Friends of the Rail Bridge, et al. v. N.D. Dep't of Water Resources, et al.
- Friends of the Rail Bridge ,
Downtown Business Association of
Bismarck, and CD Holdings, LLC, Appellants
North Dakota Department of Water Resources
and BNSF Railway Company, Appellees
- Case Type
- CIVIL APPEAL : ADMINISTRATIVE PROCEEDING
- Appeal From
Case No. 2023-CV-01083
South Central Judicial District, Burleigh County
Jackson John Lofgren
Parties' Statement of Issues
[¶ 1] Whether the district court erred as a matter of law in dismissing Appellants’ appeal because Appellants appealed Sovereign Land Permits No. S-2095 and S-2398 directly to District Court after Appellee North Dakota Department of Water Resources (ND DWR) issued S-2095 and S-2398 to Appellee BNSF Railway Company (BNSF) on April 24, 2023 (and BNSF immediately began construction under those permits) without first filing a contested case administrative complaint or otherwise request a second hearing under N.D.C.C. § 61-03-22 raising the same issues Appellants had already raised by filing extensive written comments in both permit proceedings (S-2095 and S-2398) and making extensive oral comments in the public comment hearing/“meeting” held by ND DWR for S-2095 on January 20th, 2023, and in the public comment hearing/“meeting” held by ND DWR for S-2398 on March 3, 2023? This issue has two sub-issues:
A. Whether ND DWR can issue Sovereign Land Permits S-2095 and S-2398 without preparation and certification of a record as required by N.D.C.C. § 28-32-44(1), which states that “An administrative agency shall maintain an official record of each adjudicative proceeding or other administrative proceeding heard by it”? (Emphasis supplied.) Appellants moved and the District Court granted Appellants’ motion for an expedited preparation of the record for both S-2095 and S-2398, but ND DWR refused to prepare the record, claiming that Appellants written and oral comments in S-2095 and S-2398 were not part of the record, and failing to certify any record to the District Court with or without Appellants’ oral and written comments for both administrative proceedings.
B. Whether oral and written comments filed in a sovereign lands permit proceeding, which is an “adjudicative proceeding [that] does not involve a hearing on a complaint against a specific-named respondent” under N.D.C.C. § 28-32-21(3)(a), must be re-made and re-filed in a contested case proceeding after the sovereign land permits had been issued by ND DWR to BNSF in S-2095 and S-2398, and construction had commenced under those permits? Had FORB utilized N.D.C.C. § 61-03-22, as suggested by the District Court, it would have caused a de novo adjunctive hearing and been tantamount to admitting the two two-hour hearings (meetings) in which Appellants made oral comments on those permits on January 20, 2023, and March 3, 2023, did not exist and the hundreds of pages of written comments submitted to the Department did not exist or were of no effect legally. There is no case law or other precedent that supports Appellees’ position concerning N.D.C.C. § 61-03-22, and there are numerous cases involving appeals in permit proceedings directly to district court under N.D.C.C. ch. 28-32 that support appellants’ position, that permit proceedings must have an official record, and that members of the public that have participated in permit proceedings may appeal the final permit decision to district court based on the record they have created in the permit proceeding.
[¶1] Whether the district court properly dismissed Appellants’ administrative appeal of permits issued by the Department of Water Resources (“DWR”), which Appellants filed in the district court without first requesting an adjudicative hearing from DWR after the permits were issued, for lack of subject-matter jurisdiction?
[¶2] Whether Appellants’ failure to serve the proper parties provides an alternative ground for affirmance?
Did the district court properly dismiss the Appellants’ (collectively FORB) administrative appeal for lack of subject matter jurisdiction?
Friends of the Rail Bridge, Downtown Business Association of Bismarck, and CD Holdings, LLC (collectively, “FORB”) appeal from a judgment dismissing their administrative appeal.
BNSF Railway Company applied for two permits to construct a new rail bridge across the Missouri River between Bismarck and Mandan and to remove the existing rail bridge upon the completion of the new bridge. In April 2023, the North Dakota Department of Water Resources (“DWR”) issued Sovereign Land Permits S-2095 and S-2398 to BNSF. FORB appealed to the district court, and DWR and BNSF moved to dismiss for lack of subject matter jurisdiction. The court dismissed the appeal, concluding it lacked subject matter jurisdiction. FORB appealed to this Court.
On appeal, FORB argues the district court erred in dismissing its administrative appeal.
|APPELLEE||ATT. GENERAL OFFICE||Matthew Arnold Sagsveen - 05613|
|AMICUS CURIAE||PRIVATE PRACTICE||Tory Lee Jackson - 06517|
|APPELLEE||PRIVATE PRACTICE||Wade Charles Mann - 05871|
|APPELLEE||PRIVATE PRACTICE||Zachary Ryan Eiken - 07832|
|APPELLEE||ATT. GENERAL OFFICE||Erik J. Wallevand - 09424|
|APPELLANT||PRIVATE PRACTICE||William J Delmore - 03212|
|APPELLEE||PRIVATE PRACTICE||Jason Arthur Lien - 09004|
|APPELLEE||PRIVATE PRACTICE||Not Licensed in ND - 00002|
|APPELLANT||PRIVATE PRACTICE||Lyle Gregory Witham - 04118|
(Note: Attachments may not be available for recently filed cases and/or confidential documents.)
|Seq. #||Filing Date||Description||Attachment|
|1||07/12/2023||NOTICE OF APPEAL : 07/12/2023||View|
|2||07/14/2023||Rec'd filing fee|
|3||07/18/2023||NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.||View|
|4||07/18/2023||Notice Served on William J. Delmore, Lyle G. Witham, Wade C. Mann, Zachary R. Eiken, Jason A. Lien|
|5||07/18/2023||Evan Nelson & Jennifer L. Verleger|
|6||07/25/2023||Updated Declaration of Evan Nelson Regarding Pro Hac Vice Admission for Appeal||View|
|7||08/14/2023||ELEC. RECORD ON APPEAL DATED AUGUST 11, 2023 (ENTRY NOS. 1-130)||View|
|8||08/21/2023||Motion of National Trust for Historic Preservation in the U.S. to submit Amicus Curiae Brief in||View|
|9||08/21/2023||Support of Appellants and Reversal|
|10||08/21/2023||ACTION BY CLERK - Granted|
|11||08/21/2023||AMICUS CURIAE BRIEF||View|
|12||08/21/2023||APPELLANT BRIEF AND ADDENDUM||View|
|13||08/21/2023||Oral Argument Request by Appellant|
|14||08/22/2023||Rec'd corrections to ACB|
|15||08/22/2023||Rec'd 3 copies of ACB from CSD|
|16||08/27/2023||Rec'd corrections to ATB|
|17||08/30/2023||Rec'd 3 copies of ATB from CSD|
|18||09/20/2023||APPELLEE BRIEF (BNSF)||View|
|19||09/20/2023||Oral Argument Request by Appellee (BNSF)|
|20||09/20/2023||APPELLEE BRIEF (ND Dept of Water Resources)||View|
|21||09/21/2023||Rec'd service doc for AEB (BNSF)|
|22||09/25/2023||Rec'd 3 copies of AEB (BNSF) from CSD|
|23||09/25/2023||Rec'd 3 copies of AEB (Water) from CSD|
|24||10/03/2023||REPLY BRIEF (Amended Reply Brief filed 10/3/23; corrections cause brief to exceed pg limit)|
|25||10/04/2023||AMENDED REPLY BRIEF||View|
|26||10/04/2023||Rec'd A.m. C.O.S. for Am. RYB|
|27||10/05/2023||Rec'd 3 copies of RYB from CSD|
|28||10/06/2023||Notice of Appearance by Erik Wallevand for ND Dept. of Water Resources||View|
|29||10/09/2023||Notice of Appearance by Matthew Sagsveen for ND Dept. of Water Resources||View|
|30||10/10/2023||NOTICE OF ORAL ARGUMENT SENT|
|31||10/23/2023||MOTION OF JENNIFER L. VERLEGER - MOTION TO WITHDRAW||View|
|32||10/23/2023||ACTION BY CLERK - Granted|
|33||11/06/2023||MOTION TO PARTICIPATE IN ORAL ARGUMENT (ND DEP'T OF WATER RESOURCES)||View|
|34||11/06/2023||ACTION BY SUPREME COURT - Granted|
|35||11/13/2023||Request for Radio/TV Coverage - KFYR-TV, KXMB-TV, The Bismarck Tribune & Prairie Public Radio||View|
|36||11/16/2023||APPEARANCES: William J. Delmore & Lyle G. Witham; Evan Nelson & Jason A. Lien; Erik J. Wallevand &|
|37||11/16/2023||Matthew A. Sagsveen|
|38||11/16/2023||ARGUED: William J. Delmore; Erik J. Wallevand; Evan Nelson|
|39||11/16/2023||ORAL ARGUMENT WEBCAST|