Tongue River Railroad Hits The End Of The Line!

In a landmark decision on April 26th, the Surface Transportation Board sided with Northern Plains in a 40-year-old fight to protect property rights and agriculture in southeastern Montana!

The Tongue River Valley in southeastern Montana. Photo by Jeanie Alderson

The Tongue River Valley in southeastern Montana. Photo by Jeanie Alderson

The Surface Transportation Board April 26th dismissed Tongue River Railroad Company’s (TRRC) application to build the proposed coal-hauling Tongue River Railroad. The railroad would have used the power of federal eminent domain to condemn family farm and ranch land in southeastern Montana in order to haul coal from Arch Coal’s proposed Otter Creek mine to Asian export markets.

“For 30 years we have said that the Tongue River Railroad is a project in search of a purpose,” said Clint McRae, a Northern Plains member whose Rosebud Creek ranch would have been cut in two by the proposed rail line. “It has always been based on speculation, not need. The Surface Transportation Board has made the right decision to dismiss this project.”

McRae also points out that, in its decision, “the Board has given the railroad ample opportunity to prove any justification for the use of federal eminent domain to condemn private land.”

The Surface Transportation Board’s ruling comes in response to filings from both Northern Plains and TRRC, which is jointly owned by Arch Coal, Burlington Northern Santa Fe Railway, and candy billionaire Forrest Mars Jr. Last November, TRRC asked the Board to put a hold on their application indefinitely.

Northern Plains requested in December that the Board dismiss TRRC’s application, pointing out that TRRC’s real reason for requesting a stay is to put off a decision in a weak coal market. Since that time, Arch has voluntarily entered Chapter 11 bankruptcy, later declared that it is no longer pursuing a permit for the Otter Creek Mine, and revealed that it lost the lease to half the Otter Creek coal months ago.

“It’s a historic day when a federal agency recognizes there’s no foreseeable future for coal,” said Ken Rumelt, an attorney at the Environmental and Natural Resources Law Clinic at the Vermont Law School, who represented Northern Plains before the Board.

“It’s a great day for southeastern Montana landowners,” said Mark Fix, who ranches on the Tongue River, and whose operation was threatened by several variations of the railroad. “The threat of eminent domain has been hanging over my head ever since I bought my ranch. It’s a huge relief to know I can get back to raising cattle and wheat without the threat of condemnation hanging over my head.”

The Surface Transportation Board decision can be found here:

>>Northern Plains official TRR comments

>> Latest fact sheet on TRR

The railroad to nowhere

The Tongue River Railroad Company wants to build a railroad from a coal mine that doesn’t exist to an export terminal that doesn’t exist in order to sell to an Asian coal market that doesn’t exist.

To do so, this private company has to be granted the power of federal eminent domain to condemn family ranchland in southeastern Montana — all for the sake of shipping Montana coal to Asia.

For more than 30 years, speculators have tried and failed to get a permit to build a railroad through the beautiful Tongue River Valley in southeastern Montana. Their plan has always been to transport coal from proposed strip mines in the area — like the proposed Otter Creek mine — to the main rail line for transport to power plants. And for more than 30 years, Northern Plains and its members have kept the TRR from being built.

Clint McRae talks about the impacts TRR would have on his ranch

Feds release draft EIS

The draft Environmental Impact Statement (EIS) for the Tongue River Railroad is crucial in the Tongue River Railroad’s bid for a permit to use federal eminent domain to construct their coal-to-Asia rail line. The comment period is one of the last opportunities to weigh in to stop the project.

The draft EIS was released April 17, 2015. A public comment period ended Sept. 23, 2015. More than 120,000 comments were sent to the federal Surface Transportation Board.

The draft EIS is wildly inaccurate in almost every way. Here are some of the major issues Northern Plains has with the TRR and the draft EIS:

Eminent domain

  • Montana farmers and ranchers face federal condemnation of their private property if the Tongue River Railroad is permitted.
  • The railroad is speculative, since there is no market for Otter Creek coal.
  • If the TRR is built, Arch Coal would export Otter Creek coal to Asia. This means the government would give Arch Coal the power to seize land from Montana landowners to support Asian economies.

Coal train traffic

  • The draft EIS claims that the TRR could transport up to 18 to 26 unit coal trains per day, and at the same time concludes that the TRR will not lead to any increase in coal train traffic.
  • The draft EIS claims that coal dust has no negative effect on human health and that coal dust is not a byproduct of shipping coal.
  • Because STB claims there won’t be any additional train traffic, the draft EIS claims no additional toxic diesel exhaust from the 18 to 26 trains a day.

Climate change

  • Similar to STB’s treatment of coal train traffic in the draft EIS, the document claims that transporting Otter Creek coal to market will have no impact on greenhouse gas emissions.

Coal markets

  • The draft EIS claims there is a strong demand for Otter Creek coal in the United States. Coal has dropped from 50% to 35% of domestic electricity consumption in less than a decade and many coal plants are closing or transitioning to other fuels. There is no U.S. demand for Otter Creek coal.
  • While the draft EIS claims strong demand for Otter Creek coal, it also claims that Otter Creek coal will have no impact on demand. This is clearly false logic based on flawed assumptions.

Jeanie Alderson addresses impacts of TRR to the Tongue River Valley

Concerns Northern Plains has about the Tongue River Railroad

The environmental impact statement for the proposed Tongue River Railroad in southeastern Montana should analyze the following:

  • Public convenience and necessity: This proposed railroad is not for the “public convenience and necessity” which is what is required in order for a body to get the power of eminent domain and condemnation authority. This railroad would serve only one coal company giant, Arch Coal, which intends to sell the coal to China and other Asian countries.
  • Impacts on property values: The project would devalue property (especially riverfront property) and infringe on property rights. This railroad will cause fires, spread weeds, and will make ranching and farming more difficult and expensive, will split ranch land in half separating fields from the river, and will shift the liability of train crossings to the landowner.
  • Wildlife: The Tongue River Valley is rich in wildlife habitat and home to outstanding elk and mule deer populations as well as upland birds. Industrializing this valley with a railroad and the coal strip mine it serves will seriously degrade this excellent sportsman resource.
  • Flooding: The railroad bed will act as an earthen dam and potentially worsen the flooding problems now experienced in Miles City in the winter with ice jams.
  • Noise: The loud trains will ruin the quiet enjoyment of nearby recreation areas.
  • Infrastructure and traffic: Taxes will go up for residents and communities along the rail lines as the coal heads to West Coast ports for shipment. This railroad will increase coal train traffic substantially causing traffic delays, noise, and diesel pollution. The only way to live with this increased traffic will require expensive overpasses and safety crossings, which are paid for primarily by local taxpayers.

The Tongue River Railroad will allow coal that should stay in the ground to be burned in dirty Chinese plants and will fuel intolerable, decades-long increases in carbon dioxide emissions. The greenhouse gas costs of Otter Creek coal go far beyond just burning the coal. It must be mined, hauled by trains fueled by diesel to West Coast terminals, shipped overseas by ships fueled by diesel, and then hauled in China to the plants.

For more information, call Colin at (406) 248-1154.

Impact on Montana Farmers & Ranchers

The Tongue River Railroad will result in the condemnation of productive ranch and farm country

Northern Plains has fought a coal-hauling railroad since it was first proposed in 1980. This Tongue River Railroad will result in the condemnation of productive ranch and farm country for 89 miles along the Tongue River Valley. This is quintessential Montana ranch country, it is a valued historical region, and it provides great habitat for game and non-game wildlife.

The railroad would run near the Northern Cheyenne Reservation and the Custer National Forest possibly ruining sites sacred to the Northern Cheyenne and Crow people. Primarily, the Tongue River Railroad allow the hauling of Montana coal from the Otter Creek coal tracts to China and other Asian markets.

Northern Plains Working to Stop the Coal-to-China Railroad

Since the Tongue River Railroad Company refiled its permit application in October 2012, Northern Plains members have been hard at work to stop this ill-conceived project in its tracks.

In November 2012, the Surface Transportation Board held a series of scoping hearings in southeast Montana where Northern Plains members, other local ranchers, and Northern Cheyenne tribal members turned out in force to oppose the railroad and Otter Creek mine.

In December, TRR filed a supplemental application claiming the Colstrip Alternative as its preferred route AFTER all the scoping hearings were over. In response to its filing, Northern Plains and the Rocker Six Cattle Company filed a petition with the STB demanding it revoke the supplemental filing and force the TRR to start the process over again. On February 26, STB rejected our petition to revoke, but extended the application comment deadline by a month.

In February, Northern Plains members and allies traveled on a fly-in to Washington, D.C., to meet with the Surface Transportation Board and members of Congress about the Tongue River Railroad.

On March­­ 19, The Surface Transportation Board released its final scope of study for the environmental impact statement on the railroad and committed to studying the down-line impacts on rail lines where the coal will be shipped to market.

On April 2, Northern Plains submitted our official comments on the Tongue River Railroad permit application. Read the full comments here.

Here are some select quotes from the comments:

read more>>

It is time to put the Tongue River Railroad to rest once and for all. Twenty-seven years after the Interstate Commerce Commission approved a variant of the railroad, no tracks have been laid and not one domestic or foreign utility is on record in support of the current project.

TRRC’s Revised Application fails to establish the threshold legal requirement for this railroad because it does not meet the well-established test for demonstrating the railroad is in the public convenience and necessity. The application is deficient on its face and should be rejected.

TRRC projects $80 million in revenue for the two years following completion of construction. However, this $80 million figure is a pure fabrication: it comes without any basis or explanation for how it was derived and identifies the BNSF — the line’s operator — as the revenue source.

…it [the TRRC permit application] intentionally understates coal tonnage it would haul to avoid addressing down-line transportation impacts and environmental analysis.

TRRC’s assertions of public convenience and necessity are speculative and unsupported by credible data…   Furthermore, there are material environmental and social impacts inherent in TRRC’s proposal sufficient to rebut any assertion of public convenience and necessity, including permanent alienation of private property and loss of land use; health and safety concerns; and cumulative environmental and social impacts. Moreover, granting a Certificate to TRRC opens the door for condemnation proceedings that will give TRRC the authority to permanently condemn a right-of-way for this speculative and ill-conceived venture, trampling on Montana farms and ranches in the process.

In its supplemental application, TRRC provides no statements of support from power companies or export terminals stating that they will purchase or transport high sodium Otter Creek coal.

Thus, TRRC’s statement that most of the Otter Creek coal will be used to supply domestic demand is incorrect.

TRRC has made inconsistent statements about the destination for its coal and failed to provide detailed information about where the coal is going, therefore the STB has an inadequate record upon which to base a decision and must reject the proposed rail line… A “Field of Dreams” theory— build it and they will come—is not in the public interest because it requires the public to endure the environmental and social impacts of condemning a right of way and constructing a new railroad that has no proven need.

The critical information missing from the application is a customer for Otter Creek coal. As illustrated above, there are no viable markets for Otter Creek coal and not one utility is on record in the supplemental application in support of the project.  Consequently, TRRC’s projections are nothing more than guesswork; there is simply nothing backing up its claims.

PERMIT: Access to the permit application can be found on the U.S. Surface Transportation Board websiteFD_30186_0 filed on 10/16/12

Owners of the proposed Tongue River Railroad (TRR) on Oct. 16, 2012, applied for a new permit with the federal Surface Transportation Board (STB) for an 89-mile railroad that would haul coal from the isolated Otter Creek valley near Ashland, Montana, down the agricultural Tongue River Valley to the main rail line at Miles City. After public meetings were held in Lame Deer, Ashland, Miles City, and Forsyth, TRR announced its latest proposal to build a rail line from Otter Creek, through Ashland, and then westward following Rosebud Creek to Colstrip where it would tie into an existing coal rail spur heading north to the main line along the Yellowstone River.

Because of decreasing demand for coal in the United States, Otter Creek coal tracts developer Arch Coal has said the strip-mined coal will be shipped overseas to power-hungry markets in China, India, and other Asian countries. TRR is owned by Arch Coal of St. Louis, Burlington Northern Santa Fe Railroad, and billionaire Forrest Mars, who previously bought one-third interest in the railroad to prevent it from crossing his ranch near the Wyoming border.

read more>>

“This application represents this ill-conceived railroad’s intent to destroy and industrialize private Montana ranchland in order to send cheap coal to China,” said Clint McRae, a Tongue River rancher and Co-Chair of the Northern Plains Resource Council’s Tongue River Railroad Task Force. “Nearly 90 miles of agricultural land could be condemned, cut in half, and devalued just to help private developers export this coal to Asia. This is a private corporation that has the power of federal condemnation to take our private land so they can export coal to a foreign country, and that’s not American.”

“The coal will go to China, the profits will go to the coal and railroad companies, and Montana will be left to pay the costs,” said Mark Fix, a Northern Plains member whose cattle ranch would be bisected by the proposed rail line. “We will fight this railroad to a standstill because not everyone in eastern Montana looks forward to having their homes and ranches turned into an international sacrifice zone for China.”

McRae and Fix said TRR contractors have been caught coming onto private and state lands without permission in the past month doing surveying and geo-tech work even before TRR had applied for the permit.

“This is just a small sample of how these people treat landowners,” Fix said.

After the public comment period, the company must complete an environmental impact statement before the permit is approved.

In June, STB ordered TRR to reapply for a permit because the old permit was based on outdated information and a different route. Last December, the Ninth Circuit U.S. Court of Appeals ruled, in a case filed by the Northern Plains Resource Council and Native Action, that the environmental impact statement for the TRR fell short of the law’s requirements, partly because much of the field data was decades old, and partly because much field data had simply never been gathered.

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