Legal Research Indicates State of North Dakota Owns The Bismarck-Mandan Rail Bridge

Friends of the Rail Bridge (FORB) announces legal research documenting public ownership of the endangered historic rail bridge between Bismarck and Mandan, North Dakota.

Since August 2017, FORB and others have been consulting with the United States Coast Guard (USCG) under the National Historic Preservation Act over BNSF’s application for a permit to build a new rail crossing over the Missouri River between Bismarck and Mandan. BNSF’s preferred design requires demolition of the rail bridge built by the Northern Pacific Railroad in 1883—without question the most significant historic property on the Upper Missouri River. FORB and others prefer an alternative preserving the historic bridge in place and converting it to a heritage tourism rails-to-trails pedestrian bridge.

To-date, consultation has been based on the presumption that BNSF owns the bridge and has every right to tear it down; however, recent legal research reveals evidence that the State of North Dakota actually holds legal title.

In 1864, Congress created the Northern Pacific Railroad granting 46,000,000 acres of land to the railroad to finance construction of the railroad. But Congress held in trust the riverbed of any navigable rivers, and anything affixed to them.

When North Dakota entered the Union on November 2, 1889, the U.S. transferred ownership of the riverbed and its affixed structures to the new state. Just as the improvements farmers make upon their land are passed to new owners when the properties are sold, so too did the Bismarck bridge become property of the State of North Dakota under law.

Certain protections are provided for significant properties on state land under the North Dakota Century Code. FORB is insisting that the USCG, the State, and BNSF recognize public ownership of this historically significant North Dakota landmark and proceed accordingly. To ignore this issue would be to deny the people of North Dakota their rightful ownership of this important resource.

Follow the links below to read the recent correspondence from Friends of the Rail Bridge to the United States Coast Guard.

• Final Memorandum to USCG April 4, 2022 (Revised 4/5/22)

• FORB Supplemental letter to USCG (3/4/2022)

• FORB Letter to USCG Initiating termination of Programmatic Agreement (2/22/2022)

• FORB Supplemental letter to USCG (2/18/2022)

• FORB Memorandum to USCG and Cover Letter (2/8/2022)

References

• Robert Vogel, Sources of the 1889 ND Constitution

• Frank Maloney, The Ordinary High Water Mark, Attempts at Settling an Unsettled Boundary Line

• Ed Murphy, Bismarck Mandan Northern Pacific Railway Bridge

• Ted Schwinden, Northern Pacific Land Grants in Congress

• Darwin P Roberts, Legal History of Railroad Right of Way, Colorado Law Review

• 1864 Land Grant to Northern Pacific, full text

• 1889 North Dakota Enabling Act