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Marsh rail more than half complete; attempt to halt work to take another month

Crews continue to build a second BNSF Railway track Monday through the La Crosse River marsh.

The wheels of justice are no match for a modern railroad.

As legal efforts to stop work a second BNSF Railway track in the La Crosse River marsh wind their way through the courts, BNSF says the project is more than halfway done.

A group of rail safety and environmental advocates led by La Crosse County Commissioner Maureen Freedland sued the Wisconsin Department of Natural Resources in March, claiming the agency’s environmental review of the BNSF expansion was inadequate.

Arguing that ongoing work could create “irreparable harm,” Freedland later asked the court to temporarily halt work until the underlying case is decided, which might not happen until 2016.

The state — along with BNSF — argues the work should proceed.

La Crosse County Circuit Judge Scott Horne said Monday that the baseline for considering any harm to the marsh would be its current state — not the condition it was in when the project began.

“I can’t do anything at this stage about the substantial amount of work that has already been done,” Horne said.

Attorney Eric McLeod, representing BNSF, said that as of last week up to 60 percent of the work is complete. A supporting document indicates that contractors have already filled about three quarters of the 7.28 acres of wetlands the DNR has allowed them to fill.

BNSF contractors began building the controversial second line in April after receiving a permit from the Army Corps of Engineers that allows them to fill 7.28 acres of wetlands. The railroad expects the work — part of a larger project to add a second track along a four-mile stretch of the line through La Crosse — will be completed by Sept. 12.

Horne is not expected to rule on the stay request until July 22, after both sides have made additional arguments.

Attorneys for the Wisconsin Department of Justice, representing the DNR, have opposed the stay, arguing “there is no good reason to think that improper harms are occurring or that any harm would be irreparable.”

Freedland questions why the state is arguing on behalf of the railroad instead of the general public.

“The DNR seems to indicate that the business interests of a corporation are the ultimate issues that matter,” she said.

The big picture

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The La Crosse project is part of the railroad’s $6 billion in network improvements scheduled this year. BNSF says it is intended to solve a bottleneck created by the longest single-track segment between the Twin Cities and Savanna, Ill.

Opponents say it will allow BNSF to haul even more volatile crude oil from North Dakota through dense population centers, including La Crosse, and environmentally sensitive lands.

Crude oil traffic has ballooned in recent years, and BNSF hauls 29 to 39 fully loaded oil trains through La Crosse each week, according to the most recent numbers filed with state emergency officials. Five North American oil trains have derailed and exploded so far this year, including a BNSF train that went off the rails in March near Galena, Ill.

The basis of the suit is that the DNR did not conduct a thorough environmental impact study to examine the cumulative impacts of the project — not simply the disturbance of wetlands but the risk of more freight trains barreling through the city, especially those carrying crude oil.

In court documents filed Friday, BNSF argues the La Crosse expansion is in the public interest, suggesting it and 13 similar projects on the corridor will address the railroad’s failure to deliver grain and coal shipments in 2014.

“The project is critical to improving the efficient flow of traffic throughout the upper Midwest and preventing a recurrence of service problems on the line at issue,” the railroad’s brief states.

Freedland and other rail safety advocates say that is the point they have sought to make.

“We will be glad to make it a national issue,” said Irv Balto, a member of Citizens Acting for Rail Safety.

‘Moving targets’

Both the DNR and BNSF argue it is pointless to put the project on hold now that work has already begun.

Sara Williams, the attorney for the citizens group, said her clients were at a disadvantage from the start, as the DNR’s original permit prohibited BNSF from doing any marsh work between mid May and July 31, the nesting period of the endangered black tern.

The DNR later amended the permit to allow work during that time with some restrictions, which Williams said caught the petitioners by surprise.

“We find that everywhere we turn the process has changed,” Freedland said. “The targets are moving.”

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