[Federal Register Volume 64, Number 195 (Friday, October 8, 1999)]
[Notices]
[Pages 54957-54959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26320]



[[Page 54957]]

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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[Finance Docket No. 31086 (Sub-No. 3)]


Tongue River Railroad Company, Construction and Operation of the 
Western Alignment in Rosebud and Big Horn Counties, MT

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of availability of a draft programmatic agreement and 
request for comments.

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SUMMARY: The Surface Transportation Board's Section of Environmental 
Analysis (SEA) has prepared a Draft Programmatic Agreement (Draft PA) 
to establish the process for the identification and treatment of 
historic and cultural resources potentially affected by the 
construction and operation of Tongue River Railroad Company's (TRRC's) 
proposed rail line from Miles City to Decker, MT. TRRC's purpose is to 
provide a shorter and more cost effective route to transport low 
sulfur, sub-bituminous coal primarily to electric utilities in the mid-
western United States.
    SEA has developed the Draft PA in consultation with the following 
likely signatories: Advisory Council on Historic Preservation (ACHP); 
Montana State Historic Preservation Office (MT SHPO); Department of the 
Interior, Bureau of Land Management (BLM); United States Army Corps of 
Engineers (Corps); United States Department of Agriculture, 
Agricultural Research Service (ARS); Montana Department of Natural 
Resources and Conservation (MT DNRC); and, TRRC. SEA has also consulted 
with the Northern Cheyenne Indian Tribe as a concurring party. At this 
time all the likely participants to the Draft PA generally concur with 
the approach and stipulations contained in the Draft PA.
    The Draft PA sets forth the detailed requirements of how the 
impacts associated with the construction and operation of TRRC's 
proposed rail line from Miles City to Decker, MT would be appropriately 
addressed, including impacts to archeological, paleontological, 
architectural, historic, and cultural resources. The Draft PA would 
require completion of detailed on-the-ground surveys of the railroad 
right-of-way prior to construction; development of a Treatment Plan to 
mitigate adverse effects on historic and cultural resources in 
consultation with the participants to the PA and the Native American 
community; and, procedures for reviewing and addressing objections and/
or disagreements.
    TRRC's rail line from Miles City to Decker, MT is comprised of two 
connecting line segments, neither of which has yet been constructed. 
The initial 89-mile segment, extending from Miles City, MT to a 
terminus point near Ashland, MT, was approved by the Interstate 
Commerce Commission (ICC), now the Surface Transportation Board 
(Board), in May 1986 in Finance Docket No. 30186 (Sub-No. 1), and also 
referred to as Tongue River I.\1\ The second segment, referred to as 
Tongue River II,\2\ extends approximately 40 miles in length from 
Ashland to Decker, MT, and was approved by the Board in November 1996 
in Finance Docket No. 30186 (Sub-No. 2) via the Four Mile Creek 
Alternative.\3\
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    \1\ In Tongue River I, Tongue River Railroad Company--Rail 
Construction And Operation--In Custer, Powder River, And Rosebud 
Counties, Montana, Finance Docket No. 30186 (Miles City to Ashland), 
the Draft Environmental Impact Statement was served July 15, 1983; 
the Supplement to the Draft Environmental Impact Statement was 
served January 19, 1984; and the Final Environmental Impact 
Statement was served August 23, 1985.
    \2\ In Tongue River II, Tongue River Railroad Company--Rail 
Construction And Operation Of An Additional Rail Line From Ashland 
To Decker, Montana, Finance Docket No. 30186 (Sub-No. 2), the Draft 
Environmental Impact Statement was served July 17, 1992; the 
Supplement to the Draft Environmental Impact Statement was served 
March 17, 1994; and the Final Environmental Impact Statement was 
served April 11, 1996.
    \3\ Petitions for review of the November 8, 1996 decision were 
filed in the Ninth Circuit in Northern Plains Resource Council, Inc. 
et al. v. STB, No. 97-70037 (filed Jan. 7, 1997) (NPRC). The court 
proceedings are being held in abeyance pending the conclusion of 
Tongue River III.
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    On April 27, 1998, TRRC filed an application with the Board under 
49 U.S.C. 10901 and 40 CFR 1150.1-10 seeking authority to construct and 
operate a 17.3-mile line of railroad in Rosebud and Big Horn Counties, 
MT known as the ``Western Alignment'' and also referred to as Tongue 
River III. The Western Alignment is an alternative routing for the Four 
Mile Creek Alternative approved by the Board in Tongue River II and the 
remainder of the approved rail line from Ashland to Decker would remain 
generally unchanged. A decision by the Board on whether to grant or 
deny Tongue River III will be made following the completion of the 
environmental review process and will take into account both the 
environmental and transportation concerns.\4\
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    \4\ SEA is presently completing a Draft Supplement to the Final 
Environmental Impact Statement in Tongue River III that will be made 
available for public comment. Based on any comments received and any 
further environmental analysis that may be necessary, SEA will 
prepare a Final Supplement to the Final Environmental Impact 
Statement that will also be made available to the public. The Board 
will then decide whether to grant Tongue River III.
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    In Tongue River I, the Board's predecessor, the ICC, developed a 
Memorandum of Agreement (MOA) to address historic and cultural issues 
that was signed by all the participating agencies. In Tongue River II, 
the Board developed a PA that addressed only the Ashland to Decker, MT 
portion of the line. However, the PA developed in Tongue River II was 
never signed by the participating agencies.
    The Draft PA prepared for Tongue River III by SEA, acting on behalf 
of the Board, and presented for public review and comment would 
supercede the MOA signed in Tongue River I and the PA prepared in 
Tongue River II, and would apply to TRRC's entire rail line from Miles 
City to Decker, MT approved in Tongue River I and Tongue River II, and 
currently being considered in Tongue River III.
    In compliance with Section 106 of the National Historic 
Preservation Act of 1996, as amended, and its implementing guidelines 
at 36 CFR Part 800, copies of the Draft PA are available for public 
review at the following locations:

Billings Library, 510 N. Broadway #2, Billings, MT
Miles City Public Library, 1 South 10th Street, Miles City, MT
St. Labre Indian School Library, 1000 Tongue River Road, Ashland, MT
Dull Knife Memorial College Library, 100 College Drive, Lame Deer, MT
Sheridan High School Library, 1056 Long Drive, Sheridan, WY
Range Riders Museum, Highway 10 and 12, Miles City, MT
Big Horn County Historic Museum, Hardin, MT

    Individual copies of the Draft PA can be obtained for review and 
comment by contacting SEA's independent third-party contractor: Scott 
Steinwert, (415) 989-1446, extension 17, Public Affairs Management, 101 
The Embarcadero, Suite 210, San Francisco, CA 94105.
    Based on comments to the Draft PA, SEA, on behalf of the Board, and 
in consultation with the signatory and concurring agencies to the PA, 
will prepare a Final PA which will be executed by the participants.

DATES: Written comments on the Draft PA as the November 30, 1999 (45 
days).

ADDRESSES: Send an original and 10 copies to Dana G. White, Surface 
Transportation Board, 1925 K Street, NW, Washington, DC 20423-0001. 
Please refer to Finance Docket No. 30186 (Sub-No. 3).


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FOR FURTHER INFORMATION CONTACT: Dana G. White, (202) 565-1552 (TDD for 
the hearing impaired (202) 565-1695).

SUPPLEMENTARY INFORMATION: Section 106 of the National Historic 
Preservation Act of 1966, as amended, requires that Federal agencies 
take into account the effect of an undertaking on a property which is 
included in, or eligible for inclusion in, the National Register of 
Historic Places (National Register). The ACHP has developed procedures 
at 36 CFR part 800 for implementing compliance with the requirements of 
section 106. For large or complex projects, the ACHP procedures allow 
preparation of a Programmatic Agreement (PA) as a way for an agency to 
fulfill it's section 106 responsibilities (36 CFR 800.13).
    In Tongue River I, the Board's predecessor, the ICC, developed and 
MOA that was signed by all the participating agencies. In Tongue River 
II, the Board developed a PA that addressed only the Ashland to Decker, 
MT portion of the line. However, this PA was never signed by the 
participating agencies. In Tongue River III, the Board determined, in 
consultation with the ACHP, that preparation of a PA was appropriate to 
fulfill the section 106 responsibilities relative to construction of 
TRRC's proposed rail line from Miles City of Decket, MT. In addition, 
the participating agencies agreed that the PA prepared for Tongue River 
III and presented here for public review and comment, should supercede 
the MOA signed in Tongue River I and the PA prepared in Tongue River 
II, and apply to TRR's entire rail line from Miles City to Decker, MT 
considered in Tongue River I, Tongue River II, and Tongue River III.
    Accordingly, here in Tongue River III, SEA, acting on behalf of the 
Board, developed the Draft PA in consultation with the following likely 
signatories: ACHP, MT SHPO, Corps, BLM, ARS, MT DNR, and TRRC. SEA also 
consulted with the Northern Cheyenne Indian Tribe as a concurring 
party. Each of the Federal and state agencies were consulted because 
TRRC's rail line would cross land either owned or managed by that 
agency, or it would affect land regulated by that agency. While TRRC's 
rail line would not cross the Northern Cheyenne Indian Reservation, SEA 
consulted with and invited the Northern Cheyenne to be a concurring 
party to the Draft PA because TRRC's rail line would cross lands that 
may contain properties of spiritual and traditional cultural value to 
Native Americans, primarily the Northern Cheyenne. In addition to the 
Northern Cheyenne, SEA contacted the Crow, Arapaho, Oglaha and 
Miniconjou Tribes and invited them to participate in the development of 
the Draft PA. However, at this time, none of the Tribes, other than the 
Northern Cheyenne, have responded to SEA's invitation or decided 
whether to participate in the development of, or concur in, the Draft 
PA.

Identification and Evaluation of Historic and Cultural Resources

    SEA has reviewed and approved Class I Inventories conducted for a 
1,500 foot area on either side of the centerline of the rail line from 
Miles City to Decker, MT. The Class I Inventories were conducted as 
part of the environmental review process for Tongue River I, Tongue 
River II, and Tongue River III.
    A Class I Inventory identifies prehistoric sites, historic sites 
and structures, cultural landscapes, and properties of traditional 
cultural value that may be affected by construction and operation of 
the proposed rail line. The Class I Inventories conducted for Tongue 
River I, Tongue River II, and Tongue River III determined that 
construction and operation of a rail line by TRRC from Miles City to 
Decker, MT may have an effect upon historic properties included on, or 
eligible for inclusion on, the National Register.
    The Draft PA includes stipulations that surveys and inventories 
would be conducted for geographic areas within which the construction 
and operation of the railroad may cause changes in the character or use 
of historic and cultural resources, to further assess the potential 
effects of the undertaking on these resources. These surveys and 
inventories would include a windshield survey from publicly accessible 
roads to consider visual, audible, and atmospheric effects, as well as 
other indirect effects on standing structures, cultural landscapes and 
properties of traditional cultural value that may be affected by the 
undertaking. These surveys are similar to a Class II Survey. A Class 
III Inventory of the right-of-way plus a 200 foot buffer area on either 
side would also be conducted by a qualified archaeologist under 
contract to TRRC. A Class III Inventory is an intensive survey aimed at 
locating and recording all historic and cultural resources that have 
surface or exposed profile. Representatives of the Northern Cheyenne 
Indian Tribe would be invited to participate in these surveys and 
inventories to help identify, document, and evaluate properties of 
spiritual and traditional cultural value to Native Americans. The 
windshield survey and intensive Class III inventories are hereafter 
referred to as the Class III Inventory Process.
    The results of the Class III Inventory Process would be provided to 
the signatories and concurring agencies to the PA for review and 
comment. SEA, on behalf of the Board, would consult with the MT SHPO to 
resolve any conflicts and reach concurrence regarding the eligibility 
of properties for listing on the National Register, and the effects of 
constructing the rail line on these properties.
    The Board, through SEA, would then consult with the signatory and 
concurring agencies to the PA to develop a Treatment Plan which would 
include measures to avoid, minimize or mitigate any adverse effects on 
historic and cultural resources identified in the surveys and 
inventories as eligible for listing on the National Register. To the 
extent practicable, the Treatment Plan(s) would incorporate measures 
identified by Native American representatives as necessary for 
mitigation of adverse effects to properties that are determined to be 
significant for their traditional cultural values.
    Under the Draft PA, a Treatment Plan would be prepared for a 
segment or portions of the rail line as long as the Class III Inventory 
Process is complete and has been approved for that segment or portion 
of the rail line. Whenever possible, in-place preservation of historic 
and cultural resources would be the preferred treatment. However, where 
avoidance of such resources is not feasible, a program of data recovery 
would be implemented. The Treatment Plan(s) would also be provided to 
the signatory and concurring agencies to the PA for review and comment 
similar to the process for the Class III Inventory.

Construction Activities

    Where the right-of-way does not contain eligible historic or 
cultural resources, TRRC could begin construction once the signatory 
and concurring agencies agree on the adequacy of the Class III 
Inventory Report(s). Where eligible historic and cultural resources are 
present, TRRC could begin construction once the agreed-upon data 
recovery fieldwork/treatment as specified in the Treatment Plan is 
completed and approved by SEA, on behalf of the Board, with the 
concurrence of the MT SHPO. Where eligible historic and cultural 
resources are present on land administered by the BLM, ARS or the state 
of Montana, TRRC may begin construction only after the agreed upon data 
recovery fieldwork/treatment is completed and approved by the affected 
agency and

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with the concurrence of the MT SHPO and SEA, on behalf of the Board.

Changes in the ROW/Other Ancillary Areas

    The Draft PA includes provisions that if changes are made to the 
alignment after a Class III Inventory Process is completed that place 
the alignment or ancillary areas outside of the areas previously 
surveyed, then SEA, on behalf of the Board, would require TRRC to 
inventory those areas and would require that TRRC retain the services 
of a qualified archaeologist to prepare a supplemental Class III 
Inventory Report prior to construction in the previously un-surveyed 
areas.

Discovery Plan

    The Draft PA includes provisions that if a previously undiscovered 
archaeological, historical, or cultural property is encountered during 
construction, or previously known properties would be affected in an 
unanticipated manner, all work would cease within 200 feet of the 
resource in all directions until SEA, on behalf of the Board, could 
evaluate and, if necessary, authorize steps to mitigate impacts to the 
new discovery. Evaluation and mitigation would be carried out in 
consultation with the signatory and concurring agencies to the PA as 
expeditiously as possible.
    The Draft PA also includes provisions that if historic or cultural 
resources are encountered on lands administered by the BLM, ARS or the 
state of Montana, SEA, on behalf of the Board, would consult with the 
affected agency to develop appropriate mitigation measures. TRRC would 
provide the construction contractor with written notification of the 
proper protocol, discussed above, for discovery of previously 
unencountered sites.

Human Remains

    To address the potential for encountering human remains, cultural 
items and items of cultural patrimony associated with human remains 
during construction, the Draft PA includes provisions that in these 
circumstances on Federal lands, SEA, on behalf of the Board, or the 
appropriate Federal land management agency would consult with Native 
Americans, or other appropriate groups to determine treatment and 
disposition measures consistent with applicable Federal laws such as 
the Native American Graves Protection and Repatriation Act (NAGPRA) and 
Section 106 of the National Historic Preservation Act and state laws 
such as Montana laws M.C.A. 22-3-801 through 811. If human remains were 
encountered on state-administered lands, SEA, on behalf of the Board, 
would consult with the MT SHPO and MT DNRC as to appropriate mitigation 
measures in accordance with Montana laws M.C.A. 22-3-801 through 811. 
If human remains were encountered on private lands, the Board would 
ensure that they are treated according to the provisions of the Montana 
Human Skeletal Remains and Burial Site Protection Act.
    The Draft PA further requires that in the case of inadvertent 
discovery of Native American human remains during construction 
activities, SEA, on behalf of the Board, would attempt to identify the 
appropriate Native American tribe(s) or other ethnic group(s) related 
to the burial, and consult with them over the treatment of remains in 
accordance with procedures identified in the Treatment Plan. All work 
would cease within 200 feet in all directions of the human remains 
until the requirements of Federal and state laws were satisfied.

Curation

    The Draft PA includes provisions that all records and other items 
resulting from identification and data recovery efforts would be 
curated in accordance with 36 CFR Part 79, and the provisions of the 
NAGPRA. All archaeological materials recovered from BLM-administered 
lands would be curated in accordance with BLM requirements at BLM's 
Billings (MT) Curation Center. All archaeological materials recovered 
from ARS-administered lands would be curated in accordance with 36 CFR 
Part 79.
    The Board would encourage private land owners to curate collections 
from their lands in an appropriate facility. Materials from private 
lands to be returned to the private land owners would be maintained in 
accordance with 36 CFR Part 79 until any specified analysis is 
complete.
    The Board would ensure through consultation with the MT DNRC that 
all cultural and paleontological materials discovered on Montana lands 
would be curated in accordance with Montana laws M.C.A. 22-3-432.

Dispute Resolution

    The Draft PA includes provisions for resolving disputes among the 
signatories to the PA. These include: (1) consulting with the objecting 
party to resolve the objection; (2) forwarding all documentation 
relevant to the dispute to the ACHP, unless the dispute involves site 
eligibility; and (3) sending any unresolved issue regarding site 
eligibility to the Keeper of the National Register.

Final PA

    Based on comments to the Draft PA, SEA, on behalf of the Board, and 
in consultation with the signatory and concurring agencies to the PA, 
will prepare a final PA which will be executed by the participants.

    By the Board, Elaine K. Kaiser, Chief, Section of Environmental 
Analysis.
Vernon A. Williams,
Secretary.
[FR Doc. 99-26320 Filed 10-7-99; 8:45 am]
BILLING CODE 4915-00-M