As of Tuesday, September 17, 2013
A U.S. District Court ruling last week held the U.S. Forest Service to account to enforce its jurisdictional authority concerning oversize shipments through the U.S. Highway 12 corridor. This effectively halts further planned oversize load shipments by Omega-Morgan from Kooskia to the Idaho/Montana border (mileposts 74-174) until the federal agency has conducted its corridor impacts study, tentative for later this month, and consulted with the Nez Perce Tribe.
The 17-page order signed Sept. 12 by U.S. District Chief Judge B. Lynn Winmill sided with plaintiffs in the case - the Nez Perce Tribe and Idaho Rivers United (IRU) - that challenged the Forest Service’s stance it had no authority to enforce statutory and regulatory power on U.S. 12 concerning shipments. Winmill’s order reaffirms a related U.S. District Court decision in February on a 2011 IRU lawsuit establishing the Forest Service had the authority and jurisdiction concerning shipments proposed or approved within the right-of-way for U.S. Highway 12 held by the Idaho Transportation Department (ITD).
The matter revolves around last month’s Omega-Morgan shipment of an RCCI (Resources Conservation Company International) 644,000-pound evaporator to Canada, the first of 10 such loads the shipper was tentatively planning to move through the corridor – which included Nez Perce Reservation lands and federal land regulated by the Forest Service - by January.
The Forest Service claimed it had to study the natural and cultural impacts of the oversize load before it could stop the shipment. Nez Perce-Clearwater National Forests Supervisor Rick Brazell stated he could not support authorization of such a load through the forest or within the Wild and Scenic River Corridor until there was a “clear understanding of these potential impacts.” ITD stated it would issue the permits without waiting for the USFS review, after which it would send the transport company to the Forest Service to obtain a separate permit. The permit was issued, and Omega-Morgan informed the USFS it intended to transport the load Aug. 5. The USFS informed Omega-Morgan it did not consent to the shipments, which met agency criteria for full review by the agency, and the Nez Perce Tribe contacted Forest Service Chief Tom Tidwell to stop the shipment; Tidwell declined, saying the USFS does not have the authority to close the state highway.
The shipment left Lewiston Aug. 5, reached the U.S. 12 corridor on Aug. 8, and passed into Montana the following morning. Following, the USFS wrote the tribe it recognized it had authority to enforce its regulatory power; however, it had made the “discretionary decision not to seek enforcement action” for several reasons, which included that until a review was completed it had “little basis to develop additional mitigation measures regarding the frequency or duration of such loads to address potential social, cultural or aesthetic impacts.”
Winmill cited it is the Forest Service’s responsibility under its forest plans and its duty to the tribe to review the shipments and consult with the Nez Perce prior to letting them proceed through the corridor.
Defendant-intervenor RCCI’s argued its injury from an injunction, approximately $5 million in delay penalties, tips the balance of equities in its favor. However, Judge Winmill said this loss could have been avoided, citing the February court decision establishing USFS authority; the notice by plaintiff’s counsel in April they would attempt to block any shipments unless Omega-Morgan obtained USFS permission; and the USFS decision in June to conduct further review before approving oversize shipments.
“RCCI decided, however, to proceed before the Forest Service could complete its corridor study and consultation with the tribe,” Winmill 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.”