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NORTHERN PLAINS RESOURCE v. SURFACE TRANSP. BD.

Nos. 97-70037, 97-70099, 97-70217, 07-74348.

668 F.3d 1067 (2011)

NORTHERN PLAINS RESOURCE COUNCIL, INC., a Montana Non-Profit Corporation, Petitioner, Native Action Inc., a Montana Non-Profit Corporation, Petitioner-Intervenor, v. The SURFACE TRANSPORTATION BOARD; United States of America, Respondents, v. Tongue River Railroad Company, Respondent-Intervenor. Native Action Inc., a Montana Non-Profit Corporation, Petitioner, v. The Surface Transportation Board; United States of America, Respondents. United Transportation Union-General Committee of Adjustment (GO-386); United Transportation Union-Montana State Legislative Board, Petitioners, v. The Surface Transportation Board; United States of America, Respondents, Tongue River Railroad Company, Respondent-Intervenor. Northern Plains Resource Council; City of Forsyth; United Transportation Union; General Committee for Adjustment (GO-386); United Transportation Union-Montana State Legislative Board; Mark Fix, Petitioners, Native Action Inc., Petitioner-Intervenor, v. The Surface Transportation Board; United States of America, Respondents, Tongue River Railroad Company, Respondent-Intervenor.

United States Court of Appeals, Ninth Circuit.

Filed December 29, 2011.

Attorney(s) appearing for the Case

Jack R. Tuholske (argued), Tuholske Law Office PC, Missoula, MT; John Meyer , Cottonwood Environmental Law Center, Bozeman, MT, for the petitioner.

Virginia Strasser (argued), Raymond Atkins , Evelyn G. Kitay , and Theodore Hunt , Department of Transportation, Surface Transportation Board, Washington, D.C.; Joan M. Pepin , Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; Robert B. Nicholson and John P. Fonte , Department of Justice, Antitrust Division, Washington, D.C., for the respondents.

Gordon P. MacDougall (argued), Washington, D.C.; Gary Ryder , Hysham, MT; Joe A. Rodriguez , Lame Deer, MT, for the petitioner-intervenor.

David Corburn (argued) and Betty Jo Christian, Steptoe & Johnson LLP, Washington, D.C.; Thomas Ebzery , Billings, MT; John G. Crist , Crist, Krogh & Nord LLC, Billings, MT, for the respondent-intervenor.

Before: ALFRED T. GOODWIN, HARRY PREGERSON, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

This case arises out of three applications by the Tongue River Railroad Company, Inc. (TRRC) to build a 130-mile railroad line in Southeastern Montana to haul coal. The Surface Transportation Board (Board), or its predecessor, the Interstate Commerce Commission (ICC), approved each of the three applications (individually, TRRC I, II, and III). Northern Plains Resource Council, Inc. (NPRC), Mark Fix, the City of Forsyth, Native...

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