Will a Coal Train Kill the Last Dinosaur?On Wednesday, those of us who are working to protect the wildlife in southeastern Montana were surprised to learn that the Montana Fish, Wildlife and Parks (FWP) Commission was planning to vote on an easement agreement that FWP staff attorneys had negotiated with the Tongue River Railroad company, jointly owned by Arch Coal and Burlington Northern Santa Fe, to go through the Miles City Fish Hatchery in eastern Montana.
As FWP informed the Surface Transportation Board (STB) five years ago, the railroad will very likely have an adverse effect on the MCFH. The damages to the fish hatchery will have a direct and lasting effect on efforts to recover populations of pallid sturgeon.
Why were we so surprised?
No Public Notice
There was no public notice that the Commission was considering taking this up at their October 11 meeting. In Montana, our constitution guarantees us the right to be notified of and participate in public agency decisions. Montana citizens have an expectation of transparency and openness from our public agencies. That is part of what makes Montana unique. We have some of the strongest laws in the nation that protect our right to fully participate in our government’s decisions. As was reported in the Great Falls Tribune, Montana FWP head Joe Maurier “scoffed” at our criticism that the public had not been properly consulted on this issue.
Maurier asked a reporter, “How much notice is enough notice?” The Great Falls Tribune responded with a great opinion piece, entitled Enough Notice is the Law, Not An Option.
Tongue River Railroad’s Permit Problems
The Tongue River Railroad, which has been trying to get its tracks laid for over 30 years, lost its permit to construct in June 2012. This was prompted by a 2011 decision where the 9th U.S. Circuit Court of Appeals ruled the railroad’s environmental impact statement (EIS) was insufficient. Therefore, this railroad has lost its permit and no longer has the authority of eminent domain. Why would Montana FWP still have this easement agreement on the table when they are under no legal obligation to pursue it?
Jack Tuholske, an attorney who represented landowners in the above mentioned federal lawsuit against the railroad, said the commission has no business considering an easement agreement until the railroad completes a new EIS and is granted a permit by the Surface Transportation Board.
What does this have to do with the pallid sturgeon?The Tongue River Railroad is slated to go through the Miles City Fish Hatchery (MCFH), an extremely important facility that rears endangered pallid sturgeon as well as numerous other warm/cool water fish including walleye, largemouth and smallmouth bass, northern pike, and tiger musky. The pallid sturgeon is an extremely rare fish that grows to about 60 pounds and can live between 50 and 100 years. The pallid sturgeon is a Montana Fish of Special Concern and is also on the Federal Endangered Species List.
The Missouri River pallid sturgeon, which are reared in the MCFH “are descended from fish that lived alongside dinosaurs more than 70 million years ago. They’ve weathered ice ages, volcanic explosions and a mass extinction event.” Missoula Independent, October 11, 2012
However, because of dam building and human initiated changes to the Missouri River, biologists believe the species would vanish if we don’t stock the rivers with the fish raised in hatcheries.
Most of the FWP commissioners have said they were uncomfortable with allowing dozens of coal trains to pass through hatchery grounds since wild reproduction of pallid sturgeon is rare to nonexistent in most areas, and therefore human intervention is needed to ensure the survival of the species. The MCFH is one of only a couple of hatcheries in the nation that can keep this species going until we can restore the necessary habitat for pallid sturgeon procreation in the wild.
A USFWS Biologist noted that “given the short time these fish are present at the hatchery, the females will not become habituated to the potential stress of the TRR . . . The TRR may also have impacts on embryo development and larval and juvenile growth and survival.”
Dozens of coal trains going back and forth through the hatchery grounds is an unacceptable risk to a species that federal and state governments and hundreds of individuals have spent their lives trying to protect and restore.
Tongue River Railroad Co. playing by its own rules?
Tuholske said the 9th Circuit Court of Appeals ruling stripped the company’s eminent domain right. The MT FWP Commission members are trustees for Montana’s wildlife. They have an obligation to protect the hatchery and the pallid sturgeon but do not have any obligation to grant an easement across public lands to a for-profit railroad company that doesn’t have the federal permits that they need to construct or operate a railroad.“I don’t think the commission has any obligation to address the issue until the railroad provides the most basic information about how it will threaten Montana’s pallid sturgeon and other fishery resources that are at the hatchery,” Tuholske said in an interview with the Great Falls Tribune.
For a detailed news account of this issue, please click here.
For an amazing tale about the pallid sturgeon and recovery efforts, go to the most recent edition of the Missoula Independent for a story entitled “Fish on the Line” by Marian Lyman Kirs.