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Update

= UPDATE: BHP Court Appeal On Fortescue Rail Access Dismissed


By Alex Wilson Of DOW JONES NEWSWIRES
BHP Billiton Ltd. (BHP.AU) has suffered a loss in its battle to keep other miners off its iron ore rail lines in the Pilbara region of Western Australia, with the High Court of Australia dismissing BHP's appeal against a previous National Competition Council ruling.

BHP has long argued its Pilbara rail lines are part of its production process, which under Australian law would prevent them being declared open to other parties, and the mining giant had appealed against a ruling by the NCC that use of its rail by Fortescue Metals Group Ltd. (FMG.AU) wouldn't constitute use of its production process.

The High Court of Australia Wednesday unanimously dismissed the appeal, ruling in favor of Fortescue and the NCC.

"The use by Fortescue of a railway line that was integral to BHP Billiton Iron Ore's production process would not amount to the use by Fortescue of that production process," the High Court said in a summary of its judgment.

The decision doesn't clear the way for Fortescue and other miners to run trains on BHP's railways but does scuttle one of BHP's key arguments against the lines being declared open to third party access.

Fortescue is seeking to have the Pilbara rail lines of both BHP and Rio Tinto Ltd. (RTP) declared open and Australian Treasurer Wayne Swan is due to announce a decision on access to Rio's Hamersley and Robe River rail lines and BHP's Goldsworthy line next month.

A Fortescue spokesman welcomed the High Court decision Wednesday and said the miner was pleased it was unanimous.

"Neither BHP nor Rio are now in a position to argue that their railway lines shouldn't be declared because they are used for a production process," he said.

BHP declined to comment on the High Court ruling, while Rio Tinto wasn't immediately available to comment.

-By Alex Wilson, Dow Jones Newswires; 61-3-9671-4313; [email protected]

(END) Dow Jones Newswires