A Study in Infrastructure Madness

Politicians pretend to worry about crumbling roads and bridges while ignoring the red tape that helps keep them shabby. Even in the wild and free Great Plains, litigation is propping up a decrepit bridge that a railroad is paying millions to replace.

North Dakota’s Supreme Court heard a case this month that pits BNSF Railway against an activist group trying to stall it. The dispute is over a 140-year-old bridge connecting Bismarck to Mandan across the Missouri River. The company received final state and federal approval this year to replace it, but appeasing the activists has delayed the process for five years and counting.

Friends of the Rail Bridge lay out their legal claim in a 58-page memo with a dubious theory of property rights. It concedes that a 19th-century federal law gave BNSF’s predecessor “right of way through the public lands . . . for the construction of a railroad,” but it says that ownership is void because the company lacks an original deed.

That claim has already been dismissed by the state of North Dakota, which the activists claim is the bridge’s rightful owner. Attorney General Drew Wrigley stayed clear of the fight for years, but he told a historic board last month that final say over the replacement proposal rests with “a private entity that owns the bridge.” A filing this month from the AG’s office warns that the court “should not reward” the activists’ legal maneuver.

The good news is that BNSF will proceed with a new bridge while the suit over the old one drags on. It began construction in July on the replacement, which will cost about $100 million over three years of construction.

But even a ruling in the company’s favor won’t return wasted time and money. Friends of the Rail Bridge offered to help raise millions of dollars to fund a preservation plan. As of this year, the group reported a mere $17,000 bank balance and no major partner. BNSF has had to cover rising maintenance costs and delay the introduction of heavier rail cars.

No matter the ruling, the case is an example of America’s infrastructure madness. When any stray objector can tie up critical projects, it’s a wonder the U.S. can build anything.