Surface Transportation Board's Historic Preservation Review Process for Tongue River Railroad's Proposal
The Tongue River Railroad Company, Inc. (TRRC) is seeking a license from the Surface Transportation Board (Board or STB) under 49 U.S.C. § 10901 to construct and operate a rail line in southeast Montana. The purpose of the proposed line is to transport low sulfur sub-bituminous coal from a planned coal mine currently in the permitting process at Otter Creek and any future mines that might be developed in the Otter Creek and Ashland, Montana area. TRRC's filing of a revised application (in October 2020, then a supplemental application in December 2020, which TRRC states supersedes the October filing) triggers the Board's responsibilities to conduct certain environmental and historic reviews before any decision on TRRC's proposal is issued: the Board must assess the potential effects of TRRC's proposal on historic, cultural, and tribal resources pursuant to Section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA) and other Federal laws that apply to cultural and tribal sites.
The Section 106 regulations (36 CFR Part 800) require the Board to take into account the potential effects of its undertakings on historic properties including: historic buildings, prehistoric and historic archaeological sites, artifacts, traditional cultural properties, and landscapes (both tribal and historic). In addition to Section 106, sites assessed under NEPA (the human environment, including the natural and physical environment and the relationship of people with that environment) could also include, for example, tribal plant gathering areas and religious sites. Properties that the Board ultimately must consider when assessing effects are those listed on or eligible for listing on the National Register of Historic Places (see criteria for listing here).
Other relevant legislation that applies to cultural resources includes the Antiquities Act of 1906,16 U.S.C. § 431; the Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470; the National Trails System Act, 16 U.S.C. § 1241; the American Indian Religious Freedom Act of1978, 42 U.S.C. § 1996; section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303; the Archaeological and Historic Preservation Act of 1974 ("Moss-Bennett" Act), 16 U.S.C. § 469; Indian Sacred Sites, Executive Order 13007, 61 Federal Register 25131(May 17, 1996); and the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013. The Board is also guided by its own regulations at 49 CFR 1105 (see the STB historic preservation guidance for more on the Board's process).
Section 106 Consultation Efforts
To support its Section 106 outreach efforts, the Office of Environmental Analysis (OEA) has held monthly calls with consulting parties since February 2013. OEA also added this historic preservation page to the Tongue River Project website, which is accessible to the public. OEA invited potential Section 106 consulting parties to a meeting held on the Northern Cheyenne Reservation in Lame Deer, Montana, on April 16 through 18, 2013; members of the public also attended. The meeting included a one-day bus tour of portions of the Area of Potential Effect. During the meeting, representatives from the Rosebud Sioux Tribe offered some suggestions for OEA to consider in developing the approach to the archaeological surveys. Other tribal representatives echoed the following comments and suggestions at the meeting.
- Tribal cultural resources specialists and archaeologists offer differing expertise in the identification of sites of religious and cultural significance to tribes.
- Tribal sites should be respected.
- Tribal archaeologists and cultural resources specialists should have parity with OEA archaeologists.
OEA held a Section 106 consulting party meeting in Billings, Montana, on February 13 and 14, 2014. OEA provided an update on the Section 106 process to the consulting parties and solicited their comments, opinions, and concerns about the progress to date and next steps. Several of the meeting attendees recommended that work on a Programmatic Agreement begin immediately. Consequently, after the meeting was formally adjourned on February 14th, consulting party representatives remained behind to work on redrafting the Programmatic Agreement that OEA had developed for the prior Tongue River project. Appendix A, Consultation, provides the list of attendees and transcripts of the meetings. Since the February 2014 meeting, OEA has worked with the consulting parties on a regular basis to develop the Programmatic Agreement. In April 2014, upon the advice of ACHP, OEA provided the consulting parties with an explanation of why it would be appropriate to develop a Programmatic Agreement in this case. In June through July 2014, OEA worked with the consulting parties to develop the recitals, or WHEREAS clauses, of the draft Programmatic Agreement. From August 2014 through January 2015, OEA continued to work with the consulting parties to develop the other sections of the draft Programmatic Agreement, including the stipulations and appendices. The draft Programmatic Agreement has been issued for public review and comment as part of the Draft EIS.
Historic Preservation and Section 106 consultation documents are available here.
OEA staff member Catherine Nadals is leading the review on historic preservation. She is also the lead for tribal consultation. Please feel free to contact her regarding your questions or concerns at 202-245-0293 (work) or .
ICF International, Inc. is assisting the OEA on historic preservation, as well as environmental issues under NEPA and tribal consultation. ICF has assigned a team of historic preservation professionals to this project. The ICF Project lead for historic preservation is Richard Starzak. Rick may be contacted at 213-312-1751 or at .