Judge sides mostly with railroad in legal dispute

PALMER — The U.S. Army Corps of Engineers has two weeks to get more information to a federal judge or part of its permit for the Point MacKenzie Rail Extension will be tossed out.

The lawsuit has been playing out over the course of months since a host of environmental groups, including Cook Inletkeeper and Alaska Survival, filed the lawsuit against the Alaska Railroad Corp. and the Corps of Engineers over the permit the Corps issued the Mat-Su Borough to fill in wetlands to build the route.

According to a ruling handed down March 4, there were still three issues at play:

• The environmental groups claimed the Corps didn’t give enough consideration to the idea of building an elevated railway track to mitigate wetlands impacts.

• The Corps didn’t adequately consider just how much impact the project would have not just on the wetlands to be filled in, but the wetlands surrounding them.

• The Corps didn’t address at all criticisms from other federal agencies regarding the survey of wetlands it based its permit decision on.

The decision, penned by U.S. District Court Judge Ralph Beistline, dismisses the first two objections pretty quickly.

“It’s a win on two fronts and an asking for more information with potential results on the third,” Mat-Su Borough Attorney Nick Spiropoulos said at a borough meeting March 4.

As for the first objection, “the Corps’ decision that the elevated rail alternative was cost-prohibitive was not arbitrary and capricious,” Beistline writes.

As for the second point, Beistline details just how much work the Corps did looking into those issues.

“The railroad is installing approximately 60 culverts and six bridges along the 7.5 linear miles of wetlands within the project embankment footprint,” Beistline writes, adding that the size and placement of those culverts and bridges was decided on in consultation with engineers and scientists. “Furthermore, one of the special permit conditions imposed by the Corps requires the railroad to monitor the culverts for ‘ponding, erosion,’ or ‘other evidence of non-compliance.’ If any such problems occur, the railroad is required to submit ‘plans for restoration of natural drainage.’”

It’s the third issue that was the sticking point for Beistline. The problem relates to two surveys of wetlands, one conducted in 2008 and the other in 2010. The first found that most of the wetlands were highly productive, the second that a much lower percentage were.

The environmental groups argued that the different results were obtained by removing a couple of the criteria for evaluating wetlands.

The railroad and the Corps argue that the first study was a wide-ranging study of the whole area and the second a targeted study of just the route the railroad had settled on, a route chosen specifically to avoid wetlands.

Eitehr way, both the Environmental Protection Agency and U.S. Fish and Wildlife Service criticized the permit with Fish and Wildlife saying it didn’t “pass the red face test.”

The likely outcome of a ruling that this part of the permit was invalid would be an order that a new assessment be conducted and probably a revision in the amount of wetlands that the Corps required the borough put into a conservation trust to offset the wetlands it is filling in. The project could still move forward, the borough would just have to pay to conserve more wetlands.

But Beistline stopped short of making that order, saying he couldn’t find in the permit where, if anywhere, the Corps had addressed the other agencies’ concerns.

“The administrative record in this matter spans over 11,000 pages, in 19 three-ring binders, occupying three tables and one sofa in this court’s chambers. Based on the briefing, the defendants have not identified where in this voluminous record the agency took a ‘hard look’ at the FWS and EPA objections and comments,” the judge wrote.

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

An open house is planned from 6 to 8 p.m., March 19 in the Houston Middle School gym, 12801 W. Hawk Lane, to share information about the latest developments in the construction of the rail connection from the mainline near Houston to Port MacKenzie. Contractors from the six construction segments and the Alaska Railroad Corp. will answer questions about the project. For more information, visit portmacrail.com.