The Missouri Department of Natural Resources will not have to sell a portion of the planned Eleven Point State Park, according to a decision released by the Southern Appeals Court after 277 days of deliberation.
The decision relates to a 43-year-old scenic easement attached to 625 acres — about 15 percent — of the property, and a case brought by surrounding land owners.
A former state representative is now urging landowners to appeal the decision and take the case before the Missouri Supreme Court.
“Missourians deserve no less than a Supreme Court look at this important legal case involving the spending of millions of public dollars,” said Mike Dethrow of Alton, who served District 153.
The case relates to nearly 4,200 acres of land in Oregon County for a state park bordering the Eleven Point River.
Property purchased in 2016 for the Eleven Point River State Park included 625 acres, which surrounding land owners said was already encumbered by a scenic easement.
They took the case before the Southern District Court of Appeals in 2020.
According to their attorney, Doniphan-based Devin Kirby, a 1979 scenic easement was established by the owners of what was once Pigman Ranch. The land that would have been sold is along the western side of the river.
“That scenic easement specifically prohibits use of the land for anything other than agricultural purposes, and also prevents it from being used by the public. There shall be no public access from the property to and from the Eleven Point River,” said Kirby in 2020, according to transcripts from the court.
The defendants, DNR, claim that the easement allows for more than just agricultural use.
“That easement was, quote, to provide for and protect the scenic, recreational, geologic, fish and wildlife, historic, cultural, and other similar natural values of the free-flowing Eleven Point River and its immediate environment,” stated one of the defense’s attorneys, Cheryl Schuetze, in 2020.
The easement prohibiting public use was the center of the case. The plaintiffs argued that the easement does not allow public use of any kind therefore putting DNR between a rock and a hard place because, according to Kirby, “the only thing they can do is own and manage property as a state park”.
The defense’s rebuttal to this was the fact that quite a few state parks have areas in which public access is limited.
Schuetze argued that public use is up to interpretation, “public use can involve viewing the river. It’s not that the public gets to walk on every inch of every bit.”
After some deliberation, 37th Judicial Circuit Judge Steven Privette agreed with the plaintiffs, saying 625 acres of 4,195-acres purchased by DNR are located within a boundary protected by a scenic easement and were purchased in error therefore they must be sold.
Following this decision, the defense appealed the case. In the Southern Appeals Court, Judges Jack Goodman, Jeffrey Bates and William Francis gave their opinion Aug. 1 on the case stating DNR State Parks is above the law and facts used in the original case.
“An easement restricting particular rights or uses on a property does not interfere with (the Department of Natural Resources’) ability to acquire and possess such property for park purposes,” the ruling said.
“The Scenic Easement’s restrictions on the use of park property are actually consistent with DNR’s constitutional duty to ‘administer ... the conservation ... of natural resources’ and its statutory obligation to preserve land with ‘scenic, historic, prehistoric, archaeological, scientific, or other distinctive characteristics or natural features,” the ruling said.
It continued, “The trial court’s judgment holding that the public’s actual physical access to 100 percent of park land is a requirement for DNR to acquire and possess land for park purposes, in spite of DNR’s plain statutory and regulatory authority to the contrary, is in direct contradiction to the plain language of DNR’s authorizing statutes and regulations.”
Dethrow disagrees.
“After 277 days of deliberation, Southern Appeals Court Judges Goodman, Bates and Francis are telling Missourians not to look at the entire trial court transcript and the laws which Judge Privette based his decision on in Oregon County Circuit Court,” Dethrow said in a written statement. “They are saying, look over here, in our opinion DNR State Parks is above those laws and facts. As a result, the laws they recognize totally unbridles DNR State Park bureaucrats.”
Additional reporting from Associated Press articles.