United States Fifth Circuit

In a petition for review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB), the petition is denied where: 1) STB's refusal to consider the proposed development of the entire tract at issue as an "interrelated action" did not render the Decision arbitrary and capricious; 2) petitioner did not show that the future phases of the quarry were free from regulatory and financial contingencies such that their occurrence would be reasonably foreseeable, much less reasonably certain; and 3) petitioner did not show that respondents' reliance on certain mitigation measures in support of their conclusions as to jeopardy rendered the Decision arbitrary and capricious.

Appellate Information

• Decided 04/06/2010
• Published 04/06/2010

Judges

• KING, Circuit Judge:, Before KING, BARKSDALE and ELROD, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• David Franklin Barton (argued), Gardner Law Firm, San Antonio, TX, for Petitioner., Virginia Strasser (argued), Ellen Hanson, Surface Transp. Bd., Eric H. Holder, Jr., U.S. Dept. of Justice, Washington, DC, for Surface Transp. Bd. and U.S. Fish & Wildlife Serv., Lane Madison McFadden (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for U.S. and U.S. Fish & Wildlife Serv., David Hyler Coburn (argued), Steptoe & Johnson, L.L.P., Washington, DC, for Intervenor.