At 32,500 miles of track, the 176-year-old company known now as Burlington Northern Santa Fe could run a railroad line around the earth and have room to spare.
What it cannot do, however, according to legislators, advocacy agencies, and small-town Montana mayors, is provide prompt responses when building near the railroad becomes unavoidable. They’ve complained of exorbitant prices for permits, wait times stretching months to receive communication from BNSF and inconsistency from one of the nation’s largest freight companies. The railroad company is also in a legal battle with a company laying hundreds of miles of fiber optic cable in the Treasure State.
BNSF owns nearly all the track in the state and splits a western U.S. railroad duopoly with Union Pacific, which checks in at 32,693 miles. A large chunk of the nation’s freight is moved by BNSF, which runs about 1,200 trains per day and earned nearly $7 billion in profit last year.
Easements — small tracts of land where someone has the right to cross or otherwise use someone else’s land for a specified purpose — and the railroad’s utility permit process have caught the attention of the legislature and the ire of some towns, from Thompson Falls to Colstrip.
Water lines, sewage lines, and fiber optic cables all sometimes need to be run under or near railroad tracks. Getting the proper permits for those can take months, stretching timelines and adding financial stress to cities, which in some cases are on deadlines to spend grant money or lose it.
Permitting is a complex process involving multiple companies doing work on behalf of BNSF, with a 52-page “Utility Accommodation Policy” spelling out the rules and regulations for anyone dealing with the railroad.
“BNSF’s utility permitting process is designed to ensure safety, protect private property rights, and recover the costs associated with managing infrastructure on active railroad property,” said Lena Kent, BNSF general director of public affairs said in a statement to the Daily Montanan. “While we recognize the importance of utility projects to local communities, each application must be evaluated based on its unique scope, complexity and associated risks.”
Buying or leasing easements includes expensive fees, too. Various pieces of legislation have looked to fix timelines and expenses, including House Bill 933 this year, with the legislature considering similar legislation again in the interim after it failed during the session. HB 933 was the resuscitation of legislation from 2019, which also did not pass.
In the past, potential easement legislation has been used to bring parties to the table and come to a resolution over specific rail issues. It remains to be seen if that will be the case this time around, and Sen. Daniel Zolnikov, a Billings Republican who leads the Legislature’s Energy and Technology Interim Committee, has pursued the issue.
“Ball’s in their court to act like adults,” Zolnikov said of BNSF. “Not children.”
The most recent chapter in the controversy over the BNSF easement permitting process broke out during a July 28 meeting of the Legislature’s Energy and Technology Interim Committee, the Daily Montanan reports.
Montana League of Cities and Towns Executive Director Kelly Lynch, who said she’d never addressed the committee before, requested legislators look into the issue.
“I’m here before you today to ask that you look into an issue that’s been percolating for some years now,” Lynch said. “My members of cities and towns have been struggling for many years to get approval and get through the process of either doing a utility crossing or getting access to railroad property.”
Seconds after Lynch finished her public comment, though, BNSF supporters moved to defend the railroad. Negative experiences with the freight company are not universally shared in Montana.
Mark Lambrecht, CEO of the Montana Electric Cooperatives Association, addressed the committee, bringing up HB 933, which he opposed during a House Transportation committee meeting in late March.
The Electrical Cooperatives Association was part of an agreement with BNSF in 2019, Lambrecht said, and in March, he stated HB 933 would blow it up. He said they’ve been pleased with the agreement.
“There’s a permitting process and timelines, communication, standards, things like that,” Lambrecht told the interim committee on July 28. “That agreement has worked really, really well.”
Sen. Daniel Zolnikov, R-Billings, sits prior to a Montana Senate floor session on Wednesday, April 30, 2025. (Jordan Hansen/Daily Montanan) Later in the meeting, committee members indicated they were interested in pursuing legislation around railroad easements.
Matt Jones, a BNSF lobbyist, responded with phone calls to several cities around the state. What happened next is disputed.
In a July 29 email to Energy and Technology Interim Committee members, Zolnikov wrote the calls from Jones included “some threats.”
“From what I am being told, these threats include pulling current and or future easements. BNSF has allegedly stated it will be even worse for the cities if legislation is brought forward out of the committee,” Zolnikov wrote, saying it was ironic because, “This draft (bill) was brought forward to address the issue of non-cooperative entities slow rolling and overcharging our cities and other infrastructure developments.”
When reached by BNSF, a company spokesperson initially told the Daily Montanan their was, “overall concern in even proceeding with a story based on this state senator making this crazy, unfounded accusation that we’re threatening the communities we work with and serve.”
In an emailed response to Zolnikov and the committee, Jones said his phone calls weren’t threats. Multiple sources for this story expressed concern that cities with active BNSF projects would receive reprisal from the train company if they spoke publicly.
“I contacted a few cities where we have a lot of interaction on projects to ask them if this is an issue of such concern that they are asking for legislative involvement,” Jones wrote on July 30. “There were no threats made, and I emphasized the importance of working together for the long-term on a wide variety of projects, not just utility easements.”
Jones went on to write that legislation supported by the League of Cities during the legislative session — HB 933 — “wasn’t good for municipalities,” stating it would have led to higher costs for two projects that were “pending” at that time. It’s unclear what those projects were or who would benefit by killing HB 933, though Lambrecht said they were “industrial interests” who were having issues with a crossing during the July committee meeting.
When asked by the Daily Montanan, BNSF did not specify what deal was made and with whom, but did expand on its opposition to that proposed legislation.
“BNSF opposed House Bill 933 because it proposed an unconstitutional infringement of private property interests,” Kent said in a statement. “It would result in the taking of private property without the due process guaranteed in the Montana and U.S. Constitutions.”
Rep. Neil Duram, a Eureka Republican who brought HB 933, told the Daily Montanan the railroad company then asked him to kill the bill, which was voted down in the House 100-0. It was similar to how it’s happened in the past and said he wants to be transparent on the issue.
Duram did say the “industrial interests” were concerned with a project near Thompson Falls.
“Each session, the railroad gave concessions to the aggrieved party. They’ve made an agreement with the aggrieved party to contact their legislator and request that they pull the bill,” Duram said. “That’s how it’s happened each session.”
House Bill 933, also called the Montana Railroad Crossing Clarity Act, also is part of a legal battle between BNSF and a fiber optic company, Intermountain Infrastructure Group.
BNSF filed a lawsuit on May 15 against the fiber optic company, also known as IIG, saying it is trespassing on their land and has been doing so for a long time. IIG has been active near Thompson Falls.
The suit, which was filed in Missoula and includes a copy of the 1864 Northern Pacific Act, claims IIG “misrepresented and misled BNSF” as the fiber optic company was going through the permitting process for the contested easements.
It said IIG laid cable on BNSF’s land “without notice and without permission.”
In its response, IIG — which is represented by Graybill Law Firm along with Parsons, Behle and Latimer — said BNSF was retaliating for support of HB 933. IIG eventually dropped its support for the legislation, apparently with the understanding that the rail company would work with them.
BNSF, which is represented by Billings law firm Hedger Friend, PLLC, went to court instead.
“Directly following IIG’s advocacy at the Montana legislature, BNSF informed IIG for the first time that it intended to file a lawsuit to seek removal of the longitudinal lines that IIG had placed in good faith in public road rights-of-way that are the subject of this case,” the complaint response states.
IIG, beginning in 2023, started to obtain permits from various local and state jurisdictions for the cable. During that process, court documents state, IIG began to also ask BNSF for permits and was able to receive them. In response to certain applications, BNSF asked for additional information, including maps, which IIG gave.
During the study of those maps, BNSF began to assert IIG was trespassing on its right of way, but agreed to issue remedial permits. None of the cases in the suit involve IIG crossing the railroad, only being on their land, the complaint response said, adding IIG wasn’t causing any interference with BNSF operations.
“Most of the installations were and are on the opposite side of the highway from BNSF’s track—in other words, a public highway stands between IIG’s installation and BNSF’s track,” IIG argued in its response. “Most of the installations are in locations already occupied by other public and private utilities, in some cases pervasively occupied by other infrastructure.”
In January 2025, BNSF sent IIG a trespass letter, allegedly saying it was “just a formality.”
In response, IIG didn’t contest BNSF’s position on the permits and paid for them. One permit for approximately 1,800 feet of cable cost $236,438, court documents stated.
Following support for the bill, which came after the permit issues, “BNSF refused to continue processing any of IIG’s permits,” the complaint response states.
Those aren’t just permits in Montana either; BNSF is allegedly holding up IIG permits in other states, too, according to court documents.
BNSF allegedly also told IIG that it was attacking the railroad industry.
“In an April email, BNSF’s current counsel informed IIG that it was ‘concerning’ to BNSF that ‘while BNSF was pursuing necessary internal approvals, IIG attempted to initiate legislative action against not only BNSF but the railroad industry as a whole,’” court documents state.
In a counterclaim response to IIG, BNSF said it doesn’t have any contracts with the fiber optic company.
“IIG’s breach of contract/breach of implied covenant of good faith and fair dealing claim is barred because no contract was formed between BNSF and IIG,” court documents state. “The submission of a permit application does not constitute an enforceable contract obligating BNSF to issue a license.”
IIG was established in 2017 and has constructed about 800 miles of underground fiber optic cable in the state.
IIG said it does not comment on pending litigation when reached. BNSF does not comment on active litigation either, a company spokesperson told the Daily Montanan.
Montana is investing heavily in fiber optic cable, to the tune of nearly a billion dollars between federal and state funding, according to the state’s broadband program website, ConnectMT.
IIG does not directly have contacts with the state for work, a company spokesperson said, but is involved in upgrading Montana’s internet infrastructure.
Brandon Coates, a spokesperson for IIG, compared the process to road systems. What IIG is creating, he said, are essentially fiber optic interstates. Other fiber optic cable companies that do have ConnectMT contracts are creating highways to connect to IIG’s larger infrastructure, Coates added, including one Gov. Greg Gianforte highlighted recently in Whitehall.
Other disputes are taking place outside the courtroom and in small Montana cities.
One of those towns is Thompson Falls, and a word Mayor Rusti Leivestad used to describe the railroad easement business was “frustrating.”
The city is working on a new wastewater system, and a lift station is near a BNSF railroad.
Leivestad said the city initially reached out to BNSF in February 2025 with its application and didn’t get a dollar figure until the end of May.
The price was on the high side of what city officials were expecting.
“We were informed by BNSF that the permit fee would be $88,880 along with a list of insurance requirements,” Leivestad said.
BNSF and the city eventually negotiated down the price, and Thompson Falls, population 1,526, was given two more options. This time, the city could pay a company a little more than $20,000 in a one-time fee, or it could pay $1,500 a year with a 3% increase each year. Leviestad and her town chose the first option, with the second calculated to be almost double the lump sum amount.
The amount was far greater than what the city has paid in the past to another rail company, Montana Rail Link. BNSF announced in late 2023 that it was acquiring Montana Rail Link, adding to the more than 400 companies it has swallowed during the course of its history.
“The permit with (Montana Rail Link), who was the negotiating company for the first phase of our wastewater project, that permit was $925 and we paid $500 a year for the lease,” Leivestad added. “So that kind of gives you an example.”
A BNSF train heads across a rural railroad crossing. (MDT photo) Another example can be found in Colstrip.
Colstrip needed a new water line, Mayor John Williams said, and was on a time crunch to finish the project. Federal funds they needed for infrastructure projects would run out if they didn’t get the project completed in time.
The Colstrip project didn’t actually cross a railroad track, Williams said, and is in fact about 120 feet away from the ties. Delays were so worrisome that Colstrip didn’t really negotiate with BNSF, like Thompson Falls was able to do, Williams said.
“When we got the number, we attempted to find, you know, what’s the basis of this? Why is it so much?” Williams told the Daily Montanan. “The information that was transferred to me was that BNSF told our engineer that if we wanted to contact him and negotiate a different number or lesser number, the city would be welcome to do that. But at the time I was contracted, and we were up against it. I thought if we try to negotiate a lower cost, we may lose the contract.”
Colstrip ended up paying more than $41,000 for the permit, Williams said, which included insurance.
BNSF’s permitting website is run by Bartlett and West, and for the internet adept, it’s user friendly.
The website directs you to create an account, and you can immediately begin the process of filing a permit. There’s several types — pipeline and wire line have the same instructions, for example — and varying timelines. Oversized loads, road resurfacing and environmental work are other permits that can be applied for. They all require a $2,000 non-refundable application fee.
The website lays out specific process instructions for those seeking a permit.
“Permit costs and timelines vary because the projects are different in scope and complexity. The property interests involved and associated risks have different values,” Kent said in a statement. “For example, a perpendicular wireline crossing of the railroad right of way is less burden to the landowner than a mile-long installation of a gas or sewer line. BNSF understands utility projects are critical infrastructure, and it’s often not possible to avoid railroad property. As a result, we regularly work with applicants to negotiate fees that are less than fair market value. These negotiations often add time to the process.”
A pipeline, for example, requires an engineering review and drawings, which takes approximately two weeks to complete. At that point, the review process is handed off to JLL, a real estate company, who sends the contract along with directions on insurance and “any additional fees.”
That signed contract is then returned to JLL and following that step, the final contract is presented. The website says “the average time from successful submission of the application to execution of the license agreement is four weeks.”
Timelines get far longer and the process more complicated for private crossings. The permitting website says the average time from submission to execution is 10 weeks. Those permits involve working with the BNSF director of field safety, as well as a contract process with JLL.
If it’s a new crossing, add even more time and work.
“If this is a new crossing, an estimate for BNSF’s labor/material costs for placement and (future) removal of the crossing materials will be prepared,” the website reads, which added that a new crossing adds at least a month to the timeline. “Typically, the grading/drainage work for the roadway from the right-of-way line to the crossing is performed by the licensee’s contractor.”
Before filing a permit, the website also asks the user to read the railroad’s Utility Accommodation Policy. It is deeply detailed, noting everything from hiring flaggers for the railroad to what construction techniques are allowed by the company to dig under a rail bed.
Insurance is also noted, with BNSF having absolutely no liability if anything goes wrong.
“The Utility Owner, its successor(s), or assignees shall assume all risk and liability for accidents and damages that may occur to persons or property on account of this work, and shall indemnify and hold BNSF harmless from any and all costs, liabilities, expenses, suits, judgments or damages to persons or property, or claims of any nature whatsoever, arising out of or in connection with the permit, or the operation and performance thereunder by the utility, its agents, employees or subcontractors,” the company document reads.
It even has separate sections of rules for utilities going parallel and perpendicular to the railroad’s property. Even those, though, as illustrated in IIG’s case, can be expensive and complicated.
In a statement, BNSF defended its process and provided statistics specific to the state.
“In 2024, BNSF received 168 applications for utility permits in Montana alone. 87% of permits were completed within 65 days,” Kent said. “Regarding cycle time, BNSF’s goal is to get a draft license to the applicant within 35 days from the time a complete application is received. In Montana last year, we sent out a license agreement for utility permits in 10.25 days on average.”
Legislation could be coming next session on railroad easements and past attempts, as well a North Dakota law, could be a blueprint.
The North Dakota law, passed in 2019, dictates the process utilities and railroad companies most follow over easements. Much of the meat of the North Dakota law, including insurance requirements and other small processes, mirrors language on BNSF’s permitting website.
The Public Service Commission is the body that regulates railroads in Montana. Lynch brought up both that and the North Dakota law during her public comment to the legislative committee.
In a comment to the Daily Montanan, she said cities and towns want a consistent process.
“That is, we know up front what’s going to be expected of us, how long it’s going to take and how much it’s gonna cost,” Lynch said.
BNSF, in a statement to the Daily Montanan, said it “deeply values” the communities it operates in and serves.
“We regularly work with local municipalities on a number of issues, including various public projects and real estate transactions,” the BNSF statement said. “We stand ready to collaborate and find workable solutions that are agreeable to all parties involved.”
Proposed legislation in the past — including the 2025 Montana Railroad Crossing Clarity Act — would have set caps for permit costs and created legally enforceable timelines for project. HB 933, in fact, would have capped permit costs at whatever was greater, $3,000 or $10 for every linear foot of the railroad right-of-way occupied by the crossing.
Importantly, it also protected eminent domain rights. The bill also included stipulations on costs for flaggers and other administrative bits, including insurance costs.
There were philosophical concerns with the legislation, even for Duram, the bill’s sponsor.
“There really is no harm to the railroad; this is just an opportunity for them to make some more profits off the land that they own, which they’re entitled to,” Duram said. “And that’s always been kind of my tightrope, is respecting private property rights. At what point does the state step in and tell you what you’re going to charge for people to access?”
Frustration, however, seems to be mounting, and Zolnikov brought up another option the Legislature has, though one they could be hesitant to use.
“We can raise taxes, and I do not raise taxes,” Zolnikov said. “But if they are going to threaten to sue us on any solution to this problem and they’re going to keep strong-arming cities and towns, then we can solve this problem via taxation.”
Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com.
