IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 22

Friends of the Rail Bridge (FORB),

Downtown Business Association of

Bismarck, and CD Holdings, LLC, Appellants

v.

North Dakota Department of Water Resources

and BNSF Railway Company, Appellees

No. 20230240

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Jackson J. Lofgren, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

William J. Delmore (argued), Bismarck, ND, and Lyle G. Witham (appeared), 

Erie, CO, for appellants.

Erik J. Wallevand (argued) and Matthew A. Sagsveen (appeared), Assistant 

Attorneys General, Bismarck, ND, for appellee North Dakota Department of 

Water Resources.

Evan Nelson (argued) and Jason A. Lien (appeared), Minneapolis, MN, and 

Wade C. Mann (on brief) and Zachary R. Eiken (on brief), Bismarck, ND, for 

appellee BNSF Railway Company.

Tory L. Jackson, Bismarck, ND, for amicus curiae National Trust for Historic 

Preservation in the United States.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 8, 2024 

STATE OF NORTH DAKOTA
1

Friends of the Rail Bridge, et al. v. N.D. Dep’t of Water Resources, 

et al.

No. 20230240

McEvers, Justice.

[¶1] Friends of the Rail Bridge (“FORB”), Downtown Business Association of 

Bismarck (“DBAB”), and CD Holdings, LLC appeal from a judgment 

dismissing their administrative appeal for lack of subject matter jurisdiction.

We affirm.

I

[¶2] In September 2017, BNSF Railway Company (“BNSF”) applied to the 

Department of Water Resources (“DWR”)1 for Sovereign Land Permit S-2095 

to construct a new rail bridge across the Missouri River between Bismarck and 

Mandan, North Dakota. On December 13, 2022, FORB requested DWR conduct 

a “public hearing” or “public meeting” under N.D. Admin. Code § 89-10-01-07 

on BNSF’s permit application. On December 21, 2022, DWR responded, stating 

it would hold an “information-gathering public meeting” under N.D. Admin. 

Code § 89-10-01-07 on January 20, 2023. The meeting was duly noticed to the 

public.

[¶3] On January 12, 2023, BNSF applied to DWR for Sovereign Land Permit 

S-2398 to remove the existing rail bridge upon the completion of the new 

bridge. DWR notified the public that an “information-gathering public 

meeting” under N.D. Admin. Code § 89-10-01-07 would be held on March 3, 

2023, concerning permit application S-2398. The two public meetings were 

held and members of FORB, DBAB, BNSF, and the public provided written 

and oral comments. On April 24, 2023, DWR issued Sovereign Land Permits 

S-2095 and S-2398 to BNSF. Neither FORB nor DBAB requested an 

administrative hearing after issuance of the permits.

1 At the time, DWR was known as the Office of the State Engineer.
2

[¶4] On May 4, 2023, FORB and DBAB appealed to the district court. CD 

Holdings was added as an additional appellant. DWR and BNSF moved to 

dismiss for lack of subject matter jurisdiction due to improper service and 

Appellants’ failure to exhaust their administrative remedies. The court 

dismissed the appeal, concluding Appellants failed to perfect their appeal 

because they did not request a hearing under N.D.C.C. § 61-03-22, and 

therefore the court lacked subject matter jurisdiction to hear the appeal.

II

[¶5] Appellants argue the district court erred in concluding that they failed 

to perfect their appeal and that the court lacked subject matter jurisdiction. 

When jurisdictional facts are undisputed, a dismissal for lack of subject matter 

jurisdiction is reviewed de novo. Olympic Fin. Grp., Inc. v. N.D. Dep’t of Fin. 

Insts., 2023 ND 38, ¶ 10, 987 N.W.2d 329.

[¶6] The district court has appellate jurisdiction as provided by law or by rule 

of this Court. N.D. Const. art. VI, § 8. “Appeals from administrative agency 

decisions to a district court involve the exercise of appellate jurisdiction 

conferred by statute.” Opp v. Dir., N.D. Dep’t of Transp., 2017 ND 101, ¶ 8, 892 

N.W.2d 891. “For a district court to acquire subject matter jurisdiction over an 

appeal from an administrative agency decision, the appellant must satisfy the 

statutory requirements for perfecting an appeal.” Id. Interpretation of a 

statute is a question of law. Meier v. N.D. Dep’t of Hum. Servs., 2012 ND 134, 

¶ 6, 818 N.W.2d 774. When interpreting a statute, we look at the statute’s plain 

language and give each word its plain and ordinary meaning unless a contrary 

intention plainly appears. Id.; N.D.C.C. § 1-02-02.

[¶7] Section 61-03-22, N.D.C.C., requires a person aggrieved by DWR’s action 

or decision to request a hearing within 30 days and prior to appealing:

Any person aggrieved by an action or decision of the 

department under this title has the right to a hearing. The 

department must receive a request for a hearing within thirty days 

after the aggrieved person knew or reasonably should have known 

of the action or decision. Once a hearing has been held or if the 
3

hearing request is denied, the person aggrieved has the right to 

petition for reconsideration or appeal under chapter 28-32.

[¶8] The “action or decision” that Appellants alleged they have been 

aggrieved by is DWR’s issuance of the permits to BNSF on April 24, 2023. 

Appellants state in their notice of appeal to the district court that they are 

appealing from the permits issued on April 24, 2023. It is undisputed that 

Appellants did not request a hearing within 30 days (or at any time) after 

DWR’s April 24, 2023 issuance of the permits. Accordingly, no hearing was 

held, nor was a hearing request denied by DWR.

[¶9] Appellants argue FORB’s December 13, 2022 letter to DWR was a 

request for a hearing under N.D.C.C. § 61-03-22 and the January 20, 2023 and 

March 3, 2023 meetings were hearings under N.D.C.C. § 61-03-22. In its letter, 

FORB requested DWR conduct a “public hearing” or “public meeting” under 

N.D. Admin. Code § 89-10-01-07 on BNSF’s Sovereign Land Permit S-2095 

application to construct a new rail bridge. Under N.D. Admin. Code § 89-10-

01-07, DWR may hold an “information-gathering public meeting . . . before 

final action on a project.” This administrative code section requested by FORB 

specifically provides, “The meeting is not an adjudicative proceeding hearing 

under North Dakota Century Code chapter 28-32.” N.D. Admin. Code § 89-10-

01-07(4). “Upon completion of the review and any public meeting held under 

section 89-10-01-07, [DWR] may grant, deny, or condition the application.” 

N.D. Admin. Code § 89-10-01-06(3). Hearings under N.D.C.C. § 61-03-22 “must 

be conducted by the office of administrative hearings.” N.D.C.C. § 54-57-03(1).

In contrast, a public meeting “must be conducted by the department.” N.D. 

Admin. Code § 89-10-01-07(3).

[¶10] An adjudicative proceeding under ch. 28-32 “means an administrative 

matter resulting in an agency issuing an order after an opportunity for hearing 

is provided or required” and “includes administrative matters involving . . . a 

hearing on an application seeking a right, privilege, or an authorization from 

an agency.” N.D.C.C. § 28-32-01(1). At an adjudicative proceeding hearing, the 

parties are allowed to present evidence and to examine and cross-examine 

witnesses. N.D.C.C. § 28-32-21(2). Adjudicative proceedings require the agency 
4

to make findings of fact, conclusions of law, and an order based upon its 

findings and conclusions. N.D.C.C. § 28-32-39(1). “Any party to any proceeding 

heard by an administrative agency, except when the order of the 

administrative agency is declared final by any other statute, may appeal from 

the order within thirty days after notice of the order has been given as required 

by section 28-32-39.” N.D.C.C. § 28-32-42(1).

[¶11] DWR responded to FORB’s letter, stating it would hold an “informationgathering public meeting” under N.D. Admin. Code § 89-10-01-07 on January 

20, 2023. Both that meeting and the March 3, 2023 meeting were noticed to 

the public as an “information-gathering public meeting” under N.D. Admin. 

Code § 89-10-01-07. The office of administrative hearings did not conduct the 

proceedings on January 20, 2023, and March 3, 2023. Therefore, we conclude 

FORB’s request citing the authority under N.D. Admin. Code § 89-10-01-07 

was for a “public meeting” and the proceedings held were “public meetings,”

not hearings under N.D.C.C. § 61-03-22. Further, N.D.C.C. § 61-03-22 requires 

the hearing request be made within 30 days after knowing of the action or 

decision. FORB’s request and the public meetings came before DWR issued the 

permits, which was the decision or action appealed to the district court. FORB’s 

December 2022 request was made before BNSF even applied for Permit S-2398 

in January 2023. Prior to issuing the permits, Appellants were not “aggrieved” 

because DWR could have denied BNSF’s applications for permits. Therefore, 

to the extent Appellants argue the applications (which are not actions or 

decisions of DWR) or the public notices constitute an “action or decision,” we 

reject that argument.

[¶12] Appellants cite Aggie Investments GP v. Public Service Commission of 

North Dakota, 451 N.W.2d 141 (N.D. 1990), in support of their argument that 

they perfected the appeal. In Aggie, the Public Service Commission (“PSC”) 

held “public input hearings . . . to give the public opportunity to present 

comments or statements on [Northern States Power Company’s] proposed rate 

increase.” 451 N.W.2d at 141. On appeal to the district court, the court 

dismissed the appeal for lack of subject matter jurisdiction. Id. at 142. This 

Court reversed the district court, concluding the Fargo public input hearing 
5

was a “hearing or a part thereof” under N.D.C.C. § 28-32-15 (1989)2 and the 

court had subject matter jurisdiction. Id. at 143. We reasoned the publicly 

noticed hearing, although lacking sworn testimony and formally introduced 

evidence, constituted a “hearing or a part thereof”:

The Fargo public input hearing was publicly noticed as a 

“hearing” by the PSC and was intended to give the public an 

opportunity to present statements on [Northern States Power 

Company’s] proposed rate increase. A hearing examiner presided 

over the proceedings. Local citizens attended the hearing and 

voiced their concerns over the proposed rate increase. The 

proceedings were transcribed by a court reporter.

Although persons attending the hearing were informed 

through a PSC handout entitled “Procedure in Major Rate Cases” 

that they could be sworn as witnesses if they wanted their 

statements to be part of the “official record,” we do not believe that 

the absence of sworn testimony and formally introduced evidence 

renders the public input hearing any less a “hearing” for appellate 

jurisdiction purposes. “The word ‘hearing’ contemplates an 

opportunity to be heard.” State v. Milhollan, 50 N.D. 184, 195 N.W. 

292, 295 (1923). Unlike the ultimate decision-making meetings at 

issue in Happy Day [Day Care Center v. Social Service Board of 

North Dakota, 313 N.W.2d 768 (N.D. 1981)], the Fargo public input 

hearing clearly contemplated the public’s opportunity to have their 

statements included as part of the “official record.”

Id.

[¶13] Here, FORB requested a “public hearing” or “public meeting” under N.D. 

Admin. Code § 89-10-01-07, and DWR notified the public that “informationgathering public meeting[s]” under N.D. Admin. Code § 89-10-01-07 would be 

held. There is no ambiguity as to the nature of the proceedings. Section 89-10-

01-07(4), N.D. Admin. Code, is clear that these meetings are not “adjudicative 

proceeding hearing[s].” As discussed above, even if these meetings could be 

considered hearings, N.D.C.C. § 61-03-22 requires the hearing be held after 

2 Section 28-32-15, N.D.C.C., is now codified at N.D.C.C. § 28-32-42.
6

DWR’s action or decision, not before the action or decision. At issue in Aggie

was the jurisdictional statute in ch. 28-32, not N.D.C.C. § 61-03-22. Moreover, 

in Aggie, a hearing examiner presided over the proceedings; whereas, here, 

DWR, not the office of administrative hearings as required by N.D.C.C. § 54-

57-03(1), conducted the meetings. Aggie is legally and factually different from 

this case.

[¶14] Appellants contend that “a permit 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). Section 28-32-21, N.D.C.C., 

provides the procedures that agencies “shall comply with . . . in all adjudicative 

proceedings.” Section 28-32-21 does not state that all permit applications 

require adjudicative proceedings. Absent a timely request for a hearing

regarding a DWR action or decision, and the hearing being held or denied, an 

aggrieved person has no right to appeal under chapter 28-32. N.D.C.C. § 61-

03-22.

[¶15] Appellants argue DWR’s failure to create and certify a record or 

transcript of the meetings “block[s]” their right to appeal in the district court. 

As noted above, an appeal must be perfected before the court has the ability to 

hear the appeal. After an appeal is perfected, the agency is required to prepare 

and file the record of the proceedings before the agency. See N.D.C.C. § 28-32-

44(2). Because Appellants did not perfect an appeal, the court lacks subject 

matter jurisdiction. Lacking jurisdiction, the court did not err in dismissing 

the appeal without requiring DWR to file the record.

[¶16] Because Appellants did not satisfy the statutory requirements for 

perfecting an appeal, the appeal was not properly perfected and the district 

court lacked subject matter jurisdiction. We conclude the court did not err in 

dismissing the appeal.
7

III

[¶17] The parties’ remaining arguments are either without merit or 

unnecessary to our decision. We affirm the judgment of dismissal.

[¶18] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr