Nixon adds Union Pacific Railroad to Katy bridge lawsuit

JEFFERSON CITY, Mo. -- Union Pacific Railroad Co. has been added as a defendant in Attorney General Jay Nixon's lawsuit seeking to stop the removal of an old Missouri River bridge that preservationists hope to use for the Katy Trail State Park.

Nixon's updated lawsuit, filed Wednesday, also raises a new claim -- that the bridge cannot be removed without his consent or a court decree, because the money to purchase the rail line 18 years ago came from a charitable trust, and the state must uphold the donor's wishes.

Nixon is seeking a temporary restraining order or injunction barring the Department of Natural Resources from relinquishing the state's right to use the bridge for the Katy Trail, and barring Union Pacific from removing it as part of a plan to reuse the steel elsewhere.

The railroad company was added as a defendant because "we want to make sure that Union Pacific doesn't move forward and tear down the bridge," Nixon said in an interview Thursday.

Union Pacific is awaiting approval of some permits needed to remove the bridge and has not set a date to take it down, said railroad spokesman Mark Davis. He panned Nixon's lawsuit as baseless.

The Department of Natural Resources, meanwhile, has asked the judge to dismiss the lawsuit or disqualify Nixon from bringing it, claiming he has a conflict of interest because his office previously represented the department on Katy bridge issues. At a minimum, the agency wants the lawsuit transferred to Cole County, the seat of state government.

The lawsuit pits Nixon, a Democrat, against the administration of Republican Gov. Matt Blunt, in a debate over whether the abandoned bridge should be refurbished to promote tourism or dismantled to construct a new bridge east of Jefferson City that would make cross-state train travel more efficient.

At the heart of the lawsuit is a 1987 agreement in which the state paid $200,000 for a 200-mile stretch of the old Missouri-Kansas-Texas Railroad for use as a biking and hiking trail.

Normally, abandoned rail lines would return to private property owners. But the federal government allows them to be converted to trails, so long as they are preserved for potential railroad use in the future.

The lift-span bridge at Boonville specifically was excluded from the sale to Missouri. But the agreement required the railroad to keep the bridge available for transportation purposes under the federal law, and gave the state the right to use the bridge for the trail upon waivers of liability acceptable to the railroad.

When Union Pacific, which bought the MKT Railroad, made plans to dismantle the bridge, former DNR Director Steve Mahfood claimed the bridge for state trail use. But after Blunt became governor in January, new DNR Director Doyle Childers reversed that decision, clearing Union Pacific to take the bridge down.

That prompted Nixon's lawsuit, which contends DNR cannot legally relinquish the state's interest in the bridge without legislative approval -- and even then, could not do so without compensation.

Nixon's lawsuit also contends that removing the bridge would create a severance in the rail line, making the trail subject to potential legal challenges by private property owners.

His amended lawsuit notes that the state paid for the bridge with a donation from the Conservation Foundation of Missouri Charitable Trust, which got the money primarily from the late Edward D. Jones Jr. Nixon claims the state has a fiduciary duty to keep old railroad assets for the charitable purposes intended by the donor -- and any transfer of the assets must include the consent of either the attorney general or a judge.

The department contends Nixon has no grounds to sue it. Although Nixon has power to pursue crimes connected with charitable trusts, there is nothing wrong with the way the state handled the Conservation Foundation trust, said Kurt Schaefer, DNR's deputy director and general counsel.

"I think the AG's office is essentially trying to bootstrap some argument that he has authority in this situation, when he otherwise clearly does not," Schaefer said.