BNSF Responds to Ownership Dispute

BNSF has submitted a response to the USCG regarding the ownership status of the Bismarck-Mandan Rail Bridge.

As FORB expected, the response from BNSF is in the form of an initial trial brief citing various statues and case law, rather than actual documentation showing title in BNSF or its predecessor, the Northern Pacific Rail. Most of the citations and caselaw cited in the letter and memorandum support FORB’s position as to the ownership and fixtures transferred to North Dakota at the time of statehood under the Equal footing and Public Trust Doctrines, rather than BNSF’s. FORB does not contest that BNSF has a right-of way, but that does not give it title to the underlying riverbed or affixed structures.

In the interest of a quick response to this memorandum, we will simply walk through a few examples. BNSF claims that FORB’s position is “frivolous” and “absurd.” What is frivolous and absurd is the following:

BNSF attempted to get a federal permit for destroying the existing historical bridge and building a new one without showing any evidence of ownership before seeking such a permit. The Equal Footing and Public Trust Doctrines are black letter law that were in existence when the bridge was built, and when North Dakota became a state and the entire bed of the Missouri River up to the ordinary high-water mark were transferred to the State. Ownership of the bridge should have been the first issue addressed by BNSF in its permit application to the Coast Guard. Ownership of the right-of-way of the railroad has been a highly contested issue for decades. For example, in April of 1924 Congress began a five-year investigation that led to the U.S. Supreme Court deciding United States v. Northern Pacific, 311 U.S. 317 (1940), in which the following issues of ownership were raised:

• Northern Pacific had not sold stock to the public, as had been required by Congress;

• Northern Pacific had not built the railroad according to the Congressionally mandated schedule;

• Northern Pacific did not open its lands to settlement and preemption as required by Congressional Mandate;

• More than a million acres had been fraudulently classified as mineral lands, so that Northern Pacific could claim prime agricultural or timber land in lieu;

• Northern Pacific wrongfully received 13.3 million acres located within Native American reservations, over 6 million acres of which was taken from the Fort Berthold Reservation by executive order by President Hayes, rather than an act of Congress, which had approved their Treaty creating the Fort Berthold Reservation;

• Northern Pacific had illegally diverted funds from the main line to the building of branch lines; and

• Northern Pacific had delayed surveying vast portions of the land grant in order to avoid paying taxes.

It is not unusual that issues of ownership are raised in the proposed action by the railroad to tear down the Historic 1883 bridge. The North Dakota law reviews written by former North Dakota Supreme Court Justices Robert Vogel and Herb Meschke document the underlying deception and corruption used by the railroad in its early operations in North Dakota. This is not a strong position to begin to make your legal argument that it is “frivolous” and “absurd” to dare question the title of the railroad to the bridge built into the riverbed that was transferred to the State of North Dakota on November 2, 1889.

The legal arguments raised by BNSF should be resolved in Court based on the specific facts that apply to this particular bridge. But FORB points to a couple obvious flaws in BNSF’s memorandum. There are dozens of cases dealing with what ownership interest is actually held by the railroad under the “limited fee upon an implied condition of reverter” mentioned on page 5 of BNSF’s memo. This is far from a “fee simple” title to real property; on the contrary, it is a very limited and special form of ownership which the Darwin Roberts law review attached to FORB’s letter and memoranda characterizes as simply a right-of-way easement. Similarly, the language quoted from 43 U.S.C. section 904 on page 8 of the memorandum talks about “forfeiting the right-of-way”. As stated above, FORB does not contest that BNSF has a right-of way, but that does not give it title to the underlying riverbed or affixed structures. These are complex fact issues that should be decided by a court,

Here are a list of some of the issues that need to be addressed to resolve this case:

• What lands were transferred to North Dakota and all other States when they became States including the bed of the Missouri river up to the ordinary high water mark; 

• How original title was passed to these lands -- from the U.S. government to each homesteader or the state by a "patent" that starts the "chain of title" for each piece of property; 

• Why "surveying" was such an essential step in the process because the property had to be surveyed on the grid system created by Thomas Jefferson and applied to all property after that -- all of which was governed by federal law; 

• How after that transfer, state law becomes the controlling law; 

• How in this case there is no "patent" passing title to the riverbed of the Missouri River to the railroad, nor could there be because the Equal Footing and Public Trust Doctrines held all that "territorial" property in trust until the State became a State -- if it had not done so, then that state would not have been admitted to the Union on "equal footing"; 

• How title to each piece of property always goes back to the original transfer of title from the original homesteader from a "patent" that ultimately originates with the U.S. government (including railroad patents for non-right-of-way property) or, along navigable rivers to the title transferred to the State at the time of Statehood under the Equal Footing and Public Trust Doctrines;

• How the language under the 1864 Act that created the NP railroad does not have language that creates a "fee simple" title to the right-of-way but only the equivalent of an "easement";

• How this was well-known black letter law at the time the railroad was created in 1864, and nothing in the 1864 Act changed any of the basic points above;

• How the under the North Dakota Constitution and statutes there is no "adverse possession" against the State (so the fact that the railroad has operated for 140 years over this bridge does not give them title to the underlying land); that it cannot be sold for less than its fair market value (the lost opportunity value value of this bridge is, for example, at least hundreds of millions, and perhaps more); and the legislature cannot pass a law that will allow it to be sold for less than fair market value;

• How as historic property owned by the State such as the 1883 NP Railroad Bridge, it cannot be destroyed without approval of the State Historic Board.