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Idaho Wild and Scenic Rivers and the Nez Perce Tribe trump tar sands megaloads—for now

 

It’s a tough time for megaloads in Idaho. A federal judge recently ruled that the Forest Service has the authority to stop the humungous hauls of Canadian tar sands-bound mining equipment from traveling through the Lochsa and Clearwater River corridor – and that they should use it.

In response, the Forest Service just closed the Highway 12 through the Nez Perce-Clearwater National Forest to road hogs exceeding 150 feet long and 16 feet wide until further notice. The closure is specific to heavy haul company Omega Morgan. In August they defied the Service by moving a piece of refinery equipment before the agency finished its impact study.

Since megaloads can’t squeeze under overpasses, the Highway 12 route lets companies avoid the cost and delay of breaking down big pieces of equipment and sending them a less direct way. But the Nez Perce Tribe, and local environmental groups, have been fighting the monster trucks since 2011. They are worried about turning the narrow, remote highway through wilderness, and along Wild and Scenic Rivers, into an industrial corridor (companies have proposed tree trimming and highway widening in the past). The tribe doesn’t want the loads passing through 70 miles of their reservation and into the forest where they have treaty rights to hunt, fish and maintain other traditional practices.

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The Lochsa River flowing through the Nez Perce-Clearwater National Forest. Courtesy Forest Service Northern Region.

For the Nez Perce, flexing their sovereignty muscle in court and actively protesting the megaloads is about more than regional environmental concerns. It’s also a show of solidarity with other tribes affected by Canadian tar sands development and by the proposed Keystone XL oil pipeline from Alberta to the U.S. Gulf Coast.

This May, Nez Perce leadership went to Rapid City, S.D., joining 10 South Dakota and Oklahoma tribes, to meet with State Department officials and discuss the environmental risks of the Keystone XL pipeline proposal. But tribal leaders walked out before the meeting could begin, dissatisfied because the level of federal staffers present did not meet their standard for “government-to-government” consultation on the pipeline.

At a press conference after the walk out, a representative for the Cheyenne River Sioux Tribe in South Dakota said to expect protest against pipeline construction. "What the State Department, what President Obama needs to hear from us, is that we are going to be taking direct action," she told the Rapid City Journal.

In Idaho, the Nez Perce are joining that movement, by fighting mining equipment passing through their land. Whitman was arrested with about two dozen others, when roughly 200 protesters from the tribe, Idaho Rising Tide, Idaho Rivers United, and the indigenous rights group Idle No More, turned out to blockade the 255 foot-long megaload that Omega Morgan was moving for a subsidiary of General Electric.

Oil refinery equipment offloaded from the Snake River, waiting for transport on Highway 12. Omega Morgan moved one of them in August. By Brett Haverstick, courtesy of Idaho Rivers United.

The protest came after the tribe sent a letter to U.S. Forest Service Chief Tom Tidwell asking that the shipment be stopped. According to court documents, Tidwell told Whitman “the Forest Service does not have authority to close the State highway.”

But the U.S. District Judge doesn’t agree. He already ruled last winter in favor of Idaho Rivers United, saying that the Forest Service could enforce large vehicle restrictions under the Wild and Scenic Rivers Act. The Forest Service has been looking at how to do that, by studying the impacts megaloads have on the wild river corridor, where there are a multitude of federal designations including the Middle Fork of the Clearwater and Lochsa Wild and Scenic Rivers, the Selway-Bitterroot Wilderness surrounding the highway, historic trails and the Northwest Passage Scenic Byway.

In August, the Forest Service asked the Idaho Department of Transportation to delay issuing more megaload permits until the study was complete and they’d consulted with the Nez Perce. Instead, the state granted Omega Morgan a permit for the first of its ten hauls planned for Highway 12, and suggested they go talk to the Forest Service first. But Omega Morgan started moving the load after the Forest Service asked them to wait, and the agency didn’t stop them. As the September court memorandum said, “…the Forest Service was taking the position that it had the authority to review, but not enforce. Obviously that was an erroneous reading of the court’s (2012) decision.”

Once Idaho Rivers United and the Nez Perce hauled the Forest Service back into court this month, the judge seemed sympathetic to the fact that the Nez Perce were asking for the protection of treaty rights and “intrinsic values” along road, but not seeking damages. General Electric’s subsidiary had also joined the hearing earlier and they argued that they would be harmed too – standing to lose $5 million if the megaloads were stopped.

The court said they weighed that heavily, but effectively ruled that General Electric should have known better than to try to move the loads down Highway 12, given past injunctions and litigation. The Tribe’s treaty rights, the Wild and Scenic Rivers Act, and forest management policy all trumped the megaloads on Highway 12.

It’s not clear how all this will play out in the future. The Nez Perce-Clearwater National Forest expects to have a draft of its corridor study out next week, and will continue their consultation with the Nez Perce Tribe. “It’s an incredibly special place…so we’re having ongoing discussions about what is appropriate here,” said Heather Berg, the Wild and Scenic Rivers administrator for the Nez Perce-Clearwater National Forest.

Meanwhile, Omega Morgan is not backing down quietly. Earlier this week, General Electric’s subsidiary filed a motion with the federal court, asking the judge to reconsider his decision that lead to the Highway 12 closure. But according to Berg, the Forest Service doesn’t expect Omega Morgan to defy their closure. Given the judge’s ruling, it “would foolish for a carrier to do that at this point.”

Sarah Jane Keller is a High Country New editorial fellow. You can follow her on Twitter @sjanekeller.

An earlier version of this post read "...the Forest Service just closed the Highway 12 through the Nez Perce-Clearwater National Forest to road hogs more than 150 feet long and 65 feet wide until further notice. The statement "more than 150 feet long and 65 feet wide" has been corrected to "exceeding 150 feet long and 16 feet wide."