[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).
[[Page 54958]]
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
[[Page 54959]]
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
