As of Tuesday, October 15, 2013
A motion was denied in U.S. District Court last week on reconsidering an injunction on moving oversize load shipments through the U.S. Highway 12 Lochsa River corridor.
In his Oct. 10 memorandum, U.S. Chief Judge B. Lynn Winmill reaffirmed the Forest Service’s jurisdiction and regulatory authority to close the 100-mile U.S. 12 Wild and Scenic Corridor to oversize shipments. Winmill also reasoned the intrinsic harm from lifting the injunction outweighed the financial impact to the load’s owner, defendant-intervention, Resources Conservation Company International (RCCI).
Last week’s decision maintains a closure Winmill ordered effective Sept. 12 to transporting oversize shipments planned by shipper Omega-Morgan from the Port of Lewiston to oil-producing fields in Canada. The first of 10 such planned loads, a 644,000-pound water evaporator, traversed the route in August, permitted by the Idaho Transportation Department despite Forest Service statements it would not authorize the transport pending study and also consultation by the Nez Perce Tribe. In Winmill’s closure, he established Forest Service’s jurisdictional authority through the corridor and held the agency accountable to enforce it.
Winmill didn’t buy the argument by the defendant, U.S. Forest Service, in its motion to reconsider the injunction that its closure authority was limited to “National Forest System Roads,” which did not include U.S. 12. Winmill cited regulations stating closures were authorized to stop “entering or being on lands or waters within the boundaries of a component of the National Wild and Scenic Rivers System,” and to close any area to protect biological, historical and geological interests, and for tribal activities for “traditional and cultural purposes.”
On RCCI’s argument of economic loss, while Winmill agreed the company would likely incur $5 million to reroute the oversize loads, this spending, he said, may protect RCCI from paying what it speculated as an $85 million loss of revenue for contracts terminated due to shipping delays. Winmill discounted RCCI’s allegation it was blindsided by the opposition, stating rather the company gambled it could proceed along U.S. 12 even though the route was contested, and that subsequent litigation – filed in March 2011 - was “highly publicized” prior to RCCI’s transportation analysis conducted August 2011 to January 2012.
“…any likely damages are monetary in nature and not irreparable,” Winmill stated. “Perhaps most importantly, staying the injunction will cause the very harm plaintiffs complain about in this lawsuit, harm the Court has found would be irreparable.”
Plaintiffs in the case are the Nez Perce Tribe and Idaho Rivers United. A subsidiary of General Electric, RCCI has the options of appealing Winmill’s decision to the U.S. 9th Circuit Court of Appeals, and to pursue other routes for moving the oversize loads to Canada.