Judge hears 2 sides on rail crossing

Aiming for 30-day ruling, he tells Ozark, Union Pacific

FAYETTEVILLE — A federal judge will decide whether the removal of a Union Pacific Corp. crossing in downtown Ozark was legal and whether restoring it would unduly disrupt the railroad’s operations.

Attorneys for the city and the railroad argued Friday before U.S. District Judge Timothy Brooks in competing summary judgment motions whether the crossing that existed since at least 1916 was part of a public street and whether then-Mayor Todd Timmerman had the legal right in 2001 to ask the railroad to remove it.

After a nearly three-hour hearing, Brooks said he would try to issue a ruling on the motions in about 30 days.

In a summary judgment motion, a party in a lawsuit argues there are no questions of fact for a jury to decide and calls on a judge to decide the case based on the applicable law.

Ozark, which brought the suit against the railroad last August, wants the crossing restored to provide access to the Arkansas River. The railroad and its 100-foot right of way run through the south part of the Franklin County town, along the river, and block access to the river from the town.

Officials in Ozark and Main Street Ozark, an economic development entity, want to develop a riverfront park with a hiking and biking trail. The two entities have acquired a $200,000 state General Improvement Fund grant, and Ozark pledged $319,000 in city money for the project.

The project initially involved building a marina on the north shore of the river at Ozark, but the U.S. Army Corps of Engineers rejected the city’s application. It later rejected an alternative request to build a floating dock at the location.

According to depositions in the case, about $120,000 of the grant has been spent on engineering and legal fees.

Ozark is arguing that the former railroad crossing was a public crossing on a public thoroughfare called Oliver Street.

Ozark’s attorney, Christoper Brockett of Ozark, admitted there is no city document showing Oliver Street has ever been accepted as a public street. But there are maps — including city and official railroad maps — that designate the crossing as a public crossing and Oliver Street, he said.

He also showed Brooks an address directory from 1962 that listed an Oliver Street and addresses south of the railroad tracks that would show the road was used.

Brockett said the evidence showed that, absent official documentation, Oliver Street was a public street because the city accepted it by including it on maps and because the public used the road.

According to depositions, five or six homes, a lumber yard and even the city dump existed between the railroad tracks and the river in the early to mid-20th century. All that was washed away in the 1970s, when completion of the McClelland-Kerr Arkansas River Navigation System raised the river’s water level.

Raising the river level also wiped out the need for the crossing and Oliver Street.

Today, at one spot, the riverbank is within 8 feet of the Union Pacific track, railroad attorney Jamie Jones of Little Rock said.

Brockett argued that Timmerman did not have the authority to allow the railroad to remove the crossing. Relinquishing a city street requires approval of the City Council, he said.

Jones argued that, according to a deposition by Ozark Mayor T.R. McNutt, the City Council gave its approval to remove the crossing when it voted in 2001 to make the city a quiet zone.

The vote had come after complaints were made to Timmerman and others about the trains blowing their horns as they passed through town.

Jones said the trains blew their horns because of the crossing. To create the quiet zone, the railroad had to remove the crossing. She said council members understood that.

Brockett argued that there is no record of that vote on a quiet zone ever taking place. Some council members from that time say there was a vote, some say there wasn’t, he said.

Jones argued the crossing should not be restored because conditions have changed between 2001 and 2015.

The plans by Ozark and Main Street Ozark to put in a park and trail would increase the danger that pedestrians could be hit by trains or become injured climbing on or under rail cars parked on side tracks, she said.

The railroad’s attorney also argued that pedestrian traffic at the crossing or on the tracks — going to or from the proposed park — could force engineers to apply emergency brakes, which could cause trains to derail, endangering the public and railroad employees.

If a train is hauling hazardous chemicals and derails, Jones said, cars carrying the chemicals could rupture and spill their contents onto the ground or into the nearby Arkansas River, causing an environmental disaster.

The railroad has the longest stretch of side tracks for storing cars between Little Rock and Van Buren there, Jones said. The railroad would lose the use of part of that side track if the crossing was restored, disrupting railroad operations.