Doniphan residents win court battle against DNR over new state park

DONIPHAN — A Howell County judge ruled recently the Missouri Department of Natural Resources was wrong when it purchased some land along the Eleven Point River to create a new state park, and now the state agency has been ordered to sell a portion of it.

At the heart of the issue is a Wild and Scenic Riverways easement designation established in 1968, which runs along 44 miles of the river.

The DNR purchased 4,197 acres in two tracts along the west side of the river, from Thomasville downstream to the Highway 142 bridge, in 2016 to create the Eleven Point State Park.

But, local landowners, who have had to abide by wild and scenic easements restricting access since the late 1960s, felt the state should fall under the same restrictions and sued DNR in 2017.

“When you have a river like the Eleven Point that’s been protected for 40 years and kept away from the public, it needs to stay in its pristine condition,” said attorney Derrick Kirby of Doniphan, who along with Devin Kirby, represented plaintiffs Van and Elizabeth McGibney and land trustee James Conner in the case.

The Wild and Scenic Rivers Act of 1968, Presiding Circuit Judge Steven Privette for the 37th Circuit said in his ruling, “precludes public access to the river, public use of the easement, boat launching, camping, motorized vehicles, roads, trails, improvements and public entry on any of the lands encumbered by the scenic easement.”

During the trial, DNR Director of Natural Resources Management Programs Ken McCarty testified the purpose of the park was for access, use and enjoyment of the river, which, Privette said, seemed to be in “direct opposition” to the easement. This was to include improvements for that use, which are prohibited under the easement.

Also at the trial, a representative from the U.S. Forest Service testified the agency was responsible for enforcing violations of the scenic easements, and it also would enforce those regulations against DNR. That representative also made note she was unaware of any attempt by DNR officials to modify or terminate any provision of the scenic easement prior to the purchase.

Privette agreed with the plaintiffs in the three-year-long case, saying 625 acres of DNR’s original 4,197-acre purchase are located within the boundaries of the wild and scenic easement, were acquired in error and must be sold.

“As presented to the court at trial, the DNR has acquired as a state park lands which cannot under any reasonable interpretation be used by the public as a park. As such, its actions are arbitrary and capricious,” Privette said in his ruling.

“Having found the action of DNR unlawful, arbitrary and capricious, defendant Department of Natural Resources is hereby directed to divest itself of ownership of those lands located within the bounds of the wild and scenic easement,” the judgement continued.

“It’s a fairness issue. If the landowners can’t use the property, then the state of Missouri shouldn’t be allowed to use it either,” said Kirby.

“If it’s truly a wild and scenic river, it needs to remain a wild and scenic river, not open to the general public the same way as Current River, Johnson Shut-Ins or some of the other state parks are,” Kirby said.

Kirby said anyone can “go to Current River or Johnson Shut-Ins on any weekend and see what happens when these rivers are open to the general public. It changes their character.

“To keep the Eleven Point safe from that is important.”

The general public, Kirby said, “needs a place to go, but we have those places.”

While the 625 acres under easement were affected by the lawsuit, the remainder of the lands outside of it are not part of the lawsuit and remain unaffected.

“I think it’s a win for the landowners, and quite frankly, the State of Missouri,” Kirby said. “The Eleven Point River is a special river in that it’s protected and has been designated as a wild and scenic riverway. To be able to further protect it, and to make sure it is not further exploited by the State of Missouri or by any other commercial interest, is important.”

The Department of Natural Resources has 30 days to appeal the court’s decision, Kirby said.

Editor’s note: When reached for comment by email, the Department of Natural Resources said, only that they would not comment on pending litigation. A representative from the Mark Twain National Forest did not reply when asked about the case.