October 10, 2013 in Idaho

Federal judge upholds Highway 12 megaloads ban

By The Spokesman-Review
 
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Read the judge’s ruling here

BOISE – A federal judge has denied motions from both a division of General Electric and the U.S. Forest Service to lift a ban on megaload shipments across a scenic stretch of U.S. Highway 12 in north-central Idaho.

U.S. District Judge B. Lynn Winmill rejected arguments from the firm and the Forest Service that he should either reconsider the injunction he issued, banning the loads until the Forest Service has conducted a corridor study and consulted with the Nez Perce Tribe; or stay the injunction while the company appeals it.

The judge said he couldn’t issue such a stay unless the company, Resources Conservation Company International, made a “strong showing” it was likely to succeed on the merits in the case, and that it would be “irreparably injured” without a stay. “The court cannot find that RCCI has made a strong showing that it will prevail on appeal,” Winmill wrote. “Moreover, any likely damages are monetary in nature and not irreparable.”

The law also requires consideration of whether a stay would “substantially injure” the other parties in the proceeding, and of the public interest, the judge wrote.

“Staying the injunction will cause the very harm plaintiffs complain about in this lawsuit, harm the Court has found would be irreparable,” Winmill wrote.

The Nez Perce Tribe and Idaho Rivers United sued after RCCI sent a 322-ton load, big enough to block both lanes of the winding two-lane road and create a rolling roadblock, across the route in August and announced plans for another to follow. They contended allowing the loads without first studying impacts and consulting with the tribe would violate federal law, and could threaten environmental, historical and cultural values in the area, which includes the Nez Perce Reservation.

Eight of nine Nez Perce Tribal Council members were among those arrested at protests of the August load.

RCCI argued that it will lose millions if it can’t ship the loads as scheduled, but the judge wrote that the company knew the risk up-front and opted to proceed anyway.

The Forest Service argued that it lacked the authority to close the highway, which runs through a national forest and two Wild and Scenic Rivers corridors along the Lochsa and Clearwater rivers. “The Court disagrees,” the judge wrote. He cited specific Forest Service regulations that give the Forest Service authority to “close or restrict the use” of areas within their jurisdiction.

The company still could appeal to the 9th Circuit U.S. Court of Appeals, but for now, the ban on the big loads remains in effect.


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