North Dakota Supreme Court denies preservation group’s request in historic bridge dispute

BISMARCK — The North Dakota Supreme Court on Thursday, Sept. 14, denied the Friends of the Rail Bridge’s request that the court take “original jurisdiction” in a case that seeks to revoke permits for construction and demolition of a bridge over the Missouri River.

The preservation nonprofit Friends of the Rail Bridge is trying to save the 140-year-old Bismarck-Mandan Rail Bridge so that it can be converted into a walking bridge tourist attraction following the decision by Burlington Northern Santa Fe Railway to replace the bridge as it “is approaching the end of its useful life and needs to be replaced,” according to an environmental review by the U.S. Coast Guard.

BNSF in June began preliminary work for construction of the new $100 million bridge that will take three years to complete. The company in April obtained two sovereign lands permits from the state Department of Water Resources — the final two permits needed to begin construction.

Sovereign lands of North Dakota are defined as areas lying within the ordinary high-water marks of navigable lakes and streams. The two permits approve construction of a new bridge and removal of the old.

Friends of the Rail Bridge, or FORB, appealed the issuance of the two permits in May with the state district court.

The appeal was dismissed in June

by South Central District Judge Jackson Lofgren on technical grounds without ruling on any of the appeal’s claims.

The group in mid-July appealed Lofgren’s ruling to the Supreme Court and in a separate action days later asked the high court to take “original jurisdiction” in the matter. If granted, the justices would have decided ownership of the bridge rather than potentially sending the matter back to Lofgren to decide.

FORB’s underlying argument maintains the state owns not just the riverbed but also any permanent fixtures that were attached at the time of statehood, which would include the rail bridge.

“BNSF has a clear right of way and a clear ability to construct, but they were not granted the bridge. The bridge belongs to the state of North Dakota,” Delmore said at a Supreme court hearing in August.

Assistant Attorney General Jennifer Verleger, representing the Department of Water Resources, in her argument said that “We shouldn’t even be here” — that it would be improper to circumvent the FORB appeal that is already underway. Verleger also told the justices that the issue of bridge ownership does not need to be addressed at this time as “BNSF has applied for and has valid permits — at least for the time being — so it’s unnecessary for the court to address the (ownership) issue.”

The decision on Thursday Denied FORB’s request for “original jurisdiction” and said that the “Court will not exercise its supervisory powers ‘merely because the appeal may involve an increase of expenses or an inconvenient delay.’”

The original appeal to Lofgren’s ruling is still not decided.

The decision continued by saying that “issues presented in this petition will be fully reviewable in the pending appeal from the district court.”

“Original jurisdiction is an extremely high bar to reach and it is seldom given,” FORB attorney Bill Delmore said following the decision. “All of the issues that we laid out are still on the table.”