Alaska Survival v. Surface Transportation Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA SURVIVAL; SIERRA CLUB; No. 12-70218

COOK INLETKEEPER,

Petitioners, STB No.

FD-35095

v.

SURFACE TRANSPORTATION BOARD ; OPINION

UNITED STATES OF AMERICA ,

Respondents,

ALASKA RAILROAD CORPORATION ;

MATANUSKA -SUSITNA BOROUGH ;

STATE OF ALASKA ,

Respondents-Intervenors.

On Petition for Review of an Order of the

Surface Transportation Board

Argued and Submitted

November 8, 2012—San Francisco, California

Filed January 23, 2013

2 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit

Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge Gould

SUMMARY**

Surface Transportation Board

The panel denied a petition for review challenging the

Surface Transportation Board’s decision authorizing Alaska

Railroad Corporation to construct a railroad line extension

between Port MacKenzie and Wasilla, Alaska.

The Surface Transportation Board granted the

Corporation an exemption under 49 U.S.C. § 10502 of the

Interstate Commerce Commission Termination Act of 1995

and authorized the Corporation to construct the rail line.

Petitioners challenged the Board’s authority to exempt the

Corporation from the full licensing provision of 49 U.S.C.

§ 10901, and the Board’s compliance with the National

Environmental Policy Act.

The panel held that petitioners were not procedurally

barred from raising their challenge to the exemption under

49 U.S.C. § 10502 of the ICCTA. The panel further held that

*

The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 3

the procedures of the Board under the ICCTA were sufficient

and were satisfied. The panel also held that there was no error

under the National Environmental Policy Act because the

purpose and need statement was adequate; the agency

considered all viable, reasonable alternatives; and the

environmental impact statement contained a detailed,

thorough, and thoughtful discussion of the wetlands impacts

and mitigation measures.

COUNSEL

James B. Dougherty (argued), Washington, D.C.; Jessica

Yarnall Loarie, Sierra Club, San Francisco, California for

Petitioners.

Theodore L. Hunt (argued), Raymond A. Atkins, Evelyn G.

Kitay, Surface Transportation Board, Washington, D.C.;

Mary Gabrielle Sprague, Robert B. Nicholson, and John P.

Fonte, Department of Justice, Washington D.C., for

Respondents.

Jay C. Johnson (argued) and Kathryn Kusske Floyd, Dorsey

& Whitney LLP, Washington D.C., for Respondents-

Intervenors Alaska Railroad Corporation and Matanuska-

Susitna Borough.

Michael C. Geraghty and Sean P. Lynch, State of Alaska,

Department of Law, Juneau, Alaska for Respondent-

Intervenor the State of Alaska.

4 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

OPINION

GOULD, Circuit Judge:

In this appeal we consider whether principles of

administrative law and a controlling statute governing

railroad extensions and applicable protections of

environmental laws require us to grant a petition for review

of a specialized agency’s decision to permit the extension of

a railroad line to Port MacKenzie, Alaska. Petitioners Alaska

Survival, Sierra Club, and Cook Inletkeeper seek review of

the Surface Transportation Board’s (STB) decision

authorizing Alaska Railroad Corporation (ARRC) to

construct about thirty-five miles of new rail line between Port

MacKenzie, located in Alaska’s Cook Inlet, and the railroad’s

main line, located near Wasilla, Alaska. The STB granted

ARRC an exemption under 49 U.S.C. § 10502 of the

Interstate Commerce Commission Termination Act of 1995

(ICCTA) and authorized ARRC to construct the rail line.

Petitioners challenge the STB’s authority to exempt the

railroad from the full licensing provisions of 49 U.S.C.

§ 10901 and the agency’s compliance with the National

Environmental Policy Act (NEPA). Respondents claim that

Petitioners did not administratively exhaust the issue of

whether the STB properly granted the exemption and that the

issue is not properly before us. We have jurisdiction under

28 U.S.C. §§ 2321(a), 2342(5), and 2344, and we deny the

petition for review.

I. PARTIES

We first identify the parties. Petitioners Alaska Survival,

Sierra Club, and Cook Inletkeeper are nonprofit organizations

dedicated to protecting wild lands, waters, and wildlife in

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 5

Susitna Valley and the Cook Inlet watershed. Respondent

STB is a federal agency with exclusive licensing authority for

the construction and operation of new rail lines.

Respondents-Intervenors are the State of Alaska, a financial

supporter of the project; the ARRC, a public corporation

partially owned by the State of Alaska that will build and

operate the railroad; and the Matanuska-Susitna Borough, the

owner and operator of the Port MacKenzie dock and adjacent

uplands.

II. FACTUAL BACKGROUND

We next review the factual background. ARRC seeks to

build and operate thirty-five miles of rail line connecting Port

MacKenzie, located 1.5 miles across the Cook Inlet from the

Port of Anchorage, to ARRC’s main line near Wasilla. The

proposed rail line would consist of a single-track rail line

with a two-hundred-foot-wide right of way, buried utility

lines, an access road, communication towers, and a terminal

reserve area. The purpose of the rail line is to “provide rail

service to Port MacKenzie and to connect it with the existing

ARRC main line, providing Port MacKenzie customers with

rail transportation between Port MacKenzie and Interior

Alaska.” The proposed rail line will pass through the waters

and wetlands of the Susitna Lowland that provides a home to

wolves, bear, foxes, salmon, and other wildlife.

In February 2008, the STB’s Office of Environmental

Analysis (OEA) initiated the Environmental Impact

Statement (EIS) public scoping process in anticipation of

6 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

ARRC’s request for authorization to construct the rail line.1

ARRC filed its § 10502 petition in December 2008,

requesting an exemption from the full licensing procedures

required under 49 U.S.C. § 10901. OEA released the draft

EIS (DEIS) in March 2010. Elected officials, organizations,

citizens, and various agencies submitted around 160

comments on the DEIS. The final EIS (FEIS) was released

in March 2011. It recommended that ARRC employ one

hundred mitigation measures to reduce environmental

impacts but acknowledged that even with mitigation,

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.

The FEIS identified the Mac East Variant-Connector 3

Variant-Houston-Houston South Alternative as the

environmentally preferable alternative for the proposed line.

OEA did not request comment on the FEIS, but the

Environmental Protection Agency (EPA), the Alaska

Department of Natural Resources (ADNR), Sierra Club, and

several citizens submitted comments noting various

deficiencies. For example, the EPA expressed concern that

the purpose and need statement did not contain sufficient

information on the project’s need or public necessity. In

response to these and other concerns, the OEA prepared an

Environmental Memorandum (EM) addressing the post-FEIS

1

The agency conducted this public scoping process before ARRC filed

its application, indicating that ARRC “plan[ned]” to file its petition for

exemption under § 10502. The Alaska Railroad Corporation— Petition for

Exemption To Construct and Operate a Rail Line Extension to Port

MacKenzie, AK, 73 Fed. Reg. 8106-01 (Feb. 12, 2008).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 7

comments and concluding that a supplemental EIS was not

necessary.

After reviewing the entire environmental record,

including the FEIS, the EM, and public comments, the STB

issued a 2:1 decision on November 17, 2011, granting the

§ 10502 exemption and authorizing the rail line. The STB

determined first that an exemption was appropriate because

it was consistent with parts (2), (4), (5), and (7) of the

transportation policy and second that full consideration under

§ 10901 was not necessary to protect shippers from abuse of

market power. The STB concluded that the record showed

that the EIS took a “hard look” at the potential environmental

impacts of the proposed action and that it carefully

considered alternatives to the planned action. The STB then

adopted all of the OEA’s environmental review and

conclusions, authorized construction of the environmentally

preferable alternative, and imposed on ARRC the one

hundred mitigation measures recommended by OEA to

address the project’s adverse impacts on surface waters,

wetlands, fisheries, and recreational trail access.

Commissioner Mulvey dissented from the STB’s decision

based on “the [project’s] likely substantial adverse impact on

the environment and the poor showing of a purpose and need

for the line” and on his belief that the project is not in the

public interest.

Petitioners seek review of the STB’s decision.2

2

In an October 1, 2012, Order, we granted Petitioners’ emergency

motion for a stay pending the merits panel’s review of the STB order.

Order, Alaska Survival v. Surface Transp. Bd., No. 12-70218 (9th Cir. Oct.

1, 2012). After full briefing and oral argument, we lifted that emergency

stay in an order published November 28, 2012, concluding that the

8 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

III. STATUTORY FRAMEWORK

Before reaching the merits, we consider the statutory

framework relevant to this petition for review.

A. ICCTA

The ICCTA amended existing railroad statutes, replaced

the Interstate Commerce Commission (ICC) with the STB,

and provided that ICC precedent applies to the STB. See N.

Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d

1067, 1073 n.2 (9th Cir. 2011) [hereinafter NPRC]; Pub. L.

No. 104–88, 109 Stat. 803 (1995) (codified at 49 U.S.C.

§§ 10101–16106 (2012)). Under 49 U.S.C. § 10901, the

“Board has exclusive licensing authority for the construction

and operation of new railroad lines” and may certify rail line

construction and operation unless the STB finds the project

to be “inconsistent with the public convenience and

necessity.” NPRC, 668 F.3d at 1073. To determine public

convenience and necessity, the STB looks at a “variety of

circumstances” surrounding the proposed action, which can

include consideration of the applicant’s financial fitness, the

public demand or need for the service, and the potential harm

to competitors. See id. at 1092 (quoting N.M. Navajo

Ranchers Ass’n v. Interstate Commerce Comm’n, 702 F.2d

227, 232 (D.C. Cir. 1983)). As an alternative to the detailed

balance of hardships no longer tipped in favor of Petitioners. Order,

Alaska Survival v. Surface Transp. Bd., No. 12-70218, 2012 W L 5951297

(9th Cir. Nov. 28, 2012).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 9

§ 10901 procedures, 49 U.S.C. § 105023 provides that the

STB

shall exempt a person, class of persons, or a

transaction or service whenever the Board

finds that the application in whole or in part of

a provision of this part – (1) is not necessary

to carry out the transportation policy of

section 10101 of this title;4 and (2) either –

3

The ICCTA renumbered various provisions of the Interstate Commerce

Act, including § 10502, which was formerly codified under 49 U.S.C.

§ 10505. See United Transp. Union v. Burlington N. Santa Fe R.R. Co.,

528 F.3d 674, 677 n.2 (9th Cir. 2008).

4

The ICCTA specifies that the fifteen objectives of the Rail

Transportation Policy are:

(1) to allow, to the maximum extent possible,

competition and the demand for services to establish

reasonable rates for transportation by rail; (2) to

minimize the need for Federal regulatory control over

the rail transportation system and to require fair and

expeditious regulatory decisions when regulation is

required; (3) to promote a safe and efficient rail

transportation system by allowing rail carriers to earn

adequate revenues, as determined by the Board; (4) to

ensure the development and continuation of a sound rail

transportation system with effective competition among

rail carriers and with other modes, to meet the needs of

the public and the national defense; (5) to foster sound

economic conditions in transportation and to ensure

effective competition and coordination between rail

carriers and other modes; (6) to maintain reasonable

rates where there is an absence of effective competition

and where rail rates provide revenues which exceed the

amount necessary to maintain the rail system and to

attract capital; (7) to reduce regulatory barriers to entry

10 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

(A) the transaction or service is of limited

scope; or (B) the application in whole or in

part of the provision is not needed to protect

shippers from the abuse of market power.

49 U.S.C. § 10502 (2012). “Obtaining an exemption

streamlines the regulatory process by eliminating notice and

comment in some cases, by making a hearing unnecessary,

and by expediting the final decision.” Vill. of Palestine v.

Interstate Commerce Comm’n, 936 F.2d 1335, 1337 (D.C.

Cir. 1991).

into and exit from the industry; (8) to operate

transportation facilities and equipment without

detriment to the public health and safety; (9) to

encourage honest and efficient management of

railroads; (10) to require rail carriers, to the maximum

extent practicable, to rely on individual rate increases,

and to limit the use of increases of general applicability;

(11) to encourage fair wages and safe and suitable

working conditions in the railroad industry; (12) to

prohibit predatory pricing and practices, to avoid undue

concentrations of market power, and to prohibit

unlawful discrimination; (13) to ensure the availability

of accurate cost information in regulatory proceedings,

while minimizing the burden on rail carriers of

developing and maintaining the capability of providing

such information; (14) to encourage and promote

energy conservation; and (15) to provide for the

expeditious handling and resolution of all proceedings

required or permitted to be brought under this part.

49 U.S.C. § 10101 (2012).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 11

B. NEPA

“The National Environmental Protection Act of 1969,

commonly known as NEPA, is ‘our basic national charter for

protection of the environment.’” Barnes v. U.S. Dep’t of

Transp., 655 F.3d 1124, 1131 (9th Cir. 2011) (quoting 40

C.F.R. § 1500.1(a) (2006)). “NEPA imposes procedural

requirements designed to force agencies to take a ‘hard look’

at environmental consequences” of major federal action. Id.

(quoting Earth Island Inst. v. U.S. Forest Serv., 351 F.3d

1291, 1300 (9th Cir. 2003)). “For any proposed major federal

action . . . NEPA requires the agency to prepare an [EIS].”

Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.

2004). An EIS “shall provide full and fair discussion of

significant environmental impacts and shall inform

decisionmakers and the public of the reasonable alternatives

which would avoid or minimize adverse impacts or enhance

the quality of the human environment.” 40 C.F.R. § 1502.1.

The Council on Environmental Quality has promulgated

regulations governing the implementation of NEPA. See 40

C.F.R. §§ 1500.1–1508.28. The STB has also promulgated

its own regulations governing how NEPA applies to railroad

construction projects. See NPRC, 668 F.3d at 1072

(regulations codified at 49 C.F.R. §§ 1105.1–1105.12).

Under these regulations, the OEA generally prepares an EIS

for new railroad construction proposals. 49 C.F.R.

§ 1105.6(a) (2012). The STB invites public comment on the

scope of the environmental review and on the DEIS. 49

C.F.R. § 1105.10(a) (2012). The FEIS should discuss the

comments received on the DEIS and note any changes made

in response to them. Id. When determining whether to

authorize a construction project, the STB considers the

environmental record, which includes the FEIS and any

12 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

comments and responses concerning environmental issues.

49 C.F.R. § 1105.10(f); see also NPRC, 668 F.3d at 1073.

C. APA

Judicial review of agency action is governed by § 706 of

the Administrative Procedure Act (APA). 5 U.S.C. § 706

(2012); see also NPRC, 668 F.3d at 1074. Under

§ 706(2)(A), we will uphold an agency’s action unless it is

“‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’” NPRC, 668 F.3d at 1074

(quoting 5 U.S.C. § 706(2)(A)). Agency action is arbitrary

and capricious if “‘the record plainly demonstrates that [the

agency] made a clear error in judgment.’” Id. at 1075

(quoting Lands Council v. McNair, 537 F.3d 981, 994 (9th

Cir. 2008) (en banc), overruled on other grounds by Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). We

limit our review of agency action to the record, and we will

not substitute our judgment for that of the agency. See id. at

1074–75 (citing McNair, 537 F.3d at 987). Section 706

controls our review of both the STB’s grant of the § 10502

exemption and the STB’s actions pursuant to NEPA. See id.

at 1074, 1076.

IV. DISCUSSION

Petitioners argue that the STB improperly exempted the

proposed rail line from the procedural requirements of

§ 10901. Before we reach that issue, we must first address

whether it is properly before us. Respondents and

Respondents-Intervenors ARRC and Matanuska-Susitna

Borough assert that it is not. They contend that Petitioners

did not raise the issue of the agency’s use of the exemption

“at the appropriate time under the agency’s practice,” and that

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 13

this failure to exhaust prevents us from deciding these issues

now. Petitioners respond that the Supreme Court’s plurality

decision in Sims v. Apfel, 530 U.S. 103 (2000), makes issue

exhaustion requirements inapplicable here. We conclude that

Petitioners are not procedurally barred from raising their

challenge to the § 10502 exemption.

“The purpose of the exhaustion doctrine is to permit

administrative agencies to utilize their expertise, correct any

mistakes, and avoid unnecessary judicial intervention in the

process.” Lands Council v. McNair, 629 F.3d 1070, 1076

(9th Cir. 2010). But in Sims, the Supreme Court indicated

that judicially created issue exhaustion is not always

appropriate. Sims, 530 U.S. at 112. The Court considered

whether a person claiming Social Security benefits waived

judicial review of issues not raised before the agency’s

appeals council. Id. at 104–05. A plurality determined that

when neither statute nor regulation requires issue exhaustion,

judicially created issue exhaustion is inappropriate where the

administrative proceeding was informal and “inquisitorial

rather than adversarial,” and the claimant exhausted

administrative remedies. Id. at 108, 111, 112. Justice

O’Connor concurred, noting that the issue exhaustion

“inquiry requires careful examination of ‘the characteristics

of the particular administrative procedure provided.’” Id. at

113 (O’Connor, J., concurring) (quoting McCarthy v.

Madigan, 503 U.S. 140, 146 (1992)). Similarly, we have

noted that “there is no bright-line test to determine whether a

party has properly exhausted a claim to the [agency]; the

determination must be made on a case-by-case basis.”

Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073,

1080 (9th Cir. 2010). And it is a clear rule in our court “that

the exhaustion requirement should be interpreted broadly.”

Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,

14 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

606 F.3d 1058, 1065 (9th Cir. 2010) [hereinafter NPCA].

Because neither statute nor regulation required issue

exhaustion in this matter, we must consider whether judicially

imposed issue exhaustion is appropriate here.

We have applied Sims in the adjudicatory context,

Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d

620 (9th Cir. 2008), but determined that Sims “offers no

guidance” in the notice-and-comment rulemaking context,

Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,

1020 (9th Cir. 2004). Neither case is directly on point.

Although the STB conducts rulemaking when it grants an

exemption, see CMC Real Estate Corp. v. Interstate

Commerce Comm’n, 807 F.2d 1025, 1030 (D.C. Cir. 1986),

Universal Health Services is distinguishable because it

addresses notice-and-comment rulemaking, which is not

generally employed by the STB during the exemption

process. See 49 C.F.R. § 1121.4(a) (2012) (stating that the

“[e]xemption proceedings are informal, and public comments

are generally not sought during consideration of exemption

petition proposals”). Although the adjudicatory nature of the

ERISA proceeding distinguishes Vaught from the STB’s

grant of the exemption, Vaught is instructive because it

concludes that when an agency engages in a non-adversarial,

informal proceeding and does not provide notice of issue

exhaustion requirements, then judicially created issue

exhaustion is likely inappropriate. 546 F.3d at 631–33.

Similarly, the STB’s procedures were informal and provided

no notice to interested parties that to later challenge the

STB’s decision one must submit comments during the

exemption process. In other cases, the STB, or its

predecessor the ICC, explicitly requested public comment on

exemptions. See, e.g., Or. Public Util. Comm’n v. Interstate

Commerce Comm’n, 979 F.2d 778, 779 (9th Cir. 1992)

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 15

[hereinafter OPUC] (noting that the ICC granted an

exemption subject to public comment); Ill. Commerce

Comm’n v. Interstate Commerce Comm’n, 787 F.2d 616, 622

(D.C. Cir. 1986) (stating that the ICC issued a notice

proposing a blanket exemption).5

Respondents argue that Petitioners should have

commented on the exemption during the EIS process, but the

record does not show that the STB ever said that was the

appropriate time in which to raise issues with the exemption

process. Although the STB published notice of its EIS

proceedings, which included reference to ARRC’s § 10502

application, it never provided direct notice of or requested

public comment on the exemption. See, e.g., The Alaska

Railroad Corporation—Petition for Exemption To Construct

and Operate a Rail Line Extension to Port MacKenzie, AK,

73 Fed. Reg. 8106-01 (Feb. 12, 2008). Further, the agency

has stated that it does not usually rely on comments to frame

issues for its review of exemption petitions. See Modification

of Procedure for Handling Exemptions Filed Under 49 U.S.C.

10505, 45 Fed. Reg. 85180-02 (Dec. 24, 1980) (stating that

“[c]omments have added very little to [the ICC’s]

5

Respondents do not contend that Petitioners failed to exhaust their

administrative remedies, see 49 C.F.R. § 1115.6 (stating that a party must

exhaust administrative remedies before going to court), but only that they

failed to raise the issue of the STB’s grant of the § 10502 exemption

before the STB, see Sims, 530 U.S. at 107 (distinguishing exhaustion of

administrative remedies from issue exhaustion). Although Petitioners

could have filed a petition for reconsideration of the STB’s decision, see

49 C.F.R. § 1121.4(e), they were not required to do so, see 49 U.S.C.

§ 722(c)(d) (stating that parties may petition to reopen and reconsider an

STB action or seek judicial review); 49 C.F.R. § 1115.3 (same); see also

5 U.S.C. § 704 (stating that actions are final for purposes of review

whether or not a request for reconsideration has been presented).

16 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

determination of exemption petitions”); cf. Sims, 530 U.S. at

112 (stating that the Social Security Appeals Council “does

not depend much, if at all, on claimants to identify issues for

review”). Because this administrative process lacks an

adversarial component, “the reasons for [us] to require issue

exhaustion are much weaker.” Sims, 530 U.S. at 110.6

Based on the informal nature of these proceedings and the

lack of notice to interested parties of the “appropriate time”

in which to raise their objections to the agency’s decision to

apply the § 10502 exemption, we conclude that the question

of whether the STB violated 49 U.S.C. §§ 10901 or 10502 in

granting the exemption for the Port MacKenzie rail line is

properly before us.

A. ICCTA Exemption From Public Convenience and

Necessity Review

Petitioners contend that the STB did not properly apply

the standards set forth in §§ 10502 and 10901 when it granted

ARRC’s application for an exemption to construct the

proposed rail line. They challenge the STB’s decision not to

6

The D.C. Circuit has likewise refused to apply issue exhaustion in the

rulemaking context when petitioners were unable to administratively raise

their argument challenging lack of notice before the STB issued its final

rule. See CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079

(D.C. Cir. 2009). W e note that the Eighth Circuit has applied judicially

imposed issue exhaustion to a challenge to an STB decision. See Otter

Tail Power Co. v. Surface Transp. Bd., 484 F.3d 959, 962 (8th Cir. 2007).

But that decision is inapposite because the underlying administrative

proceeding was adversarial in nature. See id. at 961–62, 963 (describing

that both Otter Tail and the Burlington Northern Santa Fe Railway

presented briefing and other information to the STB in a dispute over the

reasonableness of shipping rates).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 17

consider the public convenience and necessity of the project

and the STB’s assessment of the transportation policy under

§ 10101. We hold that it was not arbitrary, capricious, an

abuse of discretion, or contrary to law for the STB to grant

ARRC an exemption under § 10502 from the full licensing

procedures required by § 10901. We further hold that

substantial evidence supports the STB’s findings favoring its

grant of the exemption.

Section 10502(a) states that the STB “shall” grant an

exemption from a provision of the statute if (1) application of

that provision is not necessary to carry out the transportation

policy and (2) the transaction is of limited scope or the

application of the full statutory procedures is not needed to

protect shippers from abuse of market power. 49 U.S.C.

§ 10502(a). This exemption procedure reflects Congress’s

“determination that there be continuing evaluation of the

appropriateness of regulation and continuing deregulation

where consistent with the Act’s policies.” Coal Exps. Ass’n

of the U.S., Inc. v. United States, 745 F.2d 76, 82 (D.C. Cir.

1984). Section 10901 sets forth a more detailed procedure for

authorizing construction and operation of rail lines, which

requires a determination that the activities are consistent with

the public convenience and necessity. 49 U.S.C.

§ 10901(a)–(c).

We review the STB’s statutory construction of the ICCTA

under Chevron U.S.A., Inc. v. Nat. Res. Defense Council,

467 U.S. 837 (1984). See NPRC, 668 F.3d at 1075–76.

“First, we inquire whether Congress has addressed directly

the issue before the court,” and if so, “the agency ‘must give

effect to the unambiguously expressed intent of Congress.’”

Id. (quoting Chevron, 467 U.S. at 842–43). If Congress has

not unambiguously addressed the specific issue before us,

18 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

then we must determine whether the agency’s construction of

the statute is permissible. Id. at 1076.

Petitioners’ argument that we should review the STB’s

action pursuant to the standards set forth in § 10901 lacks

merit. Petitioners rely on vague extra-circuit precedent to

argue that when the STB grants a § 10502 exemption “it

summarily issues a certificate of public convenience and

necessity” as required under § 10901. HolRail, LLC v.

Surface Transp. Bd., 515 F.3d 1313, 1315 (D.C. Cir. 2008)

(reviewing an STB decision concerning a railway’s right to

cross another railway’s right of way). They contend that

HolRail should be read to mean that the STB should have

performed a full § 10901 analysis of public convenience and

necessity. Petitioners also assert that the STB erred in not

analyzing the public convenience and necessity of the

proposed rail line when the project’s financial viability was

called into question. These arguments are not persuasive.

We do not read HolRail as requiring that the STB engage in

a public convenience and necessity analysis before granting

an exemption from that very procedure. Such a conclusion

would run contrary to the plain language of § 10502(a),

which mandates that the STB grant exemptions from the full

proceedings required under the statute. See 49 U.S.C.

§ 10502(a). Further, neither § 10502 nor the STB’s

implementing regulations indicate that an exemption

proceeding is improper when the project’s financial viability

is questioned. It might be argued with some force that it is

not the best practice to employ the exemption process for a

contentious project, but that is for the agency and not us to

decide. See City of Carmel-By-The-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142, 1150 (9th Cir. 1997) (stating that the

court should not substitute its judgment for that of the

agency).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 19

Petitioners also argue that the STB does not have

authority to exempt a project as large as the proposed spur.

This argument misreads the statute. Section 10502(a)(2)

allows the STB to grant an exemption if the project is either

of limited scope or the full statutory proceedings are not

necessary to protect shippers from abuse of market power.

49 U.S.C. § 10502(a)(2). The plain language of the statute

does not require the STB to consider both factors. Here, the

STB chose to analyze the project’s impact on shippers instead

of its scope. Because the STB concluded that the full

statutory proceedings were not necessary to protect shippers

from abuse of market power, the STB had no duty to consider

whether the project was of limited size. The STB acted

within its authority when it applied the analysis required by

§ 10502(a) without considering the public convenience and

necessity under § 10901.

Petitioners also contend that the STB did not consider

relevant parts of the fifteen-part Rail Transportation Policy

and that for those factors considered the STB failed to explain

how the record supported its findings. We disagree. The

STB did not act arbitrarily or capriciously in determining the

applicable sections of the Rail Transportation Policy set out

in § 10101, and substantial evidence supports the STB’s

findings for those factors considered.

“When the [STB] grants an exemption from a portion of

the Interstate Commerce Act, the [STB] needs to take into

account only the purpose of that portion of the statute from

which exemption is granted.” OPUC, 979 F.2d at 781.

Stated another way, “[t]he scope of the [STB’s] review in an

exemption proceeding” is a “function of the relationship

between the section from which an exemption is sought,”

here § 10901, and the Rail Transportation Policy enumerated

20 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

in § 10101. Vill. of Palestine, 936 F.2d at 1338–39 (internal

quotations omitted). This rule ensures that the STB will not

be “faced with the impossible task of reconciling a variety of

different objectives of the [Rail] Transportation Policy.”

OPUC, 979 F.2d at 781. “[T]he [STB] need not explicitly

discuss in its decision each factor enumerated . . . . All that is

necessary is that the essential basis of the [STB]’s rationale

be clear enough so that a court can satisfy itself that the

[STB] has performed its function.” Coal Exps., 745 F.2d at

94 n.22 (quoting Alamo Express, Inc. v. Interstate Commerce

Comm’n, 673 F.2d 852, 860 (5th Cir. 1982)).

The STB did not act arbitrarily by failing to consider

additional policy factors. Petitioners contend that the STB

should have considered three additional factors: (3)

promoting “a safe and efficient rail transportation system by

allowing rail carriers to earn adequate revenues, as

determined by the Board,” (9) encouraging “honest and

efficient management of railroads,” and (14) encouraging and

promoting energy conservation. 49 U.S.C. § 10101.

Petitioners do not show how these factors relate to the

purpose of § 10901. Such a showing would make it

necessary for the STB to consider those provisions. See

OPUC, 979 F.2d at 781. Nor do they show that the STB’s

interpretation of which factors are relevant to the purpose of

§ 10901 is an unreasonable interpretation of the statute.

Petitioners claim that Illinois Commerce Commission and

Coal Exporters impose a heavy burden on the STB to identify

all the relevant policies furthered by an exemption. But the

STB does not have a duty to make “findings about each

aspect of the rail transportation policy possibly affected” by

its grant of the exemption. Vill. of Palestine, 936 F.2d at

1339. To require such analysis would make the exemption

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 21

process “broader and possibly more onerous than the

proceeding from which exemption was sought.” Id.

Petitioners also contend that Illinois Commerce Commission

and Coal Exporters show that the STB is not entitled to “wide

deference” in choosing which factors of the policy apply.

Such an assertion runs contrary to our standard of review

under the APA. See NPRC, 668 F.3d at 1076 (stating that the

STB’s decision on railroad application approvals must be

upheld unless arbitrary, capricious, an abuse of discretion, or

not in accordance with law). We conclude that the STB’s

decision to consider only factors (2), (4), (5), and (7) was

reasonable.

Likewise, the STB provided sufficient findings supporting

its consideration of factors (2), (4), (5), and (7). The STB

explained that the record supported its conclusion that

construction would be consistent with factors (4), ensuring

the development and continuation of a sound rail

transportation system, and (5), fostering sound economic

conditions in transportation and ensuring effective

competition and coordination between rail carriers and other

modes. The STB noted that the rail line would be more

efficient than truck transportation and would enhance

intermodal competition by providing an alternative to freight

to meet the needs of shippers. Further, the EIS discussed the

economic and transportation benefits of the rail line.

The STB also found that the exemption would reduce the

need for federal regulation and decrease regulatory barriers to

entry in support of factors (2), minimizing the need for

Federal regulatory control, and (7), reducing regulatory

barriers. These findings are reasonable when the exemption

made it unnecessary for ARRC to go through otherwise

lengthy regulatory procedures under § 10901. The STB’s

22 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

explanations are sufficient for us to determine the STB’s

rationale and satisfy ourselves that the STB performed its

function as required by the statute. See Coal Exps., 745 F.2d

at 94 n.22. We conclude that substantial evidence supports

the agency’s findings. See In re Transcon Lines, 89 F.3d 559,

564 (9th Cir. 1996) (describing the substantial evidence

standard).

B. NEPA

Petitioners raise a second issue of whether the STB’s EIS

complied with NEPA. They contend that the STB violated

NEPA by adopting an unreasonable purpose and need

statement, refusing to consider an alternative route without an

access road, and inadequately assessing the project’s adverse

effect on wetlands. We disagree.

1. Purpose and Need Statement

Petitioners argue that the STB erred by adopting a

purpose and need statement focused exclusively on the goals

stated by ARRC. They contend that the STB did not take into

consideration public goals when defining the purpose and

need. Respondents assert that the purpose and need statement

properly focused on both the STB’s enabling statute and

ARRC’s goals. We agree with Respondents, and we hold that

the STB did not act arbitrarily or capriciously by generating

the purpose and need statement based on the statutory context

and ARRC’s objectives.

A statement of purpose and need must “briefly specify the

underlying purpose and need to which the agency is

responding in proposing the alternatives including the

proposed action.” 40 C.F.R. § 1502.13 (2012). Courts

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 23

review purpose and need statements for reasonableness

giving the agency considerable discretion to define a project’s

purpose and need. Westlands Water Dist. v. U.S. Dep’t of

Interior, 376 F.3d 853, 866 (9th Cir. 2004). A purpose and

need statement will fail if it unreasonably narrows the

agency’s consideration of alternatives so that the outcome is

preordained. See NPCA, 606 F.3d at 1070. “Where an action

is taken pursuant to a specific statute, the statutory objectives

of the project serve as a guide by which to determine the

reasonableness of objectives outlined in an EIS.” Westlands

Water Dist., 376 F.3d at 866. An agency must look hard at

the factors relevant to definition of purpose, which can

include private goals, especially when the agency is

determining whether to issue a permit or license. NPCA,

606 F.3d at 1070–71.

Petitioners contend that the STB failed to articulate a

purpose and need that reflected the agency’s perspective.

They argue that STB erred when it adopted ARRC’s asserted

goals without considering the “public convenience and

necessity” under § 10901. Petitioners are correct that an

agency must consider the statutory context of the proposed

action and any other congressional directives in addition to a

private applicant’s objectives. NPCA, 606 F.3d at 1070; see

also League of Wilderness Defenders-Blue Mountains

Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1070

(9th Cir. 2012) (considering statutory context to determine

reasonableness of purpose and need statement). But when

granting a license or permit, the agency has discretion to

determine the best way to implement its statutory objectives,

see Westlands Water Dist., 376 F.3d at 867, in light of the

goals stated by the applicant, see Citizens Against Burlington,

Inc. v. Busey, 938 F.2d 190, 199 (D.C. Cir. 1991) (“Congress

did not expect agencies to determine for the applicant what

24 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

the goals of the applicant’s proposal should be.”). We must

consider whether the purpose and need statement is

reasonable in light of the ARRC’s stated goals and the

statutory context of the ICCTA. See NPCA, 606 F.3d at

1070.

STB’s statutory authorization to grant this exemption is

found in 49 U.S.C. §§ 10101, 10502, and 10901. These

provisions indicate that Congress intended to privilege

interests of the applicant by requiring the STB grant § 10502

exemptions unless the exemption would be contrary to the

Rail Transportation Policy, see Coal Exps., 745 F.2d at 82,

and by instructing the STB to authorize construction unless

it would be inconsistent with the public convenience and

necessity under § 10901, see NPRC, 668 F.3d at 1091–92.

Even given their emphasis on construction and private

interests, these sections also require some consideration of the

public need for the project. See id. at 1092 (discussing STB’s

test for determining public convenience and necessity, which

includes an analysis of “public demand or need”); see also

49 U.S.C. § 10101(4) (stating that it is part of the Rail

Transportation Policy to ensure that the rail line system meets

the needs of the public). But “public need” can be interpreted

broadly, and the STB has discretion to determine which

public needs it will consider. See NPRC, 668 F.3d at

1093–94 (concluding that the STB did not err by relying on

support from farmers, coal producers, public utilities, and

state officials to determine public need rather than the needs

of shippers). Here, the purpose and need statement noted the

State of Alaska’s financial support of the project and Port

MacKenzie’s interest in a rail line to provide more efficient

and cost-effective transport services to interior Alaska.

Further, in its decision to grant the exemption, the STB

connected ARRC’s goals to its enabling statute, stating that

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 25

“ARRC’s proposal to provide an additional freight

transportation mode is consistent” with the relevant factors of

the rail transportation policy. We conclude that the STB

“thought hard” about the appropriate factors, including its

enabling statute and the applicant’s needs, when it adopted

the purpose and need statement. See Citizens Against

Burlington, 938 F.2d at 198.

Next, Petitioners argue that by “thoughtlessly adopt[ing]”

ARRC’s narrow goals, the STB considered an impermissibly

narrow range of alternatives. But Petitioners do not show that

the STB’s adoption of ARRC’s goals led the agency to

consider a too limited range of alternatives. They do not

demonstrate that the purpose and need statement resulted in

the agency’s failure to consider a non-access-road alternative

nor do they point to any other deficiency in the alternatives

considered in the FEIS. See Westlands Water Dist., 376 F.3d

at 867–68 (reversing the district court’s finding that the

purpose and need statement was unreasonable when the

statement did not improperly foreclose consideration of

alternatives). The FEIS considered twelve build alternatives

and one no-action alternative. The range of alternatives

considered was sufficient to satisfy both the private and

public objectives underlying the purpose of the project and to

enable the STB to make an informed decision to grant the

exemption. See City of Angoon v. Hodel, 803 F.2d 1016,

1022 (9th Cir. 1986) (concluding that the EIS was adequate

when the alternatives discussed enabled the agency to make

an informed decision).

Petitioners also argue that there is no real need for this

project. They point to Commissioner Mulvey’s dissent,

which states that the purpose and need statement “relie[d] on

little more than Port MacKenzie’s aspirations for an increase

26 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

in traffic, a generalized goal to increase economic

development, and the prospect of a new mode of

transportation from the port.” This argument ignores the

people of Port MacKenzie and Matanuska-Susitna Borough’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.7 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. Moreover,

the quasi-public nature of the ARRC shows that its views

about development of railroad lines in Alaska should have

been given due weight by the STB.

We hold that the Statement of Purpose and Need

reasonably defined the objectives of the project in light of

both the applicant’s objectives and the agency’s statutory

authorization.

7

For example, the history of the Puget Sound area shows the vigor with

which Seattle residents fought for a rail line linking them both to nearby

resources and to the East Coast. Tacoma, located thirty miles south of

Seattle, was chosen as the terminus of the Northern Pacific Railroad, but

the close proximity of the port and rail line in Tacoma did not dull

Seattle’s desire and need for its own rail line. See Kurt E. Armbruster,

Orphan Road: The Railroad Comes to Seattle, 1853–1911, at 51–58, 108

(W ashington State University 1999).

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 27

2. No-Access-Road Alternative

Petitioners contend that the STB impermissibly refused to

consider an alternative rail design without a full-length access

road adjacent to the rail line. They assert that a no-access-

road alternative was a viable and reasonable option that

should have been examined in the EIS. Respondents assert

that the STB properly determined that a no-access-road

alternative was not reasonable because an access road is

necessary for modern rail line construction and maintenance.

We conclude that the STB complied with NEPA when it

determined that a no-access-road alternative was not feasible.

NEPA requires an EIS to describe and analyze “every

reasonable alternative within the range dictated by the nature

and scope of the proposal.” Friends of Southeast’s Future v.

Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998).

Consideration of alternatives “is the heart of the [EIS],” and

agencies should “[r]igorously explore and objectively

evaluate all reasonable alternatives” that relate to the

purposes of the project and briefly discuss the reasons for

eliminating any alternatives from detailed study. 40 C.F.R.

§ 1502.14 (2012); see also Se. Alaska Conservation Council

v. Fed. Highway Admin., 649 F.3d 1050, 1056 (9th Cir.

2011). “The [EIS] need not consider an infinite range of

alternatives, only reasonable or feasible ones.” Carmel-By-

The-Sea, 123 F.3d at 1155. But failure to examine a

reasonable alternative renders an EIS inadequate. Friends of

Southeast’s Future, 153 F.3d at 1065. Those challenging the

failure to consider an alternative have a duty to show that the

alternative is viable. City of Angoon, 803 F.3d at 1021–22.

We perceive several flaws in Petitioners’ contention that

the agency acted arbitrarily and capriciously by refusing to

28 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

consider a no-access-road alternative. First, Petitioners

merely contend but do not show that a no-access-road

alternative is a feasible option that should have been

considered by the STB. Id. Such an allegation begs the

question of whether a no-access-road alternative is a feasible

option. How could a railroad line effectively be built through

rugged and undeveloped terrain without an access road for

equipment and moving of supplies and personnel? Would a

temporary access road cause more environmental harm in the

Susitna wetlands than a permanent one? Without evidence to

the contrary, we defer to the STB’s technical expertise

regarding modern railroad construction. See NPRC, 668 F.3d

at 1075.

Second, Petitioners rely heavily on EPA’s comments

expressing concern about the need for an access road. They

seem to argue that because the EPA called the necessity of an

access road into question, the STB is obligated to consider a

no-access-road alternative based on NEPA’s mandate that

STB consult with other agencies. They further contend that

the concerns raised by the EPA and other agencies should

reduce the deference we afford to the STB. But a lead agency

does not violate NEPA when it does not defer to the concerns

of other agencies. Akiak Native Cmty. v. U.S. Postal Serv.,

213 F.3d 1140, 1146 (9th Cir. 2000). All that NEPA requires

is that the lead agency consider these concerns and explain

why it finds them unpersuasive. Id. The STB satisfied that

burden here. Not only did the STB respond to EPA’s

concerns in the FEIS, it also addressed these concerns in its

EM. We conclude that there is no error in STB’s reliance on

ARRC’s explanation of modern railroad construction and

maintenance practices to answer the EPA’s concerns. It was

reasonable for the STB to gather information about rail

construction from the entity that will build the rail line.

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 29

Moreover, Petitioners cite no case law for their assertion that

we should not give deference to the STB’s decision. We

conclude that STB did not act arbitrarily or capriciously in

declining to consider the no-access-road alternative.

3. Wetlands Delineation and Mitigation

Lastly, Petitioners contend that the STB relied on

improper methodology for its wetlands delineation.

Petitioners further argue that the EIS did not provide

sufficient detail about the wetlands impacts of the rail line,

leading to insufficient discussion of mitigation measures.

Respondents counter that they employed accepted wetland-

delineation methodology that yielded detailed information

and that the discussion of wetlands mitigation in the FEIS

was sufficient under NEPA. We agree with Respondents.

An EIS must contain a “reasonably complete discussion

of possible mitigation measures.” Okanogan Highlands

Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000)

(quoting Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 352 (1989)). “Mitigation must ‘be discussed

in sufficient detail to ensure that environmental consequences

have been fairly evaluated.’” Carmel-By-The-Sea, 123 F.3d

at 1154 (quoting Robertson, 490 U.S. at 352). Perfunctory

descriptions or mere lists of mitigation measures are

insufficient. Neighbors of Cuddy Mountain v. U.S. Forest

Serv., 137 F.3d 1372, 1380 (9th Cir. 1998).

Petitioners take issue with the STB’s use of “rapid

assessment” survey methods, aerial photography, and

computer generated information system data. They point to

comments from both the National Marine Fisheries Service

(NMFS) and the EPA that called for site-specific

30 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

examinations. Although we have held that the use of stale

data based on aerial surveys does not constitute a “hard look”

under NEPA, NPRC, 668 F.3d at 1086–87, we are not

convinced that the STB’s chosen methodology was deficient.

Petitioners point to no evidence that the data was stale. Nor

do they demonstrate how the methodology employed led to

insufficient data on which to base mitigation measures. The

record shows that the methodology used for wetlands

delineation was performed in accordance with the Army

Corps of Engineers’ delineation manual. Although NMFS

and EPA expressed concern with the wetlands delineation and

the information on the functions of wetlands, the record does

not show that the STB’s reliance on this methodology was

arbitrary and capricious. It is not the role of this court “to

decide whether an [EIS] is based on the best scientific

methodology available.” McNair, 537 F.3d at 1003 (internal

quotations omitted) (alterations in original). As long as the

agency engages in a “reasonably thorough discussion,” we do

not require unanimity of opinion among agencies.

Carmel-By-The-Sea, 123 F.3d at 1151 (internal quotations

omitted).

Petitioners contend that the STB’s analysis of wetland-

damage mitigation is too cursory to meet NEPA’s “hard

look” requirement. They argue that the STB did not consider

bridging streams and elevating track to minimize the need for

filling of streams and wetlands as urged by the EPA. The

STB responded to the EPA’s concerns by explaining that the

prohibitively high cost of constructing an elevated track

makes it infeasible and discussing in the FEIS the positive

and negative environmental impacts of bridges and culverts.

The EM further addressed the EPA’s concerns by reiterating

the high costs of elevated track and noting that the EPA did

not present any evidence that an elevated track was feasible.

ALASKA SURVIVAL V . SURFACE TRANSP . BD . 31

Petitioners likewise present no evidence of the feasibility of

the elevated track. We cannot say that failure to consider this

alternative is improper without evidence showing the

feasibility of the alternative. City of Angoon, 803 F.3d at

1021–22. Further, although we give special weight to

criticism from other federal agencies, see Save Our Sonoran,

Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2004), the

EPA’s criticisms alone are not sufficient to invalidate the

discussion of environmental impacts and mitigation measures

that is found in the record. See Carmel-By-The-Sea, 123 F.3d

at 1154–55.

Petitioners further argue that the STB impermissibly

referred to mitigation measures as a “future prospect” to be

handled by ARRC. NEPA does not require the finalization or

adoption of mitigation measures but mandates only that the

agency engage in a “reasonably thorough” discussion of

mitigation. Carmel-By-The-Sea, 123 F.3d at 1151, 1154.

The FEIS contains a lengthy discussion of measures to

mitigate impacts on water resources, which includes

removing debris from wetlands as soon as practicable and

constructing the railroad to maintain natural water flows by

installing bridges or using equalization culverts. Further, the

STB’s authorization of the exemption was conditional to

ARRC’s adoption of one hundred mitigation measures,

including ensuring that bridges and culverts are designed and

maintained in accordance with NMFS guidance and

implementing best management practices to be imposed by

the Army Corps of Engineers under the Clean Water Act

§ 404 permit, which ARRC must obtain before construction.

Nothing about the discussion of mitigation measures is

perfunctory. And we see no error in the STB’s reliance on

§ 404’s substantive requirements as mitigation measures

when the agency otherwise complied with NEPA’s

32 ALASKA SURVIVAL V . SURFACE TRANSP . BD .

requirement of a reasonably thorough analysis. See Carmel-

By-The-Sea, 123 F.3d at 1152.

V. CONCLUSION

We hold that the procedures of the STB under the ICCTA

were sufficient and were satisfied and that there was no error

under NEPA because the purpose and need statement was

adequate; the agency considered all viable, reasonable

alternatives; and the EIS contains a detailed, thorough, and

thoughtful discussion of the wetlands impacts and mitigation

measures. Concluding that there was no violation of the

ICCTA, NEPA, or the APA, we deny the petition for review.

PETITION FOR REVIEW DENIED.