North Dakota Supreme Court hears arguments in Bismarck-Mandan rail bridge dispute

BISMARCK — The Friends of the Rail Bridge went to the North Dakota Supreme Court on Monday, Aug. 21, in a bid to prove the state owns a Missouri River rail bridge that’s set to be replaced and to try to halt construction of the bridge’s replacement.

The preservation nonprofit has advocated for preserving the 140-year-old Bismarck-Mandan Rail Bridge after BNSF Railway determined the bridge is reaching the end of its useful life and needs replacing. FORB’s underlying argument is that the state owns the bridge and has not asserted its role under the law in deciding whether the structure is torn down.

Justices during Monday’s oral arguments peppered FORB attorney Bill Delmore with questions related to that stance. Delmore laid out the group’s case and said FORB is representing “the public interest” in trying to save a historic structure.

Under questioning by justices, he said that when it comes to previous court cases that might set precedent, “there are cases both ways.”

Attorneys for state agencies and BNSF argued against state ownership and decried what they consider to be an improper legal process used by FORB. Justices will rule later.

The state Department of Water Resources granted BNSF two sovereign lands permits in April — the final permits the railroad needed to launch 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.

FORB in May appealed in state district court the issuance of the two permits. South Central District Judge Jackson Lofgren in June dismissed the appeal on technical grounds without ruling on any of the appeal’s claims. The preservation group in mid-July appealed Lofgren’s ruling to the Supreme Court.

The high court on Monday heard oral arguments on a separate FORB request for justices to take “original jurisdiction” in the matter and essentially decide the matter of bridge ownership.

Delmore argued that 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. He also cited a state law he said requires the approval of the State Historical Board to destroy state property deemed historically significant by the State Historical Society director, and said both the current director and a past one have reached that conclusion.

Justice Daniel Crothers questioned Delmore about what the law’s trigger was; Delmore said it was “the words historical and iconic.”

The State Historical Board during a March meeting discussed whether it had the authority to block destruction of the bridge under state law. Attorney General Drew Wrigley informed the group that it did not have that authority, since the bridge is privately owned. The board then passed a resolution expressing support for preserving the bridge but noting that it does not have authority or expertise to determine ownership.

“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 told the justices.

FORB has maintained that it is not against the building of a new bridge, it is against the removal of the existing one, which it wants to see turned into a pedestrian tourism attraction.

Justice Lisa Fair McEvers asked Delmore if state ownership could “cause a great burden on the state” should the railroad leave it in disrepair and “walk away.” Crothers at one point asked Delmore if FORB was prepared to post a bond if the state claimed ownership; Delmore said that would be “a very difficult undertaking for us.”

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. She also said that Water Resources “is not subservient to the Historical Society or the Historical Board.”

Verleger also told the justices that the issue of bridge ownership does not need to be addressed at this time.

“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,” she said.

FORB is asking that the court issue a stay while the matter is reviewed. That would halt the bridge construction BNSF commenced in June. Delmore maintained that if the state is the rightful owner of the bridge, then the railroad was not the rightful entity to obtain federal permission for a new bridge.

BNSF has steadfastly maintained it owns the bridge. Railroad attorney Jason Lien told justices that BNSF would be seriously harmed if a stay is put in place, even if only for a few months. He also noted that the existing bridge will stay in use for the next three years during construction of the new bridge. Razing of the existing structure would take another year.