Tribal leaders shoved aside by police leading the megaloads upriver-

It was thought the megaloads issue on U.S Highway 12 across north central Idaho was finally settled by Federal Judge Lynn Winmill. Early this year he wrote a decision that the U.S. Forest Service has jurisdiction over any megaload seeking to traverse the  Highway 12 Wild and Scenic River corridor.

Subsequently, the Forest Service set three clear conditions any megaload movement up the river had to first meet. The mover of the megaloads, Omerga Morgan, was told by the Service its plan to move two very large megaloads upriver clearly violated all three conditions. That was the end of the matter.

In a surprise move, however, the megaloads were barged to the Port of Lewiston, Idaho, andthey got a state permit from Idaho’s Department of Transportation to move them up Highway 12. The company said they would start the seemingly illegal move up Highway 12 on Monday night (August 5).

In a Sunday (Aug. 4) press release, Nez Perce Tribal Executive Chairman Silas Whitman said he was shocked at Omega Morgan’s audacity. “The Forest Service must not tolerate Omega Morgan’s open defiance of its authority and instead should aggressively assert, in court if necessary, the agency’s decision so that the Nez Perce Tribe’s unique Treaty-based interests and U.S. public’s interest in the national forest and Wild and Scenic River Corridor are fully protected,” Whitman said.

Nevertheless, Omega Morgan moved. The Nez Perce Tribe said the megaloads would be blocked as soon as they reached the Indian Reservation boundaries. True to their word, tribal leaders and members stopped the loads, but were soon removed by police who sided with Omega-Mogan and Idaho politicans.

Local conservation organization, Idaho Rivers United (IRU), which has bitterly fought the megaloads in the past, and mostly with success, urged people to contact the Forest Service and ask them to stand up to Omega-Morgan. In a statement, Idaho Rivers United Conservation Director Kevin Lewis said, “I am appalled at Omega Morgan’s lack of respect for the Nez Perce people, for a nationally treasured river corridor and for the authority of the U.S. Forest Service. Despite clear direction from the Forest Service that these loads are not authorized for movement along Highway 12, Omega Morgan is manufacturing a confrontation.”

The authority of the Forest Service to stop these loads, and the requirement that they do seems “rock solid” according to the Lewiston Morning Review in a recent editorial.

How Omega-Morgan and Idaho officials think they can get past this raises the frightening possibility of a nasty and precedent setting federal-state confrontation, which if lost by the federal government will show that the wishes of the Canadian government, oil companies and a state can trump certain federal law.

While there is a threat to the one of America’s best units of its Wild and Scenic Rivers system here, the bigger threat is to  America. This is how countries collapse — provincial rebellion on behalf of foreign powers.

 

 

 

 

 

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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

49 Responses to Idaho state government helps ram megaloads up U.S. Highway 12

  1. avatar Ida Lupine says:

    Terrible.

  2. avatar Ken Cole says:

    We must bow down to our feudal lords.

  3. avatar Pam Little says:

    Welcome to your Police State.

  4. avatar WM says:

    I don’t like this, but from what I have read, the USFS has no authority to block the transport, only the opportunity to review the IDT permit as against its criteria, maybe setting forth requirements to be met for the transport. And, since it is a federal highway, US 12, which would be an easement through a federally designated reservation, I doubt the Nez Perce Tribe has any authority either. That would be just a political statement. I bet Omega’s lawyers went over all this ahead of time, before a big wheel on a truck made one revolution.

    Query: What are the available sanctions if Omega does not comply with FS criteria? A nominal fine, maybe, with no authority to enjoin/stop the transport. What does this mean for the next megaload over the road? Could be the FS is without a recourse, even on a federally designated Scenic River roadway. It’s a shame. Anybody seen the actual text of Forest Supervisor Brazell’s objection letter?

    • avatar zach says:

      Good points. I am asking the same questions that you are.

      However, if the FS can enforce other existing laws, why can they not do something about this? It does not make sense to me.

    • avatar Ralph Maughan says:

      WM,

      Did you read about Judge Winmill’s decision that said the Forest Service had the authority and the obligation to regulate, and so stop, megaloads from using U.S. Highway 12?

      Highway 12 is in a special corridor created by U.S. Statute called a Wild and Scenic River corridor. The corridor extends for 1/4 mile on either side of the Middle Fork of the Clearwater River and the Lochsa River.

      In that corridor the agency is tasked by law to protect the integrity of the river and the highway from changes adverse to the purposes for which it was created.

      Winmill is the U.S. district judge for Idaho. He lives in Pocatello.

      • avatar Ralph Maughan says:

        WM,

        If you haven’t done so, please read the article in the hyperlink at the beginning today’s article

      • avatar WM says:

        Ralph,

        I am very familiar with the Wild and Scenic Rivers Act, and in fact am proud to say I was a friend of the late Henry P. Caulfield, one of its authors (Director of the US Water Resources Council at the time of its passage), and a political science professor at Colorado State University. Perhaps you knew Henry, as well?

        I have travelled much of the stretch of Highway 12 between Lewiston and Kooskia many times, the rest not so much. But, I have been over the Lolo, along the Lochsa River a few times over the years, even before it was paved.

        Last year while driving the lower stretch as far as Greer, I imagined the profile of an oversize load going one way up the Clearwater. Sadly, I didn’t see any pinch spots that such a rig couldn’t travel.

        So, it is really more about the concept of what this “Scenic” River (I do not know the designation for the entire length of the run in ID and MT, but don’t think much is a “Wild” designation for which the Act provides greater protection, but I could be wrong on the designation as I just don’t know), should have on a road along its course. I am also sorry to say I don’t know enough about what the impacts are other than the inconvenience of shutting the road down, and what would happen if a load went off the road. Does it change the integrity of the river and adjacent roadway for anything other than the time period it is closed?

        I have not seen Judge Winmill’s decision. Perhaps that can shed some light. Can you link us to it? From what I read in the Boise Weekly, USFS Forest Supervisor Brazell said the FS didn’t have authority to stop it. Was he wrong, or did the paper misquote him?

        • avatar WM says:

          This is all I could find on Brazell’s statement from the Forest’s website:

          http://www.fs.usda.gov/detail/nezperceclearwater/news-events/?cid=STELPRDB5430774

          Again, not having seen Winmill’s ruling, it is not clear that authority to review under relevant statutes and specify permit conditions equates with authority to stop/enjoin the mega-loads from being transported at all. That is a KEY distinction.

          And, as I suggested in my first post, it is likely the lawyers for these guys concluded in their risk assessment that a fine for violation of the law may be more economically expeditious to their corporate goal of getting this stuff to its destination.

          What is that old saying, “It is sometimes better to ask for forgiveness rather than ask permission?” Some laws are written that way, and of course, Omega has the weight of permit permission from both state highway departments.

          What I really would like to know is why somebody – plainiffs or the Nez Perce Tribe – didn’t wake Judge Winmill up in the middle of the night for some paperwork to stop the transport?

          • avatar Ralph Maughan says:

            WM,

            Don’t expect to find things like this on Forest Service web sites. I have looked for current information on quite a few different forests this summer. They are not kept up well. In the earlier article I wrote about this I paraphrased Brazell’s 3 conditions. He has since modified one of them, but it doesn’t help the company in this case.

            The Forest Service cannot pull the permit granted by the Idaho, but the Service can refuse to let them pass. Whether they will bring out FS law enforcement people and face down Idaho police is a worst possible case scenario, and doubt it would happen.

            Here is Winmills decision courtweb.pamd.uscourts.gov/courtwebsearch/idd/RC8Qak1RbV.pdf

            • avatar WM says:

              Ralph,

              Having quickly read the Winmill decision, the take away rule is that that both the Federal Highway Administration and Forest Service DO have authority over the mega-load hauls. But, neither had decided to exercise authority at the time of the earlier reviews believing they did not have authority.

              Importantly, Winmill also says that if they choose not to exercise their authority he would have nothing to review under the Administrative Procedures Act.

              SO, here is the rub. If neither federal agency chooses to exercise authority to stop the loads, they can go forward. So, it seems the duty is on the FS and FHA to file the paperwork to stop them, WHICH THEY APPARENTLY DID NOT, to this point.

              Reading between the line, it looks like somebody higher up made the real decisions, IMHO. Otherwise the feds would have sought an injuction to stop them, and the loads would not be travelling as we speak.

          • avatar Ralph Maughan says:

            WM,

            I read this too. I interpreted it as the Clearwater National Forest supervisor saying they don’t have the authority to come out and physically stop the loads even if they are moving illegally without Forest Service permission.

            I imagine he has been in contact with the regional forester and maybe the Chief who told him let’s not get into a shootout or something.

            • avatar Ralph Maughan says:

              WM,

              Supervisor Brazille did exercise his court affirmed authority and he set three conditions (listed in our first story — that is what the story is about) that future megaloads would have to meet.

              He said the current (then only proposed) shipments clearly did not meet any of the conditions.

              • avatar WM says:

                Ralph,

                Maybe I missed it. But, what are the three conditions, and are they legally sufficient and material to actually stopping the loads if there is not compliance?

              • avatar Ralph Maughan says:

                WM,

                Here are the three conditions. I got them from Brazile’s letter. His letter was on-line a while back at the Spokesman Review.

                The principles are, to paraphrase, regular traffic should not have to stop to allow passage of the load. No more than 12 hours can pass to get the load through the wild and scenic rivers corridor. There can be no physical modifications made of the highway or the roadside vegetation.

      • avatar Larry Zuckerman says:

        It is also Designated Critical Habitat for Snake River spring/summer Chinook salmon, which includes the Riparian Habitat Conservation Area (“RHCA”) that is defined by the width of the stream but at least 200 ft on each side of the wetted channel. NMFS should be involved in the permitting based on the Federal Highway Administration and Forest Service Federal nexi.

  5. avatar Kristi Lloyd says:

    My Idaho friends, welcome to Michigan. The home state for ramming and going against voters, laws, tribal authority, unions…

  6. avatar Richie G. says:

    Just another takeover of big bussiness

  7. avatar Kirk Robinson says:

    Can the USFS get an injunction against this? If indeed the agency does have jurisdiction over the highway and can set conditions for transport over it, and if those conditions are being violated, I should think they can.

    • avatar Ralph Maughan says:

      Kirk,

      I imagine the Tribe and others have already filed petitions to Winmill for an injunction.

  8. avatar Ralph Maughan says:

    Here is the story from last February in the Idaho Statesman about Judge Winmill’s decision on the Forest Service regulating megaloads.

    This story was in the Spokane Spokesman Reiview yesterday about the upcoming confrontation. Confrontation imminent as Nez Perce vow to stop megaload tonight. By Scott Maben. http://tinyurl.com/lvpmtkk

  9. avatar malencid says:

    Is this the proverbial camel’s nose under the tent before US12 becomes corporate americas hauling highway. When will it stop; one a month; one a week; one a day?

    • avatar Ralph Maughan says:

      malencid,

      That is what this battle has really been about. Conservationists fought for years to protect these rivers, and successfully it seemed. To my view these bastards want to make it an industrial corridor to Alberta’s tar sand hell holes.

  10. avatar Ida Lupine says:

    So you’re saying that the Forest Service can choose not to exercise its ‘authority’? Great. So much for respecting the sovereignty of Native tribes. I guess that only applies if we have something to gain from it.

  11. avatar Ralph Maughan says:

    It is important to note that seven more megaloads are scheduled to arrive. Protests will probably continue. They might increase.

    It is important that this story get out across the country to a more favorable forum if there is to be broad political success. I see that many newspapers have covered it(see Google News).

    It’s hard to find a lot of sympathy for oil companies. Their argument is usually that they will somehow create jobs [such as for police to keep the citizens at bay ;-) ]. Some people buy the jobs argument by default and in part because they don’t like the people who protest (We just got a comment from someone who called them “hippies”).

  12. avatar Salle says:

    Here’s what’s been happening on the ground since yesterday:

    http://www.democraticunderground.com/1017137078

    Seems the Nez Perce are not going to take it without a fight.

    • avatar Elk275 says:

      Where is Chief Joseph when you need him?

      • avatar zach says:

        Left to rot on the Coville Reservation in Washington state because of some arrogant white politicians.

    • avatar Kirk Robinson says:

      The Nez Perce people have a history of being crafty, formidable opponents of oppression. May they win this time. If this nonsense goes on much longer, I may go join them.

      • avatar Kathleen says:

        That’s right–hence the name Fort Fizzle in the US 12 (MT side) canyon. The Nez Perce outwitted the soldiers lying in wait at the fort (does this sound like an appropriate place for mega loads?!?):

        “The fort where Rawn and his men were entrenched was in a constricted 200 yard (180 mt) wide passage in the canyon enclosed on both sides by precipitous ridges where “a goat could not pass.” Nevertheless, on July 28 the Nez Perce – men, women, children, and livestock—climbed the ridges and bypassed the fort…” and the army’s planned attack fizzled. http://en.wikipedia.org/wiki/Fort_Fizzle_(Montana)

    • avatar Ralph Maughan says:

      Salle,

      Thank you for finding this and posting here in comments!

  13. avatar Nancy says:

    And for those new to the site and wondering what the controversy is all about:

    http://www.alternet.org/environment/tar-sands-worse-you-can-imagine-incredible-images-you-have-see

  14. avatar malencid says:

    Don’t look for the Feds to do anything. Recall that Obama’s job czar is the CEO of General Electric who owns the items being shipped. The saying is “money talks”; that now should be changed to “money rules”. Where are the Republicans who preach local control or the Democrats that preach change; hypocrites all. What a disheartening mess.

    • avatar Immer Treue says:

      malencid,

      $$$$$$€€€$€¥$¥$€$¥

      The saying is “money talks”

      Bingo!

      • avatar Ralph Maughan says:

        Immer and Malencid,

        Money is always a factor in things related to giant oil extraction operations, but there is probably no net money in this for Idaho. You unload a big machine at Lewiston and slowly move it to Montana and then Alberta. There is no added value to the machine in Idaho. If you call out the state troopers and the local police to arrest local folks and throw them in jail and spend a lot of overtime having police accompany the rig across the state, it seems to me that they are instead in a fiscal hole.

        I think this all ideology to the Idaho politicians and this whole thing reminds me of the suppression that took place in the Deep South in the 1960s.

        • avatar Immer Treue says:

          Ralph,

          Just like wolves, there are bigger potatoes. There is so much money involved, most likely from über powerful people, the deal is all but done. We’re facing the same thing here at the headwaters of the BWCA, where sulfide mining for copper, nickel, gold, palladium, and I believe platinum, headed by an international company is being fought. It’s David vs Goliath, and slings won’t work this time.

  15. avatar Ralph Maughan says:

    Rocky Barker has a good blog on this at his “Letters from the West” in the Idaho Statesman today.

    “Nez Perce battle megaload shipment through their homeland” http://blogs.idahostatesman.com/nez-perce-battle-megaload-shipment-through-their-homeland/

  16. avatar Kevin Lewis says:

    Judge Winmill’s ruling made it perfectly clear that the Forest Service has the authority to regulate megaloads on Hwy. 12 within the Clearwater National Forest – period! This authority overrides Idaho’s easement for Hwy 12 that was granted over thirty years after Wild & Scenic designation in 1968.

    At this point, nobody really knows what the Forest Service will do Thursday night when this megaload crosses the forest boundary just upstream from the town of Kooskia – so far, they’ve talked a tough talk, are they willing to enforce their criteria? Time will tell.

    This war is far from over.

    • avatar Ralph Maughan says:

      Thank you, Kevin. Given your position with Idaho Rivers United, folks here concerned with the megaloads and Idaho’s rivers ought to be interested in your comment.

  17. avatar Rich says:

    With the ability of drivers in our country to inadvertently create gridlock on much larger highways everyday, I wonder why that doesn’t happen on the narrower parts of Highway 12. If for example a truck and trailer were to have breakdown at a critical spot or several cars were traveling up or down at a slow pace, it seems the loads could legally be precluded from moving very efficiently. Perhaps just recruit some texting teenagers to make midnight runs on the road.

    • avatar Kevin Lewis says:

      Boots on the ground up there are being very inventive :)

      • avatar CodyCoyote says:

        Just a dumb lob of a question. If the Forest Service does in fact halt the loads at the forest line, can they even be physically turned around to be driven back down ?

        • avatar Kevin Lewis says:

          It might be a challenge though the dollies that the load is transported on enable some pretty amazing moves.

          FYI a third night of protest will take place tonight near Orofino. Further, a rumor has just surfaced that Omega Morgan may try to bypass the normal stopping place tonight at Kooskia in order to get further up the road and avoid what’s shaping-up to be a big protest tomorrow night near Kooskia.

        • avatar Nancy says:

          The same question came to my mind too CC. But I’m sure if that should actually happen, a “road” would be quickly created, to address it (wink, wink)

          • avatar Kevin Lewis says:

            There are some wider areas where the load might be turned around. There is also the possibility that they just switch the pull truck with the push truck then the front becomes the back and they can head downriver.

  18. I haven’t had time to read things on this blog for a while and this is absolutely SO depressing.

  19. avatar malencid says:

    The Nez Perce should build a small annex to their casino on the other side of the road from their main casino and then put in an overhead walkway that crosses over US12 to connect them. It should be the height of a regular freeway overpass and therefore would not violate any state road rules. This would put a stop to these megaloads.

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‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey