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.
As Chicago’s former mayor did to a lake front airport that he didn’t want any longer. he tore it up during the night and apologized later. Just kidding. He never apologized.
US and State constitutions matter, ‘Everyone’ has right to appeal, plaintiff and defendant. Appellate courts sort out the meaningful from meaningless, unlike the ‘cult of money method’.
Following up on Charles’ suggestion, the Court should advise the Friends that if their demands are accepted by the Court, they become defacto owners of the old bridge and are thereby fully responsible for annual maintenance and eventual demolition. BNSF would provide the Court estimates for both figures which the Friends must then place in a maintenance account (that they would fund as needed) and a demolition escrow account. In addition, the Friends will be required to reimburse BNSF for any added costs created by the decision. I think that’s fair.
“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.”
I have many ideas on how to reform our court system. One of them is that a plaintiff appealing a civil court ruling against them should have to post a bond covering the damages to the defendant, should the plaintiff lose and the defendant win.
Everyone has the right to sue. They don’t have the right to tie up the defendant indefinitely with appeals.