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Ninth Circuit Kills Trees, Approves Alaskan Railroad

By William Peacock, Esq. | Last updated on

Not every case can be a habeas corpus petition or a fascinating discussion on the requirements of Iqbal and Twombly. This opinion, unless you are enchanted with obscure environmental laws and administrative procedures, or live in Port MacKenzie, Alaska, is probably not worth reading verbatim. You can thank us later for the highlights.

The Alaska Railroad Corporation (AARC) wanted to construct 35 miles of rail to Port MacKenzie for the purposes of economic development and improving access beyond roads. Of course, with any construction project in the untamed wilderness, there will be casualties. Even with “one hundred mitigation measures … construction of the rail line would increase erosion and sediment transport to water, cause nutrient loading, and likely leak petrochemicals to nearby waters. Construction would also lead to loss of wetland habitat, water degradation, and potentially a change in the hydrology of the wetland system.”

Despite the environmental effects, the Surface Transport Board granted an exemption to a few bureaucratic procedures that would have cost more tax money. Unsurprisingly, this makes environmentalists angry. They petitioned to the courts for review of the decision.

The STB maintained that the court should abstain, citing a lack of exhaustion of administrative remedies. However, unless the statute requires administrative exhaustion or notice was given to interested parties during the earlier proceedings that all remedies should be exhausted then and there -- speak now or forever hold your peace -- judicial review is appropriate under Sims v. Apfel.

We'd review every complaint made by the petitioners, but your brains would probably explode. The short version is that they took issue with the numerous shortcuts that come with the exemption approved by the STB, especially the skipping of a "determination that the activities are consistent with the public convenience and necessity" under 49 U.S.C. § 10901.

Of course, the point of the exemption is to save time. If § 10901 had to be complied with, especially for those granted exemptions, it would "make the exemption process broader and possibly more onerous than the proceeding from which exemption was sought."

There was also the argument that this railroad is completely unnecessary. The court really didn't like that argument, stating,

"This argument ignores the people of Port MacKenzie['s] ... legitimate interest in a rail line connecting their side of the inlet to the main rail line, even if there are other ports in the area. Further, the statement's aspirational quality does not mean that the rail line will not serve a purpose as a catalyst for economic development. We have a classic chicken-or-the-egg conundrum, and we are not convinced that the shippers must stand in line before there is sufficient need demonstrated for a rail line. It is not for us to decide which communities are entitled to important railroad development projects. That decision is committed in the first instance to the discretion of the agency authorized by Congress to approve rail line construction projects, the STB."

STB, AARC, Port MacKenzie - 1. Environmentalists - 0.

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