JIM FUGLIE: View From The Prairie — The Future Of The Bad Lands Is In The Hands Of A Judge

The only thing we know for sure after Monday morning’s court hearing on the proposed bridge over the Little Missouri State Scenic River is that the bridge is not going to get built before March 1.

U.S. District Judge Dan Traynor made sure of that because he’s not going to issue a decision on whether he’s going to grant a preliminary injunction against the project’s construction before then.

To make that point clear, he sent lawyers representing the Short family, on whose land the project is proposed to be built, and Billings County commissioners, who want to build it, home from the four-hour hearing with homework.

The judge had done some homework of his own before the hearing, researching some cases similar to the Billings County one, in particular one in Colorado to which he made several references, mildly chastising the lawyers for not referring to it in the briefs they submitted to him before Monday’s hearing. So he told them to go home, do a little research, submit more briefs to him before the end of February, and then he promised to decide sometime in March whether to delay construction of the bridge until a lawsuit filed by the Short family is decided, which could take the rest of the year.

Here’s a brief background. The Short family has filed a breach of contract lawsuit against Billings County after the county reneged on a promise to cease its condemnation process on the ranch owned by Sandy Short and her family that would have taken land for a road and a bridge on their land north of Medora, N.D.

After years of discussion and planning, the county decided in 2020 to go ahead with the bridge over the protests of the landowners. The Short family promptly filed a lawsuit against the county to stop it from taking the land.

But circumstances changed after that fall’s election, in which the bridge’s primary proponent, Commission  Chairman Jim Arthaud, was defeated by a fellow Billings County rancher and businessman, Dean Rodne, who was opposed to using eminent domain to take land for the bridge.

So the next summer, in 2021, with two commissioners opposing the project, the commission signed an agreement with the Shorts that they would not condemn the land if the Short family would drop its lawsuit. Pretty much everybody was happy about that. Until the 2022 election came along and a bridge opponent, Mike Kasian, was defeated by another bridge proponent, giving the pro-bridge side a 2-1 margin on the commission again.

And the new majority promptly moved to go ahead with the condemnation to build the bridge at a meeting last summer. That sent the Short family back to court, filing their breach of contract lawsuit, and along with it, asking for the injunction to stop bridge construction at least until the breach of contract suit was decided in federal court.

And that brings us to Monday’s hearing. Lawyers Tim Purdon and Derrick Braaten, representing the Short family, pleaded with Judge Traynor to grant the injunction so the county would stop the process until their other lawsuit was settled, likely sometime later this year.

Fargo lawyer Tami Norgard, filling in for Billings County States Attorney Pat Weir, argued that the vote of the County Commission in 2021 to stop the process and not use eminent domain was not binding “forever” and that the new commission had every right to reverse course and go ahead with the bridge.

Former Commissioner Kasian took the witness stand and said he had originally favored building the bridge but changed his mind when he learned that it was going to take condemnation of a fellow rancher’s land to get it done. He had voted with Rodne in 2021 to sign the agreement with the Shorts.

Rodne was next on the stand, and he answered a question from Attorney Braaten saying that he also did not believe the county should use eminent domain and that they should stick to the agreement.

The star of the show, though, was 85-year-old Sandy Short, who told of her father-in-law, U.S. Congressman Don Short, the second generation on the ranch established in 1903, welcoming her to the ranch as a young bride after marrying the congressman’s son, Con, where the two lived and raised their family after Don went away to Congress.

Sandy, widowed in 2016 when Con passed away, had brought all her children and some grandchildren with her, and there were some damp eyes in the courtroom as she testified.

Sandy talked about looking out her kitchen window at the bluff over which the entrance road to the bridge would be built, saying there were never very many cars on that road, which ended in her farmyard, and, “I can’t imagine a thousand trucks going by there every day.”

Looking east from near the Short Ranch headquarters. The high bluff on the left is the one Sandy Short referred to in her testimony Monday.
Looking east from near the Short Ranch headquarters. The high bluff on the left is the one Sandy Short referred to in her testimony Monday.

Norgard asked her if she talked to the county about moving the road out of her sight, and she answered firmly, “No. We don’t want a bridge on our place.”

Pressed further by Norgard, she said, “When you make a settlement with a government agency, they should stand behind it.”

As the hearing neared its end and the lawyers presented their closing statements, Judge Traynor had some sort of harsh words for Norgard, signaling, maybe, what he will consider as he makes his decision. Norgard had argued that the county had not given up its right to ever use eminent domain to get the project done and that the county’s action was not a breach of contract.

No, said Traynor, by signing the agreement the county only gave up its right to use eminent domain against the Short family for this project, but not for other projects, or other bridge locations, saying, in essence, this was just a deal between the county and the Shorts.

Further indicating that he had indeed done some homework, the judge then brought up the long-abandoned earlier bridge project, to put a bridge across the river on the Eberts Ranch, which would have come out beside the Theodore Roosevelt National Park’s Elkhorn Ranch Site on the other side of the river. As I’ve mentioned here before, that deal fell apart when the Eberts’ private ranch became the property of the U.S. Forest Service after a group of conservation organizations purchased it and donated it to the government.

My impression as the hearing closed was that Norgard came off as a bit of a harsh government lawyer, asking the judge, in essence, to allow the Billings County Commission to bully some of its constituents to bend to the will of a pair of commissioners who believe the bridge, and its main constituency, the oil industry, are important enough to get them embroiled in ugly lawsuits.

On the other hand, the Short family lawyers, Purdon and Braaten, had the good sense to appeal to the judge’s better angels, arguing that a family should not have to give up its land unwillingly, reinforced by a grandmotherly 85-year-old widow who longed wistfully for the days when she could enjoy the quiet of a Bad Lands summer day as she stood at her kitchen window drying dishes while her men worked cattle at the feedlot out on the nearby river bottom.

We’ll know more in a couple of months. Judge Traynor asked both lawyers to review the Colorado case and submit additional written comments by the end of February and then pointedly asked Norgard at the end of the hearing, as he assigned the homework, if work would start on the site before March 1. When she said no, there were no plans to do that, he dismissed everyone and said he would get back to them in March.

I’ll report.

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