Count one for Mark Fix. The Montana rancher lives smack dab in the path of a proposed coal-hauling rail line near the Tongue River, east of Billings—a project he's been fighting for years, and one the 9th Circuit Court of Appeals sent back to the rail yard Dec. 29.
The 9th Circuit's ruling found that the Surface Transportation Board had "failed to take the requisite 'hard look' at certain material environmental impacts" when it green-lighted the Tongue River Railroad in 2007. Those impacts include nearby coal-bed methane development and future mining of the coal tracts at Otter Creek.
The court criticized the STB for relying on stale data such as years-old aerial survey photographs in determining the risks to native plants and wildlife. It found that it was "inherently illogical" that the STB's evidence was sufficient, and held that the board had violated the National Environmental Protection Act.
"The Surface Transportation Board did what we call 'a windshield study,'" Fix said in a statement last week. "It's almost as if they drove around and looked out the car window and based their analysis on that. It's not fair to landowners like me who could be condemned by this railroad."
Fix is also the former chair of the Northern Plains Resource Council, which filed the original legal challenge against the railroad in 1997.
The Tongue River Railroad Company first set its sights on a track south of Miles City in the late 1980s; three sections eventually emerged, connecting the line to coal beds near Decker. At the time, the company intended to transport coal from Montana and Wyoming to markets in the Midwest. But with rising demand in China, the plan has since shifted to target overseas markets
The project appeared ready to forge ahead last summer when candy bar mogul Forrest E. Mars Jr. teamed up with Arch Coal and Burlington Northern Sante Fe to purchase the Tongue River Railroad. But in the wake of the 9th Circuit's decision, the STB will have to conduct a new environmental study before the proposal can move forward. That study will now have to consider the cumulative impacts of coal development at Otter Creek.