Southern District revises ruling in state park dispute

The Missouri Court of Appeals Southern District rejected a request to change a recent ruling on one of the state’s newest parks but apparently agreed that some parts of its original opinion were wrong.

In July, the appeals court held that a federal conservation easement on a portion of the land within Eleven Point State Park didn’t conflict with the public uses of the park. But on Aug. 26, the court replaced it with a revised opinion. 

The move followed a motion for rehearing by the unsuccessful plaintiffs, a group of nearby landowners who had argued that developing the park would destroy the wild and scenic nature of the area.

Derrick Kirby of The Kirby Law Firm in Poplar Bluff, an attorney for the landowners, wrote in the Aug. 12 motion that the appeals court had relied on facts not contained in the trial record and that some of the statements in the opinion were erroneous. 

An Oregon County judge found the federal easement’s restrictions on the land along the Eleven Point River were incompatible with the public uses required for a state park. The appeals court, however, said nothing requires all portions of the park to be fully open to the public and that preservation of the land was a public use that was consistent with the easement’s purpose. 

The July opinion said DNR had been ordered to sell off the entire park, but the circuit court’s order was only for the state to divest itself of the 625 acres subject to the easement. The revised opinion corrects that misstatement.

The original opinion also had pointed to Ha Ha Tonka State Park as an example of a park with limited public access, as its central feature is a ruined stone castle that visitors cannot enter. Kirby’s motion, however, noted that the castle previously was open to the public but has since been closed, presumably temporarily, while repairs are made. The revised opinion deleted references to Ha Ha Tonka but mentions other parks with limits on public access.

Otherwise, the court made no substantive changes to its original opinion and didn’t respond to the motion’s argument that the ruling now allows the Missouri Department of Natural Resources to acquire land that isn’t open to the public “simply because Appellant DNR believes that the view from the adjacent property is pretty.”

The case is McGibney v. Missouri Department of Natural Resources, SD36846.