DM#x0026;E; opponents will push case precedents

By Angela Greiling Keane

WASHINGTON -- Only rarely does a court overturn a federal Surface Transportation Board ruling, but opponents of the board's approval of the DM&E; Railroad expansion project have a handful of recent cases to probe for precedent.

One such case was decided in May 2001, with the 3rd Circuit Court of Appeals overturning a board ruling in a case from Pennsylvania.

The court based its decision on the fact that the board did not properly follow federal law as it applies to historic preservation. DM&E; opponents will likely mine this and other cases for precedent when they file their legal briefs, which are due Sept. 9, for their court challenge.


The opponents, including Rochester, the Mayo Foundation, American Indian tribes and western landowners, will work to set out a record showing the Surface Transportation Board did not conduct a legally thorough review of the DM&E; project.

To support their claim, they will lay out evidence supported by legal precedent set in previous court decisions.

In the Friends of the Atglen-Susquehanna Trail, Inc. vs. Surface Transportation Board case, the court found that the board did not follow established procedures for reviewing impacts a proposed railroad abandonment would have on historic preservation. In that case, an organization interested in turning a railroad line being abandoned into a trail successfully challenged the board's ruling.

They argued that the board did not follow the regulations of the Advisory Council on Historic Preservation, an independent federal agency with jurisdiction over the review. The case began in 1989 when now-defunct Conrail filed a document with the Interstate Commerce Commission, the STB's predecessor, about its intent to abandon a 66.5-mile stretch of railroad in southeastern Pennsylvania.

The line was built in the first decade of the 20th century and was considered a remarkable engineering feat at the time because rather than making trains climb and descend the terrain, it cut through mountains in parts and elevated the track in others so that the length was nearly level.

When the Interstate Commerce Commission granted permission for Conrail to abandon the line in 1990, it did so with several conditions, including that the line be made into a trail and that the railroad not alter the historic bridges on the line until a historic preservation review was completed. The trail conversion never happened because the Friends of the Atglen-Susquehanna Trail could not come up with the money.

In 1996, the trail group petitioned the Surface Transportation Board to include the entire rail line, not just the 83 bridges, in the historic preservation consideration. The STB denied the request and, instead of expanding the historic review, limited it to only 32 bridges and some nearby archaeological sites.

After involving the Advisory Council on Historic Preservation in the case without success, the trail group challenged the STB in court in 1999.


In its 2001 ruling, the court stayed away from judging the overall case and what should be reviewed for historic preservation.

"We can understand the impatience of the STB to resolve this expedited abandonment," the court wrote in its decision. "Nevertheless, when procedures are established by law, those procedures must be followed."

Attorney Richard Streeter, who represents western land owners, and American Indian tribes challenging the DM&E; decision, said there are historical aspects to protect along the DM&E; line that were not properly evaluated during the STB's environmental review.

"Our position is there are more than fancy buildings that need to be protected," Streeter said. "This whole area, it's sacred to the Sioux. This is where the basic Sioux came from. Until there's a proper survey done that would perhaps lead to the discovery of what is there, we feel this thing should not go forward."

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