Mid States Coalition v. STB

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-1359
___________

Mid States Coalition for Progress, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. * Petitions for Review of a Decision of
* the Surface Transportation Board.
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; South *
Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *
South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; City of Huron, a Political *
Subdivision of the State of *
South Dakota; Citizens Against *
Rochester's Bypass; Newcastle, *
Wyoming; Upton, Wyoming; Wall, *
South Dakota; Phillip, South Dakota; *
Midland, South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *

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Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority, *
*
Intervenors on Appeal. *

___________

No. 02-1481
___________

City of Rochester, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *

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Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Farm Bureau *
Federation; South Dakota Farmers *
Union; South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *

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Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of *
Huron, a Political Subdivision of *
the State of South Dakota; Citizens *
Against Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1482
___________

Mayo Foundation, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*

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 v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
Dakota, Minnesota & Eastern *
Railroad Corporation; South Dakota *
Farm Bureau Federation; South Dakota *
Farmers Union; South Dakota Grain *
and Feed Association; South Dakota *
Soybean Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *

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Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Black Hills Regional Rail Shippers *
Association; Western Coal Traffic *
League; Oahe Grain Corporation, *
a South Dakota Corporation; *
Southern Grain Belt Shippers *
Association; Harvest Land Cooperative; *
Farmers Co-operative of Hanska; *
City of Huron, a Political Subdivision *
of the State of South Dakota; *
Citizens Against Rochester's Bypass, *
*
Intervenors on Appeal. *

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 ___________

No. 02-1767
___________

Minnesotans for an Energy-Effcient *
Economy, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Dakota, Minnesota & Eastern *
Railroad Corporation; South Dakota *
Farm Bureau Federation; South Dakota *
Farmers Union; South Dakota *
Grain and Feed Association; *
South Dakota Soybean Association; *
South Dakota Wheat, Inc.; *

-8-
South Dakota Corn Growers *
Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Black Hills Regional Rail Shippers *
Association; Western Coal Traffic *
League; Oahe Grain Corporation, *

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a South Dakota Corporation; *
Southern Grain Belt Shippers *
Association; Harvest Land Cooperative; *
Farmers Co-operative of Hanska; *
City of Huron, a Political Subdivision *
of the State of South Dakota; Citizens *
Against Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1785
___________

Oglala Sioux Tribe; Donley Darnell; *
Nancy Darnell; Tom Wright; *
Kay Wright; Rick Wehri; Ann Wehri; *
Mike Harris; Alice Harris; *
Jerry Dilts; Barbara Dilts; Luann *
Borgialli; Dennis Borgialli; Russ *
Christensen; Ruth Christensen; *
Clara Wilson; Fred Wilson; *
Mick Simons; Dianne Simons; Joe *
Simmons; Michele Simmons; *
Carolyn Johnson; Vern Johnson; *
Glen Hansen; Phyllis Hansen; *
Robert Harshbarger; Jean Harshbarger; *
DeWayne McGee; Ruth McGee; *
Raymond Dennis; Maxine Ripley; *
Dale Molitor; Chris Molitor; Bev *
Varelman; Jim Varelman; Rob *
Wordeman; Jenny Wordeman; Mike *
Wordeman; Linda Wordeman; *
Scott Edoff; Veronica Edoff; Marvin *
Kammerer; Paulene Staben; John *
Staben; Jack Cameron; Gay Cameron; *

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Ruth Kerns; Marvin Kerns; Ray *
Hillenbrand; Margaret Hillenbrand; *
Duane J. Lammers; Triple Seven *
Ranch; Lea Stodart; Craig Stodart; *
Keith Andersen; Marie Andersen; *
Carolyn Schnose; Verne Schnose, *
*
Petitioners, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *
South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *

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Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *

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Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of Huron, *
a Political Subdivision of the State of *
South Dakota; Citizens Against *
Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1792
___________

Sierra Club; Sam N. Clauson, *
*
Petitioners, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *

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Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *
South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *

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South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of Huron, *
a Political Subdivision of the State of *
South Dakota; Citizens Against *
Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1794
___________

Olmsted County, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*

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Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *
South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *

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Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of Huron, *
a Political Subdivision of the State of *
South Dakota; Citizens Against *
Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1804
___________

Michael J. Laplante, President of the *

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Eastside Pioneers Neighborhood *
Association, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
Ag First Farmers Cooperative; *
South Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *
South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *

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Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *
Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of Huron, *

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a Political Subdivision of the State of *
South Dakota; Citizens Against *
Rochester's Bypass, *
*
Intervenors on Appeal. *

___________

No. 02-1863
___________

City of Winona, Minnesota, *
*
Petitioner, *
*
Rochester Area Chamber of *
Commerce; City of Skyline, *
Minnesota; Brian Brademeyer, *
*
Intervenors on Appeal, *
*
v. *
*
Surface Transportation Board; *
United States of America, *
*
Respondents, *
*
South Dakota Wheat Growers *
Association; North Central Farmers *
Elevator; Dakota Ag Coop; *
Farmers Union Cooperative Elevator; *
Harrold Grain Company, LLC; *
Lake Preston Cooperative Association; *
Arlington Farmers Elevator Company; *
South Dakota Farm Bureau Federation; *
South Dakota Farmers Union; *

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South Dakota Grain and Feed *
Association; South Dakota Soybean *
Association; South Dakota *
Wheat, Inc.; South Dakota Corn *
Growers Association; South Dakota *
Association of Cooperatives; *
Minnesota Farm Bureau Federation; *
Minnesota Soybean Growers *
Association; Newcastle, Wyoming; *
Upton, Wyoming; Wall, South Dakota; *
Phillip, South Dakota; Midland, *
South Dakota; Fort Pierre, *
South Dakota; Pierre, South Dakota; *
Miller, South Dakota; Wolsey, *
South Dakota; Iroquois, South Dakota; *
De Smet, South Dakota; Volga, *
South Dakota; Beadle County, *
South Dakota; Tracy, Minnesota; *
Waseca, Minnesota; Lake Benton, *
Minnesota; Walnut Grove, Minnesota; *
Sanborn, Minnesota; Springfield, *
Minnesota; Greater Huron *
Development Corporation; Huron *
Chamber & Visitors Bureau; *
Rapid City Economic Development *
Partnership; Wall Chamber of *
Commerce; Midland 2nd Century *
Development Corporation; Pierre *
Chamber of Commerce; Pierre *
Economic Development Corporation; *
Miller Civic & Commerce; On Hand *
Development Corporation; *
South Dakota Chamber of *
Commerce & Industry; Tracy (MN) *
Chamber of Commerce; Tracy (MN) *
Economic Development Authority; *
South Dakota Soybean Processors; *

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Dakota, Minnesota & Eastern *
Railroad Corporation; Black Hills *
Regional Rail Shippers Association; *
Western Coal Traffic League; *
Oahe Grain Corporation, a South *
Dakota Corporation; Southern Grain *
Belt Shippers Association; Harvest *
Land Cooperative; Farmers *
Co-operative of Hanska; City of Huron,*
a Political Subdivision of the State of
*
South Dakota; Citizens Against *
Rochester's Bypass, *
*
Intervenors on Appeal. *
___________

Submitted: June 11, 2003

Filed: October 2, 2003
___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Petitioners challenge the decision of the Surface Transportation Board issued
January 30, 2002, giving final approval to the Dakota, Minnesota & Eastern Railroad
Corporation's (DM&E) proposal to construct approximately 280 miles of new rail line
to reach the coal mines of Wyoming's Powder River Basin (PRB) and to upgrade
nearly 600 miles of existing rail line in Minnesota and South Dakota. They maintain
that in giving its approval the Board violated 49 U.S.C. § 10901, the National
Environmental Policy Act (NEPA) (42 U.S.C. §§ 4321-4370f), the National Historic
Preservation Act (16 U.S.C. §§ 470 to 470w-6), and the Fort Laramie Treaty of 1868.
Although we conclude that the Board should prevail on almost all of the issues raised

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by the petitioners, our rulings on a few issues require us to vacate the Board's
decision and to remand for further proceedings not inconsistent with this opinion.

I.
Under 49 U.S.C. § 10901, the Board has exclusive licensing authority for the
construction and operation of rail lines. This statute provides that the Board shall
authorize the construction and operation of a proposed new line "unless the Board
finds that such activities are inconsistent with the public convenience and necessity."
Although the Board's authorizing statute does not define the term "public
convenience and necessity," in reaching its decisions the Board has historically asked
whether there is a public demand or need for the proposed service, whether the
applicant is financially able to undertake the construction and provide service, and
whether the proposal is in the public interest and would not unduly harm existing
services. If the Board is satisfied that the proposed project is not inconsistent with
the public convenience and necessity, it proceeds to conduct an environmental review
as required by NEPA. Once the environmental review is completed, the Board
determines whether its original conclusion is still warranted after taking into account
the potential environmental effects of the project and the cost of any necessary
environmental mitigation.

In this case, the Board made an initial determination that DM&E's proposal was
merited under § 10901. The Board found that there was public demand for the line
because it would offer a shorter and less expensive method by which to transport coal
from the PRB mines to power plants. It also concluded that the proposed project
would benefit existing shippers and that DM&E had demonstrated its financial fitness
to carry the project through to completion. Having preliminarily found that the
project would not be inconsistent with the public convenience and necessity, the
Board instructed its Section of Environmental Analysis (SEA) to examine the
potential environmental effects resulting from the construction and continuing
operation of the proposed project.

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 SEA, in coordination with five cooperating federal agencies, then produced a
nearly 5,000-page draft environmental impact statement (DEIS) examining the effects
both of constructing the rail line extension to the PRB mines and rehabilitating
DM&E's existing lines in Minnesota and South Dakota to accommodate the coal
traffic anticipated as a result of the project. SEA initially allowed 90 days for public
review of and comment on the DEIS, but later extended this period by 60 days to
ensure that the large number of persons and entities who wished to comment had
ample opportunity to do so. The environmental review culminated with the issuance
of a final environmental impact statement (FEIS), which contained further analysis
in response to the comments received on the DEIS. The FEIS also made
recommendations to the Board regarding environmentally preferable routing
alternatives and mitigation measures. In all, the environmental review process took
nearly four years and generated roughly 8,600 public comments.

II.
The NEPA mandates that a federal agency "take a 'hard look' at the
environmental consequences" of a major federal action before taking that action.
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)
(quoted case omitted). To comport with this standard, an agency must prepare a
"detailed statement" (generally, an EIS), 42 U.S.C. § 4332(2)(C), "from which a court
can determine whether the agency has made a good faith effort to consider the values
NEPA seeks to protect." Minnesota Pub. Interest Research Group v. Butz, 541 F.2d
1292, 1299 (8th Cir. 1976), cert. denied, 430 U.S. 922 (1977).

In reviewing the agency's decision, we are not free to substitute our judgment
for that of the agency. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 555 (1978); Friends of the Boundary Waters Wilderness
v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999). Our role in the NEPA process "is
simply to ensure that the agency has adequately considered and disclosed the

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environmental impact of its actions and that its decision is not arbitrary or
capricious." Baltimore Gas, 462 U.S. at 97-98; see 5 U.S.C. 706.

A.
We begin our review of the agency's actions under NEPA by addressing the
objections raised by the city of Rochester, the Mayo Foundation, and Olmstead
County, since their objections are to a large degree overlapping. DM&E's existing
line, carrying an average of three trains per day, runs through Rochester and Olmstead
County. In the FEIS, SEA recommended reconstruction of the existing line as the
environmentally preferable alternative for the Rochester area, and the Board in its
final decision accepted this recommendation. SEA rejected the proposed construction
of a bypass around Rochester and a no-action alternative. Because Rochester is the
largest community located on DM&E's projected route and Mayo is one of the most
sophisticated medical centers in the nation, they could be expected to be particularly
alert to any environmental degradation that might arise from the project that the
Board approved. We therefore address their claims with some degree of specificity.

1. Reconstruction of the rail line through Rochester would result in increased rail
traffic through the city. Whereas at the present time approximately three trains pass
through the city daily, SEA estimated that upon completion of the project rail traffic
could increase to as many as 37 trains per day. This increase in traffic would, among
other things, increase noise in the city to what SEA calls "adverse" levels. (SEA
considers average noise levels above 65 decibels to be adverse and noise levels above
70 decibels to be significantly adverse.) SEA calculated that the average wayside
(engine and wheel) noise level produced from 37 trains per day would be at least
65 decibels at distances within 420 feet of the line and would be at least 70 decibels
at distances within 210 feet of the line. With noise produced from the trains' horns
included, SEA calculated that the average noise level would be at least 65 decibels
at distances within 2220 feet of the line and would be at least 70 decibels at distances
within 1110 feet of the line. Finally, SEA determined, using aerial photographs, the

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number of noise-sensitive "receptors" (e.g., homes, schools, hospitals, churches) that
would fall within the distances described above.

Based upon SEA's recommendation, the Board's final decision required DM&E
to mitigate noise for those noise-sensitive receptors that would experience an average
noise level of 70 decibels from wayside noise. Specifically, the mitigation required
a minimum average noise reduction of 5 decibels to the affected receptors and stated
a design goal of achieving an average noise reduction of 10 decibels. The Board did
not require mitigation for average wayside noise levels below 70 decibels or for noise
caused by train horns.

In its comments on the DEIS, Rochester produced data that purportedly showed
that 88 residences would experience average wayside noise levels between 75 and
80 decibels and that 8 residences would experience average wayside noise levels
above 80 decibels. (Noise levels double every 10 decibels; 80 decibels, therefore, is
twice as loud as 70 decibels.) It asserts that SEA misled the Board (in violation of
NEPA's requirement of full disclosure) by aggregating all of these residences into a
group described as having an average noise level of at least 70 decibels. If SEA had
advised the Board that some residences could experience average noise levels greatly
exceeding 70 decibels, Rochester argues, the Board might have determined that
additional mitigation was necessary.

There is no meaningful dispute that SEA accurately identified the distances at
which receptors would experience an average noise level of at least 70 decibels. The
question, rather, is whether SEA was derelict in failing to calculate the extent to
which the average noise levels would exceed 70 decibels. Rochester maintains that
the Board's own regulation, which instructs the agency to "quantify the noise
increase" for receptors which will experience an average noise threshold of
65 decibels, 49 C.F.R. § 1105.7(e)(6)(ii), requires an affirmative answer to this
question. Although Rochester's argument that SEA has not quantified the noise

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increase is facially attractive, we think it ultimately unavailing. For one thing,
Rochester's own proposal (that SEA determine the number of receptors affected at the
75 and 80 decibel levels) would not actually "quantify" the noise increase associated
with the project; it would still yield only an aggregation, albeit at a higher level, of
the noise increase in Rochester. One could, of course, understand the instruction to
"quantify the noise increase" to require a measurement of the actual noise level
experienced by every receptor that would meet the threshold noise level. But we do
not think that the Board's regulations, or NEPA, require that level of precision.
Indeed, we doubt that such a determination would be feasible given that this project
involves some 880 miles of railroad line.

Having concluded that SEA is not required to measure actual noise levels for
potentially affected noise receptors, we consider whether it nonetheless violated
NEPA to aggregate all average noise levels above 70 decibels into one category that
SEA described as significantly adverse. In considering whether the EIS "adequately
sets forth sufficient information to allow the decision-maker to ... make a reasoned
decision," we are guided by the "rule of reason." See Boundary Waters, 164 F.3d at
1128 (internal quotations omitted). Despite Rochester's assertions, it does not appear
to us that SEA hid the facts from the Board. The DEIS fully disclosed the number of
noise receptors that would suffer significantly adverse effects from both wayside and
horn noise. It may be true, as Rochester contends, that even after mitigation there
will still be residences that are subject to significantly adverse noise levels (indeed,
the Board does not claim otherwise). But NEPA does not require that an agency
eliminate all adverse affects that might result from a project.

Rochester draws attention to the fact that the Federal Aviation Administration
(FAA) gathers data for average noise levels above 65 decibels, 70 decibels, and
75 decibels, and argues that SEA's analysis is therefore deficient. While it is true that
the FAA includes a level of analysis that SEA does not, we do not think that this is
dispositive. It would be wrong to conclude that one agency's selection of a particular

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methodology necessarily makes another agency's chosen, but different, methodology
insufficient under NEPA. On the whole, we find that SEA's choice of analysis, which
was consistent with its past practice and similar in nature to the noise analyses
performed by other federal agencies, was not arbitrary or capricious.

2. Rochester submits that the Board violated NEPA by failing to consider and
mitigate horn noise. As described previously, SEA calculated the number of noise
receptors that would experience average noise levels from train horns of at least
65 decibels and 70 decibels. But unlike the treatment given to wayside noise, SEA's
discussion of the effects and mitigation possibilities for horn noise was relatively
perfunctory. The only mention of mitigating horn noise in the FEIS occurred in a
footnote explaining that "SEA is not recommending mitigation for horn noise because
of potential safety concerns in the absence of Federal Railroad Administration [FRA]
standards addressing this issue." In its argument to this court, the Board further
explained that the FRA has recently proposed standards for establishing quiet zones
(areas where horns do not have to be sounded), and that absent FRA approval it
would be inappropriate for the Board to impose its own limitations on horn
soundings. Given the important role that train horns play in reducing traffic
accidents, we cannot second-guess the decision of SEA in refusing to limit the use of
train horns. We do not believe, however, that this relieves SEA of the obligation to
consider mitigation not involving limitations on the use of horns.

SEA required mitigation for receptors subjected to an average noise level of
70 decibels from wayside noise. Rochester maintains that SEA should have
considered similar mitigation measures for receptors subjected to comparable levels
of horn noise. Such measures might include sound-insulating treatments for
buildings within high noise areas. By SEA's own calculations, horn noise will
increase the distance at which buildings may be subjected to average noise levels of
70 decibels from 210 feet (the distance due to wayside noise alone) to 1110 feet.
Although it is hard to imagine how insulating affected buildings might pose a safety

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threat (horns are sounded primarily for traffic safety), it is just conceivable that safety
reasons do exist. But without a reasoned discussion of its rationale, we cannot say
that SEA has taken a "hard look" at this substantial issue.1 This is not to say that the
Board must ultimately mitigate for horn noise, but it must at least explain why
mitigation is unwarranted. Even though NEPA's requirements are predominantly
procedural, they do require that SEA "explain fully its course of inquiry, analysis and
reasoning." Minn. Pub. Interest, 541 F.3d at 1299. We conclude that it did not do so
here.

3. Rochester's next objection is to the method used by SEA in calculating ambient
(background) noise for use in its noise analysis. SEA used noise levels in rural South
Dakota as its baseline for ambient noise. Rochester argues that since the ambient
noise levels in an urban area are higher, it was arbitrary for SEA to use the lower rural
levels. We disagree. SEA adequately supported its analysis by explaining that noise
is not additive; when two sounds are of different levels, the higher level predominates
and the lower level adds little to the overall noise level. This conclusion is supported
by the EPA, which has stated that "adding a 60 decibel sound to a 70 decibel sound
only increases the total sound pressure level less than one-half decibel." See
Protective Noise Levels, Condensed Version of EPA Levels Document 3 (1979), at
http//www.nonoise.org/library/levels/levels.htm. Even if we credit Rochester's
estimate that its own ambient noise level is 59 decibels, that would add less than one-
half a decibel to those receptors that SEA has determined will experience average
train noise of 70 decibels. SEA's decision to forego a separate ambient noise

1
The Board argues that the two bypasses required in the mitigation order
(discussed below) will reduce horn noise, thereby fulfilling its duty under NEPA to
consider this issue. Although, after a full explanation and analysis, the construction
of bypasses may prove to be the optimal method of handling horn noise, we do not
believe that this proposed alternative relieves SEA of the duty to examine other
potentially viable alternatives, such as insulating treatments.

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measurement for every community located along the DM&E project was clearly
within its permissible discretion.

4. Likewise, we find that SEA did not act arbitrarily in responding to concerns
about nighttime noise. Because nighttime noise can lead to sleep disturbance, its
effect on the human environment is greater than a similar level of daytime noise. To
account for this, SEA employed the accepted practice of counting each nighttime train
as ten trains (adding an approximately 10 decibel penalty to each train). For the
purpose of its analysis it also assumed that train traffic would be spaced evenly
throughout the day, an assumption that Rochester contends was a clear error in
judgment. As the basis for this contention, Rochester presented in its comments a
statistical model that purportedly shows that more trains will run at night than SEA's
model predicts. Rochester's model is based upon DM&E's plan to schedule a block
of up to six hours for maintenance (a period where no trains will run) each day. In
response to this comment, SEA stated that maintenance was impossible to predict and
would vary considerably depending on what particular coal contracts that DM&E
obtained. SEA therefore chose not to alter its methodology. Rochester's model may
indeed be a better predictor of night traffic if DM&E actually uses a full six hours per
day for maintenance and if DM&E is equally likely to schedule maintenance during
the daytime as it is to schedule it at night, but these assumptions are just as
speculative as SEA's assumption that train traffic would be spaced evenly throughout
the day. Due to the highly uncertain nature of rail traffic patterns, we cannot say that
it was a clear error of judgment for SEA to prefer one set of assumptions over another
in conducting its analysis.

5. Rochester argues that SEA failed to make any response to evidence presented
in Rochester's comments that households experiencing both noise and vibration
perceive the effect of the noise to be approximately twice the measured value of the
noise. Although SEA included analysis for noise and vibration effects separately, we
can find no evidence that it considered the synergies between the two in its response

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to comments or in the environmental impact statements. "Although the agency is not
required to include in its final analysis every factor raised by ... a comment" and may
respond, for example, by explaining why the comment does not warrant [further]
agency response, see Oregon Natural Res. Council v. Marsh, 52 F.3d 1485, 1490 (9th
Cir. 1995), the Council on Environmental Quality (CEQ) regulations impose upon
a[n] agency preparing an FEIS the duty to assess, consider, and respond to all
comments, see 40 C.F.R. 1503.4(a). In this instance, SEA has not met this minimum
requirement. On remand, SEA is instructed to fulfill its duty under the applicable
NEPA regulations.

6. We now consider whether SEA's use of aerial photographs to identify noise-
sensitive receptors led it to undercount the number of receptors eligible for noise
mitigation. According to Rochester's comments, the method employed was flawed
because any single building identified by photograph might contain multiple
residences (the Board's regulations designate each "residence" as a separate noise-
sensitive receptor). Rochester suggested that a more accurate count could be obtained
by using the tax records to determine the number of affected residences. SEA
responded to this comment by stating its belief that the number of potentially affected
noise receptors was likely overestimated because there were no adjustments for
ambient noise or for shielding (by an object between a noise source and a noise
receptor) and because aerial photographs do not differentiate between eligible noise
receptors (such as homes) and ineligible structures (such as businesses and garages).
SEA also explained that any discrepancy between its calculations and the actual
number of affected receptors can be corrected by the Board during its oversight
period. We cannot say, as Rochester argues, that SEA's choice of methodology
amounted to a clear error in judgment. In a project of this size, the agency is not
required to maximize precision at all costs. We view SEA's decision to use aerial
photographs as a sensible way reasonably to approximate the number of affected
receptors along the entirety of the proposed project.

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7. Rochester submits that SEA improperly failed to consider the environmental
impact on the city of passing sidings (locations where westbound trains move onto
alternate track so that eastbound trains can pass). Although there are no present plans
to build a passing siding in Rochester, the city asserts that since the FEIS
acknowledges that "siding locations have not been finalized" SEA should have
assessed the environmental impact that would result from locating a siding in
Rochester. We believe that Rochester has misconstrued SEA's statement. DM&E has
proposed 45 locations for possible sidings, but it anticipates needing only 35-40 total
sidings for efficient rail operation; thus there are several proposed locations that
ultimately will not be used. It is not inconsistent for SEA to acknowledge that the
locations have not been finalized while at the same time denying that a siding will be
built in Rochester (because none has been proposed there). We note, moreover, that
SEA's analysis with respect to the proposed sidings was more than adequate.

8. Rochester maintains that SEA committed two errors in its assessment of the
traffic effects that will result from reconstruction of the existing line through
Rochester. First, Rochester argues that SEA should have used more current data
when determining average daily traffic (ADT) volumes for those streets where train
crossings exist. According to Rochester, SEA used data from 1994 when data from
1998 was available.

Our comparison of the data from those years reveals that there has been little
change in traffic volumes. In fact, the aggregate volume of traffic on the twelve
streets where train crossings exist has actually declined (albeit only slightly) based
on data from the Minnesota Department of Transportation. Even if we assume that
SEA "erred" in using the older data, we need not remand unless "there is a significant
chance that but for the errors the agency might have reached a different result."
Boundary Waters, 164 F.3d at 1129. Given the inconsequential difference in the data,
we find remand unnecessary on this issue.

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 Rochester also asserts that SEA used a nonsensical formula in calculating the
average delay to vehicles that would result from increased rail traffic. According to
Rochester, any formula designed to compute the average traffic delay to all vehicles
must include as one of its variables ADT volumes. In lieu of using ADT volumes,
however, SEA's formula calculates average traffic delays for all vehicles as a
proportion of the delay for vehicles actually stopped. SEA explains that this method
"results in a conservative estimate of vehicle delay." Indeed, our careful inspection
of both the SEA methodology and that proposed by Rochester suggests that SEA's
calculations likely overstate the average traffic delays. We are convinced, in any
case, that SEA's chosen methodology did not undermine the purposes of NEPA.

9. Contrary to Rochester's assertions, we believe that SEA's analysis of ground
vibration was adequate in all respects. In discussing the effects of vibration
generally, SEA's analysis determined that there was little risk of damage to structures
located 50 feet or more from the tracks and also that there was little risk of
disturbance to structures located 100 feet or more from the tracks. SEA also noted
that residences within 100 feet (SEA counted 14 such structures) might experience
increased disturbances as rail traffic increased. In addition to its general analysis,
SEA consulted with the manufacturer of a security fence at a nearby prison to verify
its own conclusion that increased rail traffic would not be incompatible with
operation of the security fence; the manufacturer assured SEA that if properly
maintained and operated, the fence would not be affected by increased rail traffic.
Lastly, SEA discussed the possibility that PEMSTAR, a local company that uses
vibration-sensitive equipment, might not be able to continue operations at its current
facility were traffic levels to increase. SEA noted that if PEMSTAR left Rochester
altogether (a proposition that SEA considered unlikely since PEMSTAR has other
facilities in Rochester that are located farther from the tracks), it would result in a loss
of about 600 jobs. Given Rochester's size and the fact that some jobs would be
created by DM&E's expanded operation, SEA concluded that the loss of 600 jobs
would not have significant economic effects on the city.

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 Having thoroughly reviewed SEA's analysis of vibration, we cannot agree with
Rochester's contention that SEA "buried" the facts. It seems to us that Rochester's
real grievance is that SEA did not adopt Rochester's proposed mitigation condition
that would have prohibited any increase in vibration. This proposal, it seems to us,
would have essentially sounded a death knell to any plans to reconstruct the existing
Rochester line. This result would have no doubt been met with Rochester's approval,
but it was not compelled by the substantial body of evidence that SEA amassed on
this issue.

10. Mayo asserts that SEA failed adequately to address the possibility of
groundwater contamination. SEA acknowledged that both the existing route and the
proposed bypass cross areas that are susceptible to groundwater contamination in the
event of a rail line accident. After detailing these risks, SEA noted that because
rehabilitation of the existing line would improve track that is currently in poor
condition, the risks of groundwater contamination would actually decrease. Mayo's
counter-argument is based entirely upon a verified statement of one of its experts that
was presented to SEA after SEA had prepared and released the FEIS. SEA does not
have an obligation to respond to arguments that were not presented to the agency
during the appropriate time period, especially when, as here, there is no indication
that the information presented was previously unavailable. But even if it were
appropriate to consider Mayo's evidence, we would be unable to say that SEA has
failed to take a "hard look" at the possibility of groundwater contamination.

11. Mayo also maintains that SEA did not take a "hard look" at the risk that the
project would cause delays to emergency vehicles. Although Mayo acknowledges
that SEA analyzed independently the effects of the reconstruction alternative and the
bypass alternative on emergency vehicles, it argues that SEA arbitrarily avoided a
direct comparison of the alternatives. Essentially, Mayo faults SEA for failing to say
explicitly that the existing route would cause more delays to emergency vehicles than
the bypass. We think, however, that SEA made this point abundantly clear when it

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recommended that the Board, if it chose to utilize the existing route, should "require
construction of two additional grade separated crossings in Rochester to prevent
potential reductions in the quality of emergency response." FEIS 9-65. In contrast,
SEA found that mitigation related to emergency vehicles would be unnecessary for
the bypass. The only logical inference that can be drawn from this is that SEA
anticipated that reconstruction of the existing route would pose more risk of
disruption to emergency vehicles than would the construction of the bypass. For the
purpose of complying with NEPA, it was not incumbent upon SEA to state this
conclusion in a single explicit sentence.

12. Mayo contends that SEA failed properly to examine the relationship between
increased levels of train vibration and the formation of sinkholes. Despite the high
level of concern it expresses now, however, Mayo did not raise this issue in its
comments on the DEIS. (Mayo did comment on its concerns about the effect of
vibration on its facilities, and SEA responded to this comment by undertaking a more
extensive vibration analysis.) Mayo seeks to excuse its failure to raise this issue
earlier by stating that the issue was obvious (although apparently not obvious enough
for Mayo to have raised it before). But even if it is true that increased vibration will
hasten the formation of sinkholes, we fail to see how this advances Mayo's interests.
SEA recommended the existing route because it was less susceptible to sinkholes than
the bypass alternative. This relative advantage of the existing route would seemingly
be magnified if SEA were to find that vibration accelerated sinkhole formation in
susceptible areas. In any event, we do not believe that SEA's failure to respond to a
concern that was never raised tainted its analysis.

13. Olmstead County raises alleged deficiencies with respect to SEA's air quality
analysis. First, it asserts that SEA should have used Minnesota's thresholds for
determining whether sulfur dioxide levels were significant instead of the less
stringent EPA thresholds. The decision to apply these lesser standards, Olmstead
County argues, led SEA erroneously to conclude that it did not have to undertake

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more precise modeling to determine the exact scope of the effect of the proposed line
on air quality. The County also faults SEA for failing to take background levels of
hazardous air pollutants into account when it determined that hazardous air pollutant
concentrations caused by train locomotives would be insignificant.

After reviewing the record, we conclude that SEA's decision to use the EPA's
thresholds was not arbitrary. SEA has an interest in using a standardized
measurement to compare and contrast the relative air quality effects across a variety
of regions. The EPA thresholds provide a reasonable standard by which to
accomplish this. SEA's decision to forego the testing necessary to determine the
background levels of hazardous air pollutants in Olmstead County was similarly
reasonable. Its measurements of hazardous air pollutant concentrations from
locomotive exhaust showed that increased rail traffic would result in only a minuscule
increase in overall concentration levels. NEPA regulations require agencies to
expend the bulk of their efforts on the most pressing environmental issues. In this
instance, SEA had evidence that showed that the increase in the concentrations of
hazardous air pollutants would be de minimis in comparison to the background levels,
whatever they might actually be. Further expenditure of agency resources was
therefore not required.

14. Olmstead County maintains that SEA's environmental justice analysis was
inadequate. The purpose of an environmental justice analysis is to determine whether
a project will have a disproportionately adverse effect on minority and low income
populations. To accomplish this, an agency must compare the demographics of an
affected population with demographics of a more general character (for instance,
those of an entire state). On the EPA's recommendation, SEA used 1990 census data
(2000 census data were not yet available) to compare data at the census block group
level (the smallest geographic unit for which data on both race and income are
obtained) to data at the state level.

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 Olmstead County raises two objections to this approach. First, it argues that
SEA should have used projected 2000 census data, which were available for some,
but not all, communities. Second, it argues that for some areas, data were available
at a level finer than that of census block group (for example, discrete neighborhoods,
subdivisions, etc.). In Olmstead County's opinion, these "corrections" would allow
SEA to identify more affected groups. In response to these comments, SEA explained
that an environmental justice analysis must use consistent data sets in order for the
comparison to be meaningful. SEA, after close consultation with the EPA, used the
most current and consistent data that were available to it. It seems to us that it is
Olmstead County's suggested approach (using a medley of assorted data), and not
SEA's, that could more fairly be characterized as arbitrary.

15. We consider next whether the Board's decision-making process was flawed by
the unlawful consideration of ex parte communications from DM&E. The record
demonstrates that DM&E officials submitted a letter to SEA after the FEIS was
issued (but before the Board's final decision). In this letter, the DM&E expressed its
views on mitigation proposals in the FEIS that called for three grade-separated
crossings. Mayo argues that this contact violated the Administrative Procedure Act,
see 5 U.S.C. § 557(d)(1)(A), and the Board's own code of ethics, see 49 C.F.R
§ 1103.14.

We are not sure that these prohibitions apply to communications, such as
DM&E's letter, that are submitted to the authority in charge of an environmental
review and that express comments about that review. We note, moreover, that three
United States Senators wrote letters to the Board on behalf of Mayo during the same
time period that the alleged improper communications of DM&E occurred,
communications to which Mayo does not object. In any event, as we indicate below,
the Board did not adopt the view expressed in the letter that Rochester should be
required to pay for the proposed grade-separated crossings, so we discern no
remediable harm here.

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 Mayo also objects to a discussion between DM&E's president and the Board's
chairman regarding the jurisdiction of the Board to impose bypass alternatives. As
this discussion concerned matters of jurisdiction, neither of the cited authorities
would seemingly apply. But, again, the communication was of little consequence
since the Board expressly rejected DM&E's understanding of its jurisdictional
authority.

16. We turn our attention to the Board's rejection of a proposed bypass around
Rochester, a decision that Rochester argues vigorously is arbitrary and capricious.
According to SEA, the fundamental flaw in the proposed bypass was that it would
require the construction of new track through karst areas that are topographically
susceptible to sinkhole collapse. Construction in high sinkhole areas requires
expensive mitigation to reduce the risk that heavy construction equipment will cause
the collapse of underground caverns. Even with expensive mitigation and
monitoring, there is the potential that sinkholes could develop at some point in the
future, resulting in the derailment of trains, which could, in turn, lead to groundwater
contamination. In addition, the necessary mitigation, which could require
construction of a cement dam wall underneath the rail line, might itself result in
potentially significant alterations in groundwater flow, thereby affecting the region's
ecology and accelerating the formation of other sinkholes.

Rochester does not dispute the fact that construction over karst terrain presents
increased risks and costs. Its argument, instead, is that SEA's treatment of the
Rochester bypass was inconsistent with its treatment of other areas where sinkholes
were a potential difficulty, primarily the proposed East Staging and Marshalling Yard
in Lewiston, Minnesota (Lewiston Yard). SEA chose to approve the construction of
Lewiston Yard despite the fact that it was located in an area having the potential for
a high concentration of sinkholes. In its analysis, however, SEA points out
significant differences between the situations presented by Lewiston Yard and the
proposed bypass of Rochester. Lewiston Yard requires only 2.1 miles of

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construction, and although the site initially proposed was in an area having the
highest probability for sinkholes, there was some evidence that shifting the site
slightly to the west would avoid the most troublesome topographical features. In
contrast, the proposed Rochester bypass, which is 34.1 miles long, would involve
1.4 miles of construction through an area having the highest probability of sinkholes,
6.3 miles of construction through an area having a moderate to high probability of
sinkholes, and 19.4 miles of construction through an area having a low to moderate
probability of sinkholes. And unlike Lewiston Yard, there is no indication that these
areas could be avoided (Rochester did not make such a case to SEA during the
comment period).

The Lewiston Yard and Rochester bypass proposals are dissimilar in another
important, and we think conclusive, respect. SEA concluded that there was an
environmentally and fiscally preferable alternative to the Rochester bypass, namely,
the reconstruction of the existing route, and that there was no such alternative in the
case of Lewiston Yard. Rochester's arguments are misplaced in that they focus on
demonstrating that the bypass could be built in spite of the existing terrain. But SEA
does not contend in its analysis that the bypass could not in fact be built, only that it
would entail considerable cost and significant environmental risk to do so. While
Rochester may prefer those displaced environmental consequences associated with
the bypass to the ones associated with reconstruction of the existing line, it is not our
place to reallocate those burdens. When the "resolution of [the] dispute involves
primarily issues of fact" and "analysis of the relevant documents 'requires a high level
of technical expertise,' we must defer to 'the informed discretion of the responsible
federal agencies.' " Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377 (1989)
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)).

Mayo argues that SEA had an obligation under NEPA to analyze the feasibility
of other bypass alternatives to or variations on the rejected bypass alternative. But
we note that Rochester had considered five alternatives to DM&E's proposed

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reconstruction through the city, and it determined that the 34.1 mile bypass that it
submitted was the environmentally preferred alternative. Guided by the "rule of
reason" approach, Boundary Waters, 164 F.3d at 1128, we do not think that SEA was
under an obligation to examine alternatives that Rochester itself considered
environmentally inferior to the alternative ultimately rejected. Nor do we think that
SEA has an obligation thoroughly to study new alternatives that were proposed only
after it became apparent that Rochester's preferred bypass alternative would be
rejected. "Common sense ... teaches us that the 'detailed statement of alternatives' "
required by 42 U.S.C. § 4332(c)(iii) "cannot be found wanting simply because the
agency failed to include every alternative device and thought conceivable by the mind
of man." Vermont Yankee, 435 U.S. at 551.

Mayo and Olmstead County argue that SEA's rejection of the bypass because
of the difficulties with karst topography is arbitrary in light of the fact that the current
rail line runs through similar topographical areas. SEA explained, however, that the
risk of encountering sinkholes along the existing route was unlikely since surveys had
identified only four sinkholes near or within DM&E's right of way and since the
existing route had been in operation for over a century without incident. We think
that this provides a reasoned basis upon which to conclude that the existing route
presented fewer topographical challenges and risks than the proposed bypass.

Finally, Mayo maintains that SEA's conclusion that the bypass would be
significantly more expensive to construct and operate when compared with
reconstruction of the existing route is unsupported by the evidence. This contention
is undermined by the fact that Rochester (Mayo's partner in interest) calculated that
the bypass would cost approximately $37 million more than reconstruction of the
existing route. DM&E and SEA, for their part, estimated that the difference in cost
could be as much as $90 million. There was thus more than ample evidence to
support SEA's conclusion that construction of a bypass would be considerably more
expensive than reconstruction of the existing route.

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17. After the period designated for comments on the DEIS had passed, Mayo
petitioned the Board to reopen the record to consider concerns caused by a train
derailment involving the release of toxic materials in Maryland and the terrorist
attacks that took place on September 11, 2001. Mayo asserted that if similar incidents
occurred in Rochester, it would be difficult to evacuate its medical facilities
immediately. In denying Mayo's request to reopen the record, the Board explained
that the proposed project would actually increase safety because it entailed system-
wide improvements to existing track. The Board also noted that it was unlikely that
DM&E would be involved in the increased shipment of hazardous materials. Finally,
the Board did not view the two incidents as posing a threat specific to Mayo.

An agency is required to prepare supplements to an FEIS if "[t]here are
significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c). This
provision, however, has limits, for "an agency need not supplement an EIS every time
new information comes to light after the EIS is finalized." Marsh, 490 U.S. at 373.
"To require otherwise would render agency decisionmaking intractable, always
awaiting updated information only to find the new information outdated by the time
a decision is made." Id. We therefore review denials of such requests applying the
"rule of reason," id. at 374, giving deference to the responsible agency so long as its
decision is not arbitrary or capricious, id. at 377. In light of the safety analysis
already performed by SEA, we do not think that it was arbitrary or capricious for the
Board to conclude that further proceedings in light of the Maryland train derailment
were not warranted. And while the events of September 11, 2001, have certainly
raised awareness of the potential threats to our nation's transportation systems, the
Board exercised its permissible discretion when it determined that any increased
threat was general in nature and did not bear specifically on Mayo, Rochester, or the
proposed DM&E project.

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18. Rochester maintains next that the Board's final decision was unlawful insofar
as it imposed, as part of its mitigation plan, conditions requiring consultation between
DM&E and certain affected entities. According to Rochester, Idaho by and through
Idaho Public Utilities Commission v. Interstate Commerce Commission, 35 F.3d 585
(D.C. Cir. 1994), supports its argument that the Board's consultation requirements are
an unlawful delegation of NEPA responsibilities. Idaho Public is, however, readily
distinguishable. In that case, the Interstate Commerce Commission (the predecessor
of the Board) declined to prepare an EIS for a project proposal, opting instead to
require the regulated party to consult with other federal and state agencies. Id. at 595.
The D.C. Circuit determined that this was a violation of NEPA. Id. at 596. While we
fully agree that an agency may not require consultation in lieu of taking its own "hard
look" at the environmental impact of a project, we do not believe that NEPA is
violated when an agency, after preparing an otherwise valid EIS, imposes
consultation requirements in conjunction with other mitigating conditions. Whether
consultation produces any "affirmative benefit" or not, see Norfolk Southern Corp.
– Control – Norfolk & Western Ry. Co., 366 I.C.C. 173, 234-35 (1982), is, of course,
a matter properly left to agency discretion.

19. Finally, we examine Rochester's claim that the Board unlawfully imposed the
cost of grade-separated crossings on entities other than DM&E. The Board's final
decision adopts nearly verbatim the recommendation of SEA and states that DM&E
"shall install two grade separated crossings in Rochester, Minnesota." 2002 Decision
at 69. The decision requires DM&E to "complete installation of one grade separated
crossing prior to transporting more than 20 million tons of coal annually through
Rochester for more than one year," and to "complete installation of a second grade
separated crossing prior to transporting more than 50 million tons of coal annually
through Rochester for more than one year." Id. at 69-70. In furtherance of this
objective, the Board's decision directs that DM&E "shall consult with FRA, Federal
Highway Administration (FHWA), appropriate State and local transportation
authorities, and the City of Rochester on the design (for example, whether the road

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would go over or under the rail line), location, and funding of these grade
separations," id. at 69, and "apprise [sic] SEA of the progress being made toward
implementation of this condition in the quarterly reports required by [another
condition]," id. at 70.

We offer two observations on this aspect of the Board's decision. First,
although SEA expects the interested parties and various state agencies to work
together to resolve the issue of funding, it did not order any particular entity to pay
for the crossings. Second, because DM&E is required to construct the separated
crossings before it can transport the specified amount of coal for more than one year,
it will suffer significant economic repercussions if for some reason the crossings are
not completed in a timely manner. Since DM&E bears the burden of
nonperformance, it has the incentive either to secure funding for the crossings
(presumably from a government source) or fund the crossings itself. Rochester is, of
course, free to contribute to the crossings, but we do not think it (or anybody else) is
required to do so under the Board's decision.

In another section of its decision, the Board addresses DM&E's concern "that
the grade-crossing separation conditions could be read to require DM&E to bear
100% of the costs associated with designing and constructing these grade
separations," id. at 28-29, by replying that:

This is not the case. Although our conditions do not specify how the
grade-separations costs should be borne, it is not our intention to place
an unreasonable burden on DM&E. The grade separations in Pierre and
Rochester will benefit those communities. Therefore, it is reasonable to
expect entities other than DM&E to bear a substantial share of the costs.
The communities, DM&E and other interested parties can, of course,
seek assistance under the Federal Aid Highway Program or pursue other
funding opportunities ... However, if DM&E and the communities
cannot arrange for adequate funding and/or reasonable cost sharing
within a reasonable time, either DM&E or the communities could bring

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 the matter to our attention during the environmental oversight period
and we will take appropriate action.

Id. at 29.

While it is conceivable that the above passage could be read as imposing a duty
on Rochester to help with funding, we think that it merely makes it clear that DM&E
need not necessarily fund the separated crossings by itself. This is consistent with the
Board's instruction that DM&E consult appropriate state and federal authorities on
matters of funding, an instruction that impliedly encourages DM&E to solicit funds.
We think that it would be especially wrong to interpret the Board's response to
DM&E's concerns as requiring Rochester to pay for the grade separation when doing
so would raise serious questions about the Board's authority to impose requirements
on non-applicants, an authority that SEA has said does not exist, see FEIS, vol. III,
at 12-8.
B.
The Mid States Coalition for Progress represents the interests of approximately
150 landowners in South Dakota and Wyoming who are opposed to DM&E's
proposed expansion. It raises several objections to SEA's analysis regarding
alternatives for the proposed rail line extension into South Dakota and Wyoming.

1. In the preliminary stages of preparing its application, the DM&E examined
three possible alignments (called northern, middle, and southern) for extending its
system into the PRB. After it had held public meetings, visited the relevant areas, and
conducted field investigations to reveal the engineering and environmental issues
associated with each potential alignment, the DM&E determined that a southern
alignment was the only one that would meet the purpose and needs of the project.
According to the DM&E, the topography along the southern alignment allowed for
gentle grades and shorter routes than the other two alignments, both of which were
essential to DM&E's goal of constructing an efficient, direct, and competitive line to
the PRB coal mines. In addition, a southern alignment appeared to provide the

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greatest flexibility for constructing new track to avoid environmentally sensitive
resources. Based on these findings, DM&E's application to the Board focused
exclusively on routing alternatives along a southern alignment.

The Mid States Coalition criticizes SEA for failing to include and analyze
routes in the northern alignment as project alternatives. It asserts that the general
goals of the project could be fulfilled if DM&E were to use a northern alignment and
that such an alignment might be environmentally preferable to the southern alignment
alternatives that were considered. While these broadly worded assertions may or may
not be true, it was within SEA's permissible discretion to focus its resources on the
southern alignment alternatives only. Under NEPA, an agency "is required to
consider only reasonable, feasible alternatives." Missouri Mining, Inc. v. ICC,
33 F.3d 980, 984 (8th Cir. 1994).

In this case, DM&E applied for a license to construct and operate a route to the
PRB mines along the southern alignment, after concluding that the northern and
middle alignments would not accomplish its business objective. While SEA had the
obligation to explore alternative routes, which it did, we do not think that it was
required to explore alternatives that, if adopted, would not have fulfilled the project
goals as defined by the DM&E. This does not mean that SEA was obligated to
recommend DM&E's preferred route (it did not), and if SEA had found that there
were no alternatives that met DM&E's stated business objectives, it could simply have
adopted the "no action" recommendation. But we do not think that SEA had a duty
to analyze alternatives that were not germane to the proposed project itself.

2. Early in the formal scoping process of the project, SEA identified two
alternatives for public and agency comment. One of these, "Alternative A," was a
decision not to build at all, and "Alternative B," was basically the DM&E's preferred
alternative as presented in its project application. As a result of comments received
during the scoping process, SEA identified eight other alternatives for potential

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inclusion in the DEIS. One was "Alternative C," the route recommended by SEA and
adopted by the Board. The remaining seven alternatives were similar in that they all
involved the use of existing rail line and transportation corridors. After reviewing
these seven alternatives, SEA determined that only one remotely met both the
environmental and operational constraints necessary to warrant detailed analysis in
the DEIS. This alternative was examined in detail in the DEIS as "Alternative D."

During its comprehensive analysis in the DEIS, SEA concluded that
Alternatives B and C were environmentally preferable to Alternative D, and it
therefore eliminated Alternative D from further consideration. In comments on the
DEIS, the EPA suggested that Alternative D might be modified to reduce its potential
adverse environmental effects. In response, SEA, working closely with the EPA,
requested that DM&E submit a "Modified D" alignment that would comply with the
EPA's design criteria. Once SEA and the EPA approved DM&E's design, SEA
requested more detailed engineering data from DM&E in order to determine the
feasibility of the alignment, which data DM&E provided. After verifying DM&E's
submissions to ensure that they "represented a reasonable and credible effort to
develop a heavy-haul rail line using the existing rail line alignment," SEA determined
that the Modified D alignment offered no significant advantages over Alternatives B
or C, such as reduced distance, fewer environmental impacts, lower cost, or less
complicated engineering. Of particular significance was the SEA's finding that the
Modified D alignment would require eight to ten times the required earthwork of
either Alternatives B or C, making the alignment both prohibitively expensive and
environmentally precarious. On the basis of these findings, SEA concluded, and the
EPA agreed, that the Modified D alignment was not a reasonable alternative for the
project.

The Mid States Coalition contends that SEA erred in determining that the
Modified D alignment was not a reasonable and feasible alternative. Specifically, it
asserts that SEA violated NEPA by involving DM&E in providing information on the

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feasibility of the alignment, that SEA's analysis was incorrect and misleading, and
that a supplemental DEIS allowing for public review and comment on that alternative
was required prior to issuance of the FEIS.

Since the Modified D alignment was suggested to SEA during the comment
period on the DEIS, federal regulations require that the agency respond to the
proposal in the FEIS. 40 C.F.R § 1503.4. But the agency may respond in a variety
of ways: It may, for instance, "[m]odify alternatives including the proposed action,
... [d]evelop and evaluate alternatives not previously given serious consideration by
the agency, ... [s]upplement, improve, or modify its analyses, ... [m]ake factual
corrections, [or] [e]xplain why the comments do not warrant further agency
response." Id. In this instance, SEA did not choose the path of least resistance;
instead, it chose to develop and evaluate the Modified D alignment to determine
whether it was a reasonable and feasible alternative.

The Mid States Coalition argues that SEA's seemingly satisfactory response
was actually inadequate because it relied, in large part, on information that DM&E
submitted. The CEQ regulations, however, contemplate a role for applicants in
providing information necessary to complete an environmental review, so "that
acceptable work not be redone." 40 C.F.R. § 1506.5(a). Nor does it appear that the
information was uncritically accepted, as the Mid States Coalition maintains. The
engineering firm hired by SEA reported that "[t]he earthwork quantities developed
... [by DM&E] appear to represent a credible estimate of the cut and fill that would
be associated with the proposed Modified D alignment," and that the Modified D
alignment "is probably technically feasible but not reasonable or practical." FEIS,
Appendix M, at M-127, M-128. The EPA, moreover, was also convinced, after
reviewing SEA's analysis, that the Modified D alignment was not a reasonable
alternative for the project. And while the Mid States Coalition vigorously disputes
the accuracy of some of SEA's evidentiary findings, we need not "fly speck" an EIS
for inconsequential or technical mistakes, see Boundary Waters, 164 F.3d at 1128

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(internal quotations omitted). We are convinced that SEA made a good faith effort
to explore the suggestions made by a commenting party and reasonably concluded
that the Modified D alignment was not a preferred alternative.

Nor do we accept the Mid States Coalition's argument that SEA was in any
event required to issue a supplemental DEIS allowing for public review and
comment. Supplemental statements are required only when an agency "makes
substantial changes in the proposed action that are relevant to environmental
concerns," or when "[t]here are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action or its impacts."
40 C.F.R. § 1502.9(c). Neither of these conditions exists in this instance. Once SEA
properly responded to comments suggesting Modified D as an alternative and
determined that it was not a reasonable or feasible alternative, it was justified in
refusing the Mid States Coalition's request to issue a supplemental DEIS allowing for
public review and comment.

3. From the comments that it received on the DEIS, SEA concluded that its DEIS
analysis did not completely reflect the potentially adverse environmental effects for
one of the construction alternatives considered for the City of Mankato. In the FEIS,
therefore, the agency supplemented its evaluation of the alternative and recommended
appropriate mitigation strategies. The Mid States Coalition maintains that SEA
should have prepared a supplemental DEIS so that the public could comment on the
information that was first presented in the FEIS.

We think that this argument is misplaced. As we have already said, NEPA
does not require an additional round of public comments every time an agency
revises, supplements, or improves its analysis in response to the public comments on
a DEIS. Incremental changes are expected and in fact encouraged: A supplemental
DEIS is required only when changes are substantial, and even then, only if the
substantial change is relevant to environmental concerns. If agencies were required

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to issue a supplemental statement with every project adjustment, it would discourage
them from making corrections and improvements in response to public comments.
While SEA has modified its analysis with respect to this Mankato alternative, we
think it was well within SEA's discretion to determine that the change was not
substantial enough to require a supplemental DEIS.

C.
The Sierra Club argues that SEA wholly failed to consider the effects on air
quality that an increase in the supply of low-sulfur coal to power plants would
produce. Comments submitted to SEA explain that the projected availability of
100 million tons of low-sulfur coal per year at reduced rates will increase the
consumption of low-sulfur coal vis-à-vis other fuels (for instance, natural gas). While
it is unlikely that this increase in coal consumption would affect total emissions of
sulfur dioxide (which are capped nationally at maximum levels by the Clean Air Act
Amendments of 1990), the Sierra Club argues that it would significantly increase the
emissions of other noxious air pollutants such as nitrous oxide, carbon dioxide,
particulates, and mercury, none of which is currently capped as sulfur dioxide is.

Before this court, the Board admits that because of the need to comply with the
restrictions in the Clean Air Act Amendments on sulfur dioxide emissions, many
utilities will likely shift to the low-sulfur variety of coal that the proposed project
would make available. It argues, however, that this shift will occur regardless of
whether DM&E's new line is constructed, since the proposed project will simply
provide a shorter and straighter route for low-sulfur coal to be transported to plants
already served by other railroad carriers. But the proposition that the demand for coal
will be unaffected by an increase in availability and a decrease in price, which is the
stated goal of the project, is illogical at best. The increased availability of
inexpensive coal will at the very least make coal a more attractive option to future
entrants into the utilities market when compared with other potential fuel sources,
such as nuclear power, solar power, or natural gas. Even if this project will not affect

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the short-term demand for coal, which is possible since most existing utilities are
single-source dependent, it will most assuredly affect the nation's long-term demand
for coal as the comments to the DEIS explained. Tellingly, DM&E does not adopt
the Board's argument that the proposed project will leave demand for coal unaffected:
Instead, it adopts the more plausible position that SEA was not required to address
the effects of increased coal generation because these effects are too speculative.

NEPA requires that federal agencies consider "any adverse environmental
effects" of their "major ... actions," 42 U.S.C. § 4332(C), and the CEQ regulations,
which are binding on the agencies, explain that "effects" include both "direct effects"
and "indirect effects," 40 C.F.R. § 1508.8. Indirect effects are defined as those that
"are caused by the action and are later in time or farther removed in distance, but are
still reasonably foreseeable." Id. "Indirect effects may include ... effects on air and
water and other natural systems, including ecosystems." Id. The above language
leaves little doubt that the type of effect at issue here, degradation in air quality, is
indeed something that must be addressed in an EIS if it is "reasonably foreseeable,"
see id. As in other legal contexts, an environmental effect is "reasonably foreseeable"
if it is "sufficiently likely to occur that a person of ordinary prudence would take it
into account in reaching a decision." Sierra Club v. Marsh, 976 F.2d 763, 767 (1st
Cir. 1992).

DM&E argues in its brief that "if the increased availability of coal will 'drive'
the construction of additional power plants . . . the [Board] would need to know
where those plants will be built, and how much coal these new unnamed power plants
would use. Because DM&E has yet to finalize coal-hauling contracts with any
utilities, the answers to these questions are pure speculation – hardly the reasonably
foreseeable significant impacts that must be analyzed under NEPA." Even if this
statement is accurate (the Sierra Club has asserted that it is not), it shows only that the
extent of the effect is speculative. The nature of the effect, however, is far from
speculative. As discussed above, it is reasonably foreseeable – indeed, it is almost

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certainly true – that the proposed project will increase the long-term demand for coal
and any adverse effects that result from burning coal.

Contrary to DM&E's assertion, when the nature of the effect is reasonably
foreseeable but its extent is not, we think that the agency may not simply ignore the
effect. The CEQ has devised a specific procedure for "evaluating reasonably
foreseeable significant adverse effects on the human environment" when "there is
incomplete or unavailable information." 40 C.F.R. § 1502.22. First, "the agency
shall always make clear that such information is lacking." Id. Then, "[i]f the
information relevant to reasonably foreseeable significant adverse impacts cannot be
obtained because the overall costs of obtaining it are exorbitant or the means to obtain
it are not known," the agency must include in the environmental impact statement:

(1) A statement that such information is incomplete or unavailable; (2)
a statement of the relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable significant adverse
impacts on the human environment; (3) a summary of existing credible
scientific evidence which is relevant to evaluating the reasonably
foreseeable significant adverse impacts on the human environment, and
(4) the agency's evaluation of such impacts based upon theoretical
approaches or research methods generally accepted in the scientific
community.

Id. at § 1502.22(b).

We find it significant that when the Board was defining the contours of the
EIS, it stated that SEA would "[e]valuate the potential air quality impacts associated
with the increased availability and utilization of Powder River Basin Coal." DEIS
Appendix C at C-73. Yet, the DEIS failed to deliver on this promise. Interested
parties then submitted comments on the DEIS explaining, for the reasons that we
have summarized, why this issue should be addressed in the FEIS. These parties even
identified computer models that are widely used in the electric power industry to

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simulate the dispatch of generating resources to meet customer loads over a particular
study period. According to the commenting parties, these programs could be used to
forecast the effects of this project on the consumption of coal. These efforts did not
convince SEA, which asserted that "[b]ecause the 1990 Clean Air Act Amendments
mandate reductions in pollutant emissions ... an assumption of SEA's analysis was
that emissions will definitely fall to the mandated level, producing whatever effect
the emissions will have on global warming." FEIS at 10-2. SEA's "assumption" may
be true for those pollutants that the amendments have capped (including, as we have
said, sulfur dioxide) but it tells the decision-maker nothing about how this project will
affect pollutants not subject to the statutory cap. For the most part, SEA has
completely ignored the effects of increased coal consumption, and it has made no
attempt to fulfill the requirements laid out in the CEQ regulations.

The Board has stated that this project "is the largest and most challenging rail
construction proposal ever to come before [us]," and that the total cost of the project
is estimated to be $1.4 billion, not counting the cost of environmental mitigation.
Final Decision at 4. We believe that it would be irresponsible for the Board to
approve a project of this scope without first examining the effects that may occur as
a result of the reasonably foreseeable increase in coal consumption.

III.
The Mid States Coalition argues that the financial fitness analysis in the
Board's final decision underestimated construction costs for the new line and
overestimated DM&E's future revenues. Upon review, we must uphold an agency's
licensing decision unless that decision was arbitrary, capricious, an abuse of
discretion, not supported by substantial evidence, or not in accordance with the law.
5 U.S.C. § 706(2); see Boundary Waters, 164 F.3d at 1121.

As we have previously said, the Board made a preliminary finding that the
proposed project was not inconsistent with the public convenience and necessity as

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required by § 10901. After the environmental review process was completed some
three years later, the Board revisited its preliminary findings and determined that the
environmental effects that could not be fully mitigated were not so great as to
outweigh the public benefits of the new line. The Board then considered whether the
costs of complying with the imposed mitigation conditions would threaten DM&E's
financial fitness. In a previous decision, the Board explained that "[t]he purpose of
the financial fitness test is not to protect the carrier or those who elect to invest in the
proposed project, but, rather, to protect existing shippers from carrier financial
decisions that could jeopardize a carrier's ability to carry out its common carrier
obligation to serve the public." Tongue River R.R. – Rail Construction & Operation
– Ashland to Decker, Montana, STB Finance Docket No. 30186 (Sub-No. 2) (STB
service date Nov. 8, 1996). In this case, the Board determined that even with the
projected additional mitigation costs DM&E would garner significant net income
from its proposed PRB service, and that this additional income would actually inure
to the benefit of DM&E's existing shippers because it would enable DM&E to
rehabilitate deteriorating portions of track in the areas that it currently serves. In fact,
the Board found that without the infusion of capital that this project would bring,
DM&E might be unable to continue its operation in the long term, a result that would
obviously be detrimental to DM&E's existing customers. On the basis of these
findings, the Board determined that the public convenience and necessity test had
been met.

In its original financial analysis, the Board used the construction cost estimates
from DM&E's application, which were based upon DM&E's preferred 262-mile route.
The Mid States Coalition argues that the Board erred in its final decision by not
taking into consideration the additional cost of constructing the route that the Board
ultimately approved, which was nearly 20 miles longer than DM&E's preferred route.
The Mid States Coalition also argues that the Board's final decision should have
reflected changed market conditions that, according to the Coalition, have rendered
the Board's original revenue projections for DM&E obsolete. The Board does not

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deny that the financial-fitness analysis in its final decision relied almost exclusively
on data collected for the original financial-fitness analysis conducted in 1998. This
was, in fact, by design: The Board's standard practice is to complete its financial
analysis, subject only to any costs that might be incurred as a result of the Board's
imposition of environmental mitigation; this allows the Board to approve or reject a
project quickly once the environmental process has run its course.

It is probable, as the Mid States Coalition suggests, that the data that the Board
relied upon in its original financial-fitness analysis was somewhat dated by the time
a final decision is issued, especially where, as here, there is a protracted
environmental analysis. But we do not believe that this invalidates the Board's
chosen process. "Administrative consideration of evidence ... always creates a gap
between the time the record is closed and the time the administrative decision is
promulgated." ICC v. Jersey City, 322 U.S. 503, 514 (1944). "This is especially true
if the issues are difficult, the evidence intricate, and the consideration of the case
deliberate and careful." Id. If we were to require the Board to take the time to
conduct its financial analysis anew, we suspect that adverse parties would then
contend that the environmental analysis was stale.

We doubt, moreover, that under the existing statutory scheme the Board's
decision would be different if it had access to the most current information. As first
enacted, § 10901 directed the ICC (the Board's predecessor) to approve a project only
if public convenience and necessity "require or will be enhanced by" the construction.
See 49 U.S.C. § 10901(a) (1976 ed; Supp. II (1979)). Congress subsequently relaxed
this restrictive policy by providing that the ICC need only find that public
convenience and necessity "permit" the proposed construction. See 49 U.S.C.
§ 10901(a) (1982). Congress's latest iteration of the statute relaxes the standard even
further, directing that the Board "shall issue" construction licenses, "unless the Board
finds that such activities are inconsistent with the public convenience and necessity."
49 U.S.C. § 10901(c) (emphasis added). When read in conjunction with Congress's

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broad policy directives to promote "effective competition among rail carriers" and to
"reduce regulatory barriers to entry into ... the industry," 49 U.S.C. § 10101, we
believe that the Board correctly maintains that there is a statutory presumption that
rail construction is to be approved.

The record demonstrates that the Board had sufficient evidence before it to
conclude that DM&E could complete this project. First, the Board's own analysis
indicated that the venture would be profitable, even after the cost of environmental
mitigation had been allowed for. Although much of the data used in the analysis was
not current, there is still probative value in the Board's conclusion. Of particular
significance was the Board's finding that this project would allow DM&E to continue
as a financially viable operation and to update its deteriorating track, thereby ensuring
future service for those whom the financial fitness requirement was meant to protect,
DM&E's existing shippers. Even though a large portion of the Board's analysis on
this matter was conducted in 1998, the fact that a number of DM&E's existing
customers have intervened in this case on DM&E's behalf leads us to believe that the
Board's finding is not suspect. Finally, we agree with the Board that the ultimate test
of financial fitness will come when the railroad seeks financing. Without impugning
the accuracy of the financial analyses presented by the various parties in this case, we
believe that the nation's financial institutions possess the expertise and insight
necessary to determine the financial viability of this project. Given the liberal nature
of the licensing statute and the Board's analysis thus far, they should have that
opportunity.

We do not mean to suggest, of course, that the Board can disregard additional
costs, if any, that may arise from the environmental analyses that it will conduct on
remand. We expect that the Board will incorporate its new findings appropriately
into the body of evidence that it has already amassed before making a final
determination on this matter.

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 IV.
We next consider whether the Board has complied with § 106 of the National
Historic Preservation Act (NHPA), 16 U.S.C. § 470f, which provides that a federal
agency shall "take into account" the effect of its licensing decisions on properties
"included in or eligible for inclusion in, the National Register [of Historic Places]."
In order to carry out this broadly stated purpose, the Advisory Council on Historic
Preservation (ACHP) has issued regulations implementing the NHPA, see 36 C.F.R.
Part 800, which are binding on agencies. These regulations require that the relevant
agency consult with a number of specified parties to identify historic properties,
assess the adverse effects that the proposed project would have on those properties,
and "seek ways to avoid, minimize or mitigate any adverse effects." 36 C.F.R.
§ 800.1(a). This process may be conducted separately, or, as in this case, in
conjunction with an environmental review under NEPA. See 36 C.F.R. § 800.2(d)(3).

The Mid States Coalition first maintains that the Board failed to include all
necessary parties in its consultation process. Under the regulations, an agency has a
general duty to "provide the public with information about an undertaking and its
effects on historic properties and [to] seek public comment and input." 36 C.F.R.
§ 800.2(d)(2). The regulations, however, specify that certain individuals and
organizations, known as "consulting parties," are to be more formally involved in the
agency's NHPA review. The agency must invite all relevant state historic
preservation officers, tribal historic preservation officers, local government
representatives, and the project applicant to participate in the NHPA process as
consulting parties. 36 C.F.R. § 800.2(c). In addition to those who are consulting
parties as a matter of right, other interested individuals or organizations "may
participate as consulting parties due to the nature of their legal or economic relation
to the undertaking ... or their concern with the undertaking's effects on historic
properties," 36 C.F.R. § 800.2(c)(5) (emphasis added), if they request participation
in writing and the agency determines that they should be granted consulting party
status, 36 C.F.R. § 800.3(f)(3).

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 The Mid States Coalition contends that the NHPA was violated because the
Board failed to invite ranchers and farmers whose lands may contain historic
properties to participate as consulting parties. The ACHP regulations make it
apparent, however, that affected ranchers and farmers are not automatically entitled
to be consulting parties. Because they have an economic interest in the proceeding,
they may be added as consulting parties, but they must first make a request, in
writing, to the Board. In this case, the Board has granted consulting party status to
all individuals and organizations who made such a request. We believe, moreover,
that the agency complied with its general duty to notify and allow comment from the
public on matters of historic preservation during the environmental review process.
See 36 C.F.R. §§ 800.3(e), 800.8(c)(1)(iv). The DEIS and the FEIS describe those
sites along the proposed route that SEA initially identified as eligible for inclusion
in the National Register of Historic Places. And since the public was encouraged to
comment on all aspects of the DEIS, we cannot say that there was an insufficient
opportunity for public comment under the NHPA.

The Mid States Coalition also asserts that the Board erred by issuing DM&E
a license before it completed the NHPA process. The Board maintains that the
NHPA's seemingly unambiguous directive to take effects into account "prior to the
issuance of any license," 16 U.S.C. § 470f, is relaxed by the ACHP's implementing
regulations.

As noted above, an NHPA analysis involves a three-step process of
identification, assessment, and mitigation. The general expectation is that an agency
will complete one step before moving on to the next, but the regulations permit an
agency to use a "phased process" of identifying and evaluating properties where
"alternatives under consideration consist of corridors or large land areas," 36 C.F.R.
§ 800.4(b)(2). The agency's phased process "should establish the likely presence of
historic properties within the area of potential effects for each alternative ... through
background research, consultation and an appropriate level of field investigation,

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taking into account the number of alternatives under consideration, the magnitude of
the undertaking and its likely effects, and the views of the [historic preservation
officers] and any other consulting parties." Id.

We believe that SEA's analysis in the early stages adheres to this approach.
During the period when there were still numerous alternatives under consideration,
it was permissible for SEA to delay assessing the adverse effects of the project on
specific sites. But as "specific aspects or locations of an alternative are refined," the
regulation provides that the agency "shall proceed with the identification and
evaluation of historic properties." Id. By requiring that agencies identify and assess
individual properties as project alternatives become more concrete, the regulations
assure that the agency will be in a position to proceed to the mitigation step.

Although the Board (through SEA) identified some potentially affected sites
in the DEIS and FEIS, it has not made a final evaluation or adopted specific measures
to avoid or mitigate any adverse effects, see 36 C.F.R. § 800.2(d)(3). It argues,
however, that the ACHP's regulations permit it to defer these actions until after the
license has been approved. We disagree. It is true that the regulations permit an
agency to "defer final identification and evaluation of historic properties if it is
specifically provided for in ... the documents used by an agency official to comply
with [NEPA] pursuant to [36 C.F.R.] § 800.8." 36 C.F.R. § 800.4(b)(2). But § 800.8,
in turn, requires that an agency develop measures to "avoid, minimize, or mitigate"
adverse effects and then bind itself to these measures in a record of decision.
36 C.F.R. § 800.8(c)(4). The ACHP's regulations, when read it their entirety, thus
permit an agency to defer completion of the NHPA process until after the NEPA
process has run its course (and the environmentally preferred alternatives chosen), but
require that NHPA issues be resolved by the time that the license is issued. In this
case, the Board's final decision contains a condition requiring DM&E to comply with
whatever future mitigation requirements the Board finally arrives at. We do not think

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that this is the type of measure contemplated by the ACHP when it directed agencies
to develop measures to "avoid, minimize, or mitigate" adverse effects.

We note that the ACHP's regulations offer agencies an alternative to the
process described above. An agency may negotiate with consulting parties to develop
"a programmatic agreement to govern the implementation of a particular program or
the resolution of adverse effects from certain complex project situations." 36 C.F.R.
§ 800.14(b). While the programmatic agreement itself must be in place before the
issuance of a license, it gives an agency flexibility when "effects on historic
properties cannot be fully determined prior to approval of an undertaking," id.
Indeed, the Board recognized this advantage, as evidenced by its continuing effort to
negotiate an acceptable programmatic agreement before it issued its final decision.

We believe that the Board should have also recognized that it could not
proceed without one. One month before the Board issued its final decision, the
ACHP wrote a letter to the Board stating:

As we understand it, [the Board] plans to make a decision on whether to
approve or deny the proposed project at the end of the month. Given
this short time frame and the critical need to coordinate the completion
of Section 106 with any decision reached under [NEPA], we recommend
you set up a conference call among the consulting parties in order to
develop timely revisions to this [programmatic agreement], and that you
circulate a revised final [programmatic agreement] as quickly as
possible. Until these important issues are resolved, the Council will not
be able to execute a [programmatic agreement] with [the Board] for this
undertaking.

If the programmatic agreement had been executed, the Board could have finalized the
NHPA details at a future date according to the terms of the agreement, just as it

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wished. Not willing to delay publication of its decision until after a consensus could
be reached on the terms of the programmatic agreement, the Board instead issued the
license having neither secured a programmatic agreement nor completed the alternate
NHPA process. On remand, it must do one or the other.

V.
The Sioux maintain that the Board violated the terms of the Fort Laramie
Treaty of April 29, 1868, 15 Stat. 635, and breached the government’s fiduciary duty
to the Sioux Indians, when the Board licensed the construction of DM&E’s new
extension without first obtaining the Sioux’s consent. Article 12 of that treaty
provides that any cession of reservation land must be approved by at least three-
fourths of the adult male Sioux population. Id., 15 Stat. at 639; United States v. Sioux
Nation of Indians, 448 U.S. 371, 381-82 (1980) . DM&E’s proposed line, however,
does not cross the boundaries of any present-day reservation: It is located either on
land that was restored to the public domain by the Act of March 2, 1889, ch. 405, 25
Stat. 888, or on land in the Black Hills region, which was taken from the Sioux by the
Act of February 28, 1877, ch. 72, 19 Stat. 254, and for which the Sioux have
recovered damages, see Sioux Nation, 448 U.S. at 381-82, 423-24. Because DM&E’s
proposed line does not pass through any present-day reservation, no cession of
reservation land is required before the proposed line can be built, and the Fort
Laramie Treaty does not apply.

The Sioux’s argument that the 1889 Act is itself invalid also fails. The Sioux
contend that although that act was approved by three-fourths of the adult male Sioux
population as a whole, see Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 589 n.5
(1977), it is invalid because it was not consented to by three-fourths of the Sioux
males from each band, as, the Sioux contend, the Act requires as a condition to its
effectiveness. Section 28 of the 1889 Act states that the Act will take effect only if
it is consented to "by the different bands of the Sioux Nation of Indians, in manner
and form prescribed by the twelfth article of the [Fort Laramie Treaty of 1868]

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between the United States and said Sioux Indians." 25 Stat. at 899. Article 12 of that
treaty, in turn, explains that "at least three-fourths of all the adult male Indians" living
on the Great Sioux Reservation must agree to any cession of reservation land.
15 Stat. at 639. The Sioux argue that the phrase "by the different bands" in Section
28 means that the Act can take effect only if it is agreed to by at least three-quarters
of the adult males from each Sioux band.

We disagree. We believe that Congress viewed the Fort Laramie Treaty as
having been entered into between the United States and the different bands of the
Sioux, see Ft. Laramie Treaty of 1868, 15 Stat. 635, and that the phrase "by the
different bands" in Section 28 of the 1889 Act meant the Sioux population as a whole.
This view is supported by Section 16 of the 1889 Act, which refers to "the acceptance
of this act by the Indians in manner and form as required by the ... treaty concluded
between the different bands of the Sioux Nation of Indians and the United States,
April [29, 1868]." See 25 Stat. at 893. The history of the Act also supports this
interpretation. According to an 1884 report of the Senate Select Committee to
Examine the Condition of the Sioux and Crow Indians, Congress authorized the
Secretary of the Interior to negotiate with the Sioux for a possible cession of
reservation land as early as 1882. See S. Rep. 48-283, at 2 (1884). The report further
indicates, however, that Congress repeatedly refused to ratify any agreement that
resulted from these negotiations until commissioners appointed by the Secretary of
the Interior were able to "procure the assent of the Sioux Indians as provided in
article twelve of the treaty of 1868." Id. at 3-4. For these reasons, we believe that
Congress intended Section 28 of the 1889 Act to require precisely what was required
by the Fort Laramie Treaty: the assent of three-fourths of the adult male Sioux
population as a whole, rather than three-quarters of the Sioux from each individual
band. We therefore reject the Sioux's challenge to the validity of the 1889 Act.

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 VI.
In both size and scope, this project is undoubtedly one of the largest ever to
have come before the Board. Although we find it necessary to vacate the Board's
final decision so that it may correct certain deficiencies, we think that on the whole
the Board did a highly commendable and professional job in evaluating an
enormously complex proposal. We are confident that on remand the Board will
quickly address those few matters that we have identified as requiring a second look,
and will come to a well informed and reasonable conclusion.

HEANEY, Circuit Judge, concurring.

I concur in the majority’s opinion. I write separately to highlight the
significant adverse consequences that the Rochester community will experience due
to the increased train traffic running through downtown Rochester, and to point out
an additional component of the Final Environmental Impact Statement (FEIS) that the
Section of Environmental Analysis (SEA) failed to fully explore.

The record makes clear that the Rochester community will be adversely
affected as a result of the Surface Transportation Board’s (STB) decision to approve
the Dakota, Minnesota & Eastern Railroad Corporation’s (DM&E) proposal to
transport coal from Wyoming to the Mississippi River. This decision will bring up
to 37 trains a day, some with more than 100 cars, at speeds up to 40 miles an hour,
through the heart of the city of Rochester. These adverse consequences would have
been best mitigated by bypassing the city. The STB, however, after carefully
considering and analyzing the proposed bypass, properly rejected this alternative due
to the additional costs imposed by the length of the bypass, the terrain, and the
possibility of sinkholes along the route. Rejection of this alternative, however, does
not relieve DM&E of its responsibility to mitigate, to the fullest extent practicable,
the adverse consequences the Rochester community will experience due to the
rehabilitation of the current rail line.

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 The majority has carefully set forth the adverse consequences that the
Rochester community, including the Mayo clinic, will incur as a result of the decision
to rehabilitate the existing railway. These include: increased wayside noise; increased
vibration in homes and businesses near the tracks; increased risk of groundwater
contamination in the event of a rail line accident; and increased risk of delay to
emergency vehicles. The majority found that these adverse consequences were fully
considered in the FEIS. The majority also found, however, that other adverse
consequences to the Rochester community were not fully explored and therefore
required further study and exposition by the STB. These adverse consequences are
increased noise from train horns and the cumulative effect suffered by households
experiencing both noise and vibration.2

In my view, there is an additional area in which the FEIS is insufficient. The
SEA recommended the construction of two separated grade crossings in Rochester;
the first is scheduled to be installed prior to DM&E transporting 20 million tons of
coal annually, and the second is scheduled to be installed prior to DM&E transporting
50 million tons of coal annually through the city. Although these crossings will
provide some mitigation of the impact of the increased train traffic in Rochester, the
FEIS fails to adequately consider the consequences of deferring the construction of
these crossings. The rehabilitation of the rail line and the construction of the
separated grade crossings will, in and of themselves, adversely affect the city of
Rochester through increased noise, vibration, air pollution, and disrupted traffic flow.
Therefore, the Rochester community will suffer not only from an increase in train
traffic, but also from the three construction projects; first when the track is

2
I agree with the majority’s holding that the reasonably foreseeable effects of
increased coal consumption in Midwestern and Eastern states also must be thoroughly
considered. Even though there is no evidence in the record that the Rochester
community will be adversely affected by any significant increase in coal
consumption, the environmental consequences of such an increase to other
geographic areas should be considered by the STB.

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rehabilitated, second when the first crossing is constructed, and, again, a third time
when the second crossing is installed.

I agree that under the National Environmental Policy Act (NEPA) it is the
responsibility of the permitting agency to determine what actions should be taken to
mitigate the consequences of the adverse environmental impacts of a project, and that
“[o]ur role in the NEPA process ‘is simply to ensure that the agency has adequately
considered and disclosed the environmental impact of its actions and that its decision
is not arbitrary or capricious.’” Ante at 27 (quoting Baltimore Gas & Elec. Co. v.
Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983)). In this instance, the SEA
did neither with respect to the impact of deferring the construction of the separated
grade crossings. The SEA is required to discuss the reasons why a certain mitigative
step was chosen and the impact of that choice in enough detail to ensure that the
environmental consequences are fairly evaluated. Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 352 (1989) (stating that the “requirement that an EIS
contain a detailed discussion of possible mitigation measures flows both from the
language of [NEPA] and, more expressly, from CEQ’s implementing regulations” and
that the “omission of a reasonably complete discussion of possible mitigation
measures would undermine the ‘action-forcing’ function of NEPA.”). In this case,
the SEA asserted that the construction of two separated grade crossings will mitigate
the impact of the increased train traffic in Rochester, but failed to discuss how it
decided on two rail crossings, or to consider the impact of deferring the construction.
It is not enough to put forth installing such crossings as appropriate mitigation
without revealing the reasoning behind such a finding, or detailing the impact the
proposed mitigation will have on the community. Instead, the SEA is required to
“explain fully its course of inquiry, analysis and reasoning.” Ante at 31 (quoting
Minn. Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir. 1976)).

I cannot say, based on the FEIS developed by the SEA, that it took the requisite
“hard look” at the environmental impact of rehabilitating the current railway on the

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Rochester community. Fully analyzing alternatives is the “heart of the environmental
impact statement,” 40 C.F.R. § 1502.14, and the agency is required to “[r]igorously
explore and objectively evaluate all reasonable alternatives,” 40 C.F.R. § 1502.14(a).
Although I agree with the majority that the STB adequately considered and properly
rejected the proposed bypass of the city of Rochester, the STB failed to sufficiently
detail the mitigation measures that should be taken. This omission undermines the
action-forcing function of NEPA.

The adverse consequences that the Rochester community will suffer due to this
project are severe. The STB, therefore, should be required to consider the adverse
consequences outlined in the FEIS and discussed by this court, both individually and
collectively, in order to fully analyze all possible steps that can be taken to mitigate
their impact on the Rochester community.
______________________________

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