JIM FUGLIE: View From The Prairie — Little Missouri Bridge Work Halted; Judge: ‘Taking Property By Eminent Domain Is An Odious … Process’

“The crux of this case is the preservation of the untouched and dramatic beauty of the Shorts’ property in the North Dakota Bad Lands while the underlying legal issues are resolved. Theodore Roosevelt once described this area in compelling terms:

”From the edges of the valley the land rises abruptly in steep high buttes, whose crests are sharp and jagged. This broken country extends back from the river for many miles, and has been called always, by Indians, French voyageurs, and American trappers alike, the “Bad Lands,” partly from its dreary and forbidding aspect and partly from the difficulty experiences in traveling through it.” — Theodore Roosevelt: “An American Mind.”


That’s not often the kind of writing you find in a court decision. But it is what Dan Traynor, the U.S. District judge for North Dakota, wrote Wednesday in issuing an order telling Billings County commissioners to keep off 41 acres of land owned by the heirs of former U.S. Congressman Don Short alongside the Little Missouri State Scenic River north of Medora.

But there’s more from Traynor.

“Writing in 1885, before his election to the presidency, Theodore Roosevelt described the beauty of western North Dakota:”

“The Northern cattle plains occupy the basin of the Upper Missouri; that is, they occupy all of the land drained by the tributaries of that river, and by the river itself, before it takes its long trend to the southeast. They stretch from the rich wheat farms of central Dakota to the Rocky Mountains, and southward to the Black Hills and the Bighorn chain, thus including all of Montana, Northern Wyoming, and extreme Western Dakota. The character of this rolling, broken, plains country is everywhere much the same. It is a high, nearly treeless region, of light rainfall, crossed by streams which are sometimes rapid torrents and sometimes merely strings of shallow pools. In places, it stretches out into deserts of alkali and sagebrush or into nearly level prairies of short grass, extending many miles without break; elsewhere there are rolling hills, sometimes of considerable height; and in other places the ground is rent and broken into the most fantastic shapes, partly by volcanic action and partly by the action of water in a dry climate. These latter portions form the famous Bad Lands. Cottonwood trees fringe the streams or stand in groves on the alluvial bottoms of the rivers; and in some of the steep hills and canyon sides are clad with pines or stunted cedars. In the early spring, when the young blades first sprout, the land looks green and bright; but during the rest of the year there is no such appearance of freshness, for the short bunch-grass is almost brown, and the gray-green sagebrush, bitter and withered-looking, abounds everywhere, and gives a peculiarly barren aspect to the landscape.”

Roosevelt’s powers of description are so wonderful I just want to get in my pickup and go for a long, long drive on the prairie. I suspect it’s partly what inspired Traynor to decide to issue a preliminary injunction against the Billings County Commission. Traynor wrote that “ … considering especially the threat of irreparable harm that could befall this beautiful land without an injunction, the Court concludes that the County and its agents should be prohibited from entering the Short property…”

This was just the first step in what promises to be a long legal battle over the future of a bridge across the Little Missouri that almost no one wants, save a couple of rogue ranchers who’ve managed, with help from a former County Commission chairman, to take charge of the county’s business at the courthouse in Medora.

I won’t go into a long history of the case again. You can do that by reading my earlier stories. Briefly, a different set of commissioners signed an agreement a couple of years ago with the Short family to leave their land alone and if they wanted to pursue the construction of a bridge, to go find somebody who’d be willing to sell their land for the bridge. But the makeup of the commission changed with elections, and the new commission used its power of eminent domain to take the 41 acres from the Short family, leaving a check for them to pick up at the courthouse.

The Shorts said, “No, thank you,” to the check and challenged the county’s right to take their land in state court. They also filed a breach of contract lawsuit against the county in federal court. And then they asked for the temporary injunction to halt any taking and stop any construction work on the ranch until the lawsuits are resolved. That’s what Traynor granted Wednesday.

As Traynor wrote in his order, “Despite the recent oil and gas development, this beauty (described by Roosevelt) largely survives in much of Western North Dakota. The County’s attempt to take the Shorts’ property will irreparably harm this beauty, forever changing the largely untouched landscape of the Shorts’ property. The threat of irreparable harm to the Shorts weighs in favor of issuing a preliminary injunction.”

Traynor continued, “As it came out at the hearing (the hearing held in his courtroom in January), the risk at issue in this case is to destroy the striking beauty and landscape of the Shorts property, forever altering this unspoiled land. Taking property by eminent domain is an odious, but necessary process. It is not a power that should be exercised by the whim of an election without review by a court. The public interest in enjoining the County, therefore, weighs heavily in favor of granting a preliminary injunction.”

So now, there will be a trial in September, I think in Medora, to determine if the county’s “quick take” action last fall, taking ownership of the Shorts’ land by use of eminent domain, will stand. If North Dakota District Judge William Herauf sides with the Short family, the county will have to go shopping for a different location for its bridge. Or give up the idea of building one.

If the county prevails and the judge says the the bridge can be built, the matter moves to the federal court, likely Judge Traynor again, to decide on the breach of contract matter. And in his order Wednesday, Traynor also said he would address the “quick take” action. Oh, and there could be juries involved in these cases at some point. Meanwhile, there’s going to be an election in November, and two of the county commissioners are up for re-election. Depending on the outcome of the election, the whole thing could just go away or it could continue for a long, long time.

Stay tuned.

One thought on “JIM FUGLIE: View From The Prairie — Little Missouri Bridge Work Halted; Judge: ‘Taking Property By Eminent Domain Is An Odious … Process’”

  • John Burke March 7, 2024 at 8:00 am

    Yay! (For now.)


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