The North Dakota Secretary of State’s office says it is OK for Billings County residents to vote in June on whether they want their County Commission to use its power of eminent domain to take land for a road and bridge across the Little Missouri State Scenic River.
The vote would not be binding on the commissioners or the bridge’s construction. Rather it would be a “straw vote,” gauging the county’s support for actions taken by the commissioners a few months ago to take land from the Short and Simons families for a bridge location about a dozen miles north of Medora.
Whether to build the bridge has been a contentious issue in the county for a long time, and a countywide vote on the issue has been discussed for years. Current Commissioner Dean Rodne has suggested it, and former Commissioner Mike Kasian supported the idea before he lost his latest re-election effort.
On Tuesday, at the regular monthly County Commission meeting, the effort got legs. Billings County rancher Julie Reis, whose family has owned and operated ranchland in the county for 118 years, presented what she called a “straw petition,” asking the commission to place this question on the upcoming June election ballot:
“Do you want the Billings County Commission to proceed with the Little Missouri bridge project at the Short Ranch location if it continues to involve eminent domain and/or litigation.”
The petition was signed by 217 residents of the county.
In prepared remarks to the commission, Reis said, “This is not an opinion poll of who does or does not want a bridge over the Little Missouri River. This request is about private property rights and our public dollars. This measure gives the citizens — your constituents — a vote as to whether the total benefits of building a bridge in this location are worth more than the value of private property rights.”
Reis was quick to point out that the county does not have a Home Rule charter, which would allow citizens to put a measure on the ballot by petition. Instead, the petitioners, 217 of them, were asking the commissioners to do it.
“These citizens and I are all very aware that you are in no way legally obligated to comply with this petition request,” Reis said. “However, the signatures of these citizens and the extent of the county that was reached in gathering them should not be ignored or underestimated.”
She wasn’t exaggerating. Reaching into a couple of hundred homes in sparsely populated Billings County was no small task. She said she and her friends had covered the whole county traveling as far as the McKenzie, Golden Valley, Slope and Stark County lines.
Commissioners — two of whom had voted last year to use eminent domain to take land on the Short Ranch and Simons Ranch for the bridge and one who had voted against it — listened politely and then turned the matter over to their state’s attorney, Patrick Weir.
Weir’s a good lawyer, and he was aware that the petitions were coming. He was ready. He had spoken to the attorney general about the legality of such a vote. Drew Wrigley said he would respond in an e-mail. He did, first thing Tuesday morning, before the Commission meeting. His brief and to-the-point e-mail is below:
So Weir, talking to commissioners by video linkup from his winter home in Arizona, told them what Wrigley had said: The commissioners could not defer the decision on the bridge to the voters.
But Reis was also prepared. In her remarks, she had asked for a “straw vote” on whether the citizens of Billings County approved of using eminent domain, not for a final decision on the bridge. That, she said, would be up to the commissioners, once they knew how the county residents felt about it.
One of the commissioners pointed out that they had already made their decision, when they used the “quick take” provisions of the eminent domain law to take possession of the Short land. They were ready to start building once they were done with court proceedings. Reis hoped they might change their minds if they learned their constituents were opposed to that.
Weir also warned the commissioners that things could get messy if supporters of the bridge brought in their own petition with different ballot language. Then what?
Reis responded that her petition was not just signed by opponents of the bridge. She said a number of bridge supporters signed the petition to put the issue to a vote so they could find out how their fellow county residents felt about it. And she said the ballot language she had prepared was not just about the bridge — it was about the use of eminent domain and private property rights.
In the end, Weir said it would be best to ask the secretary of state, who administers elections, if it would be legal to place the measure on the ballot. Commissioners agreed to do that and then hold a special meeting to decide what to do. That ended Tuesday’s meeting.
Well, I thought that sounded like a good idea, so when I got home, I called LeeAnn Oliver, the state’s elections administrator in the secretary of state’s office.
LeeAnn agreed with Wrigley, that because the county was not a Home Rule County, petitioners could not have a binding vote on whether the county could use eminent domain to build the bridge. That decision, she said, was up to the elected county commissioners.
But she said there was no law against having a straw vote on the matter, an advisory vote to let the commissioners know how county residents felt about it. Then the commissioners will be able to decide whether to continue with their efforts to build the bridge or change their minds.
Reis asked that the measure be placed on the June ballot. County Auditor Marcia Kessel, elections administrator in Billings County, told the commissioners they had until April 8 to decide, so she could put it on the ballot if they want to do that.
Reis and her friends — a half-dozen or so who showed up at the meeting Tuesday — accomplished no small task in collecting 217 signatures on the petition. There were 945 people living in Billings County when the census was taken in 2020. Medora’s population was listed at 115, so more than 800 of them are scattered across more than a thousand square miles of ranchland, many at the end of long, dusty, gravel roads.
About 700 of them are “eligible voters.” In 2022, 511 of them voted in the county commission election. This year, 217 of them, not quite a third of the eligible voters, signed the petition asking the county commissioners to put their eminent domain action proposal to the test on the ballot.
So, we’ll see.
Footnote
In his regular monthly report to commissioners, State’s Attorney Weir hinted that he might be considering bringing back the “Roadless Lawsuit” that was rejected by the Eighth Circuit U.S. Court Of Appeals almost two years ago.
Some western North Dakota counties and North Dakota Attorney General Wayne Stenehjem filed the lawsuit against the U.S. Forest Service seeking to open the state’s Bad Lands wilderness areas to oil development. U.S. District Judge Dan Hovland rejected the lawsuit and the appeals court upheld his decision. Stenehjem’s successor, Drew Wrigley, who’s generally been a friend of the Bad Lands, declined to appeal the decision to the U.S. Supreme Court.
Weir said he had done some research and learned there may be some “jurisdictional” issues overlooked by the courts and said he had spoken to Wrigley about the case recently. Wrigley said he’d have one of his assistants take a look at what Weir brought up. I’ll report back to you once I have spoken to Wrigley myself.
