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Jacques-Banner

Court Hears Arguments In Port MacKenzie Rail Spur Case

By | February 7, 2013 - 5:25 pm

Oral arguments were heard Thursday morning in federal district court in Anchorage on a challenge to a U.S. Army Corps of Engineers wetlands permit. The case centers on whether or not both the federal Surface Transportation Board and the Corps have complied with Clean Water Act requirements for wetlands protection measures in approving the proposed Port MacKenzie railroad spur.

Plaintiffs Cook Inletkeeper and other environmental groups have challenged the wetlands permit which allows the railroad project to fill 95 acres of wetlands between Port MacKenzie and Houston. Trustees For Alaska attorney Brian Litmans argued that the railroad’s plan to use fill to elevate the spur line’s tracks in essence creates a 35-mile-long dike which can cause irreparable harm to both migrating salmon and to adjacent wetlands beyond the railroad corridor.

The Alaska Railroad and the Matanuska Susitna Borough are interveners in the case on the side of the defense. Defense attorney Kenneth Rooney told the court that the Corps’ hydrology assessments concluded that construction would not interrupt water flow outside of a certain area, because water flows vertically in wetlands, not horizontally. Attorneys on both sides have declined comment on pending litigation, but Borough spokeswoman Patty Sullivan said one point stood out.

“The plaintiffs are arguing that the railroad is a dike. But our attorney is saying, ‘Well, I’ve never seen a dam that has eight bridges, many culverts allowing the movement of water.’” Which, I thought I heard the judge say, or, rather our attorney clarify, ‘You mean vertically, down into the earth.’ So any sort of railroad 32 miles long wouldn’t inhibit the flow,” Sullivan said.

Bob Shavelson, speaking for Cook Inletkeeper, says plaintiffs want to ensure that the railroad expansion won’t result in unforeseen harm

“Because there is no law against thoughtless government spending on massive projects that will destroy our wild salmon habitat,” Shavelson said.

The plaintiffs are seeking an injunction that will temporarily halt work on the railroad spur. In November of last year, the U.S. 9th Circuit Court of Appeals reversed an earlier decision to halt work on the initial phases of the project. In September of last year, the Corps announced that it had issued a wetlands permit for the railroad project under section 404 of the Clean Water Act. The permit requires the Borough to purchase wetlands areas to compensate for any impacts to wetlands posed by rail spur construction.

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