Megaload fight headed to federal court

A court hearing that could decide the future use of U.S. Highway 12 by shippers of megaloads has been set for Aug. 27 before Judge B. Lynn Winmill in Boise. Last week, the Nez Perce Tribe and Idaho Rivers United filed a lawsuit against the U.S. Forest Service for not stopping transport company Omega Morgan from hauling a 21-foot-wide, 255-foot-long, 644,000-pound evaporator across the Nez Perce-Clearwater National Forest via the twisting highway that also passes through the Middle Fork of the Clearwater-Lochsa Wild and Scenic River corridor. The tribe and environmental group have asked Winmill to issue an emergency injunction that would compel the Forest Service to enforce its jurisdiction over megaload shipments across the forest and through the Wild and Scenic River corridor. Idaho Rivers United won a judgment against the Forest Service earlier this year based upon a case it filed in 2010. That case alleged the agency had ignored its authority and obligation to protect the river corridor. Winmill ruled the agency has the authority to review megaload transport permits issued by the Idaho Transportation Department. Based on that ruling, Forest Service Supervisor Rick Brazell established interim criteria that defined megaloads as those that are more than 16 feet wide and 150 feet long, those that require more than 12 hours to pass through the forest and river corridor and those that require physical modification of the highway or adjacent vegetation. The Omega Morgan shipment met two of those definitions, and Brazell informed the transportation department and the shipping company that his agency would not approve the loads until it had completed a study of the river corridor’s intrinsic values, established procedures to evaluate megaload shipments and had a chance to consult with the Nez Perce Tribe on those procedures. Despite the federal agency’s objections, the transportation department issued Omega Morgan a permit, and the company began shipping the load east on U.S. Highway 12 on Aug. 5. The agency took no further action to stop the shipments. “Unless this Court corrects the Forest Service’s determination that it lacks any authority to enforce its jurisdiction to regulate use of U.S. Highway 12 on the national forest, megaloads will be free to traverse the Wild and Scenic corridor without being subject to the Forest Service’s regulatory oversight recently recognized by this Court,” according to the tribe’s motion for a preliminary injunction. “The Forest Service’s determination in fact invites precisely the sort of increased megaload traffic and magnified harm that the Forest’s Service’s interim criteria and initial exercise of jurisdiction were surely aimed to prevent. This will render meaningless the authorities Congress has delegated to the Forest Service to manage and protect, for the U.S. public, the values inherent in the national forest and Wild and Scenic River corridor.” The load took four nights to reach the Montana state line, during which tribal members and environmental activists staged protests that temporarily blocked the loads and led to several arrests. During transport of the loads, the company appears to have violated terms of the permit requiring it to delay traffic no more than 15 minutes. According to The Associated Press, the oversized load made its way through Missoula early Tuesday after a brief protest. No arrests were made. The load was scheduled to leave Bonner on Tuesday night en route to its final destination at the tar sands in Alberta, Canada.