DM&E Foes Joining Forces

SIOUX FALLS, S.D. -- Opponents of the Dakota Minnesota & Eastern Railroad's reconstruction are trying this month to get as many sets of eyes as possible on the project's environmental impact statement -- a document of nearly 3,000 pages, according to the Argus Leader.

The effort to comprehend that massive tome typifies the challenge confronting a far-flung coalition of environmentalists, ranchers, Indians, farmers, Mayo Clinic medical professionals and residents of cities through which the DM&E tracks pass.

The reconstruction would run across Minnesota and South Dakota and nexpand to Wyoming's Powder River Basin. The loosely knit group reviewing the environmental impact statement is held together by objections to mile-long high-speed coal trains that would haul cleaner-burning Wyoming low- sulfur coal to Midwest power plants. Those objections range as widely as the proposed 1,096-mile DM&E line along which those trains would travel.

"At first we thought this might be confined to a few arguments. Now it looks like there is so much lacking in this EIS it may require several lawsuits on site-specific or point-specific issues," says Sam Clauson, head of the Sierra Club in South Dakota.

"The problem is, everyone has a little different issue. If those could be put into one big case, that might be the ideal thing," says Nancy Darnell of the Alliance for Responsible Development in eastern Wyoming.

"Each of the major groups, the tribe, the rancher coalition and the Sierra Club have people reviewing this, trying to come up with the best language and points to use in a lawsuit," Clauson says.

The most likely challenges to the project will focus on the environmental impacts of 262 miles of new track that would take the DM&E from Wasta south and west around the Black Hills and north again to the Powder River Basin coal fields. The line would traverse both federal grasslands and the property of more than 130 private landowners. It would pass through areas of paleontological and possibly archaeological significance, through pristine airsheds near Badlands National Park, near roadless land that meets initial criteria for federal protection as wilderness, through wetlands and riparian zones.

"We are disappointed that federal agencies have not weighed in against this more heavily, other than the National Park Service, which has said 'No,' and 'Hell no,' to lowering their Class I airshed," Clauson says.

Even at nearly 3,000 pages, the final impact statement still features shortcomings that seriously flawed the preliminary draft, according to Lilias Jones Jarding, Bison Land Resource Center executive director.

"It does nothing to deal with the basic issues of destruction of habitat, and destruction of cultural resources and destruction of community values this project represents. It does not delve into this well, in my opinion," she says.

"The process is supposed to include complete disclosure of impacts, complete discussion by the agencies), and a complete mitigation plan. This document is still obviously deficient."

Activists in Rochester, Minn., Brookings and Pierre have sought to make the DM&E build bypasses around those towns. But because the DM&E plans to rebuild line on existing right-of-way it controls through those communities, the grounds for challenging the railroad there are virtually nonexistent.

Jones Jarding, however, notes Mayo Clinic officials in Rochester have petitioned the federal Surface Transportation Board, which oversees railroads in the United States, to reopen discussion on aspects of the DM&E project as a result of the Sept. 11 terrorist attacks.

"Sept. 11 raises a lot of issues. There is energy security. This railroad does not help that," she says.

A national economic slowdown since Sept. 11 also figures into the DM&E proposal, she says.

"The recession means that energy demands have gone down. The question is whether this coal line is needed in that sense. That question has always been there, but changes in energy demand make it more obvious."

Railroad expansion opponents see time spent with the environmental impact statement now as the most useful way to prepare for a lengthy siege of administrative appeals and lawsuits almost sure to follow when the STB issues its formal decision approving the $1.4 billion rail project. That decision will be based on the conclusions that the planned national benefits of the new railroad outweigh the costs of mitigating the environmental impacts its construction creates.

The STB decision is not anticipated before the end of the year.

"We're telling people to enjoy Christmas," the Sierra Club's Clauson says. "Until you see big loans approved ... don't start to worry too much. Don't panic and think this is a done deal yet."

"There is still a series of state and county permits that have not been granted," Jones Jarding points out. "The Army Corps has not gotten through its process. People really shouldn't put too much weight on what the STB does. It's a major step, but it's just one in an extremely long process."

Darnell, whose Wyoming ranch would be affected by the new rail line, says the STB decision itself will guide the railroad opponents' next step.

"They will have to tell us what the appeal process is in the decision," she says. "We are ready. We have the basic framework in place for those appeals and for legal action."

A key step for opponents is securing approval from the national board of the Sierra Club for the South Dakota club chapters to proceed with legal challenges to the railroad project.

"We have recommended that they allow us to proceed with a lawsuit," Clauson says. "It still has to be approved by the board."

In the meantime, DM&E opponents are considering who could represent them in lawsuits against the railroad.

"There is really nothing we can do except prepare, get some money together and interview attorneys," Darnell says.

Opposition to the DM&E project has forged an informal coalition that members like to call the CIA -- the Cowboys and Indians Alliance.

"We have been dealing with the Sierra Club and with the Oglala Sioux, and we have found we work very well with them," Darnell says.

The proposed DM&E line would pass near the northwest corner of the Pine Ridge Reservation. A possible platform for opposing the DM&E there nearly turns back the clock 135 years, to an era when the aims of railroads and treaties collided. Harvey White Woman, administrative assistant to the Office of the Fifth Member of the Oglala Sioux executive board, says "we feel, from a tribal standpoint," that building a new railroad across traditional Lakota land conflicts with both the 1851 and 1868 treaties. In mounting a legal challenge to the DM&E "obviously we will utilize the treaties," he says.

"The EIS says the treaties have already been abrogated. We feel they haven't been." He referred to a 1980 U.S. Supreme Court decision he says acknowledges the Black Hills were illegally taken from the Lakota descendants of tribal members covered by the 1868 treaty. He said that should be the controlling principle where the DM&E is concerned.

"As far as arguing a treaty case, we are going to breaking new ground," he says.

White Woman also echoes one of Jones Jarding's concerns. He says the EIS is "totally flawed" in how it proposes to have the DM&E deal with cultural sites unearthed during new construction.

"If they come upon a burial site or a cultural research site, if it is too expensive to go around, they will dig up the bones and place them somewhere else. We find that is in total violation of the National Graves Protection and Repatriation Act and the Archaeological Resources Act. We cannot see the DM&E move the bodies and bones of our ancestors."