Judge revokes permits for mega-loads

‘Arbitrary, capricious … abuse of discretion’ cited in ruling on loads bound for Montana

By Elaine Williams of the Tribune

Wednesday, August 25, 2010

Four mega-loads of oil-processing equipment remain stalled at the Port of Lewiston after 2nd District Court Judge John Bradbury revoked the permits that would have allowed them to start their journey to a refinery in Billings, Mont.

Bradbury’s ruling hammered the Idaho Transportation Department for its decision to ignore regulations that require traffic behind large loads to pass every 10 minutes and opt instead for 15 minutes.

That choice was “arbitrary, capricious and an abuse of discretion,” Bradbury wrote in a decision that sends the permits back to ITD for revisions.

What happens next is not clear. “I haven’t read it or spoken with the client,” said Erik Stidham, an attorney representing ConocoPhillips.

ITD is withholding comment until after an Idaho deputy attorney general reviews the ruling and briefs the agency’s leadership today.

Bradbury’s decision recognizes the importance of the livelihoods and lifestyles of north central Idaho residents as well as the responsibility of state agencies to serve citizens, said Borg Hendrickson, one of three Idaho residents who filed the litigation seeking to block the loads. “We felt in the courtroom as if we had hundreds of plaintiffs there with us.”

Bradbury’s ruling follows an intense two-hour hearing Monday with Boise-based attorneys representing ConocoPhillips and ITD, and Hendrickson, Linwood Laughy and Peter Grubb.

Hendrickson, her husband, Laughy, and Grubb contend ConocoPhillips’ plans would threaten public safety, hurt tourism and potentially harm the scenic river corridor. Their attorneys are from Advocates for the West.

ITD issued the permits Friday for the ConocoPhillips loads. But the agency promised not to allow the trips to start until the court made a ruling. The loads will consume two lanes of traffic and measure between 180 and 227 feet long. It’s expected it will take them about four days to get across Idaho’s panhandle as they travel at night.

Supporters were hoping the loads would get over the Arrow Bridge by Sunday or risk being stuck in Lewiston until sometime in October, because of the construction schedule for the bridge. One side has been resurfaced and there’s a construction break before the second phase starts.

Bradbury praised ITD for the effort it exerted in creating a plan that would protect its roads as he criticized its lack of consideration of certain safety issues and alternative routes in the ruling.

For example the only contingency plan to handle a breakdown is the recognition of Emmert International that it might have to recover a load, Bradbury wrote. Emmert was hired by ConocoPhillips to haul the cargo.

“(The agency’s) failure to address the ‘inevitable’ accident or breakdown that could shut down Highway 12 for days or weeks overlooks the quintessential disaster and its effects on the users of Highway 12 that Emmert itself forecasts as possible,” Bradbury wrote.

While ITD is requiring a $10 million bond from Emmert for any damage that could occur to the highway, the agency didn’t mandate similar protection for the state’s citizens, Bradbury wrote.

“Counsel for (the) department indicated during argument the citizens were left to their own devices,” Bradbury wrote. “There is no requirement that Emmert or Conoco submit to jurisdiction in Idaho state courts or in any other way make themselves amenable to service or to answer for any damages that might occur.”

ITD’s determination that ConocoPhillips couldn’t get the equipment to its Billings refinery without using Highway 12 was “apparently” based on each of two Japanese-made drums being sent whole, Bradbury wrote.

However they were split in two pieces before they reached Lewiston, Bradbury wrote. “Emmert represented that permits could be acquired in other states if the drums were cut in half.”

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