On Friday, January 27, the Nez Perce Tribe, U.S. Forest Service, and Idaho Rivers United, with the help of Advocates for the West attorneys, reached a settlement in mediation resolving megaload traffic on U.S. Highway 12, as ordered by the Ninth Circuit U.S. Court of Appeals [1-3].  Resulting from three years of studies and discussions, to which the Idaho Transportation Department (ITD) was invited but refused to participate, the agreement prohibits some megaloads from traveling through the wild and scenic Middle Fork Clearwater and Lochsa river corridor, between highway mileposts 74 and 174, from around Kooskia to the Montana border.  Grateful for all of the citizens and tribal members who worked tirelessly for years to achieve this triumph, Wild Idaho Rising Tide (WIRT) acknowledges and applauds our colleagues (including Fighting Goliath, Friends of the Clearwater, and others) who have slowed, if not stopped, a rapid, violent process of conceiving, building, and transporting massive loads of fossil fuel infrastructure that privilege oil company profits over local people and wild places.

Thanks to everyone for the good news and congratulations on this megaload court case resolution, and for credit for peaceful and well-voiced megaload protests throughout the region.  But defense of treaty and public lands and rivers via lawsuits creates sacrifice zones, like the Dakota Access pipeline path diverted from Bismarck to Standing Rock to other watersheds in North Dakota.  WIRT activists hope but do not trust that this current mediation success will not again endanger and dismiss diverse communities along alternative, regional, megaload routes beyond the Nez Perce reservation and national forest and the Clearwater-Lochsa wild and scenic river corridor.  We will continue to support and assist megaload resistance and uprisings along other region-wide highways supplying interior shale oil and gas and tar sands extraction operations from Columbia River basin and Pacific ports.

On and beyond Highway 12, WIRT and grassroots and indigenous allies (Act on Climate, All Against the Haul, Blues Skies Campaign, Idaho Mythweaver, Indian Peoples Action, Coeur d’Alene, Nez Perce, Shoshone-Bannock, Umatilla, and Warm Springs tribes, Fighting Goliath, Friends of the Clearwater, Great Old Broads for Wilderness, Idaho Rivers United, Kootenai Environmental Alliance, Northern Rockies Earth First!, Palouse Environmental Sustainability Coalition, and 350, Occupy, and Rising Tide groups in Bellingham, Boise, Missoula, Moscow, Portland, Seattle, and Spokane, among many others) accomplished intensive, loosely coordinated, megaload protests and campaigns on the ground and in the courts from 2010 to 2014.  We necessarily devised creative tactics that effectively, but not as apparently, overcame not only the industry and government adversaries shared with litigating allies, but also the public neglect and dismissal of our efforts engendered by more obvious and publicized lawsuit wins.  WIRT minimally celebrates court case gains that deflect the enemy and/or problem to groups with lesser capacities to resist, at least through the conservative state administrative system, due to our concerns over environmental justice, mainstream conservation organization protocol, and the increased possibility under the Trump administration of looming megaload onslaughts on every regional river, road, and rail line, including Highway 12.

By now, we all know these predictable outcomes: If Highway 12 megaload opponents win, communities along alternative, industrial corridors across the rest of the region lose, as they fall directly into the crosshairs of Big Oil’s megaload traffic.  Under the Trump-Tillerson dirty energy tyranny, ALL Northwest and Northern Rockies routes could overflow with both fossil fuel infrastructure and its resistance.  WIRT will NOT fiddle a victory tune on Highway 12, while the planet (and even the Big Wild forests around U.S. 12) burn.  But the new presidency may inadvertently force us all to finally act as mutually supportive, ecologically sustainable communities, who esteem both wildlands and their sacrifice zones as sacred.  We wonder if such a shift is possible though, among the colonized, Western civilizations that mainstream conservation and climate groups wish to maintain, while the triple threats of capitalism, fascism, and climate change increasingly impose the brutal karma of ridiculous American hubris.

Evident in the words of the Idaho Transportation Department, which is still pushing its new Highway 12 megaload rules through the Idaho Legislature, and the U.S. Forest Service, which is only temporally limiting most Highway 12 megaload traffic, this battle is far from finished.  Imagine participating in a Saturday afternoon, January 28 public meeting of Idaho Republican Representative Sage Dixon in his home district town of Ponderay, where WIRT has been monitoring (for lack of public blockading…) oil and coal trains, and among 70 audience members, learning not only that his subcommittee approved the new, ITD-proposed, citizen-opposed, Highway 12 megaload rules on the day before this mediation settlement, which legislators knew would soon emerge, but that NO ONE among the regional megaload resistance attended the Thursday hearing to testify [4].

On Thursday, January 26, the Dixon Subcommittee of the Idaho House Transportation and Defense Committee heard testimony from ITD motor vehicles administrator Alan Frew and Port of Lewiston general manager David Doeringsfeld, in favor of legislative passage of pending ITD rules for Highway 12 megaloads, docket 39-0311-1601, Rules Governing Overlegal Permittee Responsibility and Travel Restrictions [5].  With about a dozen agency personnel present and no public opposition speaking against the rules, the subcommittee voted unanimously to move the rules to the full committee with a “do pass” recommendation.  Listen to the audio recording of the Thursday hearing between 18:30 and 33:57 [6].

WIRT and allies are calling for public input before and when Representative Harris (R-Meridian), who motioned for the subcommittee vote, brings the new ITD Highway 12 megaload rules before the full House Transportation Committee in Idaho Capitol Room EW40 in Boise, at 1:30 pm Mountain time on an upcoming Monday, Wednesday, or Friday in early February [7].  These rules do not align with the oversize load specifications that resulted from mediation, and ITD will predictably use them to push megaloads up Highway 12.  For instance, in a post-agreement Forest Service letter sent to ITD, the federal agency reminds the state department that the uses of the Highway 12 easement through national forest and wild and scenic river corridor lands must not impede the protection of scenic and aesthetic values, as upheld in a previous District Court ruling [8].  Describing the dimensions and travel frequency of megaloads, the Forest Service expressly states that,

The following restrictions in the permits issued by the Idaho Transportation Department will protect the scenic and aesthetic values of the Lochsa corridor:

1. Transport of oversize loads exceeding 16 feet in width or 150 feet in length or 150,000 pounds should be limited to a yearly average of two loads per month.  In order to accommodate heavy recreational use of the corridor during the summer months (June – August), oversize loads meeting this criteria should be limited to a monthly average of one load per month during this time.

2. The largest megaloads (those which exceed two of the three criteria above) should be prohibited entirely, as such loads have the greatest potential to affect the scenic, aesthetic, and cultural values associated with the corridor.  In addition, such loads appear to be a new use of the highway corridor.

Despite ITD testimony to the contrary, before the Dixon Subcommittee on January 26, ITD admits in Section 4 of its revised rules, entitled Nez Perce-Clearwater Forest Safety and Travel Requirements, that, “as per a federal court decision, the United States Forest Service has the duty to regulate oversize loads traveling through the Nez Perce-Clearwater Forest (U.S. 12 from milepost 74 to 174)” [9].  But the ITD rules now include outdated, incomplete, and contrasting references to Forest Service specifications for Highway 12 megaloads:

a. The Forest Service has issued the following written criteria to determine which “oversize” loads will be subject to Forest Service review:

i. Load exceeds sixteen (16) feet wide and/or one hundred and fifty (150) feet in length

ii. Load movement requires longer than twelve (12) hours to travel through the designated mileposts

iii. Load movement requires physical modification of the roadway or adjacent vegetation, to facilitate passage beyond normal highway maintenance

Although ITD commendably asserts minimum, additional, public safety requirements for passage of loads on this U.S. 12 section (vehicle inspection, load lighting, ambulance and law enforcement escorts, load movement monitoring, limited travel times, and recreational turnout non-use), the requirements set forth by ITD differ vastly from the federal court-ordered Forest Service criteria for megaloads.  ITD versions of Forest Service descriptions of megaloads only include two of four possible dimensions, not their weight – an important element in determining whether “the largest megaloads (those which exceed two of the three criteria above) should be prohibited entirely” by co-regulating Forest Service review.

Considering public interest and traffic volume, ITD rules delimit the times of load travel to less than 12 hours per vehicle, with only one load operating in the designated highway section at a time, and may restrict load movement to night time or away from weekends and holidays and during hazardous weather conditions.  But unlike the Forest Service rubric that caps oversize vehicle traffic at “a yearly average of two loads per month” and “a monthly average of one load per month… during the summer months,…to accommodate heavy recreational use of the corridor,” the flawed, pending ITD rules do not constrain the number of megaloads on this road within a month or year, only within a half-day, between Highway 12 mileposts 74 and 174.

Idaho rules add a load qualification implicitly prohibited by Forest Service concerns for the integrity of the scenic and recreational characteristics of the upper Highway 12 corridor in Idaho: that megaload movement may require “physical modification of the roadway or adjacent vegetation, to facilitate passage beyond normal highway maintenance.”  If such a condition could classify a vehicle as a megaload under ITD rules, but absolutely violate the spirit, if not the letter, of the Highway 12 mediation settlement, would these ITD rule revisions grant permit issuance, but the Forest Service agreement deny it?  How could a company planning transport of oversize loads on U.S. Highway 12 determine and ensure which sets of rules and concurrent jurisdictions, ITD or Forest Service, would regulate its proposed project?

ITD’s January 27 response to the Forest Service settlement announcement notes that ITD was not a party to the mediation agreement, and that its pending rules, developed “after conducting a robust public involvement and outreach effort,…go above and beyond the original Forest Service interim criteria and add several new criteria specifically aimed at addressing safety and traffic concerns…of the travelling public and the environment” [10].  It also assures concerned regional residents that ITD has extensively studied this issue and granted commercial vehicle permits for Highway 12 since 1962.  But these assertions seem to imply that, if ITD and the Forest Service contest decisions on megaload permitting and passage, the Idaho agency may attempt to override Forest Service disapproval.

Nonetheless, ITD says that its staff “will apply our ‘State Safety and Travel Requirements’ and issue permits accordingly.  We will then provide the Forest Service the opportunity to review our permits for this section of U.S. 12.  Under their concurrent jurisdiction, the Forest Service will apply their criteria and decide whether or not to allow the loads.”

But will these pending ITD rules force responsible Forest Service officials to constantly refuse transport of megaloads that meet two, but not three, size and weight dimensions, that are too numerous or frequent, and/or that would reduce the scenic and aesthetic values of the Highway 12 corridor by marring it with physical modifications, to facilitate megaload passage?

Please contact members of the Idaho House Transportation and Defense Committee at their following email addresses, to demand that they reject these ITD rules that do not reflect the Friday, January 27 mediation agreement among the Forest Service, Nez Perce Tribe, and Idaho Rivers United, authorized by the Ninth Circuit U.S. Court of Appeals.  These new ITD rules still attempt to circumvent the mandated settlement and are thus illegal.  For talking points, please compare the two rules, and see WIRT alerts for previous public hearings and comment periods on the ITD Highway 12 megaload rules [11, 12].

bhixon@house.idaho.gov, ckauffman@house.idaho.gov, gdemordaunt@house.idaho.gov, jgannon@house.idaho.gov, jholtzclaw@house.idaho.gov, jmonks@house.idaho.gov, jpalmer@house.idaho.gov, kpacker@house.idaho.gov, mwintrow@house.idaho.gov, pking@house.idaho.gov, pmcdonald@house.idaho.gov, pshepherd@house.idaho.gov, ryoungblood@house.idaho.gov, sdixon@house.idaho.gov, sharris@house.idaho.gov, ssyme@house.idaho.gov, tgestrin@house.idaho.gov

[1] Settlement Protects Historic Uses on Highway 12, Restricts Megaloads, January 27, 2017 Idaho Rivers United

[2] Settlement Restricts Mega-Loads on Highway 12! January 27, 2017 Advocates for the West

[3] Megaload Settlement: Some Oversize Trucks OK, But No More Megaloads on Scenic Highway 12, January 27, 2017 Spokesman-Review Eye on Boise

[4] 350Sandpoint and WIRT Activists Spoke with Republican Representative Sage Dixon…, January 28, 2017 Wild Idaho Rising Tide facebook post

[5] Agenda: House Transportation and Defense Committee – Dixon Subcommittee: Rules, January 26, 2017 Idaho Legislature

[6] 2017 Transportation and Defense Committee: Meetings (Download Audio/Video), January 26, 2017 Idaho Legislature

[7] Agenda: House Transportation and Defense Committee, January 30, 2017 Idaho Legislature

[8] U.S. Forest Service Highway 12 Megaloads Mediation Settlement Letter to Idaho Transportation Department, January 26, 2017 U.S. Forest Service Region One

[9] Pending Rules: House Transportation and Defense Committee Rules Review Book, page 30, January 2017 Office of the Administrative Rules Coordinator, Department of Administration

[10] Idaho Transportation Department Releases Statement Regarding USFS Management Plan for U.S. 12, January 27, 2017 Idaho Transportation Department

[11] NO Means NO Megaloads Sit-In, September 26, 2016 Wild Idaho Rising Tide

[12] Comment by Friday on ITD’s Proposed Highway 12 Megaload Rules! October 13, 2016 Wild Idaho Rising Tide