September 14, 2013 in Idaho

Megaloads not allowed through Idaho’s Nez Perce Reservation

Betsy Z. Russell And Kip Hill Staff writers
 

BOISE – Shipments of massive industrial equipment destined for the Alberta tar sands may not truck through the Nez Perce Reservation on a winding Idaho highway until a study of their effect on the scenic river corridor is completed and the tribe has had its say, a federal judge ordered Friday.

“The plaintiffs are not seeking damages,” U.S. District Judge B. Lynn Winmill wrote. “They are seeking to preserve their Treaty rights along with cultural and intrinsic values that have no price tag.”

Winmill’s decision was applauded by conservation groups and the tribe, while the company planning the shipment said the delay will cost millions and keep environmentally advantageous equipment from reaching the sprawling oil harvesting grounds in central Canada.

Neither the Forest Service nor the company would say Friday whether it will appeal Winmill’s ruling. The firm said it’s exploring its legal options.

Tribal Executive Committee Chairman Silas Whitman said the Nez Perce will continue fighting to protect the route 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 in a statement.

The route is heavy with campgrounds, rafting and fishing spots, historical sites and majestic scenery; it draws tourists from around the world and follows the route taken by legendary explorers Meriweather Lewis and William Clark in 1805.

Winmill noted that after he ruled last winter that the U.S. Forest Service had authority over megaloads on the route, the Idaho Transportation Department nevertheless issued a permit to Omega Morgan, a trucking firm, to haul a giant General Electric load over the highway in August, an evaporator bound for the Canadian oil sands. 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 along with 20 other tribal members, but passed through and went to Canada.

“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.

His injunction orders the Forest Service to close U.S. 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 Forest Service initiated both those steps after Winmill’s ruling last winter, but neither has been completed.

GE subsidiary Resources Conservation Co. 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 are 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.

RCCI entered into a contract to deliver eight evaporators early last year, receiving permits from the state for last month’s shipment and a previous delivery that went off without a hitch in October 2012. In court filings, the company called the route along U.S. 12 “the most economically feasible and environmentally sound” method of transportation available.

The company had planned to send another giant load over the route Wednesday. This load, like the August one, was manufactured in British Columbia then shipped by barge to port near Lewiston. RCCI argued that it will lose millions if it can’t deliver the equipment to Canada on time, but the judge wrote that the company knew the risk upfront.

“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. … The Court finds that an injunction is in the public interest.”


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