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Judge sides with conservationists in megaload case

Todd Dvorak, Associated Press

BOISE, Idaho (AP) -- A federal judge has ruled that the U.S. Forest Service had the authority two years ago to intervene in Idaho's decision to permit a series of massive shipments of oil refinery equipment along U.S. Highway 12.

U.S. District Judge B. Lynn Winmill issued his ruling Thursday in a lawsuit filed by an environmental group that opposed the so-called megaload shipments along the scenic roadway that cuts across north-central Idaho and into Montana.

The ruling has no impact on the giant ExxonMobil shipments that began their journey more than two years ago at the Port of Lewiston and traveled east along the scenic, two-lane roadway to Lolo Pass, through Montana to the Kearl Oil Sands project in southern Alberta. The highway winds along the Clearwater and Lochsa rivers, a mountainous and forested corridor protected by the 1968 Wild and Scenic Rivers Act.

In his 18-page ruling, Winmill made clear the Forest Service had authority under the 1968 law to get involved in the state's decision to permit the shipments, and in fact "acted unlawfully" by standing on the sidelines.

The decision also marks a victory for Idaho Rivers United, which filed the lawsuit in 2011 accusing the federal agency of neglecting its obligation to protect the corridor.

"The Forest Service has previously indicated its desire to protect the Wild and Scenic corridor. Now that it's been established that it has that ability and authority, we look forward to working with the agency to protect this very special place," IRU Conservation Director Kevin Lewis said.

The U.S. Attorney's Office in Idaho, which represented the Forest Service, did not immediately respond to a request Friday by The Associated Press for reaction to the judge's decision.

In its lawsuit, Idaho Rivers United claimed the Forest Service should have gotten involved in the decision making process on the ExxonMobil shipments coordinated by the Idaho Transportation Department. To accommodate the big trucks and massive loads, some of which reached 300 tons, crews trimmed 500 trees along U.S. Highway 12, created additional turnouts for the trucks to park and wait out bad weather or let traffic pass.

At the time, Clearwater-Nez Perce National Forest supervisor Rick Brazell expressed reservations about the shipments and their impact on the environment and aesthetic values along the 177-mile route. In a letter he sent to ITF, Brazell wrote that hundreds of oversized loads would jeopardize "the experience the traveling and recreating public will have along U.S. Highway 12 through the introduction of overtly industrial elements into the otherwise pastoral environment."

But Brazell also believed his agency didn't have the legal muscle to get more actively engaged in the permitting and review process. Lawyers representing the Forest Service argued in court earlier this week that the federal agency relinquished any authority over the shipments through a 1995 easement granted to the state of Idaho that required it to protect the highway and its scenic character.

Winmill rejected that argument, citing language in the Wild and Scenic Rivers Act and the 1995 easement.

"This authority clearly gives the federal defendants jurisdiction to review ITD's approval of mega-load permits that authorize acts along the river corridor, including the construction of turnouts along the rivers, the trimming of hundreds of trees, and the restriction of the public's recreational opportunities," Winmill wrote.

The impact of the ruling could influence future shipments of oversized loads along the highway, but it comes far too late to have any impact on the more than 100 loads planned by ExxonMobil.

Amid logistical hurdles and opposition from environmentalists and some residents along the highway, only a fraction of ExxonMobil's loads made the journey along Highway 12. Ultimately, the oil company and its contracted trucking company diverted most of the shipments to less-contentious routes, including stretches of U.S. Highway 95 and U.S. Interstate 90 in northern Idaho and into Montana.

Late last month, ITD issued permits for new large loads — including a pair of 20-foot-high, 255,000-pound evaporator vessels — along Highway 12.