Van McGibney v. Mo. Dep't of Natural Res.
| Docket Number | SD 36846 |
| Decision Date | 26 August 2022 |
| Citation | 653 S.W.3d 665 |
| Parties | Van MCGIBNEY, et al., Respondents, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, Appellant. |
| Court | Missouri Court of Appeals |
Appellant's attorneys: Eric S. Schmitt, Attorney General, Amanda R. Langenheim and R. Jake Schmidt, Assistant Attorneys General, and Michael E. Talent, Deputy Solicitor General, Jefferson City, MO.
Respondents’ attorneys: Derrick S. Kirby and Devin S. Kirby, Doniphan, MO.
The Department of Natural Resources ("DNR") appeals the declaratory judgment entered by the Circuit Court of Oregon County declaring the acquisition of properties along the Eleven Point Scenic River by DNR for the creation of a state park was invalid because DNR could not operate a state park that would also comply with the terms of an easement that ran with a portion of the properties. The circuit court found the action of DNR unlawful, arbitrary and capricious and ordered DNR to divest itself of ownership of Eleven Point State Park lands located within the bounds of the easement. DNR raised six points on appeal. We find the circuit court erroneously declared and applied the law, and its declaratory judgment must be reversed.
In 1968, Congress designated a 44-mile portion of the Eleven Point River in southeast Missouri a "Scenic River" under the Wild and Scenic Rivers Act, Pub. L. No. 90-542, codified in 16 U.S.C. § 1274(a)(2) (2010). This stretch of the river comprised nineteen (19) parcels of riverfront land, including the Pigman Ranch property and the properties now owned by Respondents, that subsequently were encumbered by scenic easements. These easements are held and administered by the United States Forest Service ("USFS").
In 1979, Reed Pigman, Jr., entered into an agreement granting the United States of America a scenic easement (the "Scenic Easement") over a portion of the Pigman Ranch. The Scenic Easement encumbers approximately 625 acres along the west side of a five (5) mile stretch of the Eleven Point River. The Scenic Easement was authorized by the Wild and Scenic Rivers Act of 1968 (the "Act"), which states:
It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations . The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes .
Wild and Scenic Rivers Act, Pub. L. No. 90-542 (emphasis added). The first page of the Scenic Easement states:
WHEREAS, the Grantee, through the Forest Service, in accordance with P.L. 90-542 (82 Stat. 906), as amended by P.L. 93-279 (88 Stat. 122), desires to administer such land, 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, and other lands or interests therein of Grantee located within the River Zone, and to prevent any developments that will tend to mar or detract from their scenic, recreational, geologic, fish and wildlife, historical, cultural, or other similar values and natural qualities, and to that end exercise such reasonable controls over the land within the areas described in Exhibit "A" attached hereto as may be necessary to accomplish such objectives ....
(Emphasis added.)
The Pigman Ranch was subsequently divided into multiple parcels, two of which were sold — one to the Buildings for Babies Foundation and the other to the Fredrick Creek Ranch.
In 2015, DNR applied to the Southeast Missouri Lead Mining District Trustee Council ("Trustee Council") for funds to purchase the portions of the Pigman Ranch owned by the Frederick Creek Ranch and Buildings for Babies Foundation as eligible compensatory mitigation to receive funding from the Natural Resource Damages ("NRD") Trust due to lead mining damage in southeast Missouri.1 The property consisted of 4,167 acres, of which approximately fifteen percent are encumbered by the Scenic Easement overseen by USFS.
The USFS supported DNR's purchase of the former Pigman Ranch properties to create a state park, including the fifteen percent covered by the Scenic Easement.2 DNR committed to honoring the Scenic Easement in both proposals and their motions presented to the Trustee Council. The Trustee Council approved DNR's proposal and funded the purchase of the Eleven Point State Park land, including the fifteen percent encumbered by the Scenic Easement, from NRD Trust moneys.
In 2016, DNR, through Missouri State Parks, acquired the Frederick Creek Ranch and the Buildings for Babies Foundation properties and created the Eleven Point State Park. The deeds conveying the properties to DNR included the following language: "[t]he property is hereby dedicated for public use and conveyed to the Missouri Department of Natural Resources only for the following purposes and none other: for public use as a state park and for natural resource restoration and preservation."
The Scenic Easement prohibits public access and the construction of buildings or other facilities within its boundaries. Under the Scenic Easement, DNR, as the landowner, may in consultation with USFS: plant and/or selectively cut or prune trees and shrubs to restore or to maintain the natural river quality and scenic views, and for the purposes of disease prevention measures; perform scenic, aesthetic, historical, fish and wildlife, and sanitation restoration as may be deemed necessary or desirable to promote and to protect the natural river qualities; and perform state wildlife management activities. DNR may also mow, hay, limb diseased trees, or choose to do nothing with the land covered by the Scenic Easement.
The Eleven Point State Park land has historical and cultural significance due, in part, to abundant and distinctive natural features, including the Eleven Point River, forests, birds, and flora that are in nearly pristine condition. Additionally, the land has springs and ground water conduits that are important for water quality. The views from the high ground on the west side of the Park outside the Scenic Easement allow visitors to behold the vast expanse of the Eleven Point river valley.
Since acquiring the Eleven Point State Park land in 2016, DNR has primarily left it in its natural condition. Due to the uncertainty brought by this lawsuit and the fact that four new State Parks were acquired at the same time, DNR has not yet fully developed the plans necessary to open the Eleven Point State Park.
In 2017, Respondents brought a declaratory judgment action asking the Oregon County Circuit Court to declare that DNR's 2016 acquisition of properties along the Eleven Point Scenic River for the creation of a state park was invalid because DNR could not lawfully operate a state park and simultaneously comply with the terms of the Scenic Easement. Respondents further requested that the trial court declare that DNR had no authority to promulgate rules or regulations to acquire and possess such encumbered land or otherwise expend any tax money for the maintenance, improvement, acquisition or preservation of those encumbered properties.
Respondents are: Van and Elizabeth McGibney, and the James Conner Irrevocable Trust, represented by successor trustee Luke David Conner. At no time during acquisition of the properties were Respondents involved in DNR's contract or contract negotiations, and they are not and have not been parties to the Scenic Easement on park land. At no time did Respondents own the properties at issue, nor did they contemplate doing so.
Following a one-day bench trial on August 4, 2020, the trial court found that the evidence established that 625 of the 4,197 acres purchased by DNR was subject to the Scenic Easement because DNR's predecessor in interest conveyed the easement rights to the United States Department of Agriculture prior to DNR's purchase. The Director of Natural Resources Management Programs for DNR, Ken McCarty, testified that DNR had considered purchasing land in this area for several years. Respondents testified about the great scenic and cultural value of the property. Respondents testified that they opposed the use of the property as a state park and that if the Scenic Easement was modified to allow public use of the property acquired by DNR that would destroy the wild and scenic nature of the easement land.
The circuit court found that § 253.0403 defined "the authority of DNR to acquire real property for ‘park or parkway purposes ... where such action would promote the park program and the general welfare.’ " The circuit court found that through Mr. McCarty's testimony DNR acknowledged "that the purpose of the park, which bears the name Eleven Point River Park, was for access, use and enjoyment of the Eleven Point River, presumably by the public whose funds are or were expended in the acquisition and maintenance of the property." The circuit court found that "the [Act] prohibits public use and the state park enabling statute provides the lands may be acquired by the State for ‘use by the public.’ " The circuit court held that "[t]he two uses seem to be in direct opposition," and stated that it "is unable to find any use by the public allowed...
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