High court ruling clears way for four megaloads

Opinion reverses decision to revoke ITD permits

By Elaine Williams of the Tribune

Tuesday, November 2, 2010

The Idaho Supreme Court has ruled it has no jurisdiction in a case involving oversized loads ConocoPhillips wants to haul from the Port of Lewiston to Billings, Mont.

The 3-2 ruling of the justices appears to clear the way for four megaloads, that will take up both lanes of U.S. Highway 12, to be on the road soon. The Idaho Supreme Court opinion reverses a decision by a lower court to revoke permits the Idaho Transportation Department issued for them in August, according to a news release from the court.

The ITD permits included a number of provisions such as that the loads pull over every 15 minutes for cars to pass as they travel at night escorted by Idaho State Police troopers, the cost to be paid by the oil company. It also required ConocoPhillips to obtain a $10 million bond to cover any damage the cargo might do to the road.

ITD is waiting for advice from the Idaho attorney general’s office and didn’t respond to a question from the Tribune about how soon it will give ConocoPhillips permission to proceed with its plans.

The Supreme Court ruling on the ConocoPhillips loads focused on the process followed by those who filed the litigation and ITD, not the questions raised by the loads’ opponents about potential risks to public safety or the health of the economy in north central Idaho.

Borg Hendrickson, Linwood Laughy and Peter Grubb, who went to court against ITD, didn’t exhaust administrative avenues for resolving their differences with ITD such as seeking a contested hearing or trying to become intervenors, according to the decision.

Intervenor status is available to anyone who can demonstrate a substantial interest in a proceeding, according to the Supreme Court decision.

The process “prevents anyone from doing what (Hendrickson, Laughy and Grubb) did here: sit out the agency proceedings, show up in court just as a decision is made and force the agency to litigate the matter.”

ITD handles about 28,000 legal permits annually. ITD and other state offices would be under a “crushing burden” if anyone “supposedly aggrieved” by one of their actions could “drag the agency into court,” according to the Supreme Court decision. “This would eviscerate the administrative process and allow anyone to unfairly prevent an applicant from receiving a license from a state agency.”

The court also noted it was premature for it to decide on the case since ITD hasn’t issued anything in the ConocoPhillips case that is a final order.

That is part of why Laird Lucas, an attorney with Advocates for the West, believes the ConocoPhillips loads are no closer to starting their journey than before the Supreme Court ruling. “It’s cleared the path for the public to be more fully involved in the issuance of the permits for the megaloads,” Lucas said.

Advocates for the West is representing Hendrickson, Laughy and Grubb. It recently sought a contested hearing from ITD as the agency makes its decision about permits for more than 200 Imperial Oil loads.

ITD has previously indicated it won’t act on the Imperial Oil permit requests until the ConocoPhillips case has been resolved. Like the ConocoPhillips cargo, the majority would consume two lanes of traffic on Highway 12. The conditions ITD has indicated it would impose on them are very similar to the ones it wrote for ConocoPhillips.

The Korean-made Imperial Oil equipment is heading to the Kearl Oil Sands in Alberta, Canada. The first 16 of the 200 loads arrived at the Port of Lewiston where they were barged from Vancouver, Wash.

Chief Justice Daniel T. Eismann as well as Justices Warren Jones and Joel Horton were in the majority opinion in the ConocoPhillips case. Justices Jim Jones and Roger Burdick dissented.

The minority opinion asserts Hendrickson, Laughy and Grubb “have a right to be heard” because the rules the majority referenced for opposition are for contested cases and ITD didn’t treat the ConocoPhillips permit as a contested case. The three “must be given an opportunity for a later formal administrative proceeding in order to fully develop the record before ITD,” according to the minority opinion.

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Williams may be contacted at [email protected] or (208) 848-2261.