September 9, 2013 in Idaho

Megaloads dispute hits federal court in Boise

By The Spokesman-Review
 
Betsy Russell photo

Silas Whitman, chairman of the Nez Perce Tribal Executive Committee, leaves the federal courthouse in Boise on Monday.
(Full-size photo)

BOISE – An exhausted federal judge, nearing his 10th hour in court, promised late today to have a decision by Friday on the Nez Perce Tribe’s challenge to continued megaload shipments along scenic Highway 12 through its reservation.

“I don’t know when we’ll find the time, given what we’re doing now … but we’ll somehow have a decision out before the end of the week,” U.S. District Judge B. Lynn Winmill said after hearing an hour of arguments from both sides in the case; he’d been in another extended trial since early morning.

Silas Whitman, chairman of the Nez Perce Tribal Executive Committee, welcomed the prospect of a quick decision. “We need the word one way or another, what’s going to happen,” he said. Whitman said he’s “very concerned” about the prospect of another giant load traversing the route as soon as Sept. 18; Whitman was among those arrested in protests of an earlier, similar load in August.

“They’re pushing us into a corner,” he said, “and the last time we were pushed, we left and tried to go to Canada. We’re tired of being pushed into corners to carry out manifest destiny. That’s not the name of the game any more.”

Bill Heins, vice president and chief operating officer for GE Water and Process Technologies, a subsidiary of General Electric, said he, too, is eager for the judge’s decision. His firm has a giant water evaporator sitting at the Port of Wilma awaiting transport to the Canadian oil sands; he said in court documents that GE will face $3.8 million in fines under its contract if the equipment doesn’t arrive in time.

“We’re eager to get this piece of evaporator equipment up to the job site,” Heins said after the court hearing.

Winmill ruled last winter that the U.S. Forest Service has authority to review megaload shipments over the scenic route, which crosses through the Nez Perce Reservation, a federally designated Wild and Scenic Rivers corridor, the national forest and numerous historical and recreational sites. The Forest Service has announced plans do a study of the corridor and consult with the Nez Perce Tribe over the matter, and pleaded with the Idaho Transportation Department not to issue permits for more megaloads in the meantime. But ITD issued permits for the August load anyway, and the Forest Service, while noting it hadn’t approved the load, took no action to stop it.

Monday’s arguments centered on whether the court can order the Forest Service to take action, including to close the road temporarily to further megaloads.

Joanne Rodriguez of the U.S. Attorney’s office, representing the Forest Service, told the court the agency has no authority to do that. “The Forest Service is trying to address this issue,” she said. “It is engaging in a complicated balancing of many factors here that are involved in this.” She argued the agency hasn’t made a final decision, so there’s nothing for the court to review.

Laird Lucas, attorney for Idaho Rivers United, which joined the Nez Perce Tribe in the lawsuit, argued that the judge could enjoin GE from sending its next load, or it could order the Forest Service to show cause why it’s not stopping that load while it considers the matter.

Richard Boardman, attorney for GE, disputed that. “In due respect, judge, you’re not the king – you can’t just step in and stop something without some substantive basis,” he said. He maintained that the various federal laws cited in the lawsuit, from the National Forest Management Act to the Wild and Scenic Rivers Act, don’t provide authority for an injunction.

After Lucas said more loads will bring more protests, Boardman said, “Well, I know the court is not going to react to some kind of mob mentality over the rule of law.”

He said the company studied many routes before settling on Highway 12. “Yes, there are alternate routes, but they involve so much disruption to a lot of people,” he said. “Sure, they don’t go through very pristine areas, some of the most beautiful areas in this country. But they also, Route 12 impacts fewer people. It is the most environmentally friendly, if you will, route to get this equipment to the customer.”

His comment was met with a short burst of laughter and grumbling from the capacity crowd in the courtroom, which was heavy on supporters of the tribe and the rivers group.

Winmill said a central question is whether the Forest Service didn’t stop the loads because it felt it didn’t have the authority, or whether it acknowledged it had the authority, but chose not to exercise it. Rodriguez said it was the latter – and that means the agency’s within its discretion and the court can’t overrule it. The judge, however, noted, that while the legal briefs advance that argument, many of the Forest Service’s communications with the state and the tribe suggest it thought it lacked authority to act.

Lucas said after the hearing that whether or not the judge issues an injunction, megaloads opponents will continue their fight to keep the scenic route from being turned into an industrial corridor. “We have determined opposition,” he said. “This is just the next step in what seems to be a long unfolding saga of megaloads on Highway 12.”

Winmill is in the midst of a major white-collar crime trial that had been expected to be over by now, but now is expected to run for another two weeks.

He told the parties the megaloads case is “a very difficult issue,” and said he expects it’s one that will make its way to the 9th Circuit U.S. Court of Appeals to “let them wrestle with it as well.”


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