SIOUX FALLS, S.D. -- Opponents of the Dakota Minnesota &
Eastern Railroad's reconstruction are trying this month to get as
many sets of eyes as possible on the project's environmental impact
statement -- a document of nearly 3,000 pages, according to the
Argus Leader.
The effort to comprehend that massive tome
typifies the challenge confronting a far-flung coalition of
environmentalists, ranchers, Indians, farmers, Mayo Clinic medical
professionals and residents of cities through which the DM&E
tracks pass.
The reconstruction would run across Minnesota
and South Dakota and nexpand to Wyoming's Powder River Basin. The
loosely knit group reviewing the environmental impact statement is
held together by objections to mile-long high-speed coal trains that
would haul cleaner-burning Wyoming low- sulfur coal to Midwest power
plants. Those objections range as widely as the proposed 1,096-mile
DM&E line along which those trains would travel.
"At
first we thought this might be confined to a few arguments. Now it
looks like there is so much lacking in this EIS it may require
several lawsuits on site-specific or point-specific issues," says
Sam Clauson, head of the Sierra Club in South Dakota.
"The
problem is, everyone has a little different issue. If those could be
put into one big case, that might be the ideal thing," says Nancy
Darnell of the Alliance for Responsible Development in eastern
Wyoming.
"Each of the major groups, the tribe, the rancher
coalition and the Sierra Club have people reviewing this, trying to
come up with the best language and points to use in a lawsuit,"
Clauson says.
The most likely challenges to the project will
focus on the environmental impacts of 262 miles of new track that
would take the DM&E from Wasta south and west around the Black
Hills and north again to the Powder River Basin coal fields. The
line would traverse both federal grasslands and the property of more
than 130 private landowners. It would pass through areas of
paleontological and possibly archaeological significance, through
pristine airsheds near Badlands National Park, near roadless land
that meets initial criteria for federal protection as wilderness,
through wetlands and riparian zones.
"We are disappointed
that federal agencies have not weighed in against this more heavily,
other than the National Park Service, which has said 'No,' and 'Hell
no,' to lowering their Class I airshed," Clauson says.
Even
at nearly 3,000 pages, the final impact statement still features
shortcomings that seriously flawed the preliminary draft, according
to Lilias Jones Jarding, Bison Land Resource Center executive
director.
"It does nothing to deal with the basic issues of
destruction of habitat, and destruction of cultural resources and
destruction of community values this project represents. It does not
delve into this well, in my opinion," she says.
"The process
is supposed to include complete disclosure of impacts, complete
discussion by the agencies), and a complete mitigation plan. This
document is still obviously deficient."
Activists in
Rochester, Minn., Brookings and Pierre have sought to make the
DM&E build bypasses around those towns. But because the DM&E
plans to rebuild line on existing right-of-way it controls through
those communities, the grounds for challenging the railroad there
are virtually nonexistent.
Jones Jarding, however, notes Mayo
Clinic officials in Rochester have petitioned the federal Surface
Transportation Board, which oversees railroads in the United States,
to reopen discussion on aspects of the DM&E project as a result
of the Sept. 11 terrorist attacks.
"Sept. 11 raises a lot of
issues. There is energy security. This railroad does not help that,"
she says.
A national economic slowdown since Sept. 11 also
figures into the DM&E proposal, she says.
"The recession
means that energy demands have gone down. The question is whether
this coal line is needed in that sense. That question has always
been there, but changes in energy demand make it more obvious."
Railroad expansion opponents see time spent with the
environmental impact statement now as the most useful way to prepare
for a lengthy siege of administrative appeals and lawsuits almost
sure to follow when the STB issues its formal decision approving the
$1.4 billion rail project. That decision will be based on the
conclusions that the planned national benefits of the new railroad
outweigh the costs of mitigating the environmental impacts its
construction creates.
The STB decision is not anticipated
before the end of the year.
"We're telling people to enjoy
Christmas," the Sierra Club's Clauson says. "Until you see big loans
approved ... don't start to worry too much. Don't panic and think
this is a done deal yet."
"There is still a series of state
and county permits that have not been granted," Jones Jarding points
out. "The Army Corps has not gotten through its process. People
really shouldn't put too much weight on what the STB does. It's a
major step, but it's just one in an extremely long
process."
Darnell, whose Wyoming ranch would be affected by
the new rail line, says the STB decision itself will guide the
railroad opponents' next step.
"They will have to tell us
what the appeal process is in the decision," she says. "We are
ready. We have the basic framework in place for those appeals and
for legal action."
A key step for opponents is securing
approval from the national board of the Sierra Club for the South
Dakota club chapters to proceed with legal challenges to the
railroad project.
"We have recommended that they allow us to
proceed with a lawsuit," Clauson says. "It still has to be approved
by the board."
In the meantime, DM&E opponents are
considering who could represent them in lawsuits against the
railroad.
"There is really nothing we can do except prepare,
get some money together and interview attorneys," Darnell
says.
Opposition to the DM&E project has forged an
informal coalition that members like to call the CIA -- the Cowboys
and Indians Alliance.
"We have been dealing with the Sierra
Club and with the Oglala Sioux, and we have found we work very well
with them," Darnell says.
The proposed DM&E line would
pass near the northwest corner of the Pine Ridge Reservation. A
possible platform for opposing the DM&E there nearly turns back
the clock 135 years, to an era when the aims of railroads and
treaties collided. Harvey White Woman, administrative assistant to
the Office of the Fifth Member of the Oglala Sioux executive board,
says "we feel, from a tribal standpoint," that building a new
railroad across traditional Lakota land conflicts with both the 1851
and 1868 treaties. In mounting a legal challenge to the DM&E
"obviously we will utilize the treaties," he says.
"The EIS
says the treaties have already been abrogated. We feel they haven't
been." He referred to a 1980 U.S. Supreme Court decision he says
acknowledges the Black Hills were illegally taken from the Lakota
descendants of tribal members covered by the 1868 treaty. He said
that should be the controlling principle where the DM&E is
concerned.
"As far as arguing a treaty case, we are going to
breaking new ground," he says.
White Woman also echoes one of
Jones Jarding's concerns. He says the EIS is "totally flawed" in how
it proposes to have the DM&E deal with cultural sites unearthed
during new construction.
"If they come upon a burial site or
a cultural research site, if it is too expensive to go around, they
will dig up the bones and place them somewhere else. We find that is
in total violation of the National Graves Protection and
Repatriation Act and the Archaeological Resources Act. We cannot see
the DM&E move the bodies and bones of our ancestors."