by Susan Flader, Missouri Parks Association
This article first appeared in the Missouri Park Association’s HERITAGE newsletter.
 Boonville Bridge Photo by Jim Denny |
A bitter controversy has arisen this spring about whether the Missouri Department of Natural Resources (MDNR) should allow the Union Pacific Railroad to remove the former MKT Railroad bridge at Boonville in order to use the steel to build a new railroad bridge across the Osage River. This complex dispute has led to the resignation of a longtime high-ranking MDNR official and it has resulted in a lawsuit by the Missouri attorney general against MDNR Director Doyle Childers. At bottom is a question about the integrity of Missouri’s enormously popular Katy Trail State Park.
In 1986 the Missouri, Kansas & Texas Railroad (also known as the MKT or Katy) stopped using its rail line between Sedalia in Pettis County and Machens east of St. Charles. If the right-of-way had been officially abandoned, much of it would have reverted to the adjoining property owners. The Missouri Department of Natural Resources began negotiations to preserve the railroad right-of-way under the National Trails System Act by entering into a railbanking agreement with the railroad. The result was Katy Trail State Park.
What is railbanking? According to the Rails-to-Trails Conservancy, railbanking (as defined by the National Trails System Act, see: www.nps.gov/nts/legislation.html) is a voluntary agreement between a railroad company and a trail agency to use an out-of-service rail corridor as a trail until some railroad might need the corridor again for rail service. Because a railbanked corridor is not considered abandoned, it can be sold, leased or donated to a trail manager without reverting to adjacent landowners. The railbanking provisions of the National Trails System Act as adopted by Congress in 1983 have preserved 4,431 miles of rail corridors in 33 states that would otherwise have been abandoned. Opponents of railbanking have unsuccessfully challenged the constitutionality of the railbanking provisions of the National Trails System Act in the United States Supreme Court, including a case involving the Katy Trail, at 225 miles the longest rail-trail in the nation (see: http://www.railtrails.org/whatwedo/policy/railbanking.asp.
In the 1987 contract between the MKT Railroad and the state, the MKT was paid $200,000 for the right-of way from Sedalia to Machens. This did not include outright ownership of the railroad bridge at Boonville but it did include the right to use the bridge for a trail at any time of the state’s choosing conditioned upon the state giving the railroad certain liability waivers. Thus, the state has a conditional use right or property right to the bridge (similar to the mineral rights in a tract of land). In order to invoke the protection of railbanking, the state agreed to maintain the integrity of the railroad right-of-way so it could be used for a railroad again if the need were to arise sometime in the future. While users of the hiking and biking trail currently cross the Missouri River on a special pedestrian walkway on the new highway bridge at Boonville, the state still retained the legal right to use the old railroad bridge if it assumes liability.
In April 2005, MDNR Director Childers, with the backing of Governor Matt Blunt, announced that MDNR intended to transfer the state’s right to the bridge to the current owner, the Union Pacific Railroad (which bought the entire MKT in 1988), thereby allowing the railroad to remove the bridge in order to use it on the Osage. According to Attorney General Jay Nixon, Childers and Blunt are essentially proposing to give away the state’s property right for nothing in return, an action that is illegal and unconstitutional. “This is a giveaway by the state to a private business that stands to receive at least $10 million in benefit from the proposal,” Nixon was quoted as saying at a news conference in Columbia when he announced his May 26 suit against MDNR in the Cooper County Court. “This is an unusual step for me to sue a state agency, but I have a constitutional duty to protect the assets of the state and the interests of the citizens of Missouri.”
Behind this drama lies an issue of great concern to trail supporters, the issue that led to the resignation of 28-year MDNR veteran Ron Kucera on May 6 after Childers indicated his intention to surrender the state’s interest: removal of the bridge may sever a portion of the railbanked corridor from the interstate rail system. If the state relinquishes its interest in the bridge and the Union Pacific removes it, the state may have failed in its obligation to maintain the right of way intact for future rail use and the Rails-to-Trails Act may no longer protect the Katy Trail State Park from the claims of adjoining landowners, who could block public access to portions of the trail.
Obviously this matter would have to be litigated if adjoining landowners challenge the legality of the trail, as they likely would, and there seems to be a difference of opinion about the issues involved. Governor Blunt and MDNR Director Childers, presumably on advice of attorneys in the governor’s office, believe that the corridor remains intact, regardless of the bridge’s removal, and that MDNR has not jeopardized the integrity of the right-of-way; any railroad wanting to use the corridor in the future would have to repair or possibly replace the bridge, so its removal at this time does not change the status of the corridor. Ron Kucera, who as MDNR deputy director was involved in the original negotiation for the railbanked corridor, officials of the national Rails-to-Trails Conservancy, and the attorney general apparently think the integrity of the trail would be threatened. And ironically, it is the attorney general who would have to defend the trail if it were challenged by landowners.
The Ozark Chapter of the Sierra Club has officially gone on record in opposition to the removal of the Boonville Lift Bridge, in that this severance would place the Katy Trail at risk. |
Also involved are calculations of cost, including liability. At one time, Union Pacific was willing to give the bridge to the state or the city of Boonville, if either had been willing to assume liability and responsibility for maintenance. Last December before he resigned, then-MDNR Director Stephen Mahfood announced the state’s intention to exercise its right to use the bridge for the trail, and the park division began seeking cost estimates. The estimates varied widely from $2 million and up, owing to the condition of the bridge, requirements of the Americans with Disabilities Act, and the necessity of the central lift span to remain in a raised position, thus requiring ramps or elevators so people could cross. In addition, with dramatic increases in the world price of steel, the Union Pacific contracted with a Missouri firm to dismantle the bridge for use over the Osage River, and it apparently claimed to require $20 million in compensation from the state if it were not allowed to proceed. Others think there is no legal basis for such a claim.
There has been a great deal of press coverage of the issue, but most of the news has been about whether the bridge should be used for the trail and, if so, what it might cost the state, or whether the bridge should be preserved as an historic artifact (its 400-foot central lift span was the longest in the country when the bridge was opened in 1932) or an economic development asset for the city of Boonville. There have also been articles about campaign contributions by Union Pacific and officials of the firm that is dismantling the bridge. But most press coverage of the controversy has missed the big issue: does the removal of the bridge create a severance that could mean the loss of the protection of the Rails-to-Trails Act and thus threaten the entire Katy Trail State Park?
In the meantime, there is renewed activity among bridge supporters in Boonville, who point out that the city receives some $4 million annually from the new casino near the bridge, some of which could presumably be used to renovate the structure. Bridge enthusiasts including Columbia Mayor Darwin Hindman, who headed the statewide campaign for the Katy Trail, are seeking independent estimates of feasibility and costs for a multi-phase project that might begin with protection of the bridge and access partway out from the north end, all the way to passage across the central lift span. MDNR Director Childers has said he has no objection if other parties can raise the money.
If the attorney general’s suit against MDNR buys time for Boonville to come up with a plan acceptable to the Union Pacific and MDNR, there might yet be hope for the bridge and the railbanked trail of which it is an integral part.