The five most dangerous words in the English language for a journalist (of which I am one, of a sort—I keep this online journal) are “I’m not a lawyer, but . . . “
Okay, so there’s been this legal case going on for about ten years involving Billings County and the Short family over whether or not there is going to be a bridge built over the Little Missouri State Scenic River on the Short Ranch in the Bad Lands, north of Medora. I’ve been writing about it. And I’ve tried really hard to understand the legal issues involved.
But I’m not a lawyer (it’s okay to use those five words in that order), so I’ve been trying to talk to the lawyers who have been involved in this, and I’ve been sitting through court hearings, so I can keep everyone who’s concerned about this up to date on what is happening out there in the Bad Lands. That’s what I write about here, mostly. The Bad Lands.
There was a hearing last week in Billings County District Court. I went. I listened and watched.
Quick background. Last year the Billings County Commission decided to move ahead with the bridge, in spite of the Short family’s opposition. So they used a process called “quick take” to claim ownership of 45 acres of the Short ranch, for a bridge and an access road to it. It’s the short form of eminent domain.
It’s already been determined that the road and bridge would be a “public use,” but, as I understand it, before the county can actually take the Short land and begin construction, they have to get a judge to agree that the taking was “necessary” for the public to use it, and, I think, because there are other legal actions pending, whether it was necessary for the county to move so quickly, before the other legal actions are settled.
As I explained in an earlier story in this space, the Shorts had an agreement with the county commission that the county would forego the whole project and the Shorts would drop any legal action they had taken to try to stop it. But after the 2022 election, the makeup of the commission changed, and they voted to proceed. Here’s what the agreement said:
NOW, THEREFORE, THE PARTIES STIPULATE that, the County having agreed it will not pursue eminent domain to condemn any of the Short property for a Little Missouri River Crossing or pursue any legal action against the Shorts to condemn their property and having made the motion stated, the law suits referenced above will be dismissed, and the Shorts will not pursue the above referenced lawsuits whether in the original forum or through any appeals, and within fourteen (14) days of execution of this agreement, the Shorts will dismiss any lawsuits referenced above that remain pending with prejudice, and without fees, costs, or expenses awarded by the court to either party and with each party agreeing to bear its own fees, costs, and expenses.
Doc. No. 1-8, p. 2 (emphasis added).
That agreement was reached after former Commission chairman Jim Arthaud, who has been the bridge’s champion for a couple of decades because it would likely benefit the oil industry, of which he is part, lost an election in 2020 to Dean Rodne, a vocal opponent of the use of eminent domain (and consequently the location of the proposed bridge).
Rodne and fellow commissioner Mike Kasian voted to sign the agreement, but then Kasian was defeated for re-election in 2022, and newly-elected commissioner Steve Klym joined bridge proponent Lester Iverson last year in voting to scrap the agreement.
That’s when the Short family filed the federal suit claiming the county commissioners had “breached their contract” by going ahead in spite of the agreement. Last Spring, a federal judge granted a temporary injunction against the county, stopping any action on the bridge until the federal suit is settled.
The county has appealed the injunction to the 8th Circuit Court of Appeals. A decision will likely come sometime next year. As will a trial on the Breach of Contract suit. But the county commissioners and their lawyers have not been sitting around twiddling their thumbs waiting for that.
Meanwhile, there was a hearing in state court on November 6 in front of North Dakota District Judge William Herauf. The county’s lawyer, Tami Norgard from Fargo called the county commissioners to the stand in an attempt to convince Judge Herauf that the agreement the previous county commission signed with the Short family was not “binding forever,” and that the county commissioners could change their minds if they wanted to.
While that was not the real issue before the court—that’s in the federal courts—Lawyer Norgard seemed to think that if she could get Judge Herauf to buy her argument, he might be willing to agree that the county’s actions were “necessary.” The Short family’s lawyer seemed to be appealing to Judge Herauf’s better angels, that an agreement is an agreement and should be stuck to.
The two sides called their witnesses, who gave the same arguments we’ve heard all along, with the county stressing the need for a bridge for emergency vehicles to cross the river, and for tourists who might be wanting to go to the Elkhorn Ranch when they were done visiting the soon-to-be opened Theodore Roosevelt Presidential Library, and the Shorts talking about the 100-plus year history of the Short ranch and how almost no one lived along that stretch of the river, so there was little need for the bridge to accommodate the county’s ranchers.
Judge Herauf, whose family has its own ranching interests in the Bad Lands, I think, listened patiently and at some point next year he’ll rule either in favor of the county, and let the “quick take” become official (pending the outcome of the federal trials), or opine that such quick action on the bridge really isn’t necessary and the taking was out of order.
This is all preliminary to the real action, which will take place sometime next year, in a couple of other courts. Earlier, U.S. District Judge Dan Traynor in Bismarck granted the Shorts a temporary injunction against the county to keep them off the Shorts’ ranch until he can hold a trial on the “Breach of Contract” Lawsuit. The county has appealed that injunction to the 8th Circuit Court of Appeals. A decision on the appeal probably won’t come until next spring.
But an interesting thing happened on the way to the courthouse this fall. In the 2024 election a couple weeks ago, Iverson was defeated by a fellow named Jim Haag, who appears to be ready to join Rodne in opposing eminent domain. If they decide at a meeting in December or January, to reverse the earlier commission’s “quick take” action, and forego taking the Short land, all the lawsuits could become moot.
Stay tuned. This is a long way from being over, I think.
The Prairie Blog 