BISMARCK, N.D. — The North Dakota Supreme Court is scheduled to hear arguments today on a case stemming from a preservation group’s effort to prevent BNSF Railway from demolishing its bridge across the Missouri River between Bismarck and Mandan, N.D., once it completes construction of a new bridge.
The group Friends of the Rail Bridge originally appealed to the court over appeal procedures regarding the granting of two state permits, one that allows BNSF to build its new bridge over the river and one for demolition of the old bridge [see “Fight over BNSF bridge moves to North Dakota Supreme Court,” Trains News Wire, July 14, 2023].
But the Bismarck Tribune reports that the Friends group is also asking the court to consider its argument that the bridge is actually owned by the state rather than the railroad (an argument, available in full here, based in part on the fact that the bridge predates statehood). If that were the case, the state would have a role in determining the bridge’s future.
The Friends group attorney, Bill Delmore, told the Tribune in a statement that, “For years the fundamental question is who owns the bridge, and it needs to be decided in court. Now it will be heard by the highest court in North Dakota.”
The state, however, agrees that BNSF owns the bridge — as has the federal government — and the Tribune reports that Assistant Attorney General Jennifer Verleger argues in court documents that the Friends group is not following the process for challenging the state permits and is attempting a legal maneuver “the court should not reward.” BNSF has called the Friends group argument “legally absurd.”
The preservation group wants to save the bridge to turn it into a pedestrian and biking path, a project estimated to cost almost $7 million in 2019.
As I have said many times, we have to many lawyers.
Well, the indian’s owned a lot of land before any statehood, and look what happened to them.
If the bridge pre dates statehood, To me that means there is no way that state owns it. it would seem very clear that some one other than the state ( that didn’t exist) built and owns the bridge..
I would assume the state got grants of some sort from US Dept of Interior at the time of statehood.
It is over some language that (and I paraphrase) that real property in the territory (a federal jurisdiction and entity at the time) falls to the new state when it attains statehood. Since the river falls within the property that transferred from Federal to State jurisdiction, and the bridge resides on the river, it therefore became “property of the state” when statehood was attained.
Its the same argument that was made when argued that the mineral rights under some property would not remain “Federal” but “State” aligned when statehood was attained.
FORB says when title to real property is transferred from one entity to another, everything on and under it goes with it. Like selling property with a house on it. When you sell the lot, the house usually goes with it because it resides on the lot. They say that BNSF’s bridge permits were improperly issued because they didn’t have the rights to make changes to the bridge which resides on “state” property and they can’t tear it down because if they are building a new one, the asset would return to its rightful owner, the State of North Dakota, (in their opinion).
One of the attorneys for FORB won a case where someone had usurped the mineral rights of a real property owner and the attorney used a “territory to state” declaration as their argument to overturn the usurpers actions.
I am sure I have left out some of the legal details (hence the paraphrase). Essentially they need a judge to essentially overturn precedence in federal land patents and the use of right of ways for railroads to cross a state jurisdiction. Since this has been “settled law” for some 150 years, this is why BNSF counsel finds their arguments absurd.
John Rice,
Your commentary is the most-informed I’ve seen of anyone regarding the case so far. Members of the public interested in reading the legal basis are encouraged to visit the link at http://www.forb.org for more information regarding the legal basis for FORB’s claim. The Federal Government, by Act establishing statehood in 1889 (which was was written by the NP Railroad’s hand-picked author, btw), explicitly gave the river and anything under or attached to it, to the people of North Dakota. That is the black-and-white of the North Dakota State constitution. This is in keeping with concepts of Public Trust, which well pre-date the US Declaration of Independence, that the navigable waterways are held in trust by the government as property of We the People to ensure free passage/use. Whether by the Federal or State government, they are held in trust for the people. This was also the State’s assertion during rebuttal in today’s Supreme Court hearing, that the State has clear title to the Missouri Riverbed without exception.
Mr. Bradbury this is because I went to your site and read the position FORB is taking. I also watched all your You Tube videos of your meetings to see how you were approaching it. I also checked out your 501(c)3 status by looking up your state charter, business license and who does your fundraising accounting for you (a North Dakota NFP umbrella).
I also went back into the history of the bridge and found out that only the supporting pylons that were built during territory days are left of the original bridge. The span was replaced by the NP (at their cost) after ND became a state on top of same pylons.
I am not an attorney, nor do I work for either BNSF or FORB. Just a non-aligned party who wanted to understand the facts.
When this all started years ago BNSF was agreeable to donating the old bridge to the Friends group if they could prove that they could raise the millions to convert the bridge to a ped/bike path. They couldn’t find the money, so they started suing. Ironically by the time this all plays out there is a very real chance that they will have spend as much in legal fees as it would have taken to convert the bridge.
Only in America! 🙁
Dave, I wish that was true. They have spent less than $50k on their counsel. Also some of FORB’s members are attorneys. The “process” they are following (if I understand their unusual strategy) is based on a mineral rights law relative to a declaration of ownership from a territory to a state, not one to contest permitting. That is what the judge is getting irritable about.
It’s FORB’s right to contest in a public court, all the way to the SCOTUS, if they see fit. Of that I don’t argue, however, their search to find a court that accepts their unusual interpretation of a territorial transition will get expensive eventually.
That was the BNSF’s fault for even demanding that stipulation…all they had to do was donate it to the group and then let them fend for themselves. The BNSF builds a new bridge and no longer has to worry about upkeep or repairs on the old one, if would have fallen to the FORB people to either fix it up or scrap it when unable to repair it enough for people to walk/bike across(which would not require as much repair as it would to maintain it for rail service, much lighter loads).
Don Quixote goes to court to prove he owns the windmill!
What a great line!