Key Cases: Tongue River

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Tongue River Abstract

Tongue River Abstract
On October 16, 2012, Tongue River Railroad Company, Inc. (TRRC) filed a revised application with the Surface Transportation Board (Board). TRRC intended to construct and operate an approximately 83-mile rail line between Miles City, Montana, and two ending points, one near the site of the previously planned Montco Mine near Ashland, Montana, and another at the proposed Otter Creek Mine in the Otter Creek area east of Ashland, Montana. On December 17, 2012, TRRC filed a supplemental application with the Board in which TRRC changed its preferred alignment from the 83-mile Tongue River Alternative to the 42-mile rail line between Colstrip, Montana and the Ashland and Otter Creek areas of Montana. TRRC's new preferred Colstrip Alternative would generally parallel Greenleaf Road (S-447). Because the construction and operation of this project has the potential to result in significant environmental impacts, the Board's Office of Environmental Analysis (OEA) has determined that the preparation of an Environmental Impact Statement (EIS) is appropriate pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. §§ 4321 et seq.).

For current information about this Draft EIS, please visit the Board-sponsored project website at .

In 1986, the Board’s predecessor agency, the Interstate Commerce Commission (ICC) gave approval to TRRC to build and operate an 89-mile rail line between Miles City, Montana, and two termini located near Ashland, Montana, a proceeding known as Tongue River I. (1) The purpose of the line was to serve new coal mines in the Ashland area. In 1996, the Board authorized TRRC to build a contiguous 41-mile rail line from Ashland to Decker, Montana, in Tongue River II. (2) In 2007, the Board authorized TRRC to build and operate the Western Alignment, a 17.3-mile alternate route for a portion of the route already approved in Tongue River II in a proceeding known as Tongue River III. (3) The ICC/Board’s environmental staff, then call the Section of Environmental Analysis (now OEA), prepared EISs in all three proceedings (see Tongue River Archive ).

Petitions for review of the last two decisions, Tongue River II and Tongue River III, were filed in the United States Court of Appeals for the Ninth Circuit, and, in 2011, the court affirmed in part, and reversed and remanded in part, those decisions for additional environmental review. (4) The court’s decision requires the Board to revisit the environmental analysis for Tongue River I because the Board had conducted a cumulative impacts analysis for the entire line in Tongue River III and made the resulting mitigation conditions applicable to the entire line in its Tongue River III decision. TRRC then informed the Board that it no longer intended to build the Tongue River II and Tongue River III portions of the railroad.

On June 18, 2012, the Board issued a decision dismissing the Tongue River II and Tongue River III proceedings and reopening Tongue River I. (5) As explained in more detail in that decision (available on the Board’s website ), the Board required TRRC to file a revised application that presents the railroad’s current plans to build a rail line between Miles City and Ashland, Montana. In addition, the Board decided to conduct a new environmental review rather than a supplemental environmental review based on the three prior environmental reviews that began in the 1980s. The Board found that a new EIS (including a new scoping process) is appropriate given the passage of time since Tongue River I was decided, the railroad’s failure to begin construction of any part of this railroad and other changes that have taken place, the nature of the court’s partial remand, and the fact that most of the Board’s more recent environmental analysis pertains to Tongue River II or Tongue River III, neither of which the railroad still proposes to build. The Board also stated that a new EIS will encourage and facilitate public participation. (6)

Issuance of Draft EIS: Summary and Updates

Beginning April 17, 2015, the Draft EIS can be viewed and downloaded by clicking here. The Draft EIS will also be available for review on the Board-sponsored project website at . Printed copies of the Draft EIS are publically available in the following libraries located in the project area: Bicentennial Library of Colstrip, Big Horn County Public Library, Dr. John Woodenlegs Memorial Library, Henry Malley Memorial Library, Miles City Public Library, Judson H. Flower Jr. Library (Miles Community College), and Rosebud County Library. If you wish to receive a copy of the Draft EIS, please call 1-866-622-4355.

OEA and the cooperating agencies invite public comment on all aspects of the Draft EIS and are providing a 60-day public comment period, which begins when the U.S. Environmental Protection Agency issues a notice of availability in the Federal Register on April 24, 2015. Comments on this Draft EIS must be received or postmarked by June 23, 2015.

Written comments on the Draft EIS may be submitted to:

Ken Blodgett
Surface Transportation Board
395 E Street, S.W.
Washington, DC 20423
ATTN: Office of Environmental Analysis
Docket No. 30186

Comments may also be submitted electronically to the Board-sponsored project website by clicking here . It is not necessary to mail written comments that have been submitted electronically.

In addition to receiving and reviewing the above written comments, OEA will host 10 public meetings on this Draft EIS during which interested parties may make oral comments in a formal setting and/or submit written comments. To provide as much time as possible to hear comments, OEA will not respond to oral and written comments at the meetings. Rather, comments on the Draft EIS will be addressed in writing in the Final EIS.

OEA will begin each meeting with a 30-minute open house followed by a brief overview of the proposed project and environmental review process. The overview will be followed by a formal comment period. A court reporter will be present to record these oral comments. If time permits, the court reporter will be available at the conclusion of the formal segment of the meeting to record oral comments from individuals not interested in addressing the meeting as a whole. Meeting transcripts will be available on the Board-sponsored project website after the meetings. The meetings will be held on the following dates at the following locations:



To register for the online public meetings, please visit the public involvement page of the Board-sponsored project website at . You can also visit the
Board-sponsored project website for additional background information about the Draft EIS and the project.

(1) Tongue River R.R.—Rail Constr. and Operation—In Custer, Powder River and Rosebud Cntys., Mont. (Tongue River I), FD 30186 (ICC served Sept. 4, 1985), modified (ICC served May 9, 1986), pet. for judicial review dismissed, N. Plains Res. Council v. ICC, 817 F.2d 758 (9th Cir.), cert. denied, 484 U.S. 976 (1987).

(2) Tongue River R.R.—Rail Constr. and Operation—Ashland to Decker, Mont. (Tongue River II), 1 S.T.B. 809 (1996), pet. for reconsid. denied (STB served Dec. 31, 1996).

(3) Tongue River R.R.—Rail Constr. and Operation—Ashland to Decker, Mont. (Tongue River III), FD 30186 (Sub-No. 3) (STB served Oct. 9, 2007), pet. for reconsid. denied (STB served Mar. 13, 2008).

(4) See N. Plains Res. Council v. STB, 668 F.3d 1067 (9th Cir. 2011).

(5) Tongue River R.R.--Rail Constr. & Operation—In Custer, Powder River & Rosebud Cntys., Mont., FD 30186 et al. (STB served June 18, 2012).

(6) Id. at 9-10.