Billings County Commissioners have raised the stakes in their quest to build their “Bridge to Nowhere” across the Little Missouri State Scenic River north of Medora, N.D., but the family on whose land the bridge is proposed to be built is not taking it lying down.
At a County Commission meeting this past month, the commissioners, without notifying the family of North Dakota’s legendary “Cowboy Congressman” Don Short, voted to condemn part of the Short Ranch using the eminent domain process and to seek federal funding to build the bridge.
The condemnation process is under way. The county’s engineering firm, KLJ, has surveyed the land and drawn a proposed map for the bridge location and connecting roads.
Today, the county was submitting an application for a federal grant of about $12 million using a program designed to subvert the state’s road and bridge prioritization process. More about that in a minute.
When the Short family learned of the county’s plan to survey, appraise, then make an offer on the land for the bridge, it said “No.”
They learned of it after the fact. They weren’t even given notice by the county that it was going to be on the agenda for the commission’s April 14 meeting. In fact, it WASN’T on the agenda. If it had been, the family would have been there to discuss it. The commissioners pulled a fast one.
Thursday afternoon, exactly one month later, the Short family filed a lawsuit in U.S. District Court in Bismarck claiming it had been denied due process, that the condemnation plans violate the Takings Clause of the Fifth Amendment to the U.S. Constitution, asking for an injunction against the County Commissioners from taking any further action to condemn the land, asking for economic, compensatory and punitive damages and asking for a jury trial to hear their case against the County Commissioners.
The part of the ranch being condemned is owned by Sandra Short, the daughter-in-law of Congressman Short, who represented North Dakota in Congress from 1959-1965, and her daughter, Sarah Sarbacker. Sandra was married to Con Short, Don Short’s son, who passed away a few years ago. Sarah and her brothers, David and Donald Short, are listed with Sandra as plaintiffs in the case.
After learning of the commission’s action, they wrote in their lawsuit “Sandra Short and Sarah Sarbacker will not voluntarily agree to sell their land to Billings County to construct the Little Missouri Crossing. The land is irreplaceable and holds deep sentimental, spiritual, recreational and historic value to them and their family, including plaintiffs David and Donald Short.”
County Commissioners were served with the court papers Thursday night or early Friday morning. The case has been assigned to new U. S. district judge for North Dakota, Dan Traynor, the same judge who is hearing an earlier lawsuit filed by the Short family against the Federal Highway Administration and the U.S. Forest Service seeking to stop the bridge’s construction because of an inadequate environmental review. I wrote a couple of articles about that a few months ago. You can read them here and here.
Not much is going to happen in either case anytime soon because of the pandemic, but Traynor could issue a temporary injunction against the county to stop any takings or construction until the cases are resolved. I would expect at least that much to happen in the coming weeks.
Meanwhile, there’s the issue of paying for the bridge if everything eventually proceeds. Billings County Commissioners have long said they plan to ask for federal funds to pay 80 percent of the cost of the bridge. The project has been listed for several years in the North Dakota Department of Transportation’s Statewide Transportation Improvement Plan, although it appears to have been removed this year. I’m a bit puzzled about that. It’s been listed as a $15 million project, with $12 million of that projected to come from federal funds, but there’s been no allocation of federal funds for the project so far.
But a sharp-eyed engineer at the KLJ office has figured out a way around the state’s plan.
A federal highway funding program dating back to the Obama administration’s 2009 American Recovery and Reinvestment Act in response to the Great Recession could provide the funding.
The program was called the TIGER Discretionary Grants Program (an acronym for Transportation Investment Generating Economic Recovery), and since it was passed by Congress and signed into law by Obama just a month into his first term as president, it has provided nearly $8 billion in funding for road, bridge, infrastructure and transportation planning projects in all 50 states.
Today it is called the BUILD (Better Utilizing Investments to Leverage Development — the government loves fancy acronyms) Transportation Grants program, and it contains $1 billion in funding for 2020. The program has survived for more than a decade, even though new funds must be appropriated for it every year because it is popular with senators and congressmen who can no longer earmark federal funds for projects like Billings County’s bridge.
For many years, projects that couldn’t compete with needed road and bridge projects normally funded by each state’s allocation of the federal gasoline tax were given direct funding from Congress through earmarks. Congress got rid of them in 2011.
So this TIGER/BUILD program has served the same purpose. In December, Congress put a billion dollars into the program and told states, counties and cities they had until May 18 (this coming Monday) to apply. Billings County is applying for funds for their bridge. It’s probably the only way it is going to get federal funds, since right now there are requests for about $1.5 billion worth of projects in North Dakota’s 2020-2023 STIP, with needs of about $1.1 billion in federal funding over the next four years.
If the USDOT grants Billings County’s request, the county will have leapfrogged over hundreds of needed North Dakota statewide projects and that $1.1 billion in North Dakota’s federal funding schedule. Could happen. North Dakota has received several of these grants in the past for various projects around the state.
Grants will be awarded in September. This really is a fast-track program, designed to get projects done in a hurry, with even more pressure right now because these will help with economic recovery.
I asked the Billings County’s auditor, who is writing and submitting the application, if she needed to get clearance from the North Dakota DOT for the funds, and she said no, she’s sending it right to Washington.
This really is quite something. Here’s a rural North Dakota county with an estimated population of 928 in 2019 throwing its hat into a nationwide billion dollar ring, looking to pick up the $12 million North Dakota’s state government hasn’t been willing to give it.
The only two real guidelines I saw for the grants are a display of “broad public support” for the project and inclusion of the project in the state’s STIP schedule. Neither of those exists, I don’t think. I’ll report back once I have read the application.
Meanwhile, beyond the funding issues, the project is now in the hands of a federal judge. I’ll report on that when I learn more too.