At issue in a Billings County bridge dispute: When is a written promise not a promise?

MEDORA, N.D. — Dave Short stood on a high bluff and pointed down below to a stake driven into the ground on his family’s ranch along the Little Missouri River — a guidepost for bulldozers.

The stake on the valley floor marks the path of a proposed road that would lead to a bridge Billings County wants to build over the river deep in the heart of the Badlands.

Next, he pointed to a knob jutting from the top of the butte, a landmark that also lies along the path of the bridge a project backer once said would carry a thousand oil trucks a day on a road less than a mile from his family’s ranch headquarters.

“That whole butte would be torn off,” Short said. Dust from traffic over the gravel road would force the Shorts to move their cattle feedlot to a new location. The road for the bridge would sever the ranch headquarters from the rest of the family’s sprawling land.

“We don’t want that road,” he said. “We don’t want that road for anything, and all that traffic across the flat, and all the dust covering everything. In the dry years, it’ll look apocalyptic.”

The Short family’s fight to save its land could depend on a legal question of whether a county commission’s agreement to surrender its eminent domain authority can bind a future commission — or, put another way, when is a written promise not a binding promise?

The ranch has been in the Short family for more than a century, when the family started ranching in 1904, during homesteading and the end of the open range ranching era.

Horse herds used to graze the plateau, where breezes helped keep away the flies. Trails created by the horses still etch the pasture with a trail leading to the craggy butte sculpted from the high plain.

The remote Short ranch, a few miles south of Theodore Roosevelt’s Elkhorn Ranch, now a unit of Theodore Roosevelt National Park, is quiet, with the rugged beauty of the Badlands left mostly undisturbed.

“That is why we’re trying to protect the ranch,” Short said. “The Short family has always been no-build. Leave this country the way it is.”

For decades, Billings County has wanted a crossing over the Little Missouri River between the Long X Bridge, south of Watford City in McKenzie County, and the Interstate 94 bridge at Medora.

The gap between bridges means motorists can have to drive more than 70 miles to cross the river or take their chances during low river levels.

Billings County officials contend a bridge is needed for public safety, to allow faster emergency response, as well as for the convenience of ranchers, commercial traffic and tourists.

The Short family counters, however, that there is no need for a costly bridge to serve sparsely populated Billings County, which has 1,043 residents, according to census figures. The vast majority of those reside south of Medora, Short said.

“There is no one out there to connect or benefit from it,” he said. “There’s less than 25 people north of Medora.”

The county’s quest for a bridge gained impetus after the oil boom in the early 2000s. At first, the county proposed a crossing near the historic Elkhorn Ranch in 2006 but abandoned that location after a public outcry.

An environmental review by the Federal Highway Administration examined multiple possible bridge locations and in 2019 chose the site on the Short ranch, which federal officials concluded was the “least damaging practicable alternative.”

“It’s not Billings County that’s choosing where this bridge goes,” said Tami Norgard, a lawyer for the county. “It’s the Federal Highway Administration.”

In April 2020, the Billings County Commission, acting on an agenda item described only as “eminent domain,” passed a resolution approving the use of eminent domain for the bridge project.

But the county’s plans to use eminent domain to take land for the bridge from the Shorts was derailed in the 2020 election, when Jim Arthaud, a leading bridge proponent on the Billings County Commission, was defeated.

In his place, voters elected Dean Rodne, an opponent of using eminent domain to take private land. Commissioner Mike Kasian, who earlier supported using eminent domain for the bridge, changed his mind and joined Rodne in opposing eminent domain.

With two of its three commissioners opposed to taking private land for the bridge, the Short family and Billings County signed a settlement agreement, with the Shorts signing in late July and the commissioners in August 2021. The county would look elsewhere for a river crossing.

In exchange for the county’s promise not to use eminent domain on Short family land for the bridge, the Shorts agreed to dismiss two lawsuits challenging placement of the bridge on their land.

Then, a new pro-eminent domain commission resulted when Steven Klym defeated Kasian in 2022.

After concluding there wasn’t a viable alternative, the new commission majority decided to ignore the agreement signed the year before by the former commission — meaning the Short ranch was once again in the crosshairs of the long-sought bridge.

The county offered the Shorts $20,000 per acre for permanent easements, an offer the family rejected, saying it had no interest in selling any land.

Billings County then exercised an eminent domain provision under North Dakota law called “quick take” that allows it to deposit money for land it has deemed necessary for a public project.

In August 2023, Billings County deposited three checks totaling $52,371 with the clerk of courts, allowing it to take possession of a strip of the Short Ranch.

And, once again, the Shorts were back in court. Because an appeal couldn’t stop the county from proceeding with construction on land it owned, the Shorts filed a lawsuit in U.S. District Court in Bismarck arguing that their constitutional rights were violated.

“The County has gone back on its word, torn up a contract it had agreed to, and taken concrete steps toward condemning the Short Ranch,” the lawsuit said.

In rebuttal, the county argued its lawyers made clear before the agreement was signed that the commission that signed the agreement couldn’t bind a future county commission.

Arguing that bulldozing the buttes to create a road path leading to the bridge would cause “irreparable harm,” the Shorts asked a federal judge to issue a preliminary injunction blocking construction until the legal dispute is decided.

“The County’s attempt to take the Shorts’ property will irreparably harm this beauty, forever changing the largely untouched landscape of the Shorts’ property,” the lawsuit said.

The Shorts’ lawyers took the case to federal court because, under North Dakota’s quick-take eminent domain law, a legal challenge in state court cannot block construction even if the dispute hasn’t been decided.

The ability of the state and its subdivisions to take land even before a court has heard challenges gives the state immense power over private landowners, Short said.

“I think most North Dakotans don’t realize the government has that sort of authority,” he said.

Derrick Braaten, a lawyer who represents the Shorts, said governments are increasingly using their power to acquire land through quick take.

“There’s no limit on when they can use it,” he said.

Tim Purdon, another lawyer for the Shorts, added, “It short circuits due process procedures,” with an expedited process that diminishes a landowner’s right to be heard.

The crux of the Shorts’ federal court challenge is a claim that the Billings County Commission’s decision to ignore the settlement agreement signed by a previous commission constitutes a breach of contract.

But the county argues that under case law one commission cannot “surrender” its “sovereign eminent domain authority through agreement with a landowner.”

Norgard explained her assertion of the inability of one commission to bind a future commission by giving up its eminent domain authority in the commission’s regular meeting on July 6, 2021, several weeks before the Shorts and commissioners signed the agreement, according to minutes for the meeting.

Sandra Short, the family matriarch, and her daughter, Sarah Sarbacker, were present at the meeting, according to the minutes.

Precedents upholding the inability of one commission to bind a future commission are a matter of “black letter law,” a position the county argues is well supported, adding it is “the consensus among jurisdictions that the right of eminent domain cannot be contracted away or restricted.”

But lawyers for the Shorts argue the signed settlement agreement is a contract that must be upheld.

“In the law, a contract says what it says” and cannot be modified by “oral side deals,” Purdon said.

“Contracts dealing with real estate have to be in writing,” he said, adding the signed agreement does not include a provision for the county to reconsider. “It doesn’t say the county can change its mind later.”

U.S. District Judge Daniel Traynor issued a preliminary injunction to bar construction before the dispute is decided.

“The record establishes a probability of success on the merits of the Shorts’ breach of contract claim,” Traynor wrote in his decision. “The Shorts entered into a settlement agreement with the then-Billings County Board of Commissioners.”

The judge added that the commission’s rescission of the agreement after the election is “contrary to the plain language of the Settlement Agreement.”

Billings County is appealing Traynor’s order to the Eighth Circuit U.S. Court of Appeals.

The Short ranch has been in the family since 1904. Hugh Connorran Short was a land salesman for the Northern Pacific Railway, whose work took him to Billings County.

He liked the area and bought out a horse ranch. The Shorts continued raising horses but later switched to cattle.

During hard times, the Shorts were forced to sell some land but managed to rebuild the ranch, which now sprawls over 3,000 acres. Another branch of the Short family owns an adjacent 3,500-acre ranch.

Donald Levingston Short, who represented North Dakota in the U.S. House of Representatives from 1959 to 1965, lived on the ranch his entire 78 years. He was Dave Short’s grandfather and Sandra Short’s father-in-law.

The family is trying to have the ranch, which occupies a scenic valley of the Little Missouri River for 12 miles, listed on the National Register of Historic Places. The ranch has a dozen buildings, including three original log cabins.

When Hugh Short started ranching, he qualified as a big rancher as of the end of the open range era, with herds of 500 horses, which he sold to buy 1,000 head of cattle. During the heyday of the open range, in the 1880s, a big ranch had between 10,000 and 25,000 head of cattle.

During a severe drought in the late 1970s, the Shorts sold their cattle. Dave Short, whose father was afflicted with disabling arthritis, sought opportunities off the ranch after graduating from high school and found a career in heavy equipment sales.

For more than 30 years, the ranch has been run by tenant ranchers, but the family is preparing to resume operations, likely in partnership with another rancher, Dave Short said.

Although absentee owners, the Shorts have allowed hunting on their land and take their stewardship role seriously.

“The spectacular land is what I’m fighting for,” Dave Short said, pointing to majestic buttes, banded by varicolored layers of sediment, that dominate the austere landscape. “It’s personal. We just want to be left alone.”