Mont. coal railroad upheld; opponents file new challenge

By Matthew Brown
Billings, Montana (AP) 11-07

A federal transportation panel has rebuffed a bid to block a long-delayed rail line into southeastern Montana’s coal fields. Opponents filed a new legal challenge to the project through a federal appeals court.

The Surface Transportation Board approved the final section of the 130-mile Tongue River Railroad during October. The $341 million project, proposed in 1983, is designed to tap into the region’s vast but largely undeveloped coal reserves. It also would create a more efficient route for coal coming out of Wyoming.

Ranchers, the Northern Cheyenne Tribe and conservation and environmental groups have fought against the rail line for decades. They claim it would cause excessive environmental damage, undermine existing railroad jobs and harm livestock producers.

In October, the project’s opponents asked the transportation board to suspend its approval. They wanted the board to wait until the 9th U.S. Circuit Court of Appeals ruled on a pending 1997 lawsuit over the railroad.

But the board, led by Chairman Charles Nottingham, denied that request in a Nov. 7 decision. The decision said the project’s environmental impacts had been “fully considered” before approval.

The board also suggested prior rulings in the case indicated there was little chance the 1997 lawsuit would be successful.

The board had previously approved two other sections of the railroad. A legal challenge to the first section, known as Tongue River I, was rejected. The challenge to the second section, Tongue River II, is the one still pending before the 9th Circuit.

A request to the appeals court to review the board’s latest approval – Tongue River III – was filed Nov. 1, according to documents provided by the plaintiffs.

That could open a yet another round of litigation in the railroad’s protracted legal battle.

The petition was filed on behalf of the Northern Plains Resource Council, Tongue River rancher Mark Fix and the United Transportation Union.

Fix, who is also past chairman of the Northern Plains Resource Council, said the transportation board had not thoroughly examined environmental effects of the railroad. Left out of the board’s studies, Fix, said, was the cumulative effects of the railroad and coal-bed methane development proposed in the same area.

He added that the project “would be like building a wall through your ranch” and would limit livestock access to the Tongue River.

Mike Gustafson, the Billings businessman promoting the railroad, predicted the latest appeal would not stop his project.

“The Surface Transportation Board has done their job, and we believe it will” stand up in court, he said. “Our position is not only have we met all the environmental requirements, but we have gone beyond that.”

Calls seeking comment from the Surface Transportation Board were not immediately returned on Monday, a federal holiday.

Still unresolved is whether the rail line would move coal produced from land controlled by the state of Montana and its partner, Great Northern Properties. That includes more than a billion tons of coal in the Otter Creek area.

Sate officials have not decided whether to lease the property for development in the near future. Gov. Brian Schweitzer has said the pace of development is contingent on how much revenue the state could garner by leasing the tracts.

Gustafson said the project will continue regardless. If the state and Great Northern do not act, he said, the railroad still would have a supply of coal from mines in Wyoming and around Decker, Montana.

“We’re going to move forward. The state has a separate decision to make,” Gustafson said.
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