordinances § 32-494(b); Bentonville, Ark., Code of Ordinances § 82-84.

13. See, e.g., Little Rock, Ark., Code of Ordinances § 32-489.

14. See Arkansas Rules for Cyclists, https://www.ardot.gov/wp-content/ uploads/2021/02/Arkansas_Traffic_Rules_ for_Cyclists.pdf.

15. Fayetteville’s ordinance expressly lists these situations. See Fayetteville, Ark., Code of Ordinances § 73.04(A)(2). It concludes that a cyclist riding in this way does not “impede traffic.” See id. at 73.04(C).

16. See Arkansas Rules for Cyclists, https://www.ardot.gov/wp-content/ uploads/2021/02/Arkansas_Traffic_Rules_ for_Cyclists.pdf.

17. State law does not specify this but some cities, like Little Rock, do. See Little Rock, Ark., Code of Ordinances § 32-489;

Fayetteville, Ark., Code of Ordinances § 73.02.

18. See Little Rock, Ark., Code of Ordinances § 32-496: “Every bicycle shall be equipped with a brake which will enable the operator to make the braked wheel skid (a) on dry, level, clean pavement.”

19. See id. at § 32-495:

(a) Every bicycle shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least five hundred (500) feet to the front and with a lamp on the rear exhibiting a red light visible from a distance of five hundred (500) feet to the rear.

(b) A red reflector meeting the requirements of law may be used in lieu of a rear light.

20. See id. at § 32-496: “No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal for a distance of at least one hundred (100) feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.” ■

Larry Ward Burks of Little Rock died April 25, 2024, at the age of 80. Larry was a veteran who served as a Lieutenant for the U.S. Army during the Vietnam War era. After his service, he had a fruitful law career that spanned over 50 years, practicing across Arkansas, and ultimately operating his own mediation-arbitration practice.

Marion B. Burton of Little Rock died on Jan. 27, 2024, at the age of 93. With the benefit of a Naval ROTC scholarship, he graduated from Pennsylvania State University in 1952 with a major in physics and minors in mechanical engineering and naval science. After graduation, he went directly into flight training in the U.S. Navy. After serving in the Navy, he went on to law school at the University of Michigan, where he completed his degree in 1959. After Governor Rockefeller’s death in 1973, Marion was named co-executor of the governor’s estate and a trustee of the Winthrop Rockefeller Charitable Trust.

Judge John Gray Holland of Fort Smith died on April 6, 2024. John served in the United States Army's 110th Infantry Division. He served as a front-line, combat infantryman in the European Theatre during World War II. John was awarded the Combat Infantryman's Badge and was also awarded the Bronze Star. He graduated from the University of Arkansas and the University of Arkansas School of Law. John pursued his legal career in Fort Smith, joining his father in private practice.

Over the course of his career, he served for four years as Assistant City Attorney for Fort Smith, for 17 years as a United States Magistrate, and for seven years as a referee for Worker's Compensation. In 1974, John was elected to the position of circuit judge for Sebastian and Crawford Counties. He held this position until his retirement in December 1998.

Josh “Eddie”

McHughes of Little Rock died on February 16, 2024, at the age of 82. He practiced law for 57 years and was a lifelong philanthropist.

Former U.S. Senator David Pryor of Little Rock died on April 20, 2024, at the age of 89. He earned his undergraduate degree from the University of Arkansas in 1957 and law degree in 1964. At the age of 26, Pryor won a seat in the Arkansas House of Representatives, marking the beginning of a political career that spanned over three decades. His journey was marked by various offices, including State Representative, U.S. Congressman, Arkansas Governor, and U.S. Senator. In 2004, Pryor was named the Founding Dean of the Clinton School of Public Service. He was inducted into the Arkansas Bar Association inaugural class of the Legal Hall of Fame in 2022, celebrating his enduring legal legacy. As stated during his induction, "Senator David Pryor embodied the service aspect of public service."

Paul Sloan Rainwater of Crossett died on January 8, 2024, at the age of 74. Paul received a Bachelor of Science in Economics with a Minor in Business Law from Louisiana Tech University in 1971. He went on to receive his Juris Doctorate from the University of Arkansas School of Law in 1974. Paul was a partner with Griffin, Rainwater & Draper in Crossett for his entire career.

Shayne Smith of Little Rock died on March 29, 2024, at the age of 61. He held a Juris Doctor from the University of Arkansas at Little Rock William H. Bowen School of Law, and a bachelor's degree in communications from UALR. Shayne dedicated 30 years of his professional life to the Acxiom Corporation, retiring in October 2023 as its General Counsel.

Don E. Trimble of Little Rock died on May 3, 2024, at the age of 71. He served in the U.S. Army, where he was a map-maker, photolithographer, and printer. After training, he was sent to the Panama Canal Zone in 1972. He later earned his Bachelor’ s Degree from the University of New York. After the U.S. Army, he worked at various printing companies around Little Rock before deciding to re-enter the U.S. Army in 1978. He practiced law in Little Rock after graduation from the University of Arkansas School of Law.

The information contained herein is provided from the members' obituaries.

M E M O R I A L S A N D H O N O R A R I A

The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period February 1, 2024 through April 30, 2024.

In Memory of Anthony W. Black

Jeffrey and Lester McKinley

In Memory of William Bridgforth

Tom D. Womack

In Memory of Marion Burton

Barbara and B. Jeffery Pence

In Memory of George Callahan

Hyden, Miron & Foster, PLLC

In Memory of Judge Gayle Ford

Nancy and Judge John N. Fogleman (ret.)

In Memory of Judge John G. Holland

Judge Robert T. Dawson

Mark A. Moll

Rex M. Terry

In Memory of Josh McHughes

B Jeffery Pence

In Memory of James McKenzie

Steve Quattlebaum

In Memory of James “Red” Morgan

Steve Quattlebaum

In Memory of Warren Franklin Morledge

Tom D. Womack

In Memory of U. S. Senator David H. Pryor

Hayden and Gordon S. Rather, Jr.

In Memory of John L. Rush

Tom D. Womack

In Memory of Charles Nicholas (Nick) Thompson

Rex M. Terry

In Memory of Judge Rice Lee VanAusdall

Roger U. Colbert

Honoraria, Scholarship Contributions and Other Gifts

Arkansas Bar Foundation

Charles A. Banks

Judge Laurie Bridewell

Carl J Circo

Gwendolyn Rucker

Sebastian County Bar Association Scholarship Fund

Sebastian County Bar Association

THE ARKANSAS BAR FOUNDATION was established in 1958 to support efforts to improve the administration of justice. Many thanks to contributions by Fellows, individuals and firms who help build funds for the Foundation in order for investment income from the endowment to support the good works of the Foundation In the past year, the Foundation is pleased to financially support:

ArkBar YLS “18 & Life to Go” handbook 5 2 E N D O

52 ENDOWED SCHOLARSHIP FUNDS providing approximately 70 Arkansas law students with financial assistance annually at the University of Arkansas School of Law and the UALR Bowen School of Law The Foundation also funds an Arkansas Bar Foundation Professor of Law at each law school.

ArkBar State High School Mock Trial Competition

Arkansas Access to Justice Free Legal Answers Program

Educational Speakers at Arkansas Bar Association Annual Meeting

Rural Incubator Program

Delta Initiative Constitution Days Project Legal Aid of Arkansas Spring Break for Justice

National Mock Trial Competition (held in Little Rock in May 2023)

Arkansas Bar Foundation 2224 Cottondale Lane ~ Little Rock, Arkansas 72202

Questions? Please contact Ann Dixon Pyle, Executive Director 501.801.5670 or by email at apyle@arkansasbarfoundation.com www.arkansasbarfoundation.com

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Attorney Disciplinary Summaries: Final actions from January 1, 2024 – March 31, 2024, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online at https://www.arcourts. gov/professional-conduct/opinions. [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

SUSPENSION:

HOWARD, WILLIAM McNOVA, of Pine Bluff, ABN: 87087, in Committee Case No. CPC-2023-025, on a complaint by Deric Smith, by Findings & Order filed January 23, 2024, was SUSPENDED for 12 MONTHS, and assessed costs of $150.00, for violations of AR Rules 1.1, 1.3, 3.4(c), and 8.4(d). Howard failed to timely file the record and then failed to

file the brief for his client’s appeal, to the detriment of his client’s case.

STAYED SUSPENSION:

KLOCK, ROBERT DAVID, of Bentonville, ABN: 76066, in Committee Case No. CPC-2023-017, on a complaint by Nery Ramos, by Findings & Order filed January 26, 2024, was SUSPENDED for SIX MONTHS, ordered to pay a fine of $1,000.00, assessed costs of $150.00, and ordered to pay restitution of $1,700.00, for violations of AR Rules 1.1 and 8.4(d). Klock filed immigration documents that could expose his client to deportation proceedings. The suspension was stayed and Klock was ordered to complete six months of supervised probation.

2024 Honorees

H. David Blair

Jean Turner Carter

Judge Lavenski Smith

Judge Joyce Williams Warren (Ret.)

University of Arkansas School of Law

Herschel H. Friday*

U. M. Rose*

Judge Elisijane Trimble Roy*

Posthumous*

September 12, 2024 Robinson Center, Little Rock

Lawyers, Judges &Law Students: We Need You!

Your participation in a study will help AR JLAP gain insight into the mental health needs of judges, attorneys and law students in Arkansas and give us valuable information that we will use to develop and improve our programs for you.

This study has been reviewed and approved by UA Little Rock's Institutional Review Board (IRB) (protocol #23-105-R3). Dr. Catherine Crisp, Associate Professor, is the Principal Investigator; please contact her at clcrisp@ualr.edu or 501-916-5828.

Lawyers, Judges, & Law Students: We Need You!

We invite you to participate in the Arkansas Judges and Lawyers Assistan Program (AR JLAP) study of all licensed judges, attorneys, and law student Arkansas. In order to participate in this study, you must have an active law lic in the state of Arkansas or be enrolled at one of the two law schools.

Those who submit the survey will be given a link to an opportunity to earn one free CLE from AR JLAP. To submit the survey, you must be over the age of 18, agree to the risks and benefits of the study and scan the QR code below. You do not have to submit any of the questions. Thank you for your participation in this important research.

Your participation in this study will help AR JLAP gain insight into the men health needs of judges, attorneys, and law students in Arkansas and give us va information that we will use to develop and improve our programs for you

This study has been reviewed and approved by UA Little Rock's Institution Review Board (IRB) (protocol #23-105-R3) Dr Catherine Crisp, Associa Professor, is the Principal Investigator; please contact her at clcrisp@ualr.edu 501-916-5828.

Those who submit the survey will be given a link to an opportunity to earn on CLE from AR JLAP To submit the survey, you must be over the age of 18, to the risks and benefits of the study, and scan the QR code below. You do no to submit any of the questions Thank you for your participation in this impo research

ARKANSAS JLAP 2100 RIVERFRONT DR, SUITE 100 LITTLE ROCK, AR

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CLE at the Hot Springs Convention Center

WEDNESDAY FRIDAY

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THURSDAY

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social events

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