Bismarck-Mandan Rail Bridge: Nonprofit Group’s Request Denied by North Dakota Supreme Court 

The Bismarck-Mandan Rail Bridge spans the Missouri River between Bismarck, N.D., and Mandan, N.D.

Bruce Kelly

BISMARCK, N.D. – The North Dakota Supreme Court denied FORB’s request that the court take jurisdiction over the Bismarck-Mandan Rail Bridge.

Over the past several months, RT&S has reported on the back-and-forth around the Bismarck-Mandan Rail Bridge and Friends of the Rail Bridge, a non-profit citizen group dedicated to the preservation of the bridge. More recently, RT&S reported that the nonprofit group went to the North Dakota Supreme Court to contest ownership of the Bismarck-Mandan Rail Bridge. The nonprofit group argued that the state of North Dakota owns the bridge and that the “state had not asserted its role under the law in deciding whether the structure is torn down.”

Now, The Bismarck Tribune is reporting that the North Dakota Supreme Court denied the non-profit group’s request “that the court take ‘original jurisdiction’ in a case that seeks to revoke the permits of construction and demolition of a bridge over the Missouri River.”

An environmental review by the U.S. Coast Guard showed that the old bridge is “approaching the end of its useful life and needs to be replaced.” Last June, BNSF began work “that will take three years to complete” and “in April, obtained two sovereign lands permits from the state Department of Water Resources – the final two permits needed to begin construction.”

According to the report, “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.” The Friends of the Rail Bridge appealed the issuance of these permits this past Spring, but that appeal “was dismissed in June by South Central District Judge Jackson Lofgren on technical grounds without ruling on any of the appeal’s claims.”

Then, in July, the nonprofit group appealed that ruling “and in a separate action days later asked the high court to take ‘original jurisdiction’ in the matter. If granted, the justices would have decided ownership of the bridge rather than potentially sending the matter back to Lofgren to decide.” The group’s argument is that the state owns both the riverbed and any “permanent fixtures that were attached at the time of statehood, which would include the rail bridge.”

Attorney Delmore said at a Supreme Court hearing last month: “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.” 

In rebuttal, Assistant Attorney General Jennifer Verleger said: “’We shouldn’t even be here’ – that it would be improper to circumvent the FORB appeal that is already underway.” Verleger represents the Department of Water Resources. She went on to say that “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.”

Now, the decision last Thursday was to deny the nonprofit group’s request “for ‘original jurisdiction’ and said that the ‘Court will not exercise its supervisory powers merely because the appeal may involve an increase of expenses or an inconvenient delay.’” As of reporting, the “original appeal to Lofgren’s ruling is still not decided.” The issues in this petition “will be fully reviewable in the pending appeal from the district court.”

Attorney Delmore went on to state: “Original jurisdiction is an extremely high bar to reach and it is seldom given. . . All of the issues that we laid out are still on the table.”