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Guards stand near one of the megaloads March 8 parked at the Lolo weigh station on Highway 93 between Missoula and Lolo. Photo By Kurt Wilson/Missoulian

Claiming that plaintiffs attempted to use a preliminary injunction hearing in May to "move the goal posts," Imperial Oil of Canada has asked a district court judge to dissolve or modify his order that stalled transport of megaloads on two-lane highways through Montana.

Judge Ray Dayton of Anaconda has set a hearing on the request for Thursday at 1:30 p.m. at the Missoula County Courthouse.

Dayton sided with Missoula County and three environmental groups in ordering the injunction against the Montana Department of Transportation after three days of testimony in mid-May.

It wasn't known late Monday if the transportation department had filed its own application, but the department is expected to join forces with Imperial Oil at Thursday's hearing.

In its application to dissolve or modify the injunction, the company called Dayton's order unprecedented.

"There is no reported case in Montana of an injunction of such breadth and scope with respect to the use of public highway," maintained Imperial Oil, which is controlled by oil giant Exxon Mobil Corp. It said the injunction has already resulted in millions of dollars in costs to Imperial.

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Company attorneys say that at the May hearing they attempted to respond to the core issues as outlined in the plaintiffs' initial motion, but they were "drawn into responding to evidence that the Court eventually, properly, struck."

Imperial claims that Dayton relied on "extra-record" evidence introduced by plaintiffs in their proposed findings after the hearing when he ruled the plaintiffs could likely show that an environmental assessment conducted by Imperial/Exxon and MDT was inadequate.

Even though plaintiffs at the hearing "repeatedly raised the specter of a ‘permanent high and wide corridor,' " they didn't brief the issue as an alleged violation of the Montana Environmental Policy Act, the complaint said.

Perhaps because the issue wasn't raised, Imperial and MDT didn't direct Dayton "to portions of the administrative record that specifically and repeatedly address the lack of permanence."

In a brief that opposed Imperial Oil's application, plaintiffs from Missoula County, the National Wildlife Federation, the Montana Environmental Information Center and the Montana Chapter of the Sierra Club said Imperial is incorrect in its assertion that Dayton erroneously relied on new evidence improperly raised.

"All three issues focused on by the court were raised, or addressed in testimony, and were therefore properly relied upon in the Court's ruling," they said.

Imperial Oil said that even if the injunction isn't wholly dissolved Thursday, it can and should be modified. As part of the Kearl Module Transportation Project, the company has some 175 modules remaining to be transported from Washington and from Lewiston, Idaho. They were intended to be moved along U.S. Highway 12 through Idaho to Lolo.

Imperial pointed to recent favorable rulings for the Kearl transport project in Idaho and asked that Dayton allow the segment of highway from Lolo Pass to Interstate 90 at Missoula to be used while the case is being resolved.

It said that the 33 modules stranded at the Port of Lewiston by the injunction have been disassembled to fit on interstate routes. That cost more than the $500,000 per module the company initially estimated.

A modification allowing the use of highways 12 and 93 to Missoula lets Imperial partially mitigate its losses, "while at the same time addressing the court's concerns," the application read. "No high-wide corridor would be established on the ... route because the injunction would only be partially lifted."

Deputy County Attorney James McCubbin has headed Missoula County's legal team in the case. Two tribes, the Confederated Salish and Kootenai and the Nez Perce, are joining the plaintiffs as amicus curiae, or friends of the court.

Imperial Oil's defense is led by Stephen Brown of Garlington, Lohn and Robinson in Missoula. Staff attorneys David Ohler and Valerie Wilson head the Department of Transportation's defense.

Reporter Kim Briggeman can be reached at 523-5266 or at kbriggeman@missoulian.com.

 

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