MID STATES COAL. PROGRESS v. SURFACE TRANSP. BD.

Nos. 02-1359, 02-1481, 02-1482, 02-1767, 02-1785, 02-1792, 02-1794, 02-1804, 02-1863.

345 F.3d 520 (2003)

MID STATES COALITION FOR PROGRESS, 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 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 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. 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; 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 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. Mayo Foundation, 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; 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, 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. Minnesotans for an Energy-Efficient 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.; 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, 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. 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; 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 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 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. 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; 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; 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. Olmsted County, 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; 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, a Political Subdivision of the State of South Dakota; Citizens Against Rochester's Bypass, Intervenors on Appeal. Michael J. Laplante, President of the 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; 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, a Political Subdivision of the State of South Dakota; Citizens Against Rochester's Bypass, Intervenors on Appeal. 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; 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; 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.

United States Court of Appeals, Eighth Circuit.

Filed: October 2, 2003.

Order Denying Petitions for Rehearing and for Rehearing January 30, 2004.


Attorney(s) appearing for the Case

Counsel who presented argument on behalf of petitioner Sierra Club in 02-1792 was James B. Dougherty of Washington, D.C. Also appearing on the brief was Noah D. Hal.

Counsel who presented argument on behalf of petitioner Olmsted County in 02-1794 was Elizabeth Hendricks Schmiesing of Minneapolis, Minnesota. Also appearing on the brief was Raymond F. Schmitz, Richard A. Duncan, and Kristin R. Eads.

Counsel who presented argument on behalf of petitioner Mayo Foundation in 02-1482 was Keith G. O'Brien of Washington, D.C.

Counsel who presented argument on behalf of petitioner City of Rochester in 02-1481 was Steven J. Kalish of Washington, D.C. Also appearing on the brief was A.M. Keith.

Counsel who presented argument on behalf of respondent Surface Transportation Board in all cases was Evelyn G. Kitay of Washington, D.C. Also appearing on the brief were Greer S. Goldman, M. Alice Thurston.

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


Order Denying Petitions for Rehearing and for Rehearing En Banc January 30, 2004.

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...

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