SUN­DAY, AU­GUST 13, 2017 2 landown­ers ob­ject to trail on levee’s top

Law­suit says Big River path in­tru­sive, in­vites tres­passers

Northwest Arkansas Democrat-Gazette - - BUSINESS & FARM - STEPHEN STEED

AN­THO­NYVILLE — A law­suit in Crit­ten­den County and maybe $200 worth of steel posts and wire have thrown a kink into the use of a trail for bi­cy­clists and hik­ers top­ping 70 miles of lev­ees along the Mis­sis­sippi River be­tween West Mem­phis and Marianna.

The Big River Strate­gic Ini­tia­tive last fall won rave re­views with the grand open­ing of the Big River Cross­ing — a mile-long pedes­trian and cy­clist route across the Mis­sis­sippi River, from West Mem­phis to Mem­phis, on the long-aban­doned 100-year-old Hara­han rail­road bridge.

“We had great things go­ing with that event, a lot of pos­i­tive mo­men­tum to drive eco­nomic de­vel­op­ment and tourism through­out eastern Arkansas,” said Dow McVean, chief ex­ec­u­tive of­fi­cer of Big River Strate­gic Ini­tia­tive LLC, which helped raise and spend some $18 mil­lion on the project.

There were high hopes, also, for two re­lated projects — the 70-mile levee-top Big River Trail to the south and de­vel­op­ment of Big River Re­gional Park with its 6.8-mile loop around some 450 acres of Crit­ten­den County farm­land and wet­lands just north of the Big River Cross­ing.

“We’re like all good South­ern­ers who want to see this area grow and pros­per,” McVean said. “Get­ting tourism — it’s low-hang­ing fruit — is a way to do that.”

A law­suit by Ralph Carl­son of Proc­tor, about 20 miles south of West Mem­phis, and Ward Walthal of Mem­phis, who owns farm­land in Crit­ten­den County, has com­pli­cated both projects. Carl­son and Walthal sued

the St. Fran­cis Levee District in March, con­tend­ing that the district, which holds rightof-way deeds with Carl­son, Walthal and other landown­ers for ac­cess along the top of the levee, had no au­thor­ity to open a recre­ational trail across their land. The right-of-way deeds, ac­cord­ing to the law­suit, al­low ac­cess by the levee district only for “con­struc­tion, en­large­ment and main­te­nance” of the lev­ees, built decades ago by the U.S. Army Corps of En­gi­neers for flood con­trol.

The district’s ac­tions — which have in­cluded surfacing the levee-top trail with crushed lime­stone and in­stalling spe­cial gates at cer­tain levee cross­ings to al­low pedes­trian or cy­clist ac­cess — sub­jected the two landown­ers to “re­peated and con­tin­u­ing” tres­passes, the law­suit said. The levee district didn’t have le­gal au­thor­ity to grant pub­lic ac­cess to the lev­ees through a third party, the Big River Strate­gic Ini­tia­tive, the law­suit said.

“We’ve got no ax to grind in the law­suit,” McVean, whose Big River or­ga­ni­za­tion isn’t a de­fen­dant in the law­suit. “But we be­lieve the levee district, through the Corps of En­gi­neers, does have a role in bring­ing recre­ation. It’s not a pri­mary man­date, but it is a sec­ondary one, just as the Corps does with recre­ation and fish­ing ar­eas around locks and dams.”

Big River’s ul­ti­mate goal —

a reach­able one within a few years, McVean said — is to tie all Arkansas bike routes, like one be­ing de­vel­oped along the Mis­sis­sippi River at Arkansas City, into one route, stretch­ing from St. Louis to New Or­leans.

No hear­ings have been sched­uled in the law­suit.

BLOCKED GATES

The Big River Strate­gic Ini­tia­tive lob­bied the St. Fran­cis Levee District’s board of di­rec­tors for its sup­port for some five years, and in early 2016 all 19 board mem­bers voted to join the project.

While much of the 70-mile route is eas­ily ac­ces­si­ble at

some 20 en­try points, some landown­ers and farm­ers over the years have put in wide gates, usu­ally pad­locked, across levee roads to con­tain live­stock or limit ve­hic­u­lar traf­fic.

Us­ing a $ 100,000 state grant, the levee district pur­chased and in­stalled 49 spe­cial gates that could be aligned with the cat­tle gates and are just wide enough for a cy­clist or pedes­trian to con­tinue along the trail.

Six of those spe­cial gates were on tracts owned by Walthal and Carl­son, ac­cord­ing to the law­suit.

Some­time af­ter cy­clists

first be­gan us­ing the trail last fall, the spe­cial gates on Walthal and Carl­son’s prop­erty were blocked with steel posts driven into the ground and laced with wire. Pe­ri­od­i­cally, “no tres­pass­ing” signs have been posted.

Levee district work­ers have re­moved the wire when they hear about it, as a safety haz­ard, but the wire of­ten is re­placed. “We are not go­ing to al­low the wire,” said Rob Rash, the levee district’s chief engi­neer. “When we hear about it, we’ll take it down.”

Of the many landown­ers along the trail, only Walthal and Carl­son have ob­jected, Rash said. “That’s the only place that’s shut off,” he said. “No other prop­erty own­ers have done this. The rest is still ac­ces­si­ble.”

“It’s re­ally a beau­ti­ful trail, and then it’s re­ally in­tim­i­dat­ing, and danger­ous, to go down there and see the gates blocked off with wire,” said Steve Hig­gin­bothom of Marianna, a for­mer state sen­a­tor and pres­i­dent of the levee district’s board.

Hig­gin­bothom said he knew of no in­ci­dents on the part of trail users to prompt the gates’ block­age and no con­fronta­tions be­tween users and landown­ers. “I think they just see the signs and the blocked gate and make a Uturn,” he said.

A re­porter last week drove along Blue Lake Road, also known as Crit­ten­den County Road 143 south­east of An­tho­nyville, where two bi­cy­cle gates have been in­stalled, about 1,200 feet apart, atop the levee road that runs

through Carl­son’s prop­erty. At the south­ern gate, two work­ers were trim­ming weeds and grass. The vis­i­tor veered north, to take pho­to­graphs of a bi­cy­cle gate blocked by wire and steel T-posts com­mon on farm­land.

Within a few min­utes, an­other man in a pickup drove up the levee to check on the unan­nounced vis­i­tor. The re­porter iden­ti­fied him­self, and the man in the truck al­lowed, with a smile, that he “might be” Carl­son. It was a friendly meet­ing, like cof­fee-shop talk ev­ery morn­ing among farm­ers and friends, about the nice weather, the dam­age to crops al­legedly caused by the dicamba her­bi­cide, and then the bi­cy­cle trail and law­suit.

“I guess I’m the bad guy in that,” Carl­son said with a smile. Oth­er­wise, he de­clined com­ment and said maybe his lawyer would an­swer ques­tions. With that, he drove off, but slowly enough to make sure his vis­i­tor left and left safely.

TRESPASS REM­EDY Nei­ther Carl­son’s at­tor­ney, James Hale III of Mar­ion, nor Philip Hicky, a For­rest City lawyer rep­re­sent­ing the levee district, re­turned tele­phone calls for com­ment Thurs­day.

The plain­tiffs, in their law­suit, have no beef with trail users them­selves but said the “only rem­edy to stop trespass is to ar­rest or sue the numer­ous bi­cy­cle rid­ers as they trespass across their prop­erty.”

“This will en­tail ex­po­sure to lit­i­ga­tion to many in­no­cent

bi­cy­cle rid­ers who have no idea ac­cess across Plain­tiffs’ prop­erty has not been ob­tained from the landown­ers,” ac­cord­ing to the law­suit. Carl­son and Walthal have asked a judge to is­sue a tem­po­rary in­junc­tion, halt­ing pub­lic ac­cess through the prop­erty, un­til the law­suit is de­cided.

A spokesman at the Crit­ten­den County sher­iff’s of­fice said the agency hasn’t heard of any prob­lems along the route.

The law­suit and the barred gates haven’t got­ten a lot of at­ten­tion, al­though some cy­clists have oc­ca­sion­ally posted com­ments on so­cial me­dia about the mat­ter, said McVean, whose Big River Strate­gic Ini­tia­tive is run out of McVean Trad­ing and In­vest­ments in Mem­phis, a com­pany his fa­ther Charles founded in 1986.

Be­sides an oc­ca­sional grant or money from looseknit fundrais­ers or­ga­nized by cy­cling en­thu­si­asts, the ef­fort is funded by the McVean fam­ily, Dow McVean said.

The ef­fects of the Carl­sonWalthal law­suit can be felt 20 miles north of An­tho­nyville, near West Mem­phis, where Big River Strate­gic Ini­tia­tive has been de­vel­op­ing Big River Re­gional Park. The group has won ease­ments from sev­eral landown­ers and farm­ers for the 6.8-mile pedes­trian and bi­cy­cle loop with un­ob­structed views of the river and the Mem­phis sky­line.

But the route, as first planned, had to be al­tered — to skirt a 111- acre field that Carl­son farms along the shore­line.

Arkansas Demo­crat-Gazette/STEPHEN STEED

Steel posts and wire block a gate in­stalled for bi­cy­clists and hik­ers on the Big River Trail on the Mis­sis­sippi River levee near An­tho­nyville south of West Mem­phis on Tues­day.

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