Federal Judge Sides With Mega-Load Opponents, Affirms Forest Service Authority Over U.S. 12
A federal judge has ruled that the U.S. government indeed has the authority and, in fact, should have regulated mega-loads that have crawled across U.S. Highway 12 in north-central Idaho.
The decision, handed down late Thursday by U.S. District Judge B. Lynn Winmill, now clears the road for mega-load opponents to turn to the U.S. Forest Service to use its authority to protect U.S. 12, which runs through the scenic Lochsa and Clearwater rivers corridor, and possibly restrict the Idaho Transportation Department from further permitting overlegal loads to traverse the highway.
"This authority clearly gives the federal defendants jurisdiction to review ITD's approval of mega-load permits that authorize acts along the river corridor, including the construction of turnouts along the river, the trimming of hundreds of trees, and the restriction of the public's recreational opportunities," wrote Winmill in his 18-page ruling.
You can read the full story about the mega-load legal battle in this week's issue of Boise Weekly.
Laird Lucas, executive director of Advocates for the West and attorney for Idaho Rivers United, successfully argued against the federal government on Feb. 6 in Winmill's courtroom, packed with onlookers.
"This decision confirms that the Forest Service has the authority to protect the Clearwater and Lochsa rivers," said Lucas Thursday night. "I'm pleased that the court recognized that the agency has to follow federal law."
Idaho Rivers United, which turned to the U.S. Forest Service in 2010 for assistance in the matter, is optimistic about the federal agency's role in restricting mega-loads.
"The Forest Service has previously indicated its desire to protect the Wild and Scenic corridor," said IRU Conservation Director Kevin Lewis. "Now that it's been established that it has that ability and authority, we look forward to working with the agency to protect this very special place."
You can read Winmill's full decision here: mega-load_ruling_2.pdf
UPDATE: Citydesk, Feb. 7, 2012
Mega-Load Opponents' Attorney to U.S. Government: "We Need Them to Get Their Act Together'
The U.S. government didn't have its finest hour in a Boise courtroom late Wednesday afternoon.
"You saw what happened," Assistant U.S. Attorney Joanne Rodriguez told Boise Weekly. "The judge wasn't buying my argument."
In a rare moment of post-argument candor, Rodriguez told BW, "If I had to predict, the judge looks like he might rule for the other side."
Moments before, Rodriguez stood before U.S. District Judge B. Lynn Winmill to argue on a much-anticipated case of the Idaho Rivers United versus the U.S. Forest Service and the U.S. Federal Highway Administration. A packed courtroom at Boise's Federal Courthouse listened to 60 minutes of arguments surrounding something that BW readers know all too well: mega-loads.
"There's a reason they're called mega-loads, your honor," said Laird Lucas, attorney and executive director of Advocates for the West, arguing for Idaho Rivers United. "Even the U.S. Forest Service has called mega-loads 'overtly, industrious elements' being introduced to a wild and scenic river location."
In the current issue of BW, we outline the case before Winmill (BW, News, "The Mega-Myth About Mega-Loads," Feb. 6, 2012) and the Idaho Rivers United argument that the Forest Service must do its job as a steward of the U.S. Highway 12 corridor, which curls along the Clearwater and Lochsa rivers, protected by the U.S. Wild and Scenic Rivers Act.
But when the Forest Service granted a so-called "easement" to the Idaho Transportation Department to use the corridor, mega-load opponents said that the U.S. government didn't also give up its authority to protect the land and rivers.
"Just so I understand," said Winmill to Lucas. "You're not asking me to rule on whether the mega-loads are appropriate. You're asking if the Forest Service has the jurisdiction and authority."
"That's exactly right, your honor," said Lucas.
In a fast-paced 30-minute presentation, Lucas introduced a flurry of exhibits and documents that showed the original U.S. Wild and Scenic Rivers Act, the easement granted to the Idaho Transportation Department and photographs of trees along U.S. Highway 12 that have had half of their branches completely stripped to the tree trunk in order to accommodate the giant rigs that roll across the highway.
Lucas also unveiled a photograph that BW readers have already seen: a mega-load, sitting on U.S. Highway 12 as recently as last week.
"Your honor, I object," said Rodriguez. "That photograph is not on the record."
"Are you saying that the mega-loads have stopped on U.S. Highway 12?" Winmill asked Rodriguez. "Are you disputing that?"
"I don't know," Rodriguez answered. "I've never heard of this or seen this picture before."
When BW asked Rodriguez after the court hearing if she indeed had not heard of the multiple mega-loads that have been granted permits from the Idaho Transportation Department, she said, "no."
"But that's not my argument," she said. "It's all about the rules of evidence."
When Lucas showed the photo to Winmill, revealing a rocket ship-sized rig on its way to the Tar Sands Oil Project in Alberta, Canada, he called the picture "icing on the cake."
"We need them to get their act together," said Lucas.
In the afternoon's biggest surprise, Winmill indicated that he would hand down a ruling within a matter of days.
"We'll issue a decision, if possible, very quickly," said Winmill.
If indeed Winmill rules that the U.S. Forest Service has the authority to block mega-loads in order to protect the U.S. 12 corridor, mega-load opponents are poised to launch a series of new legal maneuvers to stop the controversial shipments.
ORIGINAL STORY: Feb. 6, 2012
It looks like a rocket ship. Lying on its side, it's 141 feet long, 16 feet wide, 19.6 feet tall and weighs 255,600 pounds.
"It's an evaporator," said Linwood Laughy, looking out the big picture window of his North Central Idaho home. "It was parked out there on Highway 12 last night because of the weather."
The mega-load--the term for the T-Rex size shipments that have crawled across U.S. Highway 12-- even had a twin just a few miles west.
"Yeah, I think they're moving the second one this week as well," said Laughy.
But someone has apparently neglected to tell the U.S. government.
"I assume that they know what's going on in the world, but attorneys for the U.S. Forest Service and Federal Highway Administration have been arguing that there aren't any mega-loads on Highway 12," said Kevin Lewis, conservation program director for Idaho Rivers United. "But that argument won't go very far. Our attorney could simply pull a photo out of our briefcase."
U.S. government attorneys and Laird Lucas of Advocates for the West, representing Idaho Rivers United, are poised to offer final arguments in a Boise federal courtroom on Wednesday, Feb. 6 on a precedent-setting suit that involves commercial transportation, Native American rights and the quantitative value of one of the region's most beautiful and pristine federally protected corridors.
Alan Frew, division administrator of the Idaho Transportation Department, filed a court document acknowledging, "I was the individual ultimately responsible for the determination to issue the permits which granted authorizations for overlegal-sized loads on Highway 12."
"New permits would have to be issued for any more oversized loads to travel on Highway 12 in Idaho," wrote Frew to the court. "I am the state officer who will have to make the decision to issue any such permits. There are no requests for such permits pending in my office. I know of no such requests forthcoming."
"Everybody knows that's not true, apparently, except Mr. Frew," said Laughy.
Indeed, mega-loads have continued to roll on Highway 12 with Frew's blessing. And Laughy needed look no further for proof than outside of his living-room window.
"You know, a few years ago, Highway 12 was considered the most dangerous road in Idaho. That's a fact," he said. "Law enforcement got a special grant to increase patrols and that curbed a lot of the traffic."
Boise Weekly readers know quite a bit about Highway 12, learning first in 2010 of ConocoPhillips' and ExxonMobil's plans to use the corridor as a regular thoroughfare for massive rigs of equipment, most of them destined for the controversial Tar Sands Oil Project in Alberta, Canada (BW, News, "Taking the Scenic Route, July 7, 2010). The debate raged for the better part of two years until ExxonMobil backed away from its initial plans, opting instead to break the mega-loads into smaller shipments and hauling them up Idaho's Highway 95, curling over to Montana and up to Alberta (BW, News, "Beating the ExxonMobil Mega-Loads," Nov. 16, 2011).
ConocoPhillips, meanwhile, also pulled mega-loads across Highway 12, (BW, Citydesk, "Hundreds Awestruck as Mega-Loads Roll," Feb. 2, 2011) with a full escort of Idaho State Police and emergency vehicles, in case things took a turn for the worse.
"But you don't see police escorts anymore or an ambulance," said Lewis. "Those stopped a long time ago."
But the hauler, Netherlands-based Mammoet, is back, pulling the most recent shipment of rocket ship-sized equipment for ConocoPhillips.
"You know what Mammoet means in Dutch?" asked Laughy. "It means mammoth."
Lewis said Mammoet and other specialty haulers are actively marketing their use of Idaho's scenic byway.
"The heavy-load transport companies--the guys who make a lot of money hauling these mega-loads--are marketing Highway 12 on their website," he said. "They say, 'We've got the routes to go from the Pacific to the Interior West.' And it's not just Mammoet. There are American companies advertising Highway 12, too."
But using Highway 12 as a conduit for oil equipment to the Tar Sands project isn't part of Lewis' argument against the federal government.
"I get emails from people who say I'm grinding an axe on the oil industry and we want to stop oil development. They're wrong," said Lewis. "This is about Idaho. It's about the river."
Lewis said when Idaho Rivers United stands before U.S. District Court Judge B. Lynn Winmill on Feb. 6, it won't be arguing about big oil. Instead, it will argue for the responsibility for the river's majesty.
"In 1969, the people of the United States said that this was a very important place. And the very first river in the U.S. Wild and Scenic Rivers Act is the Clearwater. The very first," he said. "And that's why U.S. Highway 12 became an All-American road, a national scenic byway."
And the designation, according to Lewis, means much more than a tourist destination.
"It should be protected and the federal agency that manages the land in that corridor is responsible for protecting it. That's the U.S. Forest Service," said Lewis.
IRU, in its suit against the federal government, wrote "the Forest Service has cooperated with the Idaho Transportation Department and authorized modifications to the right-of-way ... allowing the Lochsa and Clearwater river corridor to be converted into a permanent high-and-wide route that would be like building a seven-story hotel on the banks of Redfish Lake."
And the Nez Perce Tribe agreed, passing a July 2010 resolution stating that the mega-loads were a "dangerous and unacceptable precedent."
The importance of the tribe's involvement in the lawsuit will be one of Winmill's first deliberations.
"Their concerns are our concerns," said Lewis. "The Nez Perce Tribe has issued a friend-of-the-court opinion and the feds are opposing that. The judge can use that opinion or ignore it."
Meanwhile, Idaho's transportation department is sitting on the sidelines and, with the exception of Frew's affidavit, has had little comment on the pending court action. When BW asked ITD for a comment, Adam Rush, public involvement coordinator with the state agency, issued a brief statement:
"[ITD] was not named as a party in the Idaho Rivers United lawsuit. We'll be monitoring the case, as it deals with equipment shipments and the U.S. 12 route."
But Lewis said ITD is far from a disinterested party.
"They've been very accommodating to the mega-loads," said Lewis. "Every now and then, another mega-load goes down that road, and ITD makes the announcement, usually at the last second to avoid any kind of challenges. Our friends usually get an email at noon that basically says a mega-load will travel later that same night."
Lewis said the IRU basically wants the federal government to step up to the plate.
"I want the Forest Service to do its job--to finally do a qualitative assessment of whether these shipments are degrading the value of that river corridor," said Lewis. "If they come back and say, 'mega-loads aren't a problem,' fine. But the public could have its own formal recourse."
And Lewis is optimistic.
"I really don't expect us to lose," he said.
Meanwhile, Laughy said the view out his window is breathtaking.
"We just had a good snowfall, so everything is flocked with white," he said as he surveyed his front yard. "There's about 30 wild turkeys nearby and they're looking for some lunch. There are a lot of winter songbirds, and soon enough, those green shoots will be springing from the ground. We're so fortunate to live in such a wonderful, special place."
Except, he said, for that rocket ship out front.