Below are two amicus court filings from September 2013 in the Nez Perce Tribe and Idaho Rivers United v. U.S. Forest Service “Megaloads” case. Idaho District Judge B. Lynn Winmill has temporarily blocked megaload shipments — the transport of giant mining equipment bound for the oil fields of Alberta, Canada on behalf of multinational energy corporations — along Highway 12, a Wild and Scenic River corridor across Northern Idaho. Since that time, a few megaload shipments have been rerouted through Oregon and Southern Idaho, but the northern route continues to be litigated.
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From “Declaration of Angela R. Picard,” Case No. 3:13-cv-348-BLW
I, ANGELA R. PICARD, declare as follows:
1. I am an enrolled member of the Nez Perce Tribe. I am married, and the mother of three children: Joseph, Max, and Ella Payne.
2. I graduated from Lapwai High School, in Lapwai, Idaho. I earned a Bachelors Degree in Political Science and a Masters Degree in Public Administration from the University of Washington. I am presently serving as the Site Manager for the Northwest Indian College’s Nez Perce (Nimiipuu) branch. Both documents saved from plaintiff Idaho Rivers United online case history.
3. I am writing this declaration to describe why I participated in the protests; to describe what I witnessed in participating in the protests; and to describe the unity that exists within the Tribe and among Tribal and non-Tribal members in opposing the transformation of U.S. Highway 12 through the Wild and Scenic River/Nez Perce-Clearwater National Forests – and through the Nez Perce Reservation – into a high-and-wide industrial corridor.
4. As Nimiipuu, we are of this land, and we have been since time immemorial. Our oral traditions, including our creation story (which involves the “Heart of the Monster” site near Kamiah, Idaho along present-day U.S. Highway 12) teach us to protect our Mother Earth and respect the land and waters for the benefit of all creatures. Our sovereignty as an Indian nation pre-dates the United States, and is confirmed in the 1855 Treaty between the United States and the Nez Perce Tribe. These realities shape our identity as a people. Today, we have the responsibilities brought forth by our ancestors as well as by the Treaty of 1855 to speak, walk, live, and breathe for these resources and our sovereignty. Our people honor our traditional teachings, and many, like me, have also earned formal degrees that will help us help our future generations.
5. Our history shapes our identity as Nimiipuu as well. Our people welcomed the starving and struggling Lewis and Clark expedition who had traversed the route of our Nimiipuu Trail. In 1855, Nimiipuu leaders like Looking Glass travelled back over the Nimiipuu Trail from buffalo country to the treaty grounds in Walla Walla. When gold was discovered on the Nez Perce Reservation, the United States did not protect our Reservation and our people from trespass; the harm was allowed to happen first, and the United States’ after-the-fact “fix” was the 1863 Treaty (commonly referred to as the “Steal Treaty”). In the Nez Perce War of 1877, our ancestors travelled the Nimiipuu Trail on their journey towards Canada. Read more about the campaign to stop the megaload shipments in this excerpt from Steve Bunk’s forthcoming book Goliath Staggered.
6. I am proud that in more recent times my ancestors survived the era when the Federal policy towards Indians was “termination.” During the termination era, and under that policy, the United States ignored the Tribe, its rights, and its interests. Among the many consequences for the Nez Perce was the United States Army Corps of Engineers’ construction of Dworshak Dam on the Nez Perce Reservation that dammed the North Fork of the Clearwater river, and the Bureau of Reclamation’s assumption of the Lewiston Orchards Project on the Reservation that diverts water off the Reservation. My generation of Nimiipuu is still dealing with the impacts of these projects on our resources and our people today. I am also proud that the United States renounced the termination policy, and adopted a policy of self-determination. A hallmark of the self-determination era, that Presidents – both Republican and Democrat — have emphasized, is that meaningful Government-to-Government consultation between the United States and the Tribe must occur before actions are underway.
7. Our people have stood up to protect our treaty rights and our sovereignty, and, in doing so, courts have acknowledged our rights and the role of consultation with the Tribe. In 1980, Idaho banned fishing for salmon at Rapid River near Riggins, Idaho. With Idaho Fish and Game officers wielding shotguns, Tribal members both peacefully protested and exercised our Treaty- reserved fishing rights guaranteed in our 1855 Treaty with the United States and caught fish; they were charged with unlawful fishing in a closed season. Each one of these 33 counts were dismissed with an acknowledgement that our Treaty-reserved fishing rights are the supreme law of the land under the United States Constitution, and with an order from a state court to a state agency that it had failed to consult with the Tribe prior to closing the fishery. Today, the Tribe’s role as a fisheries co-manager is well-established and well-respected. The Tribe has one of the largest fisheries programs in the United States. As a result of the Tribe’s shared responsibilities, and the Tribe’s restoration actions, tribal members and non-Tribal members have both benefitted and have had additional fishing opportunities throughout Nez Perce country.
8. In every newspaper article about the mega-loads that I have read, and every letter I have seen from the Forest Service about the mega-loads, I was pleased to see the Forest Service acknowledging – and telling the world – that it must first consult with the Nez Perce Tribe. On August 3, 2013, the Lewiston Morning Tribune quoted Nez Perce-Clearwater National Forests Supervisor Rick Brazell as stating, “Until we consult [with the Nez Perce Tribe], we are not approving anything from our end.” And, on August 5, 2013, the Forest Service’s letter to the Idaho Transportation Department referenced the importance of consultation with the Nez Perce Tribe and stated that “the Forest Service does not consent, approve or otherwise authorize over legal loads meeting the interim criteria on US Highway 12 between MP 74 and 174.”
9. Given this, I was surprised to learn the Chief of the U.S. Forest Service had denied the request from the Chairman of the Nez Perce Tribe that the Forest Service stop this mega-load, and that this mega-load would be proceeding up U.S. Highway 12 on August 5, 2013.
10. To me, this was exactly the opposite of how Government-to-Government consultation between the United States and the Nez Perce Tribe must occur under the United States’ laws and policies—consultation must occur beforehand, not after-the-fact.
11. The impact to me and the Tribe of the Forest Service not stopping this mega-load was immediate. First, the Forest Service not stopping this mega-load meant that this mega-load would be transported before the Forest Service had even initiated—much less completed – meaningful consultation with the Tribe about our rights, interests, and concerns with respect to the Wild and Scenic River Corridor and the Nez Perce-Clearwater National Forests. Second, the Forest Service not stopping this mega-load meant that the burdens of the mega-loads were being immediately transferred to our Reservation and our people—within a matter of hours.
12. The foregoing reasons were why I participated in the protests. On August 5, 2013, hundreds of protestors (including women, men, Tribal Council members, and non-Tribal members) set up a non-violent protest of the mega-load at the western boundary of the Nez Perce Reservation. On August 6, 2013, hundreds of protestors showed up at the north side of the Spalding Bridge on U.S. Highway 12. And, on August 7, 2013, protestors showed up at Canoe Camp along U.S. Highway 12. During these protests, hundreds-of-years-old songs were sung by old and young men, songs that were sung during the Nez Perce war. Speeches were told about the history of this trail, and the endless historical landmarks that tie our people to this land. Protestors, Tribal and non-Tribal alike, held signs high while standing, walking, and running together.
13. I participated in the protests peacefully. On August 7, 2013, I was arrested for walking too slowly in my Native regalia. I was charged with “disorderly conduct.” A photograph of my arrest is attached to this declaration.
14. After my arrest, while I was sitting in the back of a paddy wagon, I was so full of emotions. I was happy, proud, mad, and confused. I was happy that this cause is getting noticed. I was proud – so proud – of all those who stood for their beliefs those three days. I was mad that I was arrested for walking too slow. That night I had travelled in the paddy wagon for over three hours into three different counties, and even off the Reservation following behind the mega-load upriver. Natives were everywhere, and non-Native protestors were everywhere too. There were about 200 people at Canoe Camp, another 40 past Orofino at Teeweepuu, even more at the entrance to Kamiah, more at the bridge in Kamiah, more after the bridge. I thought that was the end. Then there were more Natives near First Church (First Indian Presbyterian Church). More Natives were at Heart of the Monster, and more all the way to Kooskia. I am not sure how there were so many Natives everywhere along with non-Native protestors; it was like magic, because there always ended up being more Natives and non-Native protestors in front of us.
15. I have witnessed the unity of my fellow Tribal members and many non-Tribal members in opposing the transformation of U.S. Highway 12 into a high-and-wide industrial corridor. I am pleased that newspapers from the Los Angeles Times to the Calgary Herald have reported what is at stake for the Wild and Scenic River corridor, the Nez Perce Reservation, and the Nez Perce people and are dispelling some of the myths. It is certain that if future mega-loads are allowed to roll through this area, they will encounter more protests and more acts of civil disobedience. This is because we, as Nimiipuu, have the responsibilities brought forth by our ancestors as well as by the Treaty of 1855 to speak, walk, live, and breathe for these resources and for our sovereignty.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
From “COMMENTS OF AMICUS CURIAE, SPECIALIZED CARRIERS & RIGGING ASSOCIATION, IN SUPPORT OF APPLICANT DEFENDANT- INTERVENOR RESOURCE CONSERVATION COMPANY INTERNATIONAL’S OPPOSITION TO PRELIMINARY INJUNCTION”
Specialized Carriers & Rigging Association (“SC&RA”), as amicus curiae and on behalf of its approximately 1,300 members, hereby provides its comments in support of the Motion in Opposition to Plaintiffs’ Motion for Preliminary Injunction filed by Resource Conservation Company International (“RCCI”), on September 3, 2013. For the reasons set forth herein, any change to the existing permit system of the Idaho Transportation Department (“ITD”) and/or the creation of an additional regulatory program within the United States Forest Service (“Forest Service”) would have unique, specific, and damaging impacts on SC&RA’s members operating in or through the state of Idaho. As such, SC&RA supports RCCI’s opposition to the issuance of an injunction in the above-captioned matter.
The SC&RA agrees with, and fully supports, the rationale set forth by RCCI in its Opposition. SC&RA’s purpose in submitting its own independent comments to the Court is not to simply echo this stated position, however, but to provide the Court with a summary of the unique operational hurdles and business losses that SC&RA’s members will suffer if a preliminary injunction is granted.
As its name implies, the SC&RA is made up of motor carrier members that transport specialized shipments, such as heavy-duty machinery, construction equipment and materials, military components and manufacturing materials, throughout the United States. Due to the large size and/or weight of these shipments, SC&RA’s members must obtain, at a substantial cost and administrative burden, trip permits from the various states, counties, cities and local municipalities in which the shipments will travel. The transportation of oversize and overweight shipments is vital to the U.S. economy. These vehicles and the industries they serve are integral components of the nation’s growth sectors, including the construction, manufacturing, energy and mining industries. The development and maintenance of these industry sectors impact the national economy and the welfare of each of its citizens. In view of their continuing role in the national economy, the established state and federal public highways are constructed and maintained in large part for commercial hauling as well as other public traffic. Truck haulers and those relying on haulers to transport their commercial loads must depend on the public highways.
The oversize and overweight permits needed by SC&RA members often contain specific routing requirements to ensure, among other things, that the specialized shipment avoids low overhead passes and restricted weight roadways.1 In addition, SC&RA’s members must obtain, and coordinate with, various escort vehicles, including in many instances local law enforcement agencies, to assist with the movement of the particular shipment over the routes and within the strict time limitations designated in the issued permits. Haulers and their load customers rely on existing permitting mechanisms and lead agencies for commercially practicable and efficient compliance with requirements for hauling oversize loads on these highways.
Many oversize and overweight permits are limited to a specified time period, sometimes as short as 24 and 48 hours.
Many of the specialized shipments transported by SC&RA members involve machinery, supplies, or equipment to be utilized at a construction site or a military installation and, as such, involve very strict delivery parameters to ensure the shipment’s immediate availability when needed. As a result, SC&RA members spend a considerable amount of time and money to secure the necessary permits, routes, escort vehicles, and support personnel needed to safely and efficiently transport the specialized shipments from origin to destination well in advance of the critical delivery dates.
State and local agencies across the country may require the submission of permit applications more than 30 days before the actual movement begins, in order to issue the necessary permits. This time is needed by government officials to verify that the routing for the specialized shipment will not damage the roadways and to arrange for police escorts and the removal of in-route obstacles for the date of the permitted shipment. It can take a matter of between several days to several weeks to arrange and coordinate a single specialized shipment.
SC&RA members depend upon the certainty of existing state permit systems in order to establish the transportation charges for each specialized shipment with their customers; to calculate transportation and delivery schedules; and, based on such schedules, to apply for the necessary permits. Adding another regulatory system would be unduly burdensome and completely unnecessary.
In this case, the hauling in issue is on paved and regularly traveled public Highway 12 in Idaho administered by the ITD. The ITD already imposes stringent restrictions and limits on large hauling on Highway 12. The ITD is the established and recognized permitting authority and mechanism under federal and state law and agreements to regulate such hauling. The existing ITD permitting system and Forest Service participation in that process reflect established principles of federalism and state lead agency cooperation and coordination with federal agencies that are consistent with state and federal law and easements granted for state-administered highways across federal lands.
The Forest Service has not sought to extend its role beyond review and consultation. The Forest Service, the ITD, and the Tribe have been in regular communication regarding Tribal, environmental, and other concerns. They continue to consult and coordinate with the ITD permitting process for oversize commercial hauling on Highway 12. However, the Plaintiffs now seek to compel the Forest Service to intervene in the permitting process beyond the existing review role currently in place and already recognized by this Court.
The additional Forest Service approval requested by Plaintiffs would be outside and beyond the existing, established ITD permit, and only applicable to the limited segment of Highway 12 within the right of way easement grant deeded to the State by the federal government that traverses the national forest area. Such a system would create added process, delay, and other commercial inefficiencies; add overlap, redundancy, and confusion regarding requirements for hauling; and, prove unduly burdensome to SC&RA members needing to access this transportation route. No such approach has been shown to be necessary.
A redundant or overlapping permit approach or other Forest Service approval requirement would be inconsistent with basic principles of federalism and practical division of authority between federal and state agencies regarding intrastate as well as interstate highway commerce. Establishing an additional Forest Service approval requirement would be extremely burdensome for the Forest Service and would set a precedent for unwarranted federal agency intervention in commercial hauling or other state administration of public highways far beyond Highway 12 and Idaho. A very large number of state administered public highways traverse national forest and other federal land areas throughout the Western U.S. and in eastern States. Many of these highways pass through areas with scenic and other public values. However, state public agency permitting and other administration in coordination with appropriate federal agencies is the established, efficient and adequate mechanism to address concerns raised by Tribes or citizens. Overlapping federal permitting or other direct approval requirements for these segments would cause confusion and unnecessarily increase costs to the public as well as haulers and other users, decrease reliability and predictability for commerce, and create unwarranted redundancy and confusion regarding regulatory requirements.
The Plaintiffs remain free to challenge or address the ITD permitting criteria or actions through further engagement with ITD itself. They may also direct their objections to the Idaho Governor or Legislature, or bring them to Idaho State Court if necessary. That is where this case should have been brought by the Plaintiffs.
The current situation leaves SC&RA members at significant risk. Abruptly altering the ITD permit structure without an adequate transition period will make it impossible for our motor carrier members to legally comply with existing oversize and overweight permits and contractual delivery obligations – the consequences of which could force breach of contractual delivery commitments made by SC&RA members to their customers (many of whom are local, state or federal governmental agencies), as well as cause lengthy delays in critical private and government construction and military projects, resulting in significant financial harm. In addition, any invalidation of a special permit could result in substantial fines and penalties, including the impoundment of the truck and load, due to the sudden changes in operating requirements for specialized shipments. At a minimum, to minimize economic hardship and business disruption throughout the U.S., the Court should issue a stay of its mandate for a definite period of time to allow the industry sufficient time to restructure its operations based on any revised rules.
Furthermore, to the extent that the Forest Service may have some discretionary authority to require or take action itself to restrict large hauling within the State easement on Highway 12, under the national forest and wild and scenic river administration statutes relied upon by Plaintiffs in the present lawsuit, the Forest Service has not determined that such action is necessary at this time. A Court seeking to compel the Forest Service to exercise its discretion to take such action now before such determination has been made would be at the least premature, and itself create precedent with the broad and unnecessary harmful consequences described above for commercial hauling and state public highway administration nationwide.
For the above reasons, SC&RA as amicus curiae, asks that the Court deny the relief Plaintiffs request.
DATED: September 3, 2013
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.