September 13, 2013 in Idaho

Judge halts megaloads on Highway 12 in Idaho

By The Spokesman-Review
 
More Online

Read the judge’s ruling here

BOISE – A federal judge 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 through north-central Idaho until a corridor study and consultation with the tribe have been completed by the U.S. Forest Service.

U.S. District Judge B. Lynn Winmill 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 giant General Electric load over the route in August, an evaporator bound for the Canadian oil sands, and the Forest Service objected, but didn’t stop it. The load was large enough to block both lanes of the narrow, twisting two-lane highway, creating a rolling roadblock.

It provoked protests, which led to the arrests of eight members of the Nez Perce Tribal Executive Committee, but passed through and went to Canada.

“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.”

Later, the Forest Service took the position that it recognized that it had authority over the loads, but chose not to exercise it. But Winmill found that position violated federal law.

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 Idaho conservation group that brought the suit in conjunction with the tribe against the National Forest Service applauded Judge Winmill’s decision.

“This is a win for all who cherish the esthetic, spiritual and recreational values of the Lochsa and Clearwater Rivers,” said Idaho Rivers United Conservation Director Kevin Lewis in a prepared statement.

But GE subsidiary Resources Conservation Company International, the division sending the load, said the ruling delays the delivery of equipment that would make the oil recovery process at the Alberta Tar Sands more environmentally friendly.

The 322-ton load that passed along the highway last month was a large-scale industrial evaporator, which purifies groundwater that is converted to steam to loosen the thick subterranean oil that is then pumped to the surface. Bill Heins, vice president of RCCI and one of the patent holders on the shipped equipment, said the megaloads inviting legal action are actually just massive stainless steel tanks that enable the recycling of up to 1.5 million gallons of water a day.

“It’s ironic that the pieces of equipment that really have this good positive environmental impact are the very ones that are being protested,” Heins said in an interview earlier this week.

The company had planned to send another giant load over the route Wednesday. 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 “decided, however, to proceed before the Forest Service could complete its corridor study and consultation with the Tribe,” the judge wrote. “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.”

The Nez Perce tribe declared victory Friday, though noting the legal wrangling in the case was far from over. In a prepared statement, Tribal Executive Committee Chairman Silas Whitman said the Nez Perce will continue fighting to protect the highway from becoming a corridor for oversized shipments.

“The Tribe will not let U.S. Highway 12 - both through the National Forest and Wild and Scenic River Corridor and the Nez Perce reservation - be transformed into an industrial corridor,” Whitman said.

A spokesman for RCCI said Friday the company is exploring its legal options. As an intervening party in the case, RCCI could appeal the ruling.

Staff writer Kip Hill contributed to this report.

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