Appeals court rules in favor of DM&E expansion
This is the second ruling from the 8th U.S. Circuit Court of Appeals on the government's decision to approve the railroad project.
The expansion would let DM&E rail cars haul coal from Wyoming to the Mississippi River through South Dakota and southern Minnesota. The railroad will use mile-long trains that travel 40 miles-per-hour. Up to 37 trains could run each day. DM&E railroad president Kevin Schieffer sees the ruling as a victory.
"It would have been a surprise if it had gone the other way, frankly," Schieffer says. "But not because we argued a better case, but because the facts were on our side. We feel very good about the decision and we're looking forward to developing a truly first class railroad in the United States."
The Surface Transportation Board or STB approved the expansion project in 2002, and immediately the Rochester Coalition, along with the Sierra Club, appealed. The 8th U.S. Circuit Court of Appeals sided with Rochester and asked the STB to reconsider environmental and safety concerns. The agency did so. When it re-approved the project in 2005 Rochester appealed again.
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But this time the court sided with the STB. It said the STB had answered all of Rochester's environmental and safety concerns.
The Rochester Coalition refused to comment on this latest appeals court ruling, but it issued a written statement. The coalition, which includes Mayo Clinic, says it will evaluate additional legal options. Coalition members continue to believe the expansion is a serious and real threat to Rochester and the Mayo Clinic. They say more trains through city could increase the chances of a derailment. Another concern is the noise.
Associate General Counsel for the STB Evelyn Kitay says the agency is pleased with the decision. She says the challenges by the Rochester Coalition forced the agency to be more thorough and more explicit in its decision making process.
"We did a lot more environmental review of this case than we've ever done for any prior rail construction case in recent memory or forever," Kitay says. "I think originally there were multiple challenges on both environmental and transportation grounds."
In this case Rochester argued the railroad should pay for noise mitigation. Coalition members also pushed for the STB to consider a bypass around Rochester. And the Sierra Club said pollution concerns weren't adequately addressed.
Kitay says all of that's been considered.
Rochester could choose to further appeal the decision to the full 8th Circuit Court of Appeals or the U.S. Supreme Court. But Kitay says if the coalition doesn't appeal, the court's ruling stands as the final federal approval for the project.
"As far as the Board's concerned DM & E has the authority to construct this line," Kitay says.
Authority and ability are two separate matters when it comes to the railroad. While the DM&E project has the green light, the Federal Railroad Administration hasn't decided whether to grant the railroad a $2.3 billion loan. That agency or the U.S. Congress could place restrictions or stipulations on the loan if it's approved. All of that could be further delayed by another court challenge.
