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Environmental Matters > Key Cases: DM & E Abstract

DM&E Links

Section 106 Programmatic Agreement (PA) Compliance

DM & E Links Abstract

On February 20, 1998, the Dakota, Minnesota & Eastern Railroad Corporation (DM&E) filed an application with the Board seeking authority to construct and operate a new rail line and associated facilities, which would provide an extension of DM&E's existing rail lines into the Powder River Basin coal fields in Wyoming. The action involves the proposed construction of approximately 280 miles of new rail line and the rehabilitation of approximately 600 miles of existing rail line in Wyoming, South Dakota, and Minnesota.

In a December 10, 1998 decision, the Board found that DM&E's proposal satisfied the transportation-related criteria of 49 U.S.C. 10901. However, the Board deferred final action on the proposal until it could determine the nature and extent of the environmental issues associated with this project, as required by the National Environmental Policy Act (NEPA); whether these impacts can be adequately mitigated; and the financial cost of any environmental mitigation that might be imposed. As explained below, this assessment will be presented in a subsequent Board decision once the environmental review process is concluded.

In accordance with NEPA, Council on Environmental Quality, and other environmental regulations, the Board's Section of Environmental Analysis (SEA) prepared a Draft and a Final Environmental Impact Statement (collectively, the original EIS). In preparing the original EIS, SEA conducted biological surveys for threatened and endangered species and cultural resource surveys for archaeological sites and historic structures. Additionally, SEA gathered extensive data on air quality, crossing safety and potential delays, railroad and vehicular traffic volumes, wetlands and aquatic resources, noise receptors, wildlife migration, and potential impacts to ranching operations.

There was extensive public involvement in the development of the original EIS. SEA initiated government to government consultation with more than 20 Indian tribes; worked with five cooperating Federal agencies; conducted 14 scoping meetings and 12 public meetings, as well as a meeting on the Rosebud Indian Reservation; and received approximately 8,600 comments from agencies, elected officials, tribes, organizations, businesses, affected communities, landowners, and other members of the public. As a result, SEA identified and examined potential environmental impacts associated with the project and recommended 147 environmental conditions to mitigate or alleviate these impacts.

In a January 30, 2002 decision, the Board gave approval for the proposed project. The Board imposed extensive conditions to mitigate certain anticipated adverse environmental impacts, and also established an environmental oversight period. On appeal, the United States Court of Appeals for the Eighth Circuit vacated and partially remanded the Board's decision. Mid States Coalition for Progress v. STB , 345 F.3d 520 (8th Cir. Oct. 2, 2003 ). The court upheld the Board's decision with respect to all transportation issues, but remanded the case for further Board review on four environmental issues.

Pursuant to the court's remand, SEA has prepared a Draft Supplemental Environmental Impact Statement (Draft SEIS) that considers the following environmental issues: 1) the environmental impacts of increased horn noise; 2) the combined impact of vibration and noise; 3) the environmental impacts of increased coal consumption that might result from increased availability and lower prices for this coal; and 4) the Board's compliance with its obligations under the National Historic Preservation Act. Because the court specifically directed the Board to review a limited number of environmental issues, the comprehensive environmental analyses and conclusions that were presented in the original EIS are not reconsidered in the Draft SEIS.

Currently, the Draft SEIS is available for public review, and SEA encourages all interested parties to submit written comments during the 45-day comment period. It is important to note, however, that SEA can only consider comments on the four issues that were remanded by the court and which are addressed in the Draft SEIS.

Following the close of the comment period on June 6, 2005 , SEA will prepare a Final SEIS that will include: responses to comments; final conclusions on the four remanded issues; and final recommendation to the Board. Once the environmental review process is complete, the Board (and the cooperating agencies) will decide whether to approve, deny, or approve with conditions DM&E's proposed project. Until the Board and cooperating agencies complete their consideration of the remanded issues and issue a final decision, DM&E does not have the requisite authority to construct and operate the proposed new line.

More information regarding this case is available on the Board's website,, by clicking on the “E-Library” link and going to “Decisions and Notices.” The docket number for this case is STB Finance Docket No. 33407.