Highway 12 megaload injunction upheld by judge

BOISE – A ban on megaload shipments across a scenic stretch of U.S. Highway 12 will remain in effect after a federal judge denied motions to lift it filed by a division of General Electric and the U.S. Forest Service.

U.S. District Judge B. Lynn Winmill rejected arguments from the company and the Forest Service that he should either reconsider the injunction he issued or stay the injunction while the company appeals it. The injunction bans the loads until the Forest Service has conducted a corridor study and consulted with the Nez Perce Tribe.

The judge said he couldn’t issue a stay unless the company, Resources Conservation Company International, made a “strong showing” it was likely to succeed on the merits in the case, and that it would be “irreparably injured” without a stay. The court didn’t believe the company made a strong showing, Winmill wrote in his Thursday ruling. “Moreover, any likely damages are monetary in nature and not irreparable,” he said.

Resources Conservation Co. argued that it will lose millions if it can’t deliver the loads as scheduled, but the judge said the company knew the risk of trying to use the disputed route and opted to proceed anyway.

The law also requires consideration of whether a stay would “substantially injure” the other parties in the proceeding and the public interest, the judge wrote.

“Staying the injunction will cause the very harm plaintiffs complain about in this lawsuit, harm the Court has found would be irreparable,” Winmill wrote.

The Nez Perce Tribe and Idaho Rivers United sued after the company sent a 322-ton load across the route from Lewiston to Montana in August, en route to the Canadian oil sands, and announced plans for another to follow. The loads are giant water evaporators shipped by barge to Lewiston and are big enough to block both lanes of the winding two-lane road, creating a rolling roadblock.

The tribe and the rivers group contended allowing the transports without first studying impacts and consulting with the tribe would violate federal law and could threaten environmental, historical and cultural values in the area, which includes the Nez Perce Reservation and numerous historical sites, campgrounds and popular recreation areas. Eight of nine Nez Perce Tribal Council members were among those arrested at protests of the August load.

The Forest Service argued that it lacked the authority to close the highway, which runs through a national forest and two Wild and Scenic Rivers corridors along the Lochsa and Clearwater rivers.

“The Court disagrees,” the judge wrote. He cited specific Forest Service regulations that give the Forest Service authority to “close or restrict the use” of areas within the agency’s jurisdiction.

The company still could appeal to the 9th Circuit U.S. Court of Appeals, but for now, the ban on the big loads remains in effect.