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Archive for March, 2011

We received notice today that our colleagues at Idaho Rivers United have filed a lawsuit in federal court in Boise claiming that the U.S. Forest Service violated the Wild and Scenic Rivers Act by allowing Idaho’s Department of Transportation to issue permits for transporting megaloads up the Lochsa / Clearwater corridor.

The lawsuit claims that the Forest Service simply abdicated their authority and responsibility to protect the Wild and Scenic corridor. The lawsuit, brought by attorneys at Advocates for the West, states: “Rather than acting to prevent the establishment of a high-and-wide corridor through the Clearwater National Forest, the Forest Service has cooperated with ITD and authorized modifications to the right-of-way. As a result, the Forest Service has facilitated and effectively approved the mega-shipments to proceed up Highway 12.”

The lawsuit points out that the megaload shipments would have serious impacts on river-running tourism trade in the spring and summer. According to IRU, “Tying up the winding, narrow, two-lane road — along with its scenic pullouts — during the spring and summer tourist season would also restrict recreational access to the Wild & Scenic rivers and adjacent forest.”

In the IRU press release, Justin Walsh, an outfitter and guide says, “The amazing whitewater is only part of the reason people buy trips from me. It’s the scenery, the ambiance, the overall grandeur of the place. There’s no question that the river remains the way it is because of the Wild & Scenic Rivers Act, and there’s no question that those qualities would be impacted by these loads of super-sized equipment sitting along the river.”

As the first two megaloads were met by protesters as they passed through Missoula overnight, the oil industry and their governmental facilitators now have more explaining to do in a federal courtroom.

 

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We finally confirmed a juicy rumor we heard earlier this morning that Wes Hanson – KEA Board member and Art Manley Award winner — was just appointed to fill one of two vacancies on the Kootenai County Planning Commission.  The other new appointee is Collin Coles, a former planner for the City of Post Falls.

The Planning Commission will have a central role in the upcoming development of a new and updated zoning and development code. The complicated overhaul is long overdue, with much of the current code dating back to the 1970s. (New Commissioner Coles will be able to draw on his code-development experience in Post Falls, which adopted an innovative Smart Code scheme for land use regulation while Coles was chief planner there.)

Wes, who has put in long hours influencing the development of the County’s comprehensive plan, and has a long history of involvement in land conservation and protecting rural values, will be a fantastic addition to the Planning Commission.

 

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In a letter dated March 4th, the district managers for both the Coeur d’Alene and Boise districts of the BLM rejected the proposed land exchange that would have transferred some 9000 acres of North Idaho BLM property to M3, in exchange for some 11,000 acres of M3 lands in the Boise foothills.  M3, an Arizona-based development company with an interest in a large development proposal outside of Eagle, had intended to immediately flip the North Idaho BLM properties to the Idaho Forest Group for timber harvesting. In the letter, BLM says “We have concluded this exchange proposal is not in the public’s best interest.”

Last summer, KEA submitted a letter to Congressional representatives and BLM sharply critical of the proposed exchange.

According to the BLM’s analysis, the acquisition of the sagebrush steppe southern parcels was not equivalent to the loss of high natural resource and timber values of the forested North Idaho lands. BLM noted specifically that the value of the North Idaho properties would be expected to increase substantially in value, while the value of the southern parcels would “remain at or near current value” due to their limited development potential.

The BLM also noted that many of the North Idaho parcels proposed for exchange had high resource values for “wildlife, fisheries, recreation, open space, timber, and threatened and endangered species habitat and connectivity” that were not equaled by the southern properties.

Notably, the BLM letter seemed to foreclose any further action on this exchange for the immediate future. The letter says BLM will not consider “further modifications or refinements” from M3 until the BLM’s Boise office completes its planning process for the Four Rivers area, where the southern part of the exchange would occur. The Four Rivers plan is expected to be completed in 2013.

 

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For readers following the Highway 12 megaload issue, we thought we’d pass along a summary we received recently from the neighbors on the ground. The first two of ConocoPhillips megaloads traveling from Lewiston to Billings have made it through Idaho and are now traveling through Montana. (According to the most recent report, one load has reached Lolo, and one is “stuck” on the side of the road near Lolo Hot Springs.)

The loads traveling through Idaho have been monitored by an intrepid group of some four dozen night-owl volunteers, including  our colleagues at Friends of the Clearwater, observing, videotaping, and tracking the progress — and lack thereof.

ConocoPhillips said the shipments would take four nights each. The first shipment took six nights, the second shipment took seven. Including layovers, the eight days planned for the megaload shipments turned into a total of thirty-four.

Also, according to monitors, among other annoyances and permit violations, the shipments:

  • delayed traffic longer than 10 or 15 minutes multiple times during both shipments.
  • driven wheels outside the fog lines.
  • scraped a rock face.
  • diverted traffic unto unpaved turnout surfaces.
  • broken highway signs.
  • torn tree limbs throughout the corridor
  • disturbed residents along the highway with noise and lights from the 20 vehicle convoy

Idaho state police and snowplows have been diverted to accommodate the shipments. And, as if to emphasize the economic irony of it all, the ConocoPhillips shipments requested at least seven regular trucking companies avoid using the highway.

Meanwhile, perhaps watching this Highway 12 fiasco unfold, Exxon’s shipper, Mammoet, has quietly applied for and obtained permits in Washington, and have been shipping reduced-sized loads via interstate for about a month. It isn’t entirely clear whether these are the same loads originally intended for Highway 12. Exxon is also reducing the size of supposedly-irreducible loads already in Lewiston to interstate-size. In any event, Exxon shipments are moving between 10 pm and 4 am through Spokane’s I-90 corridor using the established Spokane and Spokane Valley “high route.” The shipments have Washington State Patrol escorts and are escorted by at least three pilot cars. We presume these smaller shipments then continue along I-90 through North Idaho, but we have not yet seen ITD documents or approvals.

 

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Late last week, we were forwarded an email from Greg Clark with the U.S. Geological Survey, whose team did some water monitoring during the flood event January 18th of this year. The monitoring in Harrison, where the Coeur d’Alene River flows into Coeur d’Alene Lake, shows that the conveyor belt of contamination from the upper basin to the lower basin was particularly bad during the flood this year.

According to Clark’s email, a measurement of the concentration of lead in the water at Harrison was the second highest ever recorded, the highest being a major flood in 1996. Also, the sample had the highest concentration of zinc and highest concentration of cadmium in more than 20 years. Clark said, “Based on these numbers, the load of lead delivered to the lake on January 18 alone was about 160 metric tons, or about 75% of the mean annual load of lead delivered to the lake during 2004 through 2009.” (Our emphasis.) However, Clark noted that sampling at the Lake’s outlet on January 20 was low, indicating that most of the lead settled to the lake bottom.

More disturbingly, however, is the measurement of flooding right before the peak. According to Clark, the river flow at Cataldo was higher than what was measured at the peak of the 2008 flood, but river the flow at Harrison was quite a bit lower. Clark says that this flow data indicates that a great deal of the water — and its accompanying sediment and metal contamination — was dumped into the lateral lakes along the lower basin. As Clark somewhat understated it in the email: “Obviously not good news as far as wildlife is concerned.”

Aerial photo of Coeur d'Alene River flooding at Harrison in 2008

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The messy wolf issue is now getting messier, thanks to Rep. Mike Simpson (R-ID) in the House and Sen. Jon Tester (D-MT) in the Senate. In the “continuing resolution” needed to avoid a shutdown of the U.S. government, the two Congressmen have inserted language that would essentially de-list wolves from being covered under the Endangered Species Act in Idaho and Montana. Recall that a federal judge in Montana had ruled that the wolves must remain on the endangered list due to Wyoming’s failure to submit an approved management plan because the species must be considered one population and managed accordingly.

Regardless of how people feel about delisting wolves, however, the manner by which the Congressmen are attempting the delisting raises serious legal questions about how a federal government with separate branches of government is supposed to work.

The obscurely worded text of the proposed Senate provision (the House version is identical) is here:

“SEC. 1709. Before the end of the 60-day period beginning on the date of enactment of this division, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such re-issuance (including this section) shall not be subject to judicial review.”

Under our Constitution, the executive branch, the legislative branch, and the judicial branch are separate, with well-known “checks and balances” on each other.  This legislative provision, however, certainly usurps a lot of executive and judicial power.

The executive branch of government is charged with implementing the nation’s laws, and as part of doing so, agencies issue regulations to administer programs. Here, however, Congress is telling which regulation to issue, and when, and regardless whether the regulations comport with existing law — in this case the Endangered Species Act.

Meanwhile, the judicial branch of government is charged with interpreting the laws as applied in appropriate cases brought before a court. Here, Congress is eliminating any such jurisdiction of a Court to do so.

All of this is a complex area of federal jurisdiction and administrative law and would make for a great law school final exam question. In a strictly legal sense, Congress, arguably, can probably get away with what it intends to do here. Unless the president vetoes the entire continuing resolution — his “check” on this exercise of Congressional power in this instance — a provision like the one proposed will be the law of the land.

Ultimately, what this means is that the functional integrity of Endangered Species Act no longer exists. Rather than science, management of endangered species will be left to Congress, to legislate by loophole. This would be an unfortunate outcome beyond the wolves who will be “managed.” We hope during the next week or two of intensive debate, Congress will consider the consequences of this ad hoc loophole approach to governance.

UPDATE 3/7: The folks at NRDC point out that as the Senate takes up the continuing resolution, they have deleted all of the anti-environmental riders attached by the House of Representatives. Except one. This one.

UPDATE 4/10: The deal to avoid the dreaded government shutdown apparently still includes the rider.

UPDATE 4/12: The rider goes even further — it folds in a Wyoming court case too. This post from NRDC sums up the reasons why this rider is just plain bad government.

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The battle over an obscure policy directive by Interior Secretary Salazar over BLM lands blew up this week, with Governor Otter testifying before the U.S. House Committee on Natural Resources, and Rep. Raul Labrador introducing his very first piece of legislation.

The “wild lands” policy, announced in December, would simply have BLM consider wilderness values if and when it writes management plans for the properties under its control. Until a Bush administration settlement with the State of Utah in 2003, it has been the standard practice of the agency dating back to a Congressional mandate in 1976. Salazar’s directive doesn’t create new areas for wilderness-level protection. Rather, it simply allows some sort of continued protection to occur, if warranted, and after an extensive public review. Indeed, both Democratic and Republican administrations have maintained provisional protections for these places until Congress can consider permanent designations. Nationwide, less than 1% of BLM’s land is designated as wilderness. Some 42%, however, is leased to oil and gas interests.

According to a 2007 management plan and environmental impact statement for the Coeur d’Alene region, BLM identified only three parcels that might qualify for wilderness-level considerations. One is a 720 acre BLM parcel adjacent to the Forest Service’s 98,000 acre roadless area on the Selkirk Crest. Another is a 12,000 acre BLM parcel adjacent to 22,000 acres of Forest Service roadless area on Grandmother Mountain in Shoshone County. Another is 9000 acres around Crystal Lake at the headwaters of Latour Creek south of Cataldo, also in Shoshone County.

But continuing to protect this type of spectacular roadless land is some sort of outrageous, apparently.

Labrador’s bill, called the “Idaho Land Sovereignty Act” would require Congressional approval for BLM’s continued protection of these lands for their wilderness values. Labrador’s over the top press release says:

This denies jobs and security to a nation in need of both and is a sad example of the out of touch decisions being forced upon us by an aloof administration. In addition, the administration is totally out of line with the interests of Western states by denying us the right to manage our own lands and wildlife populations.

Meanwhile, Idaho’s fiercely anti-wilderness Governor Otter testified to Congress that the floating green on Lake Coeur d’Alene was more valuable than Idaho’s 2-million-acre Frank Church-River of No Return Wilderness managed in part by the BLM.

It’s a nice green, on a really nice lake, but literally, there’s no comparison.

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