The battle over a street and railroad crossing in downtown Ozark is heading to the 8th U.S. Circuit Court of Appeals.
Union Pacific Railroad filed notice on Thursday that it will appeal a federal judge's ruling that it must give the crossing back to the city of Ozark in Franklin County.
Union Pacific's tracks run along the southern border of Ozark, separating the city from the Arkansas River.
The notice of appeal was filed in U.S. District Court in Fort Smith by Scott H. Tucker, an attorney with Friday, Eldredge & Clark, the Little Rock law firm representing Union Pacific.
Tucker had nothing more to add when contacted Friday.
"Because this matter is still in litigation, we are unable to comment," he said via email.
Oliver Street was a public crossing over the railroad tracks in downtown Ozark for more than a century, said Sandy Key, director of Main Street Ozark, a downtown development group. At different times, the crossing led to a sawmill, pallet mill and the city dump.
But construction of the McClellan-Kerr Arkansas River Navigation System in the 1960s flooded the former dump.
The navigation system created a minimum 9-foot-deep channel for barge traffic from the Port of Catoosa near Tulsa, Okla., to the Mississippi River. The system includes 18 locks and dams that artificially deepen the rivers along the entire 445-mile route.
In 2001, the Ozark mayor asked Union Pacific to remove the Oliver Street crossing. Mayor Todd Timmerman said in 2001 that the train horn bothered residents, according to court testimony on Aug. 28.
But state law says the crossing could be removed legally only if the Ozark City Council passes an ordinance to give up the right of way, U.S. District Judge Timothy L. Brooks wrote in a Dec. 10 summary judgment.
Brooks wrote that Union Pacific had to adhere to the state law 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.
Brooks rejected the railroad's argument that the Interstate Commerce Commission Termination Act of 1995 pre-empted the city's attempt to open the crossing. Brooks wrote the act didn't apply because the railroad never had legal authority to close the crossing in the first place.
The railroad also argued Ozark gave up its right to sue to open the crossing because it waited 13 years to take the railroad to federal court. Brooks noted Ozark mayors had written letters and met with railroad officials since 2004, trying to open the crossing.
Main Street Ozark leases 1.8 acres of land between the railroad tracks and the Arkansas River, just south of the tracks, from the U.S. Army Corps of Engineers.
Plans are to build a boat dock on that land, Key said. But without the Oliver Street crossing, there would be no public path from the boat dock into downtown, where boaters might want to eat lunch or visit antique stores, she said.
"We need a transient boat dock to be able to get traffic off the river into our downtown," Key said. "That's the only crossing that we have. That was a city street that had been there for years. Now there is no crossing at all."
Key said Main Street Ozark would apply for a grant from the U.S. Fish and Wildlife Service to build the boat dock.
The planned dock at Ozark would be 80 feet long, said Tom Jones, an employee with the Arkansas Department of Health who coordinates grants from the Fish and Wildlife Service.
Ozark Landing, as it would be called, would be one of 15 transient boat docks along the Arkansas River from Van Buren to Helena, Jones said. Five of the docks are already in place in Pine Bluff, North Little Rock, Little Rock, Morrilton and Russellville.
A group of boaters called Arkansas River Connection is spearheading the project. They want refueling opportunities at docks every 25 or 30 miles, Jones said. The larger goal is to have transient boat docks along the Arkansas and Mississippi rivers from near Tulsa to the Gulf of Mexico, he said.
Jones said the plan is to build an uncovered dock at Ozark on steel pilings that would allow the dock to rise and fall with the river level.
Transient boats are normally longer than 26 feet and too big to be towed by a road vehicle, Jones said. Also, transient boats wouldn't normally be docked at Ozark overnight, he said.
Main Street Ozark also plans walking trails on the leased land near the river, Key said. She said those plans were submitted to the Corps in 1997 and approved in 2001, the same year the mayor gave the crossing to Union Pacific.
T.R. McNutt, the current mayor of Ozark, said the City Council will decide at its Feb. 8 meeting what it plans to do when the case goes before the 8th Circuit. He said that could entail hiring a different attorney for the appeals-court process. McNutt said the appeal could drag the case out another six to eight months.
McNutt said Ozark had asked for about $577,000 in costs and attorneys fees. Brooks awarded the city $6,398.
Union Pacific has asked for a stay of Brooks' decision until after the case has been appealed. He has yet to issue a ruling.
Christopher D. Brockett of Ozark, an attorney who represented his hometown in the case, didn't return a telephone call seeking comment Friday.
Metro on 01/16/2016