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Posts Tagged ‘Lochsa River’

Always busy at KEA, it seems even busier lately.  Some things going on that we care about:

The megaloads controversy remains as muddled as ever. Idaho has given a go-ahead to trips up Highway 95 from Lewiston, through Moscow and Coeur d’Alene, and then along I-90 through Montana to Canada’s tar sands.  Two were permitted, but only one smaller load has traveled through town. The permit for the second, larger one has expired, but ITD has indicated a willingness to issue permits on demand and could come any time. Meanwhile, a Montana court has halted trips along the Highway 12 corridor due to a failure to do a proper environmental analysis. That case is likely to be appealed by the oil companies.  And finally, as a reminder that highway transport is not without accidents, there’s a huge roll of toilet paper sitting in the Lochsa River at the moment. – Missoulian

We knew it was going to be a problem, and sure enough, the Sierra Club and the Center for Environmental Law and Policy have filed a lawsuit over PCB pollution in the Spokane River. According to the lawsuit, the Washington Department of Ecology is violating the law by failing to prepare a plan for cleaning up PCBs in the River. – Spokane Riverkeeper at Center for Justice

The debt ceiling debate may be getting all the attention in Washington DC, but Congress is still causing environmental mischief.  Perhaps having learned a lesson in allowing environmental riders in the continuing resolution battle months ago, the administration has recently issued several clear veto threats on anti-environmental bills and budget riders. — The Wildlife News

Finally, we’re still very much Woodsy the Owl aficionados, and we came across this lament recently. Has Smokey the Bear completely overtaken Woodsy as the charismatic mega-mascot for conservation?  Give a hoot. Environmental Law Prof Blog

 

 

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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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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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We got word from our friends and colleagues in the Lochsa corridor that the first of the permitted mega-load shipments by Conoco-Phillips are indeed scheduled for tonight, running from the port of Lewiston to mile marker 38.8. Local folks are expected to be along the highway as observers, but organizers are urging that the shipments not be disrupted.

The shipment, of course, represents a lost battle, but not necessarily the war over ITD’s apparent willingness to cede a Wild and Scenic River highway to industry for a permanent “high and wide” corridor.  The four permitted shipments are only for Conoco-Phillips to deliver huge coke drums to Billings, Montana.  The 200-some shipments by Imperial Oil and ExxonMobil to deliver equipment to the Alberta tar sands is another story altogether, and have not been permitted — in either Idaho or Montana. ITD has made repeated assurances that the ConocoPhillips permits do not set a precedent.

After the permits were granted by ITD hearing examiner, the residents and business owners, including ROW Adventures proprietor Peter Grubb, who intervened before the Idaho Transportation Department (ITD) to challenge the  shipments declined to to file further legal appeals of the ITD permits.

In a press release, Karen “Borg” Hendrickson, one of the intervenors said,  “We are proud of the work we have done over the last 10 months helping educate our friends and neighbors about the threats that hundreds of megaloads pose for the communities of the Highway 12 corridor.”

Her husband, Linwood Laughy, stated that the challengers intend to monitor the coke drum loads. “We think it is important for local residents to understand exactly how massive these shipments are and what their impacts may be for traffic and business on Highway 12, but we do not suggest that anyone attempt to interfere with them,” Laughy said.

Key parameters in the permits:

TIME OF TRAVEL 10PM TO 5:30AM

TOTAL GROSS WEIGHT (INCLUDING HELPER DOLLIES) 731,500 LBS.

BRIDGES FOR WHICH HELPER DOLLIES ARE REQUIRED: ARROW (MP14.9), MAGGIE CREEK (MP 76.8), FISH CREEK (MP 120)

10 MINUTE TRAFFIC DELAY:

Oncoming traffic shall not be delayed greater than 10 minutes, except at … points listed in the traffic control plan ….There are 12 zones where Emmert will be allowed to exceed the 10 minute time frame…  [Note: ITD considers a “delay” a full stop.  ITD does not consider cars following the shipment convoys — no matter how slowly — “delayed.”]

HIGHWAY TRAFFIC SHALL NOT BE DIVERTED ONTO AN UNPAVED SURFACE.

EMMERT IS AUTHORIZED TO BARRICADE THE APPROVED TURNOUTS FOR EXCLUSIVE USE FOR THE WIDE LOADS UP TO 24 HOURS IN ADVANCE FOR EACH MOVE.

TRAVEL RESTRICTIONS:

Tires of the tractor and trailer shall stay within the fog line, except when exiting the roadway at approved turnout traffic clearing locations. The carrier has identified 5 locations where the load tires will cross the fogline but remain on the paved surface; M.P. 48.5, 48.7, 52.6, 54.3 and 157.

The outside tires will not extend closer than 1.0 foot to the face of [guard]rail at any time nor will the guardrail be allowed to be moved. Emmert will furnish … plywood to be laid down in front of the tires as the load progresses should the shoulder show distress to distribute the load as it passes bt…

The outside tires shall be illuminated to allow for inspection of this requirement.

TRAVEL IS ALLOWED 7 DAYS A WEEK, EXCEPT FOR HOLIDAYS AND HOLIDAY WEEKENDS.

PARKING LOCATIONS AFTER 5:30 A.M.

DAY 1: MP 38.8 (NEAR OROFINO)

DAY 2: MP 73.7 (KOOSKIA)

DAY 3: MP 126.9 (6 MILES ABOVE FISH CREEK)

DAY 4: JUST EAST OF THE ID/MT BORDER

 

 

 

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A great presentation today by Peter Grubb of ROW Adventures about the Lochsa megaloads. As promised, here is a quick follow-up. First, in response to a question as to “what standard” the hearing examiner would use to make his decision, the “general” standard is given in the IDAPA rule 39.03.09.100 (pdf) (our emphasis added) :

100.RESPONSIBILITY OF ISSUING AUTHORITY.

01. Primary Concerns. The primary concern of the Department, in the issuance of overlegal permits, shall be the safety and convenience of the general public and the preservation of the highway system. (4-5-00)
02. Permit Issuance. The Department shall, in each case, predicate the issuance of a overlegal permit on a reasonable determination of the necessity and feasibility of the proposed movement. (4-5-00)

Of course, the applicant for a SHT* load needs to comply with all of ITD’s other regulations as well. Including the “10-minute rule,” buried grammatically in IDAPA 39.03.16.100.01 (pdf) (our emphasis):

01. Overlegal permits will not normally be issued for movements which cannot allow for the passage of traffic as provided in IDAPA 39.03.11, “Rules Governing Overlegal Permittee Responsibility and Travel Restrictions,” Subsection 100.05, except under special circumstances when an interruption of low volume traffic may be permitted (not to exceed ten (10) minutes) or when adequate detours are available.

Thanks again to Peter Grubb for a great presentation, and his courage and persistence in taking on this fight.

*Super Huge Truck

Also as promised, here’s the video Peter suggested:

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You’re going to need to shovel yourselves out by Thursday. Our longtime friend and supporter Peter Grubb of ROW Adventures will be at the Iron Horse at noon to talk about the Highway 12 megaloads controversy.

Peter is one of three courageous plaintiffs in the legal battle to force Idaho Department of Transportation to abide by its own rules and allow public input before permitting “overlegal” truck loads up the Lochsa River corridor.

Imperial Oil SHT Load Module. Seriously. That huge thing goes on a truck. (courtesy fightinggoliath.org)

Four super huge truck loads (“SHT loads” as coined by our friends at Idaho Conservation League) are proposed by ConocoPhillips in order to deliver massive oil equipment from the Port of Lewiston to a refinery in Billings. But this is merely the proverbial camel’s nose under IDT’s tent. Imperial Oil / Exxon Mobil has some 207 SHT loads proposed to take equipment from Lewiston, through Montana, to the massive tar sands oil development in Alberta. There is worry that the scenic Lochsa River byway will turn into a permanent “high and wide” industrial corridor.

Because of the connection to the tar sands project, the Highway 12 issue has international environmental implications. But the problems are acutely local for Peter, who is the owner and operator of the popular Riverdance Lodge along the highway. The slow rolling traffic backups caused by the SHT loads will create a safety hazard and huge inconvenience to Peter’s guests and his business.

Peter, his Lochsa River neighbors, and his Advocates for the West lawyers have been fighting goliath, just to get a fair hearing. They’ve won their legal challenges so far, and they have earned a full-blown evidentiary hearing scheduled late next week in Boise.

Hope you can join us Thursday to learn more.  And to give Peter a well-deserved round of applause.

UPDATE: See followup on the meeting here. With video!

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As has already been widely reported, an Idaho judge in Lewiston yesterday struck down permits issued by the Idaho Department of Transportation to allow huge trucks to ship oil refinery equipment up the Clearwater / Lochsa corridor.  The judge agreed with local plaintiffs that the shipments were a threat to public safety and that the shipments violated ITD’s own rules.  ITD could appeal the ruling, or they could go back to the permitting drawing board to try to solve the problems identified by the judge.

Although taking place a couple of drainages to the south of KEA’s Coeur d’Alene basin headquarters, the issue is one we are watching closely — in part, because KEA member and friend Peter Grubb of ROW Adventures is one of the plaintiffs in the case. Grubb operates the very popular River Dance Lodge on the Lochsa and the shipments slowing traffic on the highway for days at a time would be a major impact on the Lodge’s atmosphere and experience.

But we are also watching because the case offers an important lesson to other agencies of Idaho state government. In Judge Bradbury’s written opinion (available here) he takes issue with ITD’s decision-making process:

“It is extremely difficult to determine when the decision was made and therefore what portion of the record was relied on by the person who made the decision. The Memorandum Decision was dated August 20, 2010… The drums have been at the Port of Lewiston since May.”

The Judge goes on to say:

“The difference between making findings and conclusions to justify a decision already made and the rigor of reasoned discretion to arrive at a decision is one of kind, not degree. The U.S. Supreme Court has held that these types of “post hoc rationalizations” are not entitled to the substantial deference they otherwise would enjoy.”

This is what lawyers call dicta – words from the judge that aren’t necessary to the decision, but worth saying nonetheless. And in this case, they are words of warning about a common Idaho agency decision-making practice of “decide, announce, and defend” rather than employing careful consideration of public comment and requiring substantial evidence to support a decision.

In other words, in this case, ITD cannot issue a permit for these shipments by merely arguing, after the decision was already made, that the public’s safety and convenience are not adversely impacted, ignoring actual evidence to the contrary.

The dicta from the judge is a restatement of a fundamental tenet of due process in administrative decision-making, and his pointed reminder is one which Idaho agencies would do well to take notice.

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