In 1986, the Board's predecessor agency, the Interstate Commerce Commission (ICC) gave approval to TRRC to build and operate an 89-mile rail line between Miles City, Montana, and two termini located near Ashland, Montana, a proceeding known as Tongue River I.1 The purpose of the line was to serve new coal mines in the Ashland area. In 1996, the Board authorized TRRC to build a contiguous 41-mile rail line from Ashland to Decker, Montana, in Tongue River II.2 In 2007, the Board authorized TRRC to build and operate the Western Alignment, a 17.3-mile alternate route for a portion of the route already approved in Tongue River II in a proceeding known as Tongue River III.3 The ICC/Board's environmental staff, now OEA, prepared EISs in all three proceedings.
Petitions for review of the last two decisions, Tongue River II and Tongue River III, were filed in the United States Court of Appeals for the Ninth Circuit, and, in 2011, the court affirmed in part, and reversed and remanded in part, those decisions for additional environmental review.4 The court's decision requires the Board to revisit the environmental analysis for Tongue River I because the Board had conducted a cumulative impacts analysis for the entire line in Tongue River III and made the resulting mitigation conditions applicable to the entire line in its Tongue River III decision. TRRC then informed the Board that it no longer intended to build the Tongue River II and Tongue River III portions of the railroad.
On June 18, 2020, the Board issued a decision dismissing the Tongue River II and Tongue River III proceedings and reopening Tongue River I.5 As explained in more detail in that decision (which is available on the Board's website), the Board required TRRC to file a revised application that presents the railroad's current plans to build a rail line between Miles City and Ashland, Montana. In addition, the Board decided to conduct a new environmental review rather than a supplemental environmental review based on the three prior environmental reviews that began in the 1980s. The Board found that a new EIS (including a new scoping process) is appropriate given the passage of time since Tongue River I was decided, the railroad's failure to begin construction of any part of this railroad and other changes that have taken place, the nature of the court's partial remand, and the fact that most of the Board's more recent environmental analysis pertains to Tongue River II or Tongue River III, neither of which the railroad still proposes to build. The Board also stated that a new EIS will encourage and facilitate public participation.6
1. Tongue River R.R.—Rail Constr. and Operation—In Custer, Powder River and Rosebud Cntys., Mont. (Tongue River I), FD 30186 (ICC served Sept. 4, 1985), modified (ICC served May 9, 1986), pet. for judicial review dismissed, N. Plains Res. Council v. ICC, 817 F.2d 758 (9th Cir.), cert. denied, 484 U.S. 976 (1987).
2. Tongue River R.R.—Rail Constr. and Operation—Ashland to Decker, Mont. (Tongue River II), 1 S.T.B. 809 (1996), pet. for reconsid. denied (STB served Dec. 31, 1996).
3. Tongue River R.R.—Rail Constr. and Operation—Ashland to Decker, Mont. (Tongue River III), FD 30186 (Sub-No. 3) (STB served Oct. 9, 2007), pet. for reconsid. denied (STB served Mar. 13, 2008).
4. See N. Plains Res. Council v. STB, 668 F.3d 1067 (9th Cir. 2011).
5. Tongue River R.R.—Rail Constr. and Operation—In Custer, Powder River & Rosebud Cntys., Mont., FD 30186 et al. (STB served June 18, 2020).
6. Id. at 9-10.