“(Commission chairman) Jim Arthaud and the Billings County commissioners have the fight of their lives ahead of them if they plan on using eminent domain to put a bridge across our land.”
That was Sandy Short, wife of the late Con Short and daughter-in-law of former U.S. Congressman Don Short, in an interview with The Bismarck Tribune three years ago.
That fight is on.
Sometime in the next two weeks the Billings County Commission may call for a public hearing on their plans to condemn part of the Historic Short Ranch north of Medora, taking a corridor through the ranch and over the Little Missouri State Scenic River to build their now infamous “Bridge to Nowhere.”
There’s no firm schedule that I know of, but the announcement could come as early as next Tuesday, July 7, during the Commission’s regular July meeting. The Agenda says the Commission will go into Executive Session during that meeting to “Discuss ongoing Little Missouri litigation with attorneys.”
The board is allowed to close part of their meeting to the public to discuss legal matters with their lawyer, Billings County State’s Attorney Pat Weir, but they aren’t allowed to take any action. If they decide in their closed session to move forward with the condemnation proceedings, of which a hearing is the first step, they must make a motion to do that when they come back into public session. I expect the media to be there to make sure they comply.
The county is using what is called a “quick take” eminent domain procedure, in a move attorneys for the Shorts have called “surreptitious.” Without notifying the public or the Short family or even putting it on their meeting agenda, the Commissioners voted at their April 14 meeting to begin eminent domain proceedings to take the land they want for the bridge, and roads leading to it, from the Short family.
The Shorts were quick to respond, however. Six weeks later, after they learned of the commission’s action, the family filed suit in U.S. District Court in Bismarck, claiming that the county’s failure to provide notice to the Shorts of their plan to condemn the Shorts’ land at their April 14 meeting “violated the family’s right to due process under the Fifth and Fourteenth Amendments to the United States Constitution, and was in bad faith.”
Additionally, the suit claims that the Commission’s plan to condemn the land “violates the Takings Clause of the Fifth Amendment to the United States Constitution, and is in bad faith.”
The suit also claims that the process violates North Dakota law as well, and it asks the Federal Court to issue an injunction against the county, to stop the condemnation proceedings, while a jury, in a court trial in U.S. District Court, decides if the Short family’s claims are valid.
It’s the latest confrontation between the Commission and those who oppose a bridge over North Dakota’s only State Scenic River, a dispute which has been raging in fits and starts for nearly 15 years.
The county first began seeking federal funds for the project from North Dakota’s share of federal highway funds allocated to the state from federal gasoline tax receipts in 2006. The state has continually denied the county’s request over the intervening years.
The county has also gone the condemnation route before. In 2005, the county decided it wanted to build the bridge further north along the river, right beside the Elkhorn Ranch Unit of Theodore Roosevelt National Park. To do that, they needed to take land from Billings County ranchers Ken and Norma Eberts, whose ranch was directly across the river from the Elkhorn. They implemented the same “quick take” eminent domain proceeding they’re using now. The Eberts went to court, challenging the county’s right to take their land, and North Dakota District Judge Ron Hilden ruled in their favor.
The county appealed to the North Dakota Supreme Court, though, and the Supreme Court reversed Hilden’s decision, giving the county the right to build the road through the Eberts ranch, and to put the bridge between their back door and Roosevelt’s cabin site.
Immense public pressure put a stop to that plan, and the commission backed down. A group of more than 20 national conservation organizations, headed by a powerful Washington, D.C., lawyer named Lowell Baier, then the executive director of the Boone and Crockett Club (which, coincidentally, was founded by Theodore Roosevelt), raised funds to buy the ranch from the Eberts. The Eberts agreed to sell it to protect it, and the Elkhorn, from an environmental disaster next to Roosevelt’s Bad Lands ranch. The conservation groups then donated the ranch to the U.S. Forest Service, which promptly put a stop to the project on their land.
I’ll tell you what, though, these guys have staying power. Both Commissioners Arthaud and Joe Kessel were on the County Commission back then (I’m not sure about current Commissioner Mike Kasian), and Weir, who was then working for the Vogel Law firm, was their attorney. They took a few years respite to catch their breath after they lost the Eberts location, but then began looking for an alternative site. Finally they realized that to get federal funds they would have to complete an Environmental Impact Statement (EIS), so they began that process in 2012, and they identified the Short ranch as the best place for the bridge, getting us to where we are today.
The family has carried through on Sandy Short’s promise that the county commissioners would be in for the fight of their lives, and that the county would not be welcome on their place, filing a pair of lawsuits, one challenging the validity of the county’s EIS, which was conducted by the county’s own engineering firm, and the other challenging the eminent domain process.
Both suits were filed in federal court, since the first suit challenges the validity of the federal EIS, and the second, dealing with the eminent domain process, is so closely related that it makes sense to have the same judge hearing both cases.
The county is on a faster track than the courts, so the Shorts’ attorney, JJ England, is hoping for at least a temporary injunction to put the project on hold until the legal issues can be resolved. No court dates have been announced for either of the Short family’s suits.
There’s some urgency, because of a parallel action by the county, as I reported here a few weeks ago. The county has applied for a federal grant to build the bridge through a fast-track process called the BUILD Grant program, which I also wrote about a couple weeks ago. A preliminary staff decision will be made on their application in Washington, D.C., as early as next month, with a final decision by U.S. Secretary of Transportation Elaine Chao by September 15.
That’s troubling, because there are likely to be some strings pulled in this process. See, the state has refused to fund the bridge project because there are way too many other important infrastructure projects that need the federal funds—bad roads and failing bridges chief among them—and the Governor hasn’t put the squeeze on the folks at our DOT who decide how the state’s federal dollars get spent to fund this project. Yet.
But Billings County Commission Chairman Jim Arthaud is a big Republican donor. He’s given hundreds of thousands of dollars to Republican candidates and the Republican Party since he got rich during the oil boom, including almost $100,000 to the North Dakota Republican Party, and year-after-year large checks to our state’s Congressional delegation (you can take a look for yourself here if you want to).
You can bet that the phone has already rung in the offices of John Hoeven, Kevin Cramer and Kelly Armstrong, telling them to get over to Elaine Chao’s office and make sure she approves his BUILD grant request for $12.5 million. He holds a little less sway with Gov. Doug Burgum—he was a big $10,000 donor to Burgum’s opponent Wayne Stenehjem in 2016, although he did send Burgum a $1,000 “kiss and make up-cover your ass” check for $1,000 after Burgum beat Stenehjem in the Primary. So he might be calling Burgum’s office as well.
But the heat is sure to be on Chao to use some of her $1 billion discretionary funds in the BUILD program to build the “Bridge to Nowhere” in Billings County, North Dakota, especially from Hoeven, who sits on the powerful Senate Appropriations Committee, which funds Chao’s agency. She needs to hear from North Dakotans, and others who care about the future of the Little Missouri State Scenic River, that this is a bad, bad project, and that a lot of people care about it.
You can address your letters to Hon. Elaine Chao, Secretary, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, D.C. 20590. You can e-mail the letters to one of her staff, Mr. Howard Hill, at Howard.Hill@dot.gov, and he will see to it that she gets them. The suggested subject line is “Billings County, ND BUILD Grant Application.”
Here are some talking points.
- If there should be a significant increase in truck traffic when the oil boom resumes, great clouds of dust could cover the grass that feeds the deer and the antelope and the ranchers’ cows, covers the bird’s nests, threatening the state bird, the western meadowlark, settles on the baby golden eagles and redtail hawks that nest nearby, chokes the gophers and prairie dogs that provide food for the foxes and coyotes and birds of prey, settles on the hayfields ranchers need for their winter feed for their cattle, and darkens the sky over the spectacular Bad Lands landscape so important to North Dakota’s tourism industry. That is unacceptable.
- The road between the Little Missouri State Scenic River and U.S. Hwy. 85 goes within two miles of the Elkhorn Ranch Unit of Theodore Roosevelt National Park, threatening that very important place in United States history.
- The project faces two lawsuits, one challenging the EIS and one opposing the use of eminent domain, taking land from one of the state’s most historic ranches, the home ranch of former U.S. Congressman Don Short. Both are in the U. S. District Court in Bismarck. Both face lengthy appeals process, making it impossible for the grant to be spent quickly and efficiently if it is approved. The cases could drag on for years, and a subsequent EIS process will take more years if the court strikes down the current one.
- This is a very controversial project and will give the BUILD program a bad name—it will get a lot of negative publicity both in North Dakota and nationwide if it is approved.
- It’s been called a “Bridge to Nowhere.” The Billings County Commissioners now deny it is for oilfield use, but it will have little to no use by anyone but the oil industry—there are only about a dozen ranches within ten miles of the bridge site. Spending $12.5 million to serve a dozen families makes no sense.
- It has had little support from the state DOT, which has refused to fund it despite numerous requests. It is not included in North Dakota’s State Transportation Improvement Plan for 2020-2023. A federal grant would conflict with North Dakota’s wishes on this project. There are many more infrastructure projects that need funding, both in North Dakota and nationwide.
This project must be stopped. The Short family is doing their part, spending thousands of dollars on attorney’s fees to try to protect the Little Missouri Scenic River valley. Please help them out by writing to Secretary Chao, as well as to North Dakota’s Congressional delegation, and tell them North Dakotans are opposed to federal funding from the BUILD program for this project.