If judge won’t halt suspension, company will appeal

A General Electric subsidiary said a federal judge made several legal errors when he barred megaloads from using U.S. Highway 12, and has asked him to reconsider.

If the request is denied, attorneys for Resources Conservation Company International (RCCI) said they will appeal the ruling by U.S. District Judge B. Lynn Winmill that closed the highway to its contracted shipper Omega Morgan and its plans to haul massive water purification equipment to Canadian oil fields via the highway.

On September 12, Winmill ruled against RCCI and the U.S. Forest Service and issued a preliminary injunction ordering the agency to block the loads.  The Nez Perce Tribe and the environmental group Idaho Rivers United requested the injunction.  On September 17, Regional Forester Faye Kruger of Missoula, Montana, issued an order barring megaloads from using the portion of the highway that crosses the forest.

In his ruling, Winmill said the agency’s failure to stop the shipments violated several federal laws, including the Wild and Scenic Rivers Act as well as the Clearwater National Forest Plan.  That ruling was based, in part, on a phone conversation between Forest Service Chief Tom Tidwell and Nez Perce Tribal Chairman Silas Whitman, in which Tidwell reportedly refused Whitman’s request to block the loads.

The legal request from the company alleges Winmill was wrong to consider Tidwell’s refusal as a final agency action because Forest Service officials were in the process of conducting a study on megaload impacts to the Middle Fork of the Clearwater/Lochsa Wild and Scenic River Corridor and had also begun formal consultations with the tribe.

The company also disagreed with Winmill’s finding that the agency’s discretionary decision not to previously take enforcement action against Omega Morgan was an “extreme abdication of statutory responsibility,” and the company claims the judge based his decision to order the closure on an issue not raised during court briefings but raised in oral arguments, leaving it too little time to respond.

Attorneys for the company also took issue with Winmill saying it stood to lose $5 million if it couldn’t use the highway.  They said the company actually could be out $85 million.  Because the company’s plans to use the highway predate a February decision by Winmill saying the Forest Service has authority to regulate megaload traffic, they said the judge’s characterization of their decision to use the highway as a calculated risk was in error.

“RCCI respectfully requests that the court, on an expedited basis, reconsider its order, deny plaintiffs’ request for injunctive relief, and direct the Forest Service to rescind its September 17, 2013 closure order accordingly.  Should the court decline to reconsider its order, or should it reconsider its order only to conclude that the injunction should remain, RCCI alternatively requests that the court grant RCCI’s request to stay the injunction pending an appeal,” according to court documents.

The company shipped a megaload over the highway in early August, which spawned four nights of protests by tribal members and environmentalists.  Another RCCI oversized load awaits shipment at the Port of Wilma, and the company has said it intends to use the highway to ship six more loads to Canada.

(By Eric Barker, The Lewiston Tribune)