There are a couple of new developments in the ongoing saga of the proposed Little Missouri River Crossing north of Medora, N.D. I’ve written about this extensively, most recently in December. Here’s what’s going on right now:
There’s a new look to the Billings County Commission. Longtime Commission Chairman Jim Arthaud, the driving force behind the bridge proposal, was defeated for re-election last fall by Billings County businessman Dean Rodne. Another commissioner, Joe Kessel, decided not to seek re-election and was replaced by rancher Lester Iverson. Kessel had defeated Iverson for the post four years earlier, but Kessel decided to let him have it this time. Commissioner Mike Kasian was not up for re-election last year and replaces Arthaud as chairman of the board.
Rodne hasn’t tipped his hand on how he feels about the bridge, but surely Billings County voters considered the issue when they elected him over Arthaud last year. Iverson is on record supporting the bridge project. In a letter to the editor of the Bismarck Tribune in 2018, Iverson wrote “The bridge is necessary …”
So it looks like Kasian and Rodne get to decide if there will be a bridge, paid for with Billings County taxpayers’ money. Kasian has supported the project as it moved through all its incarnations, as part of unanimous support from the former three-member commission. It remains to be seen how he will view the project now that Arthaud and Kessel are gone.
To review: The county has sought federal and state funds to build the $18 million project (it has already spent $3 million of its own money in preliminary steps — to finish the job it’s going to cost another $15 million) and been denied, so Arthaud stated last fall that he wanted to pay for it with county funds. That may have been a factor in his defeat in the November election. The Short family members, through whose land the bridge and connecting roads would be built, have stated their opposition, calling it a waste of money and a “Bridge to Nowhere.” So, the commission proposes to use the eminent domain process to take their land for the project. This past year, the Shorts filed a pair of lawsuits, one in federal court, one in state court. Both are still pending.
Here’s where it stands right now.
The project was on the agenda at the board’s Feb. 2 monthly meeting. Here is what the minutes of that meeting show:
“Discussion was held regarding the Little Missouri River Crossing. Chairman Kasian invited the Short family to sit at the commission table. Billings County legal counsel Tami Norgard, Vogel Law Firm, was present and introduced herself to the new board members. She went over the history of the project and stated that the board hired an appraiser in April of 2020. The appraisals have recently been completed and have been sent to the legal counsel for the Short family. Norgard went over the appraisals for all properties included in the project scope and highlighted the pertinent details in each. All properties had been appraised at $900/acre by an outside appraiser. She outlined the process that the board will need to go through to negotiate with the landowners. If landowners are unwilling to negotiate with the county, a special board will need to be appointed to review the appraisals and valuation. The county auditor and two other county officials must serve on this board. She reiterated that the discussion today is not a hearing on the valuation in that sense. It is only a board meeting for the commissioners to determine what a fair negotiated price per acre should be offered to the landowners in the scope of the project. The board allowed time for the Short family to speak in opposition to the project. The Short family representatives advised that they will continue to fight to stop this project. Commissioner Rodne stated that he did not want to go into executive session to discuss a strategy for negotiations. He was not inclined to discuss making an offer for the purchase of right-of-way at this point. After additional discussion, the board decided to review additional information on the history and need for the bridge. The board will revisit the issue during the April 6, 2021, commission meeting to discuss the project and moving forward with the negotiations.”
Key line there: “additional information on the history and need for the bridge”
Key word there: “need”
So, the project is on the agenda for the April 6 meeting. But there’s something new for the commissioners to discuss. There’s been another lawsuit filed against the county, and the project. This time the Short family has been joined in a new lawsuit by the Douglas and Rosie Mosser family, whose ranch is across the river from the Short family ranch. The road would run through their land as well, but they’ve been pretty quiet about it until now.
The new lawsuit, filed in North Dakota’s Southwest District Court in Dickinson, is appealing the county’s decision to appropriate county funds for the bridge. In October, when the commissioners were considering the budget for the county for the year 2021, they included funding for the bridge in the budget. The new lawsuit states:
“This significant appropriation of taxpayer money was unlawful because Billings County lacks jurisdiction to build the Little Missouri River Crossing at all. This is because ‘the board (of county commissioners) may not contract for the construction of bridges costing more than one hundred dollars without first complying with the provisions of chapter 24-08 (of the North Dakota Century Code).
“Chapter 24-08 … contains only one process for construction of a bridge, and the process begins with a petition from the local landowners — such as the Shorts and Mossers — requesting such a bridge. Only after such a petition is received can a county commission even consider building such a project. Without this prerequisite petition from the local landowners, Billings County lacks authority and jurisdiction to construct a bridge at all — let alone to appropriate millions of dollars for such a project.”
The lawsuit goes on to say that there are two Supreme Court opinions and one attorney general’s opinion backing them up.
Further, the Short family’s lawyer, JJ England, reminded the commissioners that he had sent a letter to them prior to their October meeting warning the commission not to appropriate money for the crossing because the landowners had not submitted any such petition. So, England says, the commission should have known better.
“The Road and Bridge Budget is unlawful, was passed without jurisdiction, and the Road and Bridge Budget must therefore be reversed,” England wrote in his lawsuit.
Some other notes from the lawsuit:
- England pointed out that the county had already spent $3,002,828 in preliminary engineering fees and an environmental impact statement it had drafted to try to obtain federal funds for the bridge project — funds which were denied by the U.S. Department of Transportation.
- England wrote that the Shorts had pointed out in a written letter, prior to the commission approving the budget, that Chairman Arthaud had a significant conflict of interest because he owns minerals through limited liability companies in the same township as the proposed crossing.
- And England wrote, “The expense of a $18,372,028 bridge project to be borne by the taxpayers of Billings County is shockingly high. Assuming a population of roughly 1,000 people in Billings County, this works out to $18,372 for every man, woman and child in the county.”
England was joined in filing the lawsuit by his partner Derrick Braaten, who will be taking over the case beginning today. England be moving to Atlanta to start his new job at the U.S. Environmental Protection Agency today. North Dakota is losing a good lawyer, but the U.S. government is gaining one. I’m going to feel good knowing JJ England is looking out for our environment. I hope our paths cross many times.
So Braaten will be giving the oral arguments in the case before Judge Dan Greenwood, who has scheduled them for April 12, six days after the next Billings County Commission meeting. I’ll be curious to see if the bridge project comes up at the commission meeting, and if it takes any action on it, or if it decides to await the outcome of the court case.
Most of the work on the project, including the millions spent on the Environmental Impact Statement, has been assigned to KLJ Engineering. but if work continues and the court rules against the county in this lawsuit, it may be that KLJ can’t get paid for any work it does, so it might be risky for them to proceed.
For its part, Billings County, in its response to the lawsuit, accuses the Short family of “serial litigation,” and says “Counties have a responsibility per state law to spend down their reserves so that only 75 percent of the appropriation for the ensuing year is held in reserve.”
Yeah, that’s a problem for a sparsely populated county with lots of oil and a big bank account. The county needs to find a way to spend its money. Most counties would love to have that problem.
I hadn’t known the part about Arthaud owning minerals in the township in which the bridge is to be located. The lawsuit, in fact, says he owns “extensive minerals” and that the Short family provided a letter and recorded property records showing his ownership. It also says that at the October meeting, “Chairman Arthaud simply ‘read the letter out loud,’ and then the commission voted to approve the budget” with the bridge funds in it, with no discussion. I’m not sure what kind of a hold Arthaud had on those two old guys who were his fellow commissioners, but they certainly never questioned his authority. The voters, though, took care of that in the election.
But my, how convenient it would be for him to have a nice bridge for oil tankers and fracking trucks to get back and forth across the river to service his oil wells. No wonder he has been so dogged in trying to spend millions of dollars of county funds to build that bridge, as the now-former chairman of the Billings County Commission. I suspect there was some coffee table talk about THAT in Medora and Fairfield and Belfield prior to the election, too.
I think I’ll go to the County Commission meeting April 6. And maybe to the Stark County Courthouse on April 12. I’ll report back.