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DM#x0026;E; fight goes to federal court

By Ashley H Grant

Associated Press

ST. PAUL -- A 5-year-old fight over the proposed expansion of the DM&E; Railroad chugged into federal court last week, with several groups asking a three-judge panel to overturn a government board's approval of the project.

The Dakota, Minnesota and Eastern Railroad wants to extend its system to the Powder River Basin coal fields in Wyoming and run coal eastward on trains across South Dakota and Minnesota. The project would involve building about 280 miles of new track and upgrading 600 miles of existing track at a cost of roughly $2 billion.

While the power industry and some farmers support the expansion, opposition is also strong.

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Several communities, environmental groups, landowners and the Mayo Clinic filed a legal challenge soon after the federal Surface Transportation Board approved the project in January 2002. They say the board didn't sufficiently assess concerns such as noise, pollution and traffic.

Three judges from a panel of the 8th Circuit Court of Appeals -- Morris Arnold, William Riley and Gerald Heaney -- wondered whether they could properly send the issue back to the STB to look at a couple of specific provisions.

Evelyn Kitay, an attorney for the Surface Transportation Board who also spoke for the DM&E,; said all concerns have been addressed and the project should go forward as approved.

"There was ample opportunity for everybody to make their views known," she said, adding that it wasn't the court's place to "flyspeck" the 2,600-page environmental impact statement for minor errors.

Kitay said she believed the opponents were simply trying to delay the process long enough so the line would never be built.

Officials from the city of Rochester and the Mayo Clinic asked the judges to send the environmental impact statement back to the board for more consideration of an alternative route. They want a bypass around the city, but the board rejected it because some of the land that would be involved is environmentally sensitive.

As proposed, an existing rail line through Rochester would be upgraded, with traffic increasing from three trains a day to 37.

Keith O'Brien, representing the Mayo Foundation, said the line would run a few blocks from the medical center, blocking access, creating noise and possibly contaminating ground water. "Mayo is very concerned about it," he said.

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Under questioning by Riley about the center's ability to adapt if the line goes through the city as proposed now, O'Brien said Mayo would make it work.

"It's the people they serve that we're very concerned about," he said.

Steven Kalish, an attorney for Rochester, said two overpasses the STB said should run above the tracks won't be built unless the board requires DM&E; to pay for them. In approving the project, the board said the rail company needed to pay only 10 percent.

"What should be done is to build the bypass immediately," Kalish said.

Kitay disagreed, saying to address Rochester's concerns, the board had required more measures to lower the impact than on any project before.

Richard Streeter, an attorney for Mid States Coalition for Progress, said the STB also should look more closely at an alternative route through northern South Dakota.

"It would not go through some of the most beautiful ranch land you've ever seen," he said. And the alternative route, he said, would service the same coal mine plus three more.

James Dougherty, representing the Sierra Club, said the board didn't consider the environmental impacts of increased use of Powder River Basin coal. In the short-term, he said, it might help the environment by replacing high-sulfur coal from elsewhere with low-sulfur coal from Wyoming. But in the long-term, he said, that coal might replace cleaner-burning natural gas.

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"They didn't consider any negative impacts of this additional coal," he said.

The panel is expected to rule by the end of the year. Further appeals are possible.

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