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Rail opponents say review was biased

By Angela Greiling Keane

agreiling@postbulletin.com

WASHINGTON -- The Mayo Foundation and the city of Rochester told an appeals court Monday that a federal review of the DM&E; Railroad expansion case was biased and incomplete.

The medical giant and the city were the first two parties that filed legal briefs Monday asking the 8th Circuit Court of Appeals to overturn a decision the federal Surface Transportation Board made in January allowing the DM&E; to proceed with its proposed expansion project.

The Mid-States Coalition for Progress, a group of western landowners; Olmsted County; and the Sierra Club and other environmental groups also filed briefs late Monday.

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The Surface Transportation Board has been a formidable opponent in court with a record of success at the appeals level, but the briefs filed Monday brim with examples of cases where courts required the board and its predecessor to take another look at decisions.

"It's not that rare for the STB to have to take another look at things," said Dr. Dave Herman, a Mayo ophthalmologist and chairman of its state public affairs committee. "Although you can never predict the outcome of the court case, we are confident there are significant issues that need to be dealt with."

Mayo's filing focused on what it deemed to be improper collaboration between the board and the DM&E; during the review process. Keith O'Brien, Mayo's Washington lawyer for the DM&E; case, said a series of letters between the board and the railroad were exchanged during the review and outside of the designated public comment period.

"Mayo is requesting the court to require the STB to correct and properly implement a decisional process that has been seriously compromised by wholesale two-way communications concerning substantive issues between the regulator and the regulated to exclusion of all other participants," O'Brien wrote.

The brief filed jointly for Rochester and the Rochester Area Chamber of Commerce suggests the board did not properly measure the effect of train noise in Rochester.

Steve Kalish, Rochester's Washington lawyer working on the case, asserts that the board did not follow its own established procedures when assessing the effect of noise from train whistles, engines and wheels on the tracks in Rochester.

"If this court were to affirm the board's decision, the same approach will be used by the STB in the future to the detriment of all communities faced with dramatic increases in railroad traffic as a result of events, i.e. extensions or consolidations of railroads, under STB jurisdiction," Kalish wrote.

An official from the Edison Electric Institute, which represents U.S. investor-owned utilities and supports the DM&E; plan, said the Rochester groups are wrong in their argument that the federal review process was incomplete.

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"I think they're going to be on tough grounds on incomplete," said Chuck Linderman, director of energy supply policy for the institute. The review process for the DM&E; project was typical of previous reviews.

Communication also regularly occurs between an applicant and a regulatory agency during a review process, Linderman said.

"These things are too massive to manipulate," Linderman said.

Linderman said the DM&E; plan should continue moving forward because it well benefit consumers.

When it set the briefing schedule, the court imposed a page limit, necessitating that the opponents collaborate to make sure they weren't duplicating their efforts.

Tim Geisler, the lead Mayo official working on the DM&E; case, said that beyond discussing the outlines and who would argue which issues, the parties prepared their briefs independently.

Now that their briefs are filed, the project's opponents will wait for Oct. 14, when the board and its supporters will be required to respond.

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