State DNR seeks to have bridge lawsuit dismissed

JEFFERSON CITY, Mo. -- The Department of Natural Resources has asked a judge to bar Attorney General Jay Nixon from suing the agency in a dispute over an old Katy Railroad bridge.

In asking that Nixon's lawsuit be dismissed, an attorney for the department contends Nixon has a conflict of interest and lacks the authority to seek an injunction against the agency's decision to waive its right to use the bridge as part of the Katy Trail State Park.

The legal briefs filed last week also ask a judge to transfer Nixon's lawsuit from Cooper County, where the bridge crosses the Missouri River at Boonville, to the seat of state government in Cole County.

The department's arguments were filed by Jefferson City attorney Kent Lowry, whom the agency hired to oppose Nixon. The department asserts that Nixon and his assistants are supposed to represent -- not oppose -- state agencies and, in fact, had been representing the agency on Katy bridge issues until the department decided to relinquish its rights to the bridge.

"Every reasonable attorney would clearly identify the actions of Nixon with regard to DNR to be a conflict of interest," Lowry said in the court filings on behalf of department director Doyle Childers.

Specifically, the agency contends Nixon's deputy chief counsel, William Bryan, represented the agency in numerous legal discussions and meetings about the bridge. Childers asserts in an affidavit that he believes Bryan shared with Nixon's office some of the confidential information he learned while representing the department, and that Nixon then used that information to sue the department, which had been his client.

Nixon said Tuesday that the conflict-of-interest claim was "dead wrong" and "a waste-of-time argument."

"They're trying to avoid the underlying issue of whether or not one department director can give away state property," Nixon said in a telephone interview.

At issue in the lawsuit is a 1987 agreement in which the state paid $200,000 to the Missouri-Kansas-Texas Railroad for a stretch of idle rail line between the St. Charles area and Sedalia. Typically, abandoned rail lines revert to private property owners. But a federal rails-to-trails law allowed the state to buy the rail corridor as long as it is preserved for potential railroad use in the future.

The railroad's Missouri River bridge was not included in the sale, but the agreement stipulated that the railroad would keep the bridge available for transportation purposes in compliance with federal law. It further said the department could use the bridge for the trail "upon execution of waivers of liability acceptable to MKT" railroad.

Former department director Steve Mahfood claimed the bridge for state use shortly before leaving office in December. But Childers, who was appointed director by Gov. Matt Blunt, reversed that decision and gave Union Pacific -- which acquired the MKT railroad -- the right to remove the bridge and reuse it elsewhere.

Nixon contends the Legislature must approve any transfer of state easements to private companies. But the department's response claims Nixon hasn't shown there is a state easement, because Union Pacific never agreed to the state's liability waiver.

Nixon defended his power to sue the agency on behalf of state taxpayers, and said venue was proper in Cooper County because the case involves property there.

"We're trying everything we can to save the bridge and to lessen the risk to the trail," Nixon said.

The attorney general's office claims that removing the bridge could result in a legal severance in the trail, opening the potential for private property owners to sue to get their land back.

The Katy Trail hiking and biking trail does not currently use the old railroad bridge. Instead, it crosses over a pedestrian path on a nearby highway bridge.