Ozark has issued its final warning to the Union Pacific Railroad, saying it demands action on a closed railroad crossing or it will file suit in Franklin County Circuit Court, a lawyer representing the city said Wednesday.
Christopher Brockett, an attorney with Hatfield, Sayre & Brockett in Little Rock and Ozark, said he mailed a "demand letter" Monday to lawyers representing the railroad. The 45-page letter states that Union Pacific has 30 days from receipt of the letter to either restore the asphalt railroad crossing on the southeastern edge of Ozark or at least agree to do so, or Brockett will file a lawsuit on the city's behalf.
At issue is Union Pacific's 2001 removal of a "grade-level" crossing at Oliver Street, which connected automobile and pedestrian traffic in Ozark to the northern banks of the Arkansas River. The railroad tracks run east-west in that area.
The railroad has insisted that the crossing was on private property owned by Union Pacific, but the city has produced multiple historic maps that identify Oliver Street as a public street. The city says the railroad should have appealed to the City Council for permission to remove the crossing but never did.
The stretch of land between the railroad tracks and the riverbank is undeveloped, and Union Pacific's removal of the crossing might have gone unnoticed -- or at least uncontested -- except that in 2001, the city renewed a 25-year lease on the land with the U.S. Army Corps of Engineers. The city was already five years into an economic-development plan that included developing boardwalks and walking trails along the riverbank.
Over the past decade, Union Pacific has repeatedly refused to reinstall the crossing, insisting that public safety is its primary concern.
"There are serious safety concerns with people crossing the tracks in this area," Union Pacific spokesman Elizabeth Hutchinson said Wednesday, after confirming that the railroad's legal counsel had received Brockett's letter Monday. "Union Pacific's priority is to do all it can to avoid someone getting hurt."
The railroad also has refused proposals to install grade-level crossings at other locations in the area, suggesting instead that the city build an overhead pedestrian crossing, according to previous Arkansas Democrat-Gazette reports. A structure of that type has been estimated to cost more than $500,000, an expense Union Pacific representatives have said the railroad would not pay.
In October, Ozark hired Brockett and his law partner Eugene Sayre to research the legalities of the city's dispute with Union Pacific and to brief city administrators on the likely outcome of a lawsuit. The lawyers' contract with the city caps legal fees at $20,000, plus court costs stemming from filings, depositions and other fees, Brockett said.
At the time, Brockett estimated that it would take six months to two years for a court resolution in the dispute with Union Pacific. However, on Wednesday he said he had not anticipated the slow pace of the federal government in responding to his Freedom of Information requests seeking official records from the Federal Railroad Administration.
Brockett said Wednesday that a two-year estimate of litigation "is probably about right." He noted that if the city wins its legal fight, Union Pacific -- which in filings with the U.S. Securities and Exchange Commission reported 2013 freight revenue worth about $20.7 billion -- would likely appeal, delaying the case further.
The demand letter states that the city will seek damages calculated in part on the basis of a 2007 economic feasibility study conducted by the Center for Business and Economic Research at the University of Arkansas at Fayetteville. The study projected that an investment of $10 million in building a riverfront marina at Ozark would create 187 jobs and generate about $12.7 million in annual revenue.
Ozark Mayor Carol Sneath said that despite the years of ostensibly lost revenue, she would prefer to avoid litigation.
"We just hope that they put our road back," Sneath said.
Metro on 05/17/2014