Union Pacific Railroad isn't obligated under Arkansas law to reinstall an at-grade pedestrian crossing in downtown Ozark, according to the federal Surface Transportation Board.
The board found that federal law trumps state law in the matter, according to Friday's ruling.
"The board concludes that an at-grade crossing at the proposed location would unreasonably interfere with UP's present and future rail operations on the tracks at issue," according to the decision.
"We believe this decision is in the best interest of public safety," said Jeffrey Degraff, a spokesman for Union Pacific. "We look forward to continuing to work with the community of Ozark."
Christopher Brockett, an attorney from Ozark representing his hometown in the case, said he is "extremely disappointed in the board's decision." He has recommended that the city request a reconsideration from the board or file an appeal in federal court.
An at-grade crossing had existed at Oliver Street from about 1970 to 2001, when it was given to Union Pacific ostensibly because train horns bothered at least one area resident. Federal rules require trains to sound horns before all public crossings.
Since 2014, Ozark has wanted the crossing back.
Ozark wants to develop a park and transient boat dock on the Arkansas River, the town's southern border. The land can only be accessed by crossing Union Pacific's tracks, so Ozark wanted Union Pacific to restore the crossing at the railroad's expense.
On Dec. 10, 2015, U.S. District Judge Timothy Brooks concluded that the crossing wasn't closed legally under Arkansas law.
Union Pacific appealed, and on Dec. 19, the 8th U.S. Circuit Court of Appeals reversed Brooks' ruling that said Arkansas law held sway in the dispute. But the appeals court didn't overturn Brooks' conclusion that the crossing was closed illegally, said Brockett.
Brockett said the Surface Transportation Board didn't explain how Union Pacific could ignore Arkansas law that states how a public crossing can be closed.
"The board glosses over this vital fact and legal question and instead states safety and unreasonable interference in railroad operations as the basis to not reinstall the crossing," Brockett said. "The board's decision is authorizing Union Pacific to commit an unconstitutional taking of the city's easement as it was closed without authority or just compensation."
The board's decision emphasized the current situation at the crossing.
"Whether or not the crossing was improperly removed 16 years ago, the location at which the crossing had existed has changed significantly since then," according to the decision.
Union Pacific has added 600 feet of siding tracks, which allow the company to use the location for various purposes, according to the decision.
"The proposed location of the crossing would cross four of UP's tracks, including a mainline track, a long side track used as a storage track and for train meets, and two side tracks UP uses to set out cars," according to the board decision.
"Installing a crossing at this location would restrict UP's use of the side tracks, causing trains and equipment that otherwise would have been cleared onto the side tracks to block the mainline and create train delays and inefficiencies in UP's rail operations," according to the decision. "Furthermore, the increased switching of railcars required at the crossing would result in additional brake safety inspections, which can result in delays in train operations of up to 90 minutes. The record also demonstrates that the crossing would pose safety risks to both UP employees and members of the public who traverse the crossing."
The appeals court had questioned whether Arkansas had jurisdiction in the case.
On Jan. 11, the appeals court order was filed as a mandate with U.S. District Court in Fort Smith, and Brooks issued an order requiring Ozark to file for leave to pursue the declaratory judgment from the Surface Transportation Board. The U.S. District Court case was stayed in the meantime.
The Surface Transportation Board is a regulatory agency authorized by Congress to resolve railroad rate and service disputes and review proposed railroad mergers.
According to Brockett's Feb. 13 petition for declaratory judgment, the public crossing was established around 1876 by Union Pacific's predecessor, the Little Rock and Fort Smith Railroad, to allow access to the river. It's on railroad maps dating from at least 1916, he said.
In 2001, then-Ozark Mayor Todd Timmerman asked Union Pacific to remove the crossing. Because the Ozark City Council didn't vote on the matter, the removal of the crossing was illegal, said Brockett, citing Arkansas Code Annotated 14-301-304(a).
Union Pacific had argued that the Interstate Commerce Commission Termination Act's pre-emption clause in 49 U.S.C. 10501(b) granted the Surface Transportation Board exclusive jurisdiction in the case.
Brooks wrote in his summary judgment in December 2015 that the act didn't apply because the railroad never had legal authority to close the crossing in the first place.
Brooks wrote that Union Pacific had to adhere to Arkansas Code Annotated 14-301-304(a), and that Timmerman's request wasn't sufficient authority to remove the crossing.
"The mayor's oral permission -- even if premised on a genuine, but erroneous, belief of his authority, and otherwise well intended -- is simply not a substitute for proper compliance with Arkansas law," Brooks wrote.
But the appeals court had a different view regarding the act.
"An order requiring Union Pacific to restore the crossing 'to its pre-2001 condition' because it was closed in violation of state law more than 15 years ago is pre-empted if that restoration will unreasonably interfere with rail operations as they are conducted today or are likely to be conducted in the future," according to the appeals court ruling. "For these reasons, we agree with Union Pacific that the district court's order must be reversed and the case remanded for a determination whether this crossing dispute is within the exclusive jurisdiction of the [Surface Transportation Board]."
Before 1970, an at-grade crossing allowed Ozark residents to access a small neighborhood south of the tracks that included several houses, a horse barn, a lumber company and the city's dump. In the late 1960s, most of this neighborhood was flooded when the U.S. Army Corps of Engineers constructed the McClellan-Kerr Arkansas River Navigation System.
The navigation system created a minimum 9-foot-deep channel for barge traffic from the Port of Catoosa near Tulsa to the Mississippi River. The system includes 18 locks and dams that artificially deepen the river along the entire 445-mile route.
The flooding reduced use of the area south of the tracks in Ozark to sporadic recreation, but some residents continued to use the crossing, so Union Pacific locomotives continued to sound their horns when approaching it.
"By 2001, at least one Ozark resident had complained about the train whistles," according to the appeals court ruling. "Ozark's mayor contacted Union Pacific, which agreed -- no doubt readily -- to remove the crossing at its own expense. The mayor informed Ozark City Council members. No member objected, but the Council did not pass an ordinance vacating a public street."
Metro on 08/01/2017