Even though it was dealt a setback by the South Dakota Supreme Court, the Northern Hills Rail Authority's plan to build a tourist train line through Whitewood Canyon is still on track, attorney Tom Brady insisted.

The Supreme Court on Thursday overturned a 2005 decision by Circuit Judge Warren Johnson, who had ruled that the state of South Dakota retained the railroad right of way after Chicago & North Western Railroad Co. tore up its track in 1970.

In 2003, the state transferred that right of way to the Northern Hills Railroad Authority. Charles Brown, whose owns property claimed by the authority as right-of-way, filed suit.

Brady represents the Northern Hills Rail Authority. He said the Supreme Court decision does not stop the efforts to build a railroad.

"It comes back (to circuit court), and the judge will look at the other reasons why we still own the right of way," Brady said. "Sooner or later, we will be running trains on that right of way."

Brady insisted Thursday that the authority still owns the right to lay track and run trains through Whitewood Canyon.

Brown's attorney, Kenneth Dewell of Rapid City, agreed with Brady that the legal case is still alive.

"It's not over," he said. "This was a huge victory for my client in having the South Dakota Supreme Court come in line with prevailing federal law. It's a major loss for the railroad authority's theory of why they think they ought to be able to take private property."

Dewell said the next argument will likely be over the issue of whether C&NW's actions in the 1960s and 1970s constitute a railroad abandonment under South Dakota law.

The issue in Thursday's decision was a 1922 federal law. The circuit judge ruled that the law meant that the right of way reverted to the state after C&NW left.

However, the Supreme Court said the patents granted to homesteaders who first settled Brown's land did not reserve any government interest in the right of way.

The 1922 federal law dealing with the reversion of such rights of way cannot be applied retroactively to the land patents and the 1875 law that set up the right of way between Whitewood and Deadwood, the justices said.

The Northern Hills Railroad Authority and its private sector partners, first Dunrail Inc. and now Black Hills Transportation, have tried for more than a decade to build the railroad.

Actor Kevin Costner was a majority owner of Dunrail, and he's also a major stockholder in Black Hills Transportation. He initially wanted a train to ferry passengers from Rapid City Regional Airport to his Dunbar luxury resort near Deadwood.

The Dunbar plan was scrapped, but the plan now is to run tourist trains to downtown Deadwood.

About the only physical evidence of the old line is a steel bridge near Deadwood and a tunnel midway between Whitewood and Deadwood. The tunnel is practically in Charles Brown's backyard.

Contact Dan Daly at 394-8421 or dan.daly@rapidcityjournal.com