The Lolo National Forest has rescinded a decision to allow overhead power lines to be buried on U.S. Forest Service land along U.S. Highway 12 on Lolo Creek pending further information.
The delay was urged by the Nez Perce Tribe, which objected to the decision being made without it being consulted.
It's a procedural issue, but a significant one, said Mike Lopez, a tribal staff attorney.
"The United States has a responsibility by executive order through its unique relationship with tribes that each federal agency consult with tribes on actions that stand to affect tribal interests, on or off reservations," Lopez said.
Highway 12 runs adjacent or directly on the Nez Perce National Historic Trail, Lopez said. It's the route Imperial Oil/ExxonMobil Canada is making ready for what it hopes will be the transport of 207 super-sized modules en route to the Kearl oil/tar sands fields in Alberta starting in late fall.
The Nez Perce went on record in early July opposing the Kearl Module Transportation Project. That's a battle the Montana Department of Transportation is fighting, not the Forest Service, Rusty Wilder said.
"We don't see this as part of the Kearl project," stressed Wilder, the Lolo forest's program officer for infrastructure and operations. "The state of Montana owns the right-of-way, and they're approving a request for a permit to transport oversized loads within an existing right-of-way. It's not a Forest Service issue."
What concerns the Forest Service is a 6.2-mile stretch of Highway 12 that traverses national forest land. Wilder said it runs roughly from Graves Creek, 16 miles from the town of Lolo, to a couple of miles east of Lolo Hot Springs.
It's part of a 10-mile section in which Imperial/Exxon is paying Missoula Electric Cooperative to bury a power line along the north shoulder of the highway. The oil company applied to the Forest Service for an amendment to an existing special-use authorization for the overhead lines.
Lopez said Lolo forest supervisor Debbie Austin signed a decision notice on April 9 that authorized the amendment as a "categorical exclusion" under the National Environmental Policy Act. Categorical exclusions are applied to actions that don't have a significant effect on the human environment, and therefore don't require an environmental assessment or an environmental impact statement.
The Nez Perce didn't learn of Austin's decision until June.
"The tribe was not given an opportunity to consult on the project, either under the National Historic Preservation Act or under the government-to-government consultation policy the Forest Service has with tribes," Lopez said.
When McCoy Oatman, Nez Perce tribal chairman, called the omission to Austin's attention, the Lolo supervisor "took swift and appropriate action" to rescind the decision, he added.
"We appreciated that Ms. Austin responded so swiftly and positively to our concerns, that she withdrew the decision and that she's going to go back and essentially make good on her obligations as a Forest Service supervisor to consult properly with us on this particular proposal," Lopez said.
Meanwhile, the Lolo National Forest also determined that lands acquired earlier this year from Plum Creek Timber Co. through The Nature Conservancy should have also been considered in the decision but were not, Wilder said.
He informed Mark Hayden, general manager of Missoula Electric Cooperative, on July 16 that the Lolo forest needed a new application to authorize burying the lines.
In an e-mail sent Tuesday from Calgary, Alberta, Imperial/Exxon spokesman Pius Rolheiser acknowledged the Forest Service had requested re-submission "in order for the Service to conduct further discussions with the Nez Perce Tribe."
Rolheiser said the company expected to direct Missoula Electric Co-op to submit a new application this week. Hayden said the new application looks much like the old one, with a few clarifications.
According to Lopez, it should trigger the consultation between the Forest Service and Nez Perce that's required by the National Historic Preservation Act. Following that discussion, the Forest Service will decide if the issue warrants another categorical exclusion or a more thorough public vetting.
As the law reads, a full-blown environmental impact statement could follow.
"We don't have a position on that issue at this time," Lopez said. "We just expect that the Forest Service follow federal law, of course, and we expect that the Forest Service conduct a diligent review of all the issues and concerns related to the proposal. How that will unfold in terms of their decision on what level of NEPA to use remains to be seen."
Hayden said Wednesday that other than the stretch of underground line still to be buried, Missoula Electric Co-op is finished with utility relocations on Highway 12 and is turning its attention to Highway 200.
The Kearl Module Transportation Project has come under widespread criticism and skepticism since Imperial/Exxon first revealed it to the public late last November in a meeting with Missoula city and county officials.
The oil company has a $250 million contract with a company in South Korea to manufacture the modules, which will be used to process bitumen, a tar-like substance lying beneath the Athabascan oil sands in northeastern Alberta. The process and its environmental ramifications are topics of international debate that has intensified since the BP oil spill in the Gulf.
Imperial/Exxon's plan is to ship the modules across the Pacific and barge them up the Columbia and Clearwater rivers to Lewiston, Idaho. From there, they'll be hauled, mostly at night, by special transport trucks along Highway 12 to Lolo, through Missoula on Reserve Street, up the Blackfoot Valley and over Rogers Pass on Highway 200, then to the Port of Sweetgrass on a network of roads along the Rocky Mountain Front.
No more than two loads a day will be moved on any leg of the journey, and only on non-holiday weekdays, so the project is expected to last most of a year. Imperial/Exxon says it will do millions of dollars of utility relocations and turnout constructions and improvements to facilitate the move, and will have sufficient axles and wheels under the loads to comply with law.
The company says other, more direct land routes from the West Coast won't work because the loads will be too high and wide to fit under interstate underpasses or through train and highway tunnels in coastal mountain ranges and the Rockies. Imperial Oil executive Ken Johnson has said the Lewiston-to-Sweetgrass route is more economically feasible than is an established high-and-wide trucking corridor from the Gulf of Mexico to Canada because it cuts off thousands of water and highway miles.
Four equally massive loads containing two giant coke drums for the ConocoPhillips refinery in Billings are slated to follow the same route from the Port of Lewiston through Bonner, east of Missoula.
The company had scheduled the first two loads to come through weeks ago, but neither the Montana Department of Transportation or the Idaho Transportation Department have issued oversized load permits. Resurfacing work on a critical bridge over the Clearwater River east of Lewiston continues to lag. ITD spokesman Adam Rush said this week that work continues on the eastbound lane of Arrow Bridge. The earliest the job will be finished is Aug. 6.
Reporter Kim Briggeman can be reached at 523-5266 or at firstname.lastname@example.org.