BISMARCK, N.D. — The North Dakota Supreme Court has rebuffed a preservation group’s latest legal effort to block demolition of BNSF’s Bismarck-Mandan Rail Bridge, upholding a lower court’s dismissal of a suit by Friends of the Rail Bridge on technical grounds.
The Fargo Forum reports that the court’s five justices, in a decision released today [Thursday, Feb. 8], unanimously upheld the earlier decision that the Friends group failed to exhaust its administrative remedies before filing its suit.
“It is undisputed that the Appellates did not request a hearing within 30 days (or at any time)” after the state’s Department of Water Resources issued two sovereign land permits — one allowing BNSF to construct its new bridge over the Missouri River, one to subsequently demolish the current bridge, which dates to 1883 — in April 2023, Justice Lisa Fair McEvers wrote in the court’s decision. “Accordingly, no hearing was held, nor was a hearing request denied by DWR.”
A lawyer for the Friends group, Lyle Witham, said in a statement to the newspaper that the group was disappointed that the Court failed to address the case’s larger legal issues “based on a new precident that will not allow members of the public who file comments in a major permit proceeding to appeal the final permit directly to the district court. This is a bad precedent that undermines the public’s ability to participate in such important cases affecting the public’s interest.”
The Friends group has contended for some time that the bridge is actually state property — an argument it outlines at length on its website — and as such a state board is required to review the bridge’s historical significance. The state’s Attorney General has not backed that argument [see “North Dakota Attorney General indicates BNSF owns Bismarck Bridge,” Trains News Wire, March 6, 2023], and the Supreme Court had previously declined the group’s request to consider that argument rather than the procedural question decided today [see “North Dakota Supreme Court to hear arguments …,” News Wire, Aug. 21, 2023].
BNSF, which began work on the replacement bridge last year, said in a statement that it was “pleased with the Court’s decision affirming the previous dismissal of FORB’s challenge.” The new bridge is expected to be completed in 2026.
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