Board rules for rail­road in Ozark

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - BILL BOW­DEN

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 14-301304(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-foot­deep 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.”

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