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Rail expansion heads to federal court
by Erin Galbally, Minnesota Public Radio
June 11, 2003

The Dakota Minnesota and Eastern Railroad has federal approval to move ahead with its $2 billion dollar expansion plan. That approval is now being challenged in court. The outcome could determine the future of the rail project. (Courtesy of DM&E Railroad)

The fate of the largest modern railroad expansion is now in the hands of a federal appeals court. A three-judge panel heard arguments in St. Paul on Wednesday in the case of the Dakota Minnesota and Eastern Railroad's $2 billion expansion, requiring hundreds of miles of new and rehabilitated track. It's all part of a plan to haul coal from Wyoming through South Dakota and Minnesota. A federal board approved that plan early last year. But it remains highly controversial, and opponents are challenging challenged the federal approval process.

Rochester, Minn. — It will take three federal appeals court judges months to scrutinize all of the documents surrounding the case of the Dakota Minnesota and Eastern rail expansion. Thousands of pages of evidence have come from those for and against the project. Opponents include the city of Rochester, the Mayo Clinic and the Sierra Club. They say the DM&E project needs more evaluation.

Rochester City Attorney Terry Adkins observed the proceedings. Afterwards Adkins said its clear the court is taking the matter seriously.

"I was encouraged obviously by the expression of several judges of running that many coal trains through the city of Rochester and I was encouraged by two judges who pleaded with the Mayo attorney to tell us more, tell us more about the adverse impacts this is going to have on Mayo," Adkins said.

Lawyers for Rochester and the Mayo Clinic argue that more trains will create traffic hazards. They'll delay emergency vehicles and compromise patient care. The Sierra Club and Minnesotans for an Energy Efficient Economy contend the project has national environmental ramifications. They say the rail expansion will increase dependence on coal.

Ranchers and Native American groups in South Dakota and Wyoming argue the federal government approved new train routes that go through environmentally sensitive land.

Evelyn Kitay attempted to address all of these concerns as she defended the Surface Transportation Board's ruling. Kitay told the court the federal board spent five years evaluating the project. It was forced to make tough decisions. She said in some cases cities and towns will be compensated with overpasses and safety improvements on rail crossings.

Following the hearing Kitay said the Surface Transportation Board gave groups like Rochester plenty of attention during the evaluation process.

"We feel that the agency gave full consideration to both transportation and environmental issues and in particular the Rochester issues."

Kitay says those challenging the expansion plan want to delay it indefinitely. She says at this point it's up to the market and investors to determine if the project moves forward. Some argue now is a good time for the DM&E's expansion plan. It will help bring low sulfur coal from Wyoming to eastern power plants. There it will produce electricity.

Donley Darnell, a rancher from New Castle, Wyoming, came to St. Paul for the court proceeding. The DM&E expansion calls for new rail lines across his property. Darnell says if even if the judges find in favor of the government, this won't be the final court battle. Darnell says the railroad still needs plenty of permits to proceed.

"Actually at this point they don't have a permit from Wasta, South Dakota to Wall, South Dakota because they didn't bother to modify their application to include that route. So if it's like flipping double or nothing every time, we'll just flip again," Darnel said.

It would be considered highly unusual for the 8th Circuit Court of Appeals to find in favor of opponents like Donnelly Darnell. The court's decision should be released within the next year. The case can be appealed to the full 8th Circuit or to the U.S. Supreme Court. Legal experts say it's unlikely either court would accept the case.

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