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DAKOTA, MINNESOTA & E. R.R. v. SOUTH DAKOTA

No. 03-1046, 03-1179.

362 F.3d 512 (2004)

DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Plaintiff — Appellee/Cross Appellant, v. State of SOUTH DAKOTA, et al., Defendants — Appellants/Cross Appellees.

United States Court of Appeals, Eighth Circuit.

Filed: March 23, 2004.

Attorney(s) appearing for the Case

Counsel who presented argument on behalf of the appellant was Neil K. Fulton, Pierre, SD. Additional attorney appearing on the brief was Brent A. Wilbur.

Counsel who presented argument on behalf of the appellee was Brian James Donahoe, Sioux Falls, SD. Additional attorney appearing on the brief was Mark E. Salter.

Before LOKEN, Chief Judge, LAY and BOWMAN, Circuit Judges.

LOKEN, Chief Judge.

In 1986, the Dakota, Minnesota, & Eastern Railroad (DM & E) purchased the deteriorated interstate rail system of the Chicago & North Western Railroad. In 1998, seeking new revenues to fund needed repairs, DM & E applied to the federal Surface Transportation Board for authority under 49 U.S.C. § 10901 to construct new rail lines and to rebuild existing track in South Dakota and elsewhere in order to access low sulfur coal mined...

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