[Vision2020] Megaloads to roll into federal court in Boise today

[Tom Hansen]

Courtesy of today's (September 9, 2013) Lewiston Tribune.

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Megaloads to roll into federal court in Boise today
Nez Perce Tribe, Idaho Rivers United are seeking injunction to stop U.S. Highway 12 shipments
The megaload standoff heads to federal court in Boise today where opposite sides will argue over the U.S. Forest Service's authority and degree of enthusiasm to regulate the shipment of oversized loads on U.S. Highway 12.
The Nez Perce Tribe and Idaho Rivers United, in a joint filing, are asking U.S. District Judge B. Lynn Winmill to issue a preliminary injunction stopping future megaload shipments.
In February, Winmill ruled the Forest Service has authority to review and regulate megaload shipments on the portion of the highway that crosses the forest and passes through the Middle Fork of the Clearwater/Lochsa Wild and Scenic River corridor.
Following the ruling, Nez Perce-Clearwater National Forest Supervisor Rick Brazell told the Idaho Transportation Department and the shipping company Omega Morgan the agency would not approve any shipments before it consulted with the tribe and had time to conduct a study on the effects of megaloads on the river corridor.
However, the state issued a permit for the shipment of a massive water evaporator, and the company moved it last month against Forest Service objections.
Members of the tribe and environmental activists conducted nightly protests against the shipments and filed the lawsuit before the loads eventually passed through the state on the way to oil fields in Alberta, Canada. Another megaload awaits shipment at the Port of Wilma and even more are planned.
In briefing documents filed with the court, the government argues the plaintiffs have not shown they will be irreparably harmed by the shipments and that even though the Forest Service has authority to regulate the shipments, it also has the discretion to not seek enforcement.
Government attorneys claim legal precedent dictates that an agency's decision not to enforce its authority is usually immune to judicial review.
"A decision not to enforce through civil process is a decision generally committed to an agency's absolute discretion," according to the court filing.
They also insist because the agency is in the process of conducting its study and has just started consultation with the tribe, its decision not to stop the shipment isn't a final agency action and therefore is not ripe for challenge.
"It has made an interim decision not to act hastily. It has acted, and continues to act, deliberately, in accordance with its officials' assessment of the best way to proceed on this matter."
They also say stopping the shipments could have harmed others, like the state of Idaho, Omega Morgan and Resource Conservation Company International, the owner of the equipment and a subsidiary of General Electric Corp.
"Others who will be affected by a Forest Service decision in this matter, such as the state of Idaho and Omega Morgan, are equally entitled to be free of an arbitrary and capricious decision by the agency, just as the Nez Perce Tribe and Idaho Rivers United are. And the Forest Service is just as likely to be sued by those affected entities for violating the (Administrative Procedures Act) by acting too hastily as by plaintiffs for not acting quickly enough."
In turn the tribe claims the agency's failure to enforce its insistence that megaloads would not be approved until the impact study and tribal consultation were completed, amounts to procedural harm and violates several federal acts, including the Administrative Procedure Act, the National Forest Management Act, The Wild and Scenic Rivers Act and the National Historic Preservation Act.
"The tribe has been deprived of the required opportunity to explain - through complete meaningful government-to-government consultation with the Forest Service - its multiple concerns about the adverse impact of megaload shipments on its treaty-reserved rights and resources on the National Forest corridor, which is within the aboriginal and treaty-reserved territory of the Nez Perce Tribe," according to the court filing.
Legal filings by the tribe and Idaho Rivers United point out the agency said more than once it lacked authority to stop the shipments and then later claimed it does have authority but chose not to enforce it. They say the government's public flip-flop on its authority, is an attempt to change its official position so it could qualify under the legal precedent that grants the agency's discretion not to seek enforcement.
"It is apparent the Forest Service will do nothing to enforce its regulatory authority and will continue to clothe that abdication in ex post facto assertions of 'discretion.' As a matter of law this is impermissible."
Declarations filed by tribal members indicate that protests against megaloads are likely if an injunction is not issued.
"To me, the protest of this first megaload shipment - organized in a matter of hours - is just the tip of the iceberg when it comes to the opposition that will accompany any effort to turn this road into an industrial corridor," said tribal member Paulette Smith in a declaration included in the court record.

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Stay tuned, Moscow, because . . .

"Moscow Cares" (the most fun you can have with your pants on)
http://www.MoscowCares.com
  
Tom Hansen
Moscow, Idaho
 
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