BISMARCK, N.D. — The North Dakota Supreme Court heard arguments Monday on a preservation group’s appeal of permits allowing BNSF to build a new bridge across the Missouri River between Bismarck and Mandan, N.D., and demolish its existing bridge — as well as the group’s separate request for the court to determine whether the state, rather than the railroad, owns the bridge.
The group Friends of the Rail Bridge seeks to preserve the bridge built by Northern Pacific in 1882, with portions replaced in 1905, for use as a pedestrian and cycling path. The Bismarck Tribune reports that the group’s lawyer, Bill Delmore, was peppered” with questions about the ownership argument, which claims that the state owns not only the riverbed but structures that were attached at the time of statehood. Delmore told justices there are “cases both ways” in terms of precedent.
The Friends group is seeking a stay while the ownership question is reviewed, which would halt work on the bridge. BNSF maintains it owns the bridge — a position also held by the state and supported by federal decisions allowing bridge work to proceed — and its attorney, Jason Lien, said even a short stay would lead to significant delays “because of the highly technical sequencing of construction events” involved, KFYR-TV reports. Lien also noted that even without a stay, the existing bridge will remain in place for the next three years while a new bridge is built.
BNSF has already seen the cost of the new bridge rise from $60 to $100 million during its five-year effort to obtain the necessary permits to build the new structure [see “BNSF gets final regulatory approval …,” News Wire, April 25, 2023].
The Friends group originally appealed to the Supreme Court over the decision by the state’s Department of Water Resources to grant BNSF permits for the bridge work — or more specifically over a lower court’s dismissal of that appeal on the technical grounds that the group had not complied with state law regarding appeal procedures [see “Fight over BNSF bridge moves to North Dakota Supreme Court,” News Wire, July 14, 2023].
Regarding that case, Assistant Attorney General Jennifer Verleger, representing the Department of Water Resources, said it would be improper to circumvent the Friends’ appeal that is already underway. She also argued that it was unnecessary for the court to address the ownership question at this time.
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