November 1, 2010 in Idaho

Idaho court tosses mega-loads challenge

By The Spokesman-Review
 

BOISE - The Idaho Supreme Court on Monday overturned a lower-court judge who blocked four mega-loads of oil refinery equipment from traveling scenic U.S. Highway 12 in north-central Idaho, but the court’s highly technical decision may mean more public hearings and other steps before the giant truckloads could roll.

The court, in a 21-page ruling, found that it didn’t have jurisdiction to revoke the permits for the loads, and neither did the district court. “It is entirely possible that Respondents have real grievances with ITD’s decision in this case,” the court held, adding that it’s “sympathetic.”

But, the court ruled in a 3-2 decision, “Even so, the Constitution and the Legislature have limited the Court’s power to act here. … The Court’s only choice is to remand with instructions to dismiss without prejudice.”

ConocoPhillips Corp. wants to send the loads, which are so wide they’ll take up both lanes of the two-lane road, across the route immediately to get the equipment to its refinery in Billings, Mont., though it still must receive permits from the state of Montana.

They’re just the first mega-loads proposed for the route, however; Imperial Oil/ExxonMobil has a proposal in the works for 207 giant loads to start traveling this month and continue for a year, to run from the Port of Lewiston through Montana and up to its Alberta oil sands project in Canada.

Residents and business owners along the route sued to block the loads, saying the Idaho Transportation Department violated its own regulations in issuing permits to ConocoPhillips.

Attorneys for the residents who sued said the court’s ruling Monday opens the door to public hearings and more extensive public involvement at the Idaho Transportation Department in mega-load decisions, a process they said has largely occurred “behind closed doors” thus far.

ITD spokesman Jeff Stratten said the department is reviewing the decision and hasn’t yet decided how to proceed.

The route, which is dotted with campgrounds , hot springs and historic sites and travels alongside the designated wild and scenic Clearwater and Lochsa rivers, is formally dubbed the Northwest Passage Scenic Byway and roughly follows the path explorers Lewis and Clark traveled through the area.

It’s also the only commercial trucking route east from the Port of Lewiston to Montana.

Residents fear the planned transports will turn the twisting river canyon road into a permanent “high and wide” route for oversized equipment en route from Asia to Canada. Conoco’s equipment was brought by barge to Lewiston after it was manufactured in Japan; ExxonMobil’s equipment is being manufactured in Korea, and the first loads already have arrived at the Port of Lewiston.

The court’s decision turned on the question of whether the ConocoPhillips application for permits should be considered a “contested case” or not; the majority of the court said it should, and the dissenters said it shouldn’t. That’s a technical issue that affects the jurisdiction of the court to review the outcome; neither the majority nor the minority addressed the direct issues of whether the loads were properly permitted or not.

Laird Lucas of Advocates for the West, which represented the residents for free, said if the Idaho Transportation Department must follow contested case hearing rules on the mega-loads, that’ll “allow for a much fuller airing of the issues.” Lucas already has filed a formal petition with ITD for a contested case hearing on the ExxonMobil proposal; he said he plans a similar filing on the ConocoPhillips mega-loads.

“That’s better for everybody to get all the facts out on the table,” Lucas said. “We’ve had a lot of dealings behind closed doors here. I actually think the Supreme Court ruling is a positive step for us even though technically they dismissed our petition. I think they opened up the doors for the public to be much more involved in the decision-making over these mega-loads.”

In his dissent, Justice Jim Jones wrote, “As persons who live along the route and who will be affected by the transportation of the ConocoPhillips units, Respondents certainly appear to be aggrieved persons. As such, they have a right to be heard.” But the court ruled they didn’t have a right to be heard, at this point, in court.

Jones also noted in his dissent that the permits for the first four mega-loads “apparently … will lie dormant until such time as the state of Montana issues permits.” It hasn’t yet done so. Justice Roger Burdick concurred in the dissent.

Justice Warren Jones wrote the majority opinion, with Chief Justice Dan Eismann and Justice Joel Horton concurring. It held that the issue was a “contested case,” though informally handled, which meant it can’t be reviewed in court and instead should be reviewed at the agency.

However, the majority opinion held that for lack of jurisdiction, “the Court must dismiss the case and does not have the power to remand to the agency for further proceedings.”


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