I enjoy trains, therefore I keep an eye on railroad doings – such as the Ninth Circuit Court of Appeals’ ruling in Northern Plains Resource Council v. Surface Transportation Board, NPRC v. Surf for short.
At issue is the 2007 Surface Transportation Board (Surf Board or STB) approval of the Tongue River Railroad (TRR), about 130 miles from Miles City, through Otter Creek, Ashland and Birney, to Decker along the Tongue River.
TRR first sought permission for part of the route in 1983, and the rest in 1986 – three years after the new “Orin line” railroad into Wyoming’s Powder River Basin was built.
TRR would “open up” the north end of the Powder River coal fields to rail, as well as add a “water level” routing option to the network, letting westward coal from the Decker mines avoid Parkman hill out of Sheridan, Wyoming – basically a railroad no-brainer.
Why is TRR still unbuilt in 2012?
Economics surely matter, but politics rule. Coal enjoys special Death Star status in “climate change” politics. Supplying 40 percent of America’s coal supply, powering fully 50 percent of America’s electric network output, the Powder River Basin (at least in Wyoming) is, for warmunists, the Death Star’s black hole.
Second is the “split-estate” issue. Hundreds of millions of acres of the West (including Eastern Montana) are “split” into surface lands owned by one person, with the underground mineral rights (oil, gas, coal) owned by others – either the government or private entities.
So, imagine you have a million-dollar ranch (or retirement trophy home) sitting on a billion dollars worth of coal, or gas, or oil, owned by others, not you. Imagine the billion dollars worth of coal rendered worthless if the folks who own it can’t haul it away after they dig it up. Finally, imagine you already have billions (10 to 14 of them) – as does candy scion Forrest Mars, Jr.
Mars quietly put together the 82,000-acre Diamond Cross ranch by 2003 nearby the Tongue River Reservoir, only to find that the subsurface rights to coalbed methane (CBM) were held by Pinnacle Gas Resources. His ranch crews blocked Pinnacle from their leases, Pinnacle sued, and Mars lost.
Furthermore, Mars’ holdings lay across TRR’s proposed right of way. So, while the duration and dollar amount is secret, up until July of 2011, Mars was at least partly funding Northern Plains’ litigation against TRR’s construction permit.
However, as explained via letter to Ed Gulick of Northern Plains, Mars decided NPRC’s appeal “will probably not be successful.” Mars chose instead to buy a third share of TRR on the condition that TRR not build through his ranch: “I sincerely hope that Northern Plains is pleased with this result.”
Even more pleasing, Mars stated, “I will not be helping you fund the current appeal [NPRC v. Surf] or any future litigation.”
As for the lawsuit, NPRC v. Surf follows the usual Green strategy: Multiple counts, hoping something sticks. Further as usual, the Ninth upheld STB and TRR on most counts, including its route, but not all – rendering the litigation “successful.”
NPRC won several points. The one that matters most is a lack of baseline wildlife data. For example, TRR conducted aerial surveys for blacktail prairie dogs and bald eagles, but not sage grouse. With grouse today’s star candidate for ESA listing, TRR will at a minimum have to comprehensively survey for sage grouse for two miles on either side of the right of way, and then lay out a bombproof mitigation plan. The expected bickering, especially if the sage grouse becomes listed under the ESA, should drag out at least another two years. What a way to run a railroad – or try.
No matter what, Forrest Mars’ cash has made it more likely that TRR will hang on long enough to run, a gesture that deserves appropriate recognition when TRR’s first trainload leaves the loading loop for market.
I sincerely hope that along with the usual pennies laid out for the locomotives to squish are some M&Ms. Mr. Mars should be pleased with the result.