The fate of a street-railroad crossing in downtown Ozark is up to a federal agency -- at least for now.
After a two-year legal battle, Ozark is asking the Surface Transportation Board if it has jurisdiction in a dispute over a railroad crossing on Oliver Street that prevents pedestrian access to the Arkansas River.
If the board says it doesn't have jurisdiction -- or if it declines to exercise jurisdiction -- then the city would get the crossing instead of Union Pacific Corp., said Christopher Brockett of Ozark, an attorney representing his hometown in the case.
Brockett based that statement on a Dec. 10, 2015, federal court judgment in the city's favor.
Union Pacific appealed, and on Dec. 19, the 8th U.S. Circuit Court of Appeals reversed the U.S. District Court ruling that said Arkansas law held sway in the dispute. The appeals court questioned whether Arkansas had jurisdiction in the case, Brockett said.
On Jan. 11, the appeals court order was filed as a mandate with U.S. District Court in Fort Smith, and U.S. District Judge Timothy 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 is stayed in the meantime.
The Surface Transportation Board is a regulatory agency charged by Congress with resolving railroad rate and service disputes and reviewing proposed railroad mergers.
Brockett filed notice Friday in U.S. District Court that he had sent a petition for declaratory judgment Thursday to the Surface Transportation Board, along with 30 pounds of court documents.
Brockett said he believes that the board will side with Ozark, based on other similar cases. He said he expects a decision from the board within two months.
According to Brockett's 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, ostensibly because someone had complained about the train horns.
Since 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).
Ozark wants to develop a park and transient boat dock on the Arkansas River, and the city needs a safe pedestrian path from there into town, where visitors who arrive by boat can have lunch or shop for antiques. So Ozark wants Union Pacific to restore the crossing, at the railroad's expense.
Union Pacific owns and operates railroad tracks that run east and west between Ozark and the Arkansas River. There's a main track and a side track used to store rail cars and to shunt trains off to the side when they meet another train on the main track.
If Oliver Street is restored as a crossing, the railroad will have to "break apart" trains that would otherwise block that street, said Brockett. Right now, Union Pacific can park a 3,000-foot-long train on the siding blocking Oliver Street. Even without a train blocking the street, pedestrians who cross the tracks would be trespassing, he said.
The appeals court ruled that Union Pacific had made a "strong showing that the remedy the city seeks would 'impede rail operations or pose undue safety risks,' the STB's governing preemption standard." The court used initials to refer to the Surface Transportation Board.
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 preempted 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 STB."
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 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, and 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."
Jeff DeGraff, a spokesman for Union Pacific, didn't immediately return a telephone call or email message seeking comment.
Metro on 02/14/2017