Appeals court snubs rail challenge

DM&E; expansion foes lose another round

By Angela Greiling Keane

WASHINGTON -- The 8th Circuit Court of Appeals has denied a request by opponents of the DM&E; Railroad expansion project to require the federal board that approved the project to release more records in connection with the case.

Lawyers for the Sierra Club and the Mid-States Coalition for Progress, a group of western landowners, had filed separate petitions in June and July asking the court to require more disclosure.


The St. Louis-based court is hearing the legal challenges to the Surface Transportation Board's approval of the Dakota, Minnesota &; Eastern's $2 billion proposed upgrade and expansion.

The groups had asked the court to require the board to re-index the public records regarding the DM&E; decision and to require it to release more information used during its environmental review of the project. The court denied all requests.

"Petitioners' motion to compel the respondent to produce and re-index the administrative record has been considered by the court and is denied," a three-judge panel wrote in an order released late Tuesday.

Jim Dougherty, the attorney for the Sierra Club, was not pleased.

"It was a one-sentence ruling saying that we lose," Dougherty said. "Obviously, we're disappointed, and, obviously, we disagree."

Although he wished the courts would have ruled in his favor, he was pleased that the board voluntarily made more information public after the Sierra Club filed its complaint.

Attorney Richard Streeter, who represents the Mid-States Coalition for Progress and other project opponents, said he was not surprised by the ruling.

"I am just satisfied that the court has given the matter some consideration and has established a briefing schedule so that we can finalize this matter and present it for the court's full review," Streeter said.


A spokesman for the Surface Transportation Board issued a short statement about the decision.

"The board is pleased with the decision as issued," said Dennis Watson.

The court document also lays out the new schedule for the case. In May, the court set the briefing schedule and a week for the case to be heard. But it delayed that schedule after the Sierra Club asked on June 26 that the court require the board to supplement the case's record.

The first set of briefs, those filed by parties challenging the board's approval and their supporters, are now due Sept. 9. The next two sets, those filed by supporters of the board's decision, are due Nov. 19 and Dec. 6.

The final set, again from the opponents and their supporters, are due Dec. 23. The court has not yet set a date to hear the case.

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