Gov. Blunt Is Playing With Fire [Updated 5/18]

James Baughn on Sunday, May 1, 2005

from the a-lot-of-worms-in-that-open-can dept.

Recently, the Missouri Department of Natural Resources, under marching orders from the Blunt Administration, dropped its plans to rehabilitate the old railroad bridge at Boonville to fill a gap in the statewide Katy Trail State Park. Instead, the Union Pacific Railroad will demolish the historic bridge and reuse four of the five spans for a new bridge elsewhere.

What Blunt and the DNR may not realize is that this move could jeopardize the legal basis for all or part of the existing Katy Trail.

The Katy Trail was created under a Federal law that allows for "railbanking." Ordinarily, when a railroad line is abandoned, ownership of the right of way reverts back to the adjoining landowners. Under the railbanking scheme, the line is not legally "abandoned." Instead, it is "banked" for future use, in case the railroad company ever wants to re-establish the line. Meanwhile, the railroad grade can be converted for "interim" recreational uses.

But if the Boonville Bridge is removed, then it would be nearly impossible to re-establish the line. Development on both sides of the river at Boonville would eventaully obliterate the old railroad grade. Thus, the line would no longer be "railbanked." Once that happens, Missouri could face wave after wave of litigation by disgruntled landowners arguing that all or part of the Katy Trail has no legal basis to remain in existence and should revert back to their ownership.

The law, 16 USC ? 1247(d), allows for recreational uses of railroad grades as long as "such interim use is subject to restoration or reconstruction for railroad purposes." Without a bridge over the Missouri River, it would be unreasonable to expect that the Katy Trail could ever be restored or reconstructed for railroad purposes. Hello, lawsuits!

In one 1996 Michigan case, the court ruled that "[T]he underlying principle of the rails to trails statutes is the preservation of the rail corridor for future rail use. If future rail use is no longer a possibility, the public policy underlying those statutes does not apply." While there might be subtle differences in Missouri law, it seems clear that landowners would be able to pursue a fairly strong case against Missouri if the Boonville Bridge is destroyed.

Don't think that it wouldn't happen. The National Association of Reversionary Property Owners has been zealously fighting rails-to-trails projects for years.

The irony is that Gov. Blunt doesn't want the state to spend the estimated $2 million to rehabilitate the Boonville Bridge to close the gap in the Katy Trail. But the cost to the state could be vastly higher if lawsuits are successfully brought arguing that the Katy Trail is no longer railbanked and is therefore illegal.

Update May 10

The situation continues to get uglier.

First, a former official with the Missouri-Kansas-Texas Railroad, the original owner of the bridge, has come forward and argued that the agreement with the state requires that the bridge remain in place. See the story in Saturday's Columbia Daily Tribune.

Second, I've just been contacted by Ron Kocera, an official from the Department of Natural Resources who has just resigned over this matter. He argues, too, that the agreement requires that the railroad maintain the bridge for transportation use at its current location. The state holds the right to use the bridge as part of the Katy Trail. By attempting to give up this right, Gov. Blunt is handing out state property for free, a potentially illegal act.

This isn't just about the Boonville Bridge. The ill-conceived move by the Governor's Office will almost certainly come back to explode in the faces of Missouri taxpayers and Katy Trail users.

Update May 11

The St. Louis Post-Dispatch published a story today about Kocera's resignation. [Click here for the story -- link may not work after a few days]

Whether the folks in Jefferson City take notice is another question.

Update May 16

This just keeps getting better and better.

First, the Wall Street Journal ran a front-page story today (May 16) about the (available online here). There's some useful background information, including dollar amounts. Quite a bit of money is at stake here.

Second, Jean Carnahan's "" Democrat activism group is getting involved, with an online petition drive and forum.

Finally, last Friday, the Kansas City Star ran a column by Mike Hendricks in which the Director for the DNR, Doyle Childers, reluctantly admitted that the decision to allow Union Pacific to demolish the bridge was made in haste. The department does not know for sure whether the loss of the bridge could put the Katy Trail in jeopardy. As Mr. Hendricks observes, "Seems to me you'd want a definitive answer to that before selling out to the railroad."

Finally, in the St. Louis Post-Dispatch's story from last week, a spokesperson for Union Pacific argues that the Katy Trail is not in any danger because the rail corridor could be tied into other existing lines on both sides of the bridge.

I disagree. Looking at the map, the Katy Trail on the north side of the river does not intersect another railroad until St. Charles -- and even then those two lines don't actually meet (one crosses the other on a high-level bridge). The Katy does intersect other lines to the southwest of Boonville, but without the Missouri River bridge that corridor is still "dangling" and would serve little purpose if it was re-activated.

Update May 18

Now Missouri Attorney General Jay Nixon is getting involved. He visited with city officials in Boonville today (Wednesday) and took a brief tour of the bridge. A story in the Columbia Daily Tribune quotes him as saying, "This bridge is not going to be given to Union Pacific, torn down, dismantled and removed from Boonville without a court challenge. And I will mount that court challenge."