(The Associated Press circulated the following story on October 3.)
SIOUX FALLS, S.D. — A federal appeals court has asked the Surface Transportation Board to take a second look at the Dakota, Minnesota and Eastern Railroad’s $2 billion expansion into Wyoming, according to a ruling filed Thursday.
A three-judge panel of the 8th U.S. Circuit Court of Appeals overturned the board’s approval of the project, citing concerns over several issues. But the problems should be easily fixed by the federal transportation board, the judges concluded.
The ruling stems from an appeal filed by numerous groups asking the court to overturn the board’s licensing of the project.
The DM&E wants to extend its line to Wyoming’s coal-rich Powder River Basin and run the coal east on trains across South Dakota and Minnesota. The project would involve building about 280 miles of new track and upgrading 600 miles of existing track.
While the power industry and farm groups support the expansion, opposition is also strong.
Several communities, environmental groups, landowners and the Mayo Clinic in Rochester, Minn., filed a legal challenge soon after the Surface Transportation Board approved the project in January 2002.
Concerns the judges want the STB to further study:
— The combined effect of noise and vibration in houses near the tracks in Rochester, where train traffic could increase from three a day to 37. The decision does not mention such issues along the route in Pierre or Brookings.
— Historic preservation. The judges want the board to do more to identify endangered historical sites along the route and have a plan to protect them before issuing a license.
— Possible future pollution caused by the increased availability of Powder River Basin coal that would be burned in power plants in the Midwest and Northeast.
“We believe that it would be irresponsible for the board to approve a project of this scope without first examining the effects that may occur as a result of the reasonably foreseeable increase in coal consumption,” the judges wrote.
The judges said the STB adequately addressed arguments brought up by the Mayo Clinic in Rochester about bypassing the community. The panel also rejected claims by American Indians that the project would violate treaties. The judges said the STB also adequately addressed financial issues.
“We agree with the board that the ultimate test of financial fitness will come when the railroad seeks financing,” the judges wrote.
DM&E President Kevin Schieffer could not be reached for comment Thursday because of a family emergency. The STB’s lawyer in Washington did not return a telephone call.
One of the judges acknowledged the impact on Rochester in a concurring opinion.
“The adverse consequences that the Rochester community will suffer due to this project are severe,” wrote Judge Gerald Heaney.
He urged the STB “to fully analyze all possible steps that can be taken to mitigate their impact on the Rochester community.”
Opponents from the Minnesota city echoed his concern.
“Obviously, (the judges) did not accept the majority of our arguments,” Rochester City Attorney Terry Adkins told the Post-Bulletin of Rochester. “They did accept some.”
“This is all disappointing to the city,” Adkins said. “We felt our arguments demanded more from the court.”
Mayo spokesman Tim Geisler told the newspaper Thursday that it was too early to tell the clinic’s reaction to the ruling.
Despite their concerns, the judges said the project is one of the biggest the transportation board ever considered and overall, it did well.
“Although we find it necessary to vacate the board’s final decision so that it may correct certain deficiencies, we think that on the whole the board did a highly commendable and professional job in evaluating an enormously complex proposal.
“We are confident that on remand the board will quickly address those few matters that we have identified as requiring a second look, and will come to a well-informed and reasonable conclusion.”