U.S. District Judge B. Lynn Winmill has ruled in favor of the Nez Perce Tribe and Idaho Rivers United, ordering an injunction blocking further megaload transports on scenic U.S. Highway 12 until a corridor study and consultation with the tribe have been completed by the U.S. Forest Service; you can read the judge’s ruling here, and read my full story here at spokesman.com.
The judge noted that after he ruled last winter that the Forest Service had authority over megaloads on the route, the Idaho Transportation Department nevertheless issued a permit to Omega Morgan to haul a General Electric megaload over the route in August, an evaporator bound for the Canadian oil sands, and the Forest Serrvice objected, but didn’t stop it. “In an earlier decision in a related case, the Court held that the Forest Service must ‘enforce all relevant legal authorities, including, but not limited to, the Wild and Scenic Rivers Act . . . .’ ” Winmill wrote in his ruling. “The Forest Service was taking the position that it had authority to review but not to enforce. Obviously, that was an erroneous reading of the Court’s decision.”
The injunction orders the Forest Service to close Highway 12 to any Omega Morgan megaloads from mileposts 74 to 174, “until the Forest Service has conducted its corridor review and consulted with the Nez Perce Tribe;” the company had planned to send another giant load over the route on Sept. 18. It argued that it will lose millions if it can't deliver the equipment to Canada on time, but the judge wrote that the company had been informed by the attorneys for megaload opponents back in April of the opposition and the costs incurred by previous firms proposing megaload shipments on the route.
"In April of 2013, plaintiffs’ counsel sent a letter to Omega-Morgan putting them on notice that they would be attempting to block any shipments down Highway 12 unless Omega-Morgan obtained permission from the Forest Service," Winmill wrote. RCCI, the GE division sending the load, "decided, however, to proceed before the Forest Service could complete its corridor study and consultation with the Tribe. In other words, RCCI knowingly put its loads into a position where the company would incur $5 million in losses if it must wait for the Forest Service review. Given these circumstances, the Court cannot find that the balance of equities tips in defendants’ favor. In fact, it tips the other direction due to the clear command of the Tribe’s Treaty rights, NFMA (National Forest Management Act), and the Wild and Scenic Rivers Act. For those same reasons, the Court finds that an injunction is in the public interest."
He noted, "The plaintiffs are not seeking damages; they are seeking to preserve their Treaty rights along with cultural and intrinsic values that have no price tag."