Appeals court temporarily halts rail spur

MAT-SU — A federal appeals court has agreed to temporarily halt construction of the Point MacKenzie rail extension while a federal lawsuit plays out.

“The court finds that there is a ‘serious question’ regarding whether the Surface Transportation Board complied with the National Environmental Policy Act (NEPA) in determining the ‘purpose and need’ of the Port MacKenzie railroad extension project,” according to the “stay,” or order to halt construction, issued Monday. “The court further finds that the balance of hardships tips sharply in petitioners’ favor, that petitioners are likely to suffer irreparable harm in the absence of a stay, and that a stay is in the public interest.”

Mat-Su Borough Mayor John Moosey said that the stay has halted work on the project.

“There’s work to be done, there’s contracts to be let, jobs out there and we’re doing our best to really examine our legal options plus make sure we do our very best with the circumstances that are before us,” he said. “The project is the No. 1 priority of our borough and our assembly and we believe it will do fantastic things for the economy of our area and really of the state.”

Not everyone agrees. The Alaska Chapter of the Sierra Club, Cook Inletkeeper and Alaska Survival jointly filed the lawsuit in May.

The advocacy groups that filed the lawsuit say the project is a boondoggle and question whether there is a good enough plan in place to pay for maintenance of the tracks, whether Alaska needs a fourth big port and how the rail line from just north of Houston to the port district will impact the salmon habitat it crosses.

“The construction of what is in essence a 35-mile-long dike through an area with extensive wetlands which currently provide nutrients and surface and ground water to the Little Susitna and Fish Creek watersheds will alter current flow patterns,” Lance Trasky, a retired Alaska Fish and Game biologist, says in a press release from the groups. He also worried about the effect the construction would have on the chemistry of the water. “Salmon — and the sport and commercial fisheries that depend on salmon — could be harmed for years to come.”

The groups say the rail extension is being built to subsidize the coal industry. Usibelli Coal Mine has said publicly multiple times it would like to ship coal through the port, be it from the existing mine in Healy or the mine it is considering near Sutton.

In legal terms, the challenge hinges mostly on the decision of the national Surface Transportation Board to allow the project to move forward. The groups allege the STB violated its procedure and “the nation’s environmental laws.” The STB should have, the groups say, more thoroughly evaluated all the options before approving the specific Houston-Point MacKenzie route.

Carlos Bea, one of the judges for the ninth circuit, dissented from the stay, saying that the advocacy groups didn’t exhaust their appeals with the STB before filing the lawsuit. Federal rules require pursuing other avenues before heading to the 9th Circuit in cases like this where the petitioner is seeking a stay, except when it’s clear it would have been futile.

“Petitioners, however, have not submitted any evidence that the STB would have denied a motion to stay,” Bea wrote. “The fact that the STB had already decided against petitioners provides no support for a finding that a request for stay would have been impracticable.”

Bea also says that in his opinion, the groups’ lawsuit lacks merit.

“Petitioners incorrectly assert the STB erred … by failing to consider an alternative which called for building the rail line without an access road from which to service the line. The STB considered 12 alternatives for building the rail line from Port MacKenzie,” Bea wrote. “The STB even considered the ‘no access road’ alternative petitioners prefer, but it explained that construction of an access road is standard practice for railroad construction.”

The access road makes the rail line easier to service, since crews and materials can get there quickly when needed.

Bea also heaped scorn on the groups’ assertion that there wasn’t enough consideration given to the no access route, that the STB didn’t give it an in-depth analysis.

“To my mind, the no-access-road alternative is no more reasonable and requires no more of an ‘in-depth analysis’ than a proposal to paint the rails blue,” Bea wrote.

Mat-Su Borough Attorney Nick Spiropoulos said that the borough has contracted with a law firm that has experience in STB cases to handle the case. He said the borough has been to the 9th Circuit just once before in his time as borough attorney, but that case was quickly dismissed.

Asked how long the rest of the case might take, Spiropoulos said he didn’t know.

“In the stay order it says that we’re going to push the oral argument forward on the calendar to get it all accomplished quickly,” Spiropoulos said.

Of course, “quickly” is a relative term. Oral arguments will be Nov. 8. After that, even an expedited decision will probably take a few months.

“Because they expedited the oral argument we’re hoping that they keep it on the front burner,” Spiropoulos said. “We hope that we get a decision by late winter/early spring, but it’s really hard to tell.”

Moosey said that prior to this delay, the borough had been waiting for over a year on a permit from the U.S. Army Corps of Engineers to work in the wetlands. That permit came through only recently.

“Bristol Construction has been out there all summer and they have been working everywhere they can outside of the wetland,” Moosey said. Then the permit came in and, “It was like, ‘OK let’s get going.’ And now it’s like, ‘stop.’”

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.