No. SD36846 VAN Mcgibney, Et Al., Plaintiffs-Respondents, V

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No. SD36846

VAN McGIBNEY, et al.,

Plaintiffs-Respondents,

MISSOURI DEPARTMENT OF NATURAL RESOURCES,

Defendant-Appellant.

Appeal from the Circuit Court of Oregon County, Missouri The Honorable Steven Privette Case No. 17AM-CC00021

Brief of Amici Curiae Conservation Federation of Missouri, Missouri Parks Association, L-A-D Foundation, Sierra Club Missouri Chapter, Missouri Park and Recreation Association, Magnificent Missouri, Missouri Coalition for the Environment, Ozark Society Schoolcraft Chapter, Eleven Point Headwaters Stream Team and Greenwood Forest Association

Jeremiah W. “Jay” Nixon, #29603 Joseph C. Blanton, Jr., #32769 John J. Rehmann, #61245 Shaun D. Hanschen, #56821 Matthew K. Crane, #65854 Diedre A. Peters, #68319 DOWD BENNETT LLP BLANTON, NICKELL, COLLINS, 7733 Forsyth Boulevard, Suite 1900 DOUGLAS & HANSCHEN, LLC St. Louis, MO 63105 219 South Kingshighway Phone: 314-889-7300 Post Office Box 805 Fax: 314-863-2111 Sikeston, MO 63801 [email protected] Phone: 573-471-1000 [email protected] Fax: 573-471-1012 [email protected] [email protected] [email protected] Christopher R. Pieper, #57564 [email protected] BLITZ, BARDGETT & DEUTSCH, LC 414 East Broadway, Suite 100 William J. Bryan, #37711 Columbia, MO 65201 1862 Greenwood Road Phone : 573-355-5045 Marshfield, MO 65706 Fax : 573-634-3358 Phone: 573-690-9586 [email protected] Attorneys for Amici Curiae Electronically Filed - SOUTHERN DISTRICT CT OF APPEAL March 24, 2021 04:34 PM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... iv

INTERESTS OF AMICI CURIAE ...... 1

I. Conservation Federation of Missouri ...... 1

II. Missouri Parks Association ...... 1

III. L-A-D Foundation ...... 1

IV. Sierra Club Missouri Chapter ...... 1

V. Missouri Park and Recreation Association ...... 2

VI. Magnificent Missouri ...... 2

VII. Missouri Coalition for the Environment ...... 2

VIII. Ozark Society Schoolcraft Chapter ...... 2

IX. Eleven Point Headwaters Stream Team ...... 2

X. Greenwood Forest Association ...... 2

JURISDICTIONAL STATEMENT ...... 4

CONSENT OF THE PARTIES ...... 4

STATEMENT OF FACTS ...... 4

INCORPORATION OF APPENDIX ...... 4

POINTS RELIED ON ...... 4

INTRODUCTION ...... 7

ARGUMENT ...... 8

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I. Point I – The trial court erred in finding DNR’s acquisition and ...... 10

possession for state park purposes of land subject to a conservation

easement was arbitrary and capricious, because the trial court

impermissibly substituted its own discretion in place of DNR’s

discretion, in that under Chapter 253, RSMo., Missouri law vests DNR

with the exclusive authority to determine whether land is suitable for a

park purpose.

II. Point II – The trial court erred in finding DNR’s authority to ...... 12

purchase and use land for a park purpose conflicts with the terms of a

conservation easement that restricts public access to portions of that land,

because a park and a conservation easement serve complimentary

purposes in that park purposes include preservation and restoration of

park land which are consistent with the terms of the conservation

easement restricting public access to a portion of the land, and in that the

trial court erroneously conflated a public purpose under Chapter 253,

RSMo. with unfettered public access to every corner of the park, which

is not required to constitute a park purpose.

III. Point III – The trial court erred in finding DNR’s authority to ...... 19

purchase and use land for a park purpose conflicts with the terms of a

conservation easement that restricts public access to portions of that land,

because state parks throughout Missouri and across the country are

subject to similar restrictive easements that limit unfettered public access,

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in that the trial court’s reasoning, if upheld, would imperil park lands

throughout Missouri and across the country and it would have a

devastating impact on conservation efforts impacting generations to

come.

CONCLUSION ...... 23

CERTIFICATE OF COMPLIANCE AND SERVICE ...... 26

iii

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TABLE OF AUTHORITIES

CASES Page

Elder v. Delcour, 269 S.W.2d 17, 23-28 (Mo. 1954) ...... 21

Hill v. Mo. Dept. of Conservation, 550 S.W.3d 463, 467-74 (Mo. 2018) ...... 21

Marsh v. Bartlett, 121 S.W.2d 737, 744 (Mo. 1938) ...... 21

State ex inf. Danforth ex rel. Farmers’ Elect. Co-op., Inc. v. State Envtl.

Improvement Authority, 518 S.W.2d 68, 74 (Mo. banc 1975) ...... 11, 21

State ex rel. Wagner v. St. Louis Cty. Port Auth.,

604 S.W.2d 592, 596 (Mo. 1980) ...... 12

STATUTES AND REGULATIONS

§ 253.010(3)-(4), RSMo...... 11, 12, 17

§ 253.035, RSMo...... 15, 16

§ 253.040, RSMo...... 10, 11, 14, 17

16 U.S.C. § 1271 ...... 8

10 CSR § 90-2.030(27)(A)(C) ...... 15, 16

10 CSR § 90-2.040 ...... 15, 16

RULES

Rule 84.05(f)(3) ...... 4

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INTERESTS OF AMICI CURIAE

I. Conservation Federation of Missouri.

The Conservation Federation of Missouri and its over 100 affiliate organizations represent over 80,000 committed outdoor advocates and participants.

II. Missouri Parks Association.

The Missouri Parks Association, a nonpartisan citizen organization of 2,800 members, advocates for the protection and enhancement of state parks and state historic sites throughout Missouri and spearheaded the petition effort that led to passage of the

Parks, Soils and Water Sales Tax in 1984 and four times since.

III. L-A-D Foundation.

The L-A-D Foundation works to preserve forests and wildlife. It was founded by Leo Drey who had a personal connection to the Eleven Point, having purchased and preserved Greer Spring, the single largest source of the Eleven Point’s spring-fed waters.

IV. Sierra Club Missouri Chapter.

The Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 3.8 million members and supporters. In addition to protecting every person’s right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action. The Missouri Sierra Club is proud to represent more than 12,000 members throughout the state.

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V. Missouri Park and Recreation Association.

The Missouri Park and Recreation Association represents parks and historic sites across Missouri including 110+ municipal agencies and over 2,000 park and recreation professionals.

VI. Magnificent Missouri.

Magnificent Missouri is a strong supporter of trails, rivers, parks and outdoor opportunities.

V. Missouri Coalition for the Environment.

Missouri Coalition for the Environment is the state’s longest-serving independent environment protection organization. It has consistently championed the defense of Missouri’s Ozark streams that have been federally protected for their outstanding natural and recreational values.

VI. Ozark Society Schoolcraft Chapter.

The Ozark Society Schoolcraft Chapter focuses on conservation, education, quality of life and recreation in the Ozarks region.

VII. The Eleven Point Headwaters Stream Team.

The Eleven Point Headwaters Stream Team is comprised of people with an avid interest and passion to advocate and educate about the water quality of the Eleven

Point River.

VIII. Greenwood Forest Association.

Greenwood Forest Association is a group of property owners (private parcels and common land) of approximately 1,200 acres in Shannon County, Missouri. One of its

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purposes is “to engage in…land management and preservation; and to assist in…connection with government…land management consistent with ecological harmony.”

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JURISDICTIONAL STATEMENT

To avoid repetition, the Amici Curiae adopt the jurisdictional statement in the Brief of the Missouri Department of Natural Resources.

CONSENT OF THE PARTIES

Pursuant to Rule 84.05(e)(2), the Amici Curiae requested the parties’ consent for the Amici Curiae to file the instant amicus brief. The parties consented.

STATEMENT OF FACTS

To avoid repetition, the Amici Curiae adopt the statement of facts in the Brief of the

Missouri Department of Natural Resources.

APPENDIX

To avoid repetition, the Amici Curiae adopt the appendix in the Brief of the Missouri

Department of Natural Resources.

POINTS RELIED ON

POINT I

The trial court erred in finding DNR’s acquisition and possession for state park purposes of land subject to a conservation easement was arbitrary and capricious, because the trial court impermissibly substituted its own discretion in place of DNR’s discretion, in that under Chapter 253, RSMo., Missouri law vests DNR with the exclusive authority to determine whether land is suitable for a park purpose.

§ 253.010(3)-(4), RSMo.

§ 253.040, RSMo.

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State ex inf. Danforth ex rel. Farmers’ Elect. Co-op., Inc. v. State Envtl.

Improvement Authority, 518 S.W.2d 68, 74 (Mo. banc 1975)

State ex rel. Wagner v. St. Louis Cty. Port Auth., 604 S.W.2d 592, 596 (Mo. 1980)

POINT II

The trial court erred in finding DNR’s authority to purchase and use land for a park purpose conflicts with the terms of a conservation easement that restricts public access to portions of that land, because a park and a conservation easement serve complimentary purposes in that park purposes include preservation and restoration of park land which are consistent with the terms of the conservation easement restricting public access to a portion of the land, and in that the trial court erroneously conflated a public purpose under Chapter 253, RSMo. with unfettered public access to every corner of the park, which is not required to constitute a park purpose.

§ 253.010 RSMo.

§ 253.035, RSMo.

§ 253.040, RSMo.

10 CSR § 90-2.030(27)(A)(C)

10 CSR § 90-2.040

POINT III

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across the country are subject to similar restrictive easements that limit unfettered public access, in that the trial court’s reasoning, if upheld, would imperil park lands throughout Missouri and across the country and it would have a devastating impact on conservation efforts impacting generations to come.

Elder v. Delcour, 269 S.W.2d 17 (Mo. 1954)

Hill v. Mo. Dept. of Conservation, 550 S.W.3d 463, 467-74 (Mo. 2018)

Marsh v. Bartlett, 121 S.W.2d 737, 744 (Mo. 1938)

State ex inf. Danforth ex rel. Farmers’ Elect. Co-op., Inc. v. State Envtl.

Improvement Authority, 518 S.W.2d 68, 74 (Mo. banc 1975)

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INTRODUCTION

– In wildness is the preservation of the world. – Henry David Thoreau, Walking

The judgment below presents a legal question with extraordinary significance for preservation of public lands in Missouri. As Missouri conservation leaders, the amici urge the Court to reverse the Circuit Court’s erroneous order and restore certainty to the future preservation of the Eleven Point State Park and other Missouri park properties.

We stand with one voice to honor wild lands and rivers, to preserve the natural outdoor world that binds us together, and to enforce the laws that codify Missouri’s longstanding commitment to conservation. We ask this Court to provide guidance with strong, clear law.

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ARGUMENT

The immediate issue before the Court is the fate of Eleven Point State Park and the special wild land it contains. The portion of Eleven Point State Park in question is a natural treasure and the heart of the Park. It abuts a pristine eight-mile stretch in the southern part of a forty-four-mile section of the Eleven Point River. In 1968, Congress placed this section in the National Wild and Scenic Rivers System, because it “possess[es] outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values.” 16 U.S.C. § 1271. Congress gave only eight rivers this designation.

Much of the land along this stretch was privately-owned when Congress passed the

Wild and Scenic Rivers Act. Following passage of the Act, the United States Forest

Service, which is charged with implementing the Act’s protections, acquired conservation easements on these privately-owned properties. These easements furthered the Act’s express purposes of preserving the river “in free-flowing condition” and protecting the river and its immediate environment “for the benefit and enjoyment of present and future generations.” Id.

A small part of the Eleven Point State Park is subject to one of these easements, the

Eleven Point Scenic River Easement. These properties provide habitat along their frontage for the Endangered Ozark Hellbender Salamander, among other wildlife. The

Easement restricts certain uses and prohibits the development of campsites, roads, or buildings, among others. [L.F. Doc. 3, pp. 4-5] Consistent with these restrictions, the conveyance deeds provided that the property was “conveyed to the Missouri Department

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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.” (emphasis added). The

Easement affects the 625 acre riparian corridor running through the Park.

But, the Circuit Court proclaimed this land, despite its singular qualities, cannot be a State Park. In an unprecedented act, the Circuit Court ruled that the Missouri Department of Natural Resources, State Parks Division (“DNR/Parks”), abused its discretion when purchasing this land for a park. The Circuit Court began its analysis with the false premise that “the state park enabling statute provides lands may be acquired by the State for ‘use by the public.’” The Circuit Court then reasoned that preservation of the land as a state park is incompatible with the federal Easement. According to the Circuit Court, because the federal government was the first to decide that this stretch of the river should be protected from development and preserved “in free-flowing condition” and “for the benefit and enjoyment of present and future generations,” DNR/Parks cannot do this very thing, though in a more permanent way. So, says the Circuit Court, a private party can buy the land, but DNR/Parks cannot. This logic is more tangled than a root wad.

This case raises the question of whether a Circuit Court, at the request of private citizens who own property in the vicinity, can require divestment of state park land from the people of Missouri because a sliver of that park land is subject to a federal conservation easement. The answer is no. Whether the land is suitable for use as a state park is a determination lying solely within the purview of the Department and its professionals, not the Circuit Court. Even setting aside the Circuit Court’s overreach in substituting its judgment for DNR’s, the federal Easement does not conflict with a park purpose, which

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includes preservation and restoration. On the contrary, the Easement and the creation of

the Park share a common mission: to protect this remarkable place in its natural state for

current and future generations.

The Circuit Court’s judgment, if affirmed, threatens state parks across Missouri and throughout the country. It impedes DNR/Parks’ ability to carry out its mission and prevents

Missourians and other Americans from enjoying this special wild place. For these reasons and those discussed by DNR/Parks, this Court should reverse the Circuit Court’s judgment.

I. The trial court erred in finding DNR’s acquisition and possession for state park

purposes of land subject to a conservation easement was arbitrary and

capricious, because the trial court impermissibly substituted its own discretion

in place of DNR’s discretion, in that under Chapter 253, RSMo., Missouri law

vests DNR with the exclusive authority to determine whether land is suitable

for a park purpose.

The Department of Natural Resources is a constitutionally created agency vested by the Missouri General Assembly with authority to acquire and hold any land that, in DNR’s opinion, is suitable as a State Park. § 253.040, RSMo. DNR created the Eleven Point State

Park in the exercise of its discretion and authority under § 253.040, RSMo. The

Legislature gave DNR the authority to purchase and maintain land “which in [DNR’s] opinion should be held, preserved, improved and maintained for park or parkway purposes.” Id. (emphasis added).

The Circuit Court stated that “the state park enabling statute provides lands may be acquired by the State for ‘use by the public.’” See L.F. Doc. No. 125, p. 7, Judgment and

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Order. Nowhere in § 253.040 does that language appear, however. Rather, the Legislature defined “park” and “parkway” without reference to “use” by the public. § 253.010(3)-(4)

RSMo. “Park” is defined as “any land, site or object primarily of recreational value or of cultural value because of its scenic, historic, prehistoric, archeologic, scientific, or other distinctive characteristics or natural features.” § 253.010(3) RSMo. “Parkway” is defined as “an elongated area of parkland, usually contiguous to a pleasure driveway and often containing recreational areas.” § 253.010(4) RSMo. The Legislature further authorized

DNR/Parks to “improve, maintain, operate, and regulate any such land … when such action would promote the park program and the general welfare.” § 253.040.1 RSMo. (emphasis added). It is well-settled that the general welfare, in turn, is promoted through preservation of Missouri’s natural resources. See e.g., State ex inf. Danforth ex rel. Farmers’ Elect. Co- op., Inc. v. State Envtl. Improvement Authority, 518 S.W.2d 68, 74 (Mo. banc 1975).

In the lawful exercise of this discretion, DNR/Parks, through its qualified professionals, concluded that the Pigman Ranch land that would become Eleven Point State

Park was suitable for park purposes. Accordingly, in 2016, the DNR purchased the land with funds obtained from a settlement with lead mining companies. The law vests DNR with discretion to decide whether a particular piece of land is suitable for a park. A court should not substitute its authority for that which the General Assembly has conferred exclusively upon the DNR by § 253.040 RSMo.

The authority to determine whether land is suitable for park purposes lies exclusively with DNR/Parks. The Circuit Court disagreed with DNR’s determination. The

Circuit Court’s role, however, is limited to reviewing whether DNR/Parks, working with

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its trained park professionals, properly exercised its discretion within its delegated area of constitutional authority. Instead, the Circuit Court inserted a straw man “public use” requirement into the clear and unambiguous language of the park enabling statute. The

Circuit Court then concluded that DNR/Parks had failed to follow this new judicially- created requirement. In doing so, the Circuit Court conflated the requirement that public expenditures have a public purpose with a requirement that the public have use of – and by extension, unfettered physical access to – state-held assets.

In enacting this statute, the General Assembly expressly determined that the creation and maintenance of parks and parkways, which it defined without reference to public use, much less unrestricted public access, are a proper public purpose. § 253.010(3)-(4), RSMo.

“[W]hat constitutes a public purpose is primarily for the legislative department and will not be overturned unless found to be arbitrary and unreasonable.” State ex rel. Wagner v.

St. Louis Cty. Port Auth., 604 S.W.2d 592, 596 (Mo. 1980). Plaintiffs did not challenge the park enabling statute as arbitrary or unreasonable. The Circuit Court therefore had no authority to second-guess DNR’s exercise of its exclusive discretion to decide whether the land was suitable for a park purpose. This error alone is dispositive on appeal.

II. The trial court erred in finding DNR’s authority to purchase and use land for

a park purpose conflicts with the terms of a conservation easement that

restricts public access to portions of that land, because a park and a

conservation easement serve complimentary purposes in that park purposes

include preservation and restoration of park land which are consistent with

the terms of the conservation easement restricting public access to a portion

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of the land, and in that the trial court erroneously conflated a public purpose

under Chapter 253, RSMo. with unfettered public access to every corner of

the park, which is not required to constitute a park purpose.

The Circuit Court also erred on the merits. The Easement and Eleven Point State

Park are fully compatible, as DNR/Parks concluded. Indeed, they share the same goals of preserving the condition of the river for the benefit and enjoyment of present and future generations. This park purpose promotes and strengthens the protections of the federal

Easement. Further, DNR’s purchase of this land as a state park makes these protections permanent, whereas the Easement, like any federal government decision, is subject to the shifting whims of out-of-state elected officials and their appointees. At any time, the

United States Department of Agriculture could modify the protections afforded by the

Easement, meaning the protections of the Easement - on which Plaintiffs’ case and the

Circuit Court’s order rely - could be swept away tomorrow with the stroke of a pen in

Washington, D.C. This is not hypothetical: this kind of executive branch action happened recently to once-heavily-protected park lands in states such as Alaska and Utah.

In spite of the complete congruence between the aims of the Easement and a park purpose, the Circuit Court ruled that the Easement and the Park cannot coexist, noting “The two uses seem to be in direct opposition. The federal act prohibits public use and the state park enabling statute provides lands may be acquired by the State for ‘use by the public.’”

Judgment at 7. Based on this incorrect premise, the Circuit Court concluded “the Court is unable to find any use by the public allowed under the provisions of the Act, nor does the

Court believe any such use is intended to be allowed under the Act.” Id.

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The problems with the Circuit Court’s reasoning are numerous. First, the Wild and

Scenic Rivers Act nowhere prohibits “public use.” On the contrary, one of the express purposes of the Act is to preserve designated rivers, including the Eleven Point, “for the benefit and enjoyment of present and future generations.” Indeed, Eleven Point State Park is not even the only public use area on this river. Just upstream of the Park, also within the zone of federal protection, sits Greer Spring, a National Natural Landmark with public access. Nor does the Easement itself bar public use; rather, by its express terms, the

Easement restricts only certain specific uses, such as construction of buildings and utility rights of way – none of which DNR intends.

Second, the park enabling statute does not contain a requirement of unfettered

“public use” of lands purchased by DNR/Parks. The Circuit Court improperly conflated

“public purpose” with “public use” and then went further and equated “public use” with unrestricted public access. “Public purpose” and “public use,” much less unfettered public physical access, are not the same thing. The parks enabling statute § 253.040, RSMo. provides that parks must be suitable for “park purposes;” it does not say that parks must be places of unrestricted “public use,” nor does it equate public use with unfettered public physical access. “Park purposes” include promoting “the park program and the general welfare,” which includes preservation, among other purposes.

By treating “public purpose” as synonymous with “public use,” and then equating public use with public access, the Circuit Court applied an unreasonably narrow interpretation of § 253.040, ignoring the statute’s defined terms and excluding consideration of the many other important public uses of state park land that do not require

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public access. The federal Easement does not prohibit viewing the area while floating or canoeing on Eleven Point River. [L.F. Doc. 3]. Nor does it prohibit viewing the valley from the uplands. [L.F. Doc. 3]. As Plaintiffs themselves acknowledged, the area’s undeveloped nature make it uniquely beautiful. Tr. Trans. 188:4-11; 201:18-22; 203:16-

19. Plaintiff Elizabeth McGibney stated, “it’s just a beautiful, beautiful piece of nature.”

Id. at 201:20. Plaintiff James Conner explained, “it’s just natural when you float down or go up the river to see everything.” Id. at 188:10-11. The Circuit Court, however, found that viewing the area while floating or hiking was not a “public use.” See Tr. Trans.

244:19-245:9.

In the Circuit Court’s view, it seems, state parks are places where the public can walk, climb, drive, camp, and picnic without restriction. This, of course, is not the case.

Indeed, DNR has authority to restrict public access to park land, for example, by preventing the same type of access that the Court appears to view as prohibited by the Easement, i.e., restricting public access to portions of a State Park for purposes of preservation as permitted under § 253.035, RSMo. and 10 CSR § 90-2.030(27)(A)(C); § 90-2.040.

Examples of public access and use restrictions in Missouri state parks abound. For example, Current River State Park has restricted river access due to the scenic easement along the Current River as part of the Ozark National Scenic Riverways. When Echo Bluff was built, great care was taken to respect the scenic easement along the nearby Current

River. DNR-State Parks moved a wastewater lagoon farther away from the border of the scenic easement within Montauk State Park to protect the river within that easement. St.

Joe State Park restricts certain activities due to lead contamination. Route 66 State Park

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restricts activities due to dioxin levels in the soil. Ha Ha Tonka State Park restricts entry to the castle on the property. Johnson’s Shut Ins State Park prohibits cliff jumping. Rock climbing in dangerous areas and target shooting are also restricted in all state parks.

Third, the Circuit Court’s analysis of what land is or is not “suitable” as a park is unnaturally constrained. The Circuit Court says it “cannot find a public use for real property upon which there exists such a restrictive easement as herein specifically excluding use by the public.” Setting aside the Circuit Court’s incorrect conflation of “public purpose” with

“public use,” the Circuit Court overlooks or ignores the fact that the 625 acres at issue, though critical to the Park, comprise a small part of its total area. As a result, even assuming that the conservation Easement is as restrictive as the Circuit Court contends, this does not somehow make the 625 acres subject to the Easement unsuitable for inclusion in Eleven

Point State Park. The Park, with its other lands, can still possess all of the infrastructure typical of other Missouri state parks (i.e., roads, parking areas, picnic areas, hiking trails, utilities) without locating any such infrastructure on the 625 acres subject to the Easement.

To be sure, it would be within the discretion of DNR-State Parks Division, for example, to set aside this 625 acres within the larger park as a restricted access area pursuant to its authority under § 253.035, 10 CSR § 90-2.030(27)(A)(C) and 10 CSR § 90-2.040 such that the public could enjoy it from afar for the scenery but not by, say, driving a mini-van through it.

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Missouri statutes establish DNR’s authority to acquire land to hold, preserve, improve, and maintain as a park. § 253.040; § 253.010 RSMo. It is a key tenet of the state park system to protect wild land and wildlife for future generations. It is important to note the synonyms of preservation: conservation, protection, maintenance, care, safeguarding, keeping (From Oxford languages). Maintaining an undeveloped strip in a protective and safeguarded condition is not only a park purpose – it is an affirmative duty of our state parks system.

Fourth, the judgment is also out of step with the reality that conservation easements and state parks can and do coexist. In fact, conservation easements similar to the Eleven

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Point River Scenic Easement have helped facilitate the creation and expansion of parks in

Missouri and across the country. Examples in Missouri include Current River, Montauk,

Echo Bluff, Meramec, and Onondaga Cave State Parks. Nationally, Acadia National Park is comprised largely of conservation easements held by the federal government.

This is especially the case where, as here, the deed to the DNR expressly states that the property is to be used as a state park and for no other purpose. If anything, the Easement and the federal government’s long-standing recognition of this land decades ago for its

“outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values,” confirms that DNR/Parks made the right decision when finding the land is suitable for “park purposes.”

Finally, the Easement protects the interests of the Federal Government. The United

States does not oppose the use of the property subject to its Easement as a park. To the contrary, the U.S. Forest Service supervisor tasked with monitoring and enforcing the national scenic river easements testified that the uses listed in the deed - public use as a state park and natural resource restoration and preservation - were entirely consistent with the Easement. Tr. Trans. 227:2-9; see also Ex. 6, William B. Nightingale, U.S. Dep’t of

Agriculture, Forest Supervisor, Letter to Sara Parker Pauley, DNR, Director, July 29, 2015

(“Mark Twain National Forest supports MoDNR’s efforts to create a new park. The

MoDNR’s confirmation that it will ‘obey and strengthen current [conservation] easement provisions’ was especially helpful in allowing us to provide support for such an endeavor.”). The very entity whose Easement is cited by the Court as the sole basis for preventing the establishment of the Park disagrees totally with that conclusion.

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Taken together, the only arbitrary and capricious decision relating to Eleven Point

State Park is the Circuit Court’s judgment, which this Court should reverse.

III. The trial court erred in finding DNR’s authority to purchase and use land for

a park purpose conflicts with the terms of a conservation easement that

restricts public access to portions of that land, because state parks throughout

Missouri and across the country are subject to similar restrictive easements

that limit unfettered public access, in that the trial court’s reasoning, if upheld,

would imperil park lands throughout Missouri and across the country and it

would have a devastating impact on conservation efforts impacting generations

to come.

The immediate consequence of the Circuit Court’s judgment, if upheld, would be the loss of a key component of Eleven Point State Park. The impact over time will extend far beyond the boundaries of this Park. This decision puts public lands at risk without citing a single case supporting its approach. The Circuit Court’s analysis of what constitutes a park purpose, if allowed to stand, would jeopardize all state parks that are subject to any easement that limits public entry in any way or degree.

This ruling imperils state parks and public lands in many ways. Assume a high voltage power line cuts across a state park: does the existence of a utility easement that prohibits public entry to the towers mean the land along the power line must be removed from the Park because it is not suitable for public use? Under the Circuit Court’s analysis, the answer likely would be yes. And what about Route 66 State Park? Did the access restrictions relating to the dioxin cleanup within the park mean DNR could not make this

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land a park? Consider another dilemma posed by the judgment: if, as the Circuit Court concluded, state parks serve only to provide public entry, it would follow that DNR-State

Parks could not impose limits on public entry without also violating its own mission. In practice, this could mean that DNR would risk losing park land if, for example, DNR itself needed to grant an easement through a park for routine maintenance work. In short, the

Circuit Court’s rationale, if upheld, threatens Missouri’s ability to hold on to any park land encumbered by an easement. The absurd and devastating consequences that might follow are myriad.

Fortunately for Missouri and its citizens, the General Assembly has granted DNR the legal authority to do exactly what it did here: acquire an irreplaceable property and protect its natural state for perpetuity as a State Park to be enjoyed by Missourians for generations.

In the end, the Circuit Court’s judgment is more than legal error. It threatens core

Missouri values of preservation, conservation, and use of our world-class natural resources.

More than nearly any other issue, Missourians are united in their support for their state parks. In 2016, for example, 80% of Missouri voters, the strongest measure to date, supported the renewal of Missouri’s one-tenth-of-one-percent Parks, Soils, and Water

Sales Tax to fund state parks and soil and water conservation for the next decade. With this popular support for its parks, Missouri has received national distinction, including being a eight-time finalist for the National Gold Medal Award for state park systems, Best Trails

State in 2014, and Best Camping State in 2012. Missouri and its rugged Ozarks have

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inspired scores of conservationists, preservationists, and naturalists, from John James

Audubon to Aldo Leopold to Leo Drey.

The importance of our Parks is also imbedded in Missouri law. In addition to

providing a framework for the preservation of public lands to benefit current and future

Missourians, Missouri Courts have stood with Parks and Conservation and against

challenges to their authority to protect park assets. In 1938, the Missouri Supreme Court

upheld the power of the Department of Conservation to manage wildlife and habitat.

Marsh v. Bartlett, 121 S.W.2d 737, 744 (Mo. 1938). In the 1954 Missouri Supreme Court

holding in Elder v. Delcour, 269 S.W.2d 17 (Mo. 1954), the Court guaranteed the rights

of floaters, fishers, and float stream picnickers to enjoy as public assets the streams of

Missouri. Id. at 23-28. In 1975, the Court in State ex inf. Danforth held that preservation

of the state’s natural resources is a public purpose. 518 S.W.2d 68 at 74. And, as recently

as 2018, the Court held that white-tailed deer are wildlife, not livestock, and the

Department of Conservation can protect them and Missouri from chronic wasting disease.

Hill v. Mo. Dept. of Conservation, 550 S.W.3d 463, 467-74 (Mo. 2018).

The value of our parks to Missourians cannot be overstated. President Franklin D.

Roosevelt captured a similar reverence for park lands when he delivered a radio address from Glacier National Park on August 5, 1934: “There is nothing so American as our

National Parks…. The fundamental idea behind the parks…. is, in brief, that the country belongs to the people, that it is in the process of making for the enrichment of the lives of all of us.” The parks belong to all the people; any action to diminish their existence is an affront to the purpose and history of parks and conservation.

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The courts of our state have been clear, consistent, and strong following the clarion call of generations of Missourians to preserve and enjoy our public lands and waters. We urge the Court to reverse the Circuit Court’s holding and allow the DNR to continue in its course of preserving a wild river in a state park for Missourians to enjoy forever.

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CONCLUSION

Back on the Eleven Point, between US-160 and MO-142, the pale blue-green waters still flow as they always have. Its eddies team with trout and smallmouth bass, feeding otter, beaver, and turtle. Its deep pools reflect limestone bluffs and sprawling canopies of oak, pine, and walnut. Bobcats, deer, and the occasional black bear roam the shore. Herons skim the watercourse, and hawks and eagles circle overhead. The surface air hangs cool and thick with smells of spring boil, rock, wildflower, cave, forest, and the last rain. It is a timeless wilderness. But for how long? Without the protections of Eleven Point State

Park, it is possible we will see.

In 1903, with the state of Arizona on the verge of mining the Grand Canyon,

President Theodore Roosevelt stood on the canyon’s lip, gazed out over its

unique magnificence, and uttered five words that would save it:

“Leave it as it is.”1

This Court should heed his wise and prescient words for Eleven Point State Park: “Leave it as it is.”

We respectfully urge the Court to reverse the judgment below.

1 Douglas W. Tallamy, Nature’s Best Hope: A New Approach to Conservation That Starts in Your Yard, (2020).

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Respectfully submitted,

DOWD BENNETT LLP

/s/ Jeremiah W. (Jay) Nixon Jeremiah W. (Jay) Nixon #29603 John J. Rehmann #61245 Matthew K. Crane #65854 7733 Forsyth Boulevard, Suite 1900 St. Louis, MO 63105 Phone: 314-889-7300 Fax: 314-863-2111 [email protected] [email protected] [email protected]

BLITZ, BARDGETT & DEUTSCH, LC

/s/ Christopher R. Pieper Christopher R. Pieper #57564 414 E. Broadway, Suite 100 Columbia, MO 65201 Phone: 573-355-5045 Fax: 573-634-3358 [email protected]

BLANTON, NICKELL, COLLINS, DOUGLAS & HANSCHEN LLP

/s/ Joseph C. Blanton, Jr. Joseph C. Blanton, Jr. #32769 Shaun D. Hanschen #56821 Diedre A. Peters #68319 219 South Kingshighway Sikeston, MO 63801 Phone: 573-471-1000 Fax: 573-471-1012 [email protected] [email protected] [email protected]

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/s/ William J. Bryan William J. Bryan #37711 ATTORNEY AT LAW 1862 Greenwood Road Marshfield, MO 65706 Phone: 573-690-9586

Attorneys for Amici Curiae, Conservation Federation of Missouri, Missouri Parks Association, L-A-D Foundation, Sierra Club Missouri Chapter, Missouri Park and Recreation Association, Magnificent Missouri, Missouri Coalition for Environment, Ozark Society Schoolcraft Chapter, Eleven Point Headwaters Stream Team and Greenwood Forest Association

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CERTIFICATE OF COMPLIANCE AND SERVICE

I certify that this brief contains 5,580 words, excluding the cover, this certificate, and the signature block (this brief has no appendix), and fully complies with the provisions of Rules 55.03, 81.18, and 84.06.

I further certify that on March 24, 2021, a copy of this brief was served via the

Court’s electronic filing system upon the following counsel:

Devin S. Kirby THE KIRBY LAW FIRM, P.C. 100 Jefferson Street Doniphan, MO 63935 Attorney for Plaintiffs/Respondents Van McGibney, et al.

Eric S. Schmitt, Attorney General Cheryl Ann Schuetze, Assist. Attorney General R. Jake Schmidt, Assist. Attorney General P.O. Box 899 Jefferson City, MO 65101 Attorneys for Defendant/Appellant Missouri Department of Natural Resources

/s/ Joseph C. Blanton, Jr. Joseph C. Blanton, Jr.