BNSF begins preliminary work for construction of new bridge
Missouri River bridge
BISMARCK, N.D. — On. Sept. 14 the North Dakota Supreme Court denied a request by Friends of the Rail Bridge that the court take “original jurisdiction” in a case that sought to revoke permits for construction and demolition of the BNSF Railway bridge over the Missouri River between Bismarck and Mandan, N.D., the Bismarck Tribune reported.
The Friends of the Rail Bridge has been trying without success to save the 140-year-old former Northern Pacific bridge and convert it into a walking bridge tourist attraction [see “Preservation group makes argument to North Dakota Supreme Court on BNSF bridge,” News Wire, Aug. 22, 2023]. The group has used a novel approach: FORB maintains that the state owns not just the Missouri River riverbed between the two cities but also any permanent fixtures that were attached at the time of North Dakota statehood. Therefore, this would include the bridge.
“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,” FORB attorney Bill Delmore said at a Supreme court hearing in August. BNSF argues it has full ownership of the bridge.
BNSF in June began preliminary work for construction of the new $100 million bridge that will take three years to complete. This spring BNSF obtained two sovereign lands permits from the state Department of Water Resources, the final two permits needed to begin construction.
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.
FORB appealed the issuance of the two permits in May with the state district court. The appeal was dismissed in June by South Central District Judge Jackson Lofgren on technical grounds without ruling on any of the appeal’s claims.
The group in mid-July appealed the ruling to the Supreme Court and in a separate action days later asked the high court to take “original jurisdiction” in the matter, the Tribune reported. The decision on last week denied FORB’s request for “original jurisdiction.”
This isn’t the final decision on the matter however. The Supreme Court still has to on the dismissal of the FORB appeal of the two permits by the state district court.