News & Reviews News Wire Fight over BNSF bridge moves to North Dakota Supreme Court

Fight over BNSF bridge moves to North Dakota Supreme Court

By Trains Staff | July 14, 2023

| Last updated on February 4, 2024

Preservation group challenges technicalities that led to dismissal of appeal in lower court

Email Newsletter

Get the newest photos, videos, stories, and more from brands. Sign-up for email today!

Steam-powered passenger train on large truss bridge over water
The battle over the Northern Pacific bridge over the Missouri River at Bismarck, N.D., is moving to the North Dakota Supreme Court. Northern Pacific

BISMARCK, N.D. — The group seeking to prevent BNSF Railway from demolishing a 141-year-old bridge over the Missouri River is taking its long-running effort to the North Dakota Supreme Court.

The Bismarck Tribune reports that the Friends of the Rail Bridge preservation group, joined by the Downtown Business Association of Bismarck, is seeking to overturn a lower-court ruling that threw out its appeal of two state permits needed by BNSF to replace the current bridge with a new structure [see “Judge dismisses preservation group’s appeal …,” Trains News Wire, June 24, 2023].

While the preservation group says it is not opposed to the new bridge, it wants the existing structure — built by the Northern Pacific, with piers dating to 1882 and a superstructure from 1905 — preserved as a pedestrian and bike path.

South Central District Judge Jackson Lofgren turned down Friends group’s appeal in June on technical reasons, saying the group had failed to comply with state law by not requesting a hearing with the State Water Resources Board after it issued two Sovereign Land Use permits to BNSF. One permit allows construction of the new bridge and one is for demolition of the old structure. The Friends group contended that earlier hearings and public meetings met that state requirement but Lofgren disagreed.

As a result, the case the Friends group has brought to the Supreme Court addresses technicalities, not the questions over ownership of the bridge it has attempted to raise at other stages of its fight [see “North Dakota Attorney General indicates BNSF owns Bismarck bridge,” News Wire, March 6, 2023]

The Tribune, which reviewed a copy of the Friends’ appeal prior to its formal filing, reports it raises two main points: One is that the Department of Water Resources issued the permits without preparing an official record of everything that played a part in its decision, which the group says conflicts with state law. The other is the group believes asking for another Water Resources hearing after the permits were issued would have been “tantamount to admitting” the earlier meetings and hearings “did not exist.” One of the attorneys for the Friends told the newspaper the group believes following the procedure outlined by Lofgren would have meant “starting from scratch.”

BNSF, in a statement to the Tribune, said it will “continue to vigorously defend our ability to construct our privately owned railroad bridge.”

Preliminary work has already begun on the new bridge, which will cost about $100 million and take about three years to build.

16 thoughts on “Fight over BNSF bridge moves to North Dakota Supreme Court

  1. This never ending soap opera serial just keeps going on and on with only the lawyers on both sides of this argument making a fortune and cleaning up on what they will be putting in their pockets when this is all said and done. With so many really important issues and cases that affect everybody and everyday life, this shouldn’t be something that wastes the time of the highest court in the state of North Dakota. Just exactly what is so important about this bridge and what history is connected to it that both the courts and the public have to be tortured with this never ending nonsense of some old rusting junk heap that is more of a danger to public safety and river traffic as well as an eyesore to look at? This whole charade is just a waste of time and effort and only takes away the important work and caseload that the North Dakota Sumpreme Court has to deal with. To the preservation group fighting this silly battle Grow up and move on and use your time and donations collected to fight a more useful and worthy battle and concentrate on something that has real historical value.
    Joseph C. Markfelder

  2. The Northern Pacific Railway, as a “private company”, did not exist prior to Congress forming the company in 1864 and in the same Act providing about 50 million acres of American soil to “aid” (help pay for) the construction. While overland sections of ROW could be transferred as property to a corporation, the navigable waterways were held in trust in US Territories until such time they became states, at which point under the Equal Footing and Public Trust doctrines, those waterways are transferred to the new State. According to the black and white laws establishing North Dakota statehood, this transfer applies to minerals, vegetation, and any structure physically attached to the riverbed as part of the property help in public trust. In this case it is the bridge itself which was thus transferred to the new State under unique rules governing the riverbed.

    Further, the State Historical Board is required by law to direct the destruction/disposal of any Historical structure on state property (or in the state’s river) and this has not been done, although by law ought to have been arranged prior to issuing permits for bridge destruction.

    How is a private nonprofit group going to take “ownership” of the bridge away from the state of North Dakota, except within a public-private partnership as has been accomplished in so many other successful bridges preservation instances. I’m this case, the state Attorney General has refused to issue the necessary formal opinion regarding the state’s interest in the bridge and riverbed, thus leaving the public and private interests unable to align until the question is answered.
    Friends of the Rail Bridge would be eager to begin fundraising to convert the historic bridge into a pedestrian crossing, as has been accomplished in many other locations, however cannot move forward with this until the public-private partnership is established, given that the bridge is situated on state property.
    For further reading regarding the legal underpinnings, consider visiting

  3. One has to wonder where the “Friends” is getting the likely considerable funding needed for all of this litigation…

  4. Let’s see. How many Court Rulings in BNSF’s favor but they keep appealing to a different Court. Legal system all #$&% up. Looser should pay.

    Appeal all you want. In mean time if project was projected to cost $100 million and NOW is $150 million and you loose again, LOOSER has to cough up the additional $50 million. But that AIN’T going to happen because LAWYER’S make up 90% of the lawmakers. They aren’t going to do anything that may cost them an income.

    1. They aren’t interested in stopping the new bridge which is being built somewhat adjacent to the old bridge. Make them accept responsibility for the bridge and donate it to them as an act of good will. Then you won’t have to pay anything to deep six it or clean up the debris. A win-win for everyone and right now Railroads need all the good pub they can get, especially BNSF…

    2. There is no way this group can afford the upkeep of such a large piece of heavy infrastructure. The state is not forthcoming with any funding for conversion or maintenance. Without the basics the railroad cannot even consider a donation because when the group receiving the bridge disbands, passes away, etc. then who gets stuck with it?

  5. On one hand you’d want to see history preserved for the benefit of all citizens, on the other it’s a long up-hill fight on this bridge. I’d like to see them persevere yet it’s a slim chance, other bridges have been preserved only when all parties have agreed and this one is lacking a party.

  6. It is all well and good to preserve history, but somebody has to maintain it. This cost money, plus this is the USA, (were they sue anything that walks) the liability insurance, who shoulders that burden.

  7. For other readers more knowledgeable than I, am I missing something? If the friends want to keep this bridge, why not fund raise and buy it? I would think BNSF would be happy to save the cost of demolition.

    1. Their argument is the extant bridge, built and maintained with private money, is de facto public property because its piers are in a public waterway and so should be left to the proletariat. Fairly certain they were inspired by the character Mr Lloyd Allmine from Mr Rogers’ Neighborhood.

    2. If I understand correctly, leaving the bridge in place would cause BNSF to have to redesign its plans for the new bridge. This would add cost and compromise operational efficiency.

    3. Andy – That’s new info to me. Haven’t read that elsewhere. Doesn’t make sense because you can hardly expect BNSF to remove the old bridge before building the new one.

      This be July 14, depot coffee shop not yet open.Web site says Juy but doesn’t give a specific date.

    4. From an online Q&A on the USCG site:

      Q. Why can’t BNSF build a new bridge farther away so the existing bridge can remain?
      A. BNSF considered building a new bridge north while leaving the current bridge in place. In Concepts 1 and 2, new bridge piers would be aligned with existing piers. The closest distance for safely building new
      bridge piers is 10 feet from the existing piers. Allowing for the ice breakers on the north side of the old piers and the 10-feet minimum, the new bridge would be built 92.5 feet north. In both concepts, this requires construction outside of BNSF property, impacts Bismarck’s water reservoir, replacement of another rail bridge over I-194 to the west of the project, and increases cost and schedule.
      In Concept 3, BNSF looked at constructing a new bridge closer to the existing bridge at 42.5 feet upstream. To account for the footprint and ice breakers on the current piers, the new piers would be offset from the old. This concept also requires construction off BNSF property, impacts to Bismarck water reservoir, possible replacement of a separate rail bridge over I-194, and increases cost and schedule of the project.

You must login to submit a comment