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BNSF RY. CO. v. SURFACE TRANSP. BD.

Nos. 09-1092, 09-1190, 09-1234.

604 F.3d 602 (2010)

BNSF RAILWAY COMPANY, Petitioner v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents Basin Electric Power Cooperative, Inc. and Western Fuels Association, Inc., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided May 11, 2010.

Attorney(s) appearing for the Case

Richard P. Bress argued the cause for petitioner. With him on the briefs were Maureen E. Mahoney, Lori Alvino McGill, Richard E. Weicher, Samuel Sipe Jr., and Anthony J. LaRocca.

Erik G. Light, Attorney, Surface Transportation Board, argued the cause for respondents. With him on the brief were Robert B. Nicholson and John P. Fonte, Attorneys, U.S. Department of Justice, Ellen D. Hanson, General Counsel, Surface Transportation Board, and Thomas J. Stilling, Attorney. Raymond A. Atkins, Attorney, entered an appearance.

John H. LeSeur argued the cause for intervenors Basin Electric Power Cooperative, Inc., et al. in support of respondents. With him on the brief were Christopher A. Mills and Peter A. Pfohl.

Marty J. Jackley, Attorney General, Attorney General's Office of the State of South Dakota, Roxanne Giedd, Assistant Attorney General, Wayne K. Stenehjem, Attorney General, Attorney General's Office of State of North Dakota, Charles M. Carvell, Assistant Attorney General, and Bruce A. Salzburg, Attorney General, Attorney General's Office of State of Wyoming, were on the brief for amici curiae in support of intervenors and affirmance.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

BNSF Railway Company ("BNSF") petitions for review of the decision of the Surface Transportation Board ("Board") that rates challenged in 2004 by Western Fuels Association, Inc., and Basin Electric Power Cooperative, Inc. (hereinafter, collectively, "WFA") are unreasonably high maximum reasonable rates, prescribing future maximum rates, and ordering BNSF to pay reparations.1 BNSF contends that

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