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  5. 158 F.3d 1294 (1998)
 

McCARTY FARMS, INC. v. SURFACE TRANSP. BD.

Nos. 97-1632, 98-1304.

158 F.3d 1294 (1998)

McCARTY FARMS, INC., et al., Petitioners, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents. Burlington Northern and Santa Fe Railway Company, Intervenor.

United States Court of Appeals, District of Columbia Circuit.

Decided October 20, 1998.

Attorney(s) appearing for the Case

Tim L. O'Neill argued the cause for petitioners, with whom Timothy R. Engler was on the briefs.

Thomas J. Stilling, Attorney, Surface Transportation Board, argued the cause for respondents, with whom Joel I. Klein, Assistant Attorney General, United States Department of Justice, Robert B. Nicholson, and John P. Fonte, Attorneys, Henri F. Rush, General Counsel, Surface Transportation Board, and Ellen D. Hanson, Deputy General Counsel, were on the brief.

Samuel M. Sipe, Jr. argued the cause for intervenor Burlington Northern and Santa Fe Railway Company, with whom Carolyn Doozan Clayton, Richard E. Weicher and Michael E. Roper were on the brief.

Before: SENTELLE, HENDERSON, and GARLAND, Circuit Judges.

SENTELLE, Circuit Judge:

Petitioners McCarty Farms, Inc., et al. (collectively "McCarty Farms") and the State of Montana Department of Commerce, et al. (collectively "State of Montana") challenge a decision of the Surface Transportation Board ("STB" or "Board") in which the STB ruled that petitioners had failed to demonstrate that the rates charged by Burlington Northern Railroad ("BN") to transport wheat and barley from Montana to the Pacific Northwest

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