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What Is the Idaho Supreme Court Actually Deciding in the Highway 12 Case?

By Steve Bunk, 10-19-10

Laird Lucas, representing the plaintiffs against Idaho Transportation and ConocoPhillips, reveals a possible new approach: Going after the feds. Photo courtesy of Advocates of the West.

Any day, the Idaho Supreme Court could issue its ruling on the Oct. 1 hearing about the proposed shipment of four oversized loads of oil refinery equipment along U.S. Highway 12 from Lewiston to Billings. When it does, the five justices will have examined numerous points of law, addressed in three lengthy briefs and in arguments during the hearing. But what, exactly, are the legal issues upon which this case, and possibly the future of Highway 12, may turn?

New West approached the three lead attorneys in the case and asked them to lay it out layman’s terms. Erik Stidham, who spoke in court on behalf of ConocoPhillips, and Idaho Assistant Attorney General Lawrence Allen, who represented the Idaho Transportation Department, both declined to be interviewed on grounds their organizations’ policies prevent them from talking about litigation in process.

Laird Lucas, executive director of the nonprofit Advocates for the West, who argued for the plaintiffs, agreed to help parse the legalities.

The Lucas team had submitted a brief on behalf of the plaintiffs, three northern Idaho landowners and tourism business operators. Another brief was lodged for the Idaho Transportation Department (ITD), and a third for Conoco.

The main point Lucas pressed in his arguments concerned whether ITD misapplied what he called the “10-minute delay rule” in its own regulations by approving shipment of Conoco’s oil drums, which the company has said could delay traffic en route by 15 minutes between some pull-outs. This 10-minute rule is the crux of the plaintiffs’ case. Governed by Title 67, Chapter 52 of the Idaho Code, the rule appears in the Idaho Administrative Procedure Act (IDAPA), in Title 39, which covers rules for “overlegal” loads that exceed specified normal size limits. These rules and regulations are central to this case.

Chapter 11 establishes the need for a traffic control plan to provide for “frequent passing” of the oversized loads by other vehicles. Chapter 16 states that permits for such loads “will not normally be issued” if the proposed movements do not comply with the requirements of Chapter 11.

The rule in Chapter 16, however, makes an exception for “special circumstances when an interruption of low volume traffic may be permitted.” Such interruptions, the passage says, are not to exceed 10 minutes.

Lucas argued that because Chapter 16 expressly invokes Chapter 11, the court must analyze these related restrictions together. Lucas argues doing so produces only one logical conclusion: Chapter 16 establishes that 10 minutes is the maximum delay allowable for loads such as those proposed by Conoco, unless more “frequent passing” can occur under Chapter 11.

For ITD, Lawrence contended that the 10-minute rule does not apply because the proposed permit met the requirements of Chapter 11 regarding traffic flow, including the creation of a traffic management plan by Emmert International, the transportation company contracted to move the modules over the highway.

The ITD brief defends the department’s interpretation of “frequent passing” as permitting delays of more than 10 minutes.“This interpretation allows the Department the ability to review the transportation plan and provide limitations and conditions within the permit which are fact-specific, rather than having an immovable maximum delay which must be adhered to regardless of special circumstances,” the brief states.

The Conoco brief says Emmert identified 102 primary and secondary pulloffs on the 172.5 mile route from Lewiston to the Montana border. The company subdivided the route into 78 segments between primary pulloffs and measured each for travel distance and time. No segment was projected to take more than 15 minutes to negotiate and only 11 were projected to take more than 10 minutes.

After the Aug. 23 district court hearing in Lewiston, Judge John Bradbury’s order reversing the issuance of the permits held that under a “plain meaning” reading of Chapter 16, the ITD’s interpretation would be that “one cannot normally obtain a permit if traffic will be delayed more than fifteen minutes, but, even if it will be delayed more than fifteen minutes, one can still obtain a permit if a movement will at least not delay traffic more than ten minutes.” He concluded it was clear to him that “’frequent” must mean less than every 10 minutes.

ITD’s brief for its appeal of Judge Bradbury’s order contends that the district court created a new ruling that a move can never be made except under the 10-minute limitation, even if the mover has a traffic control plan. “This interpretation of the rule essentially eliminates the requirements of the traffic control plan,” the brief says. It adds that the 10-minute rule cannot be applied in every instance and still be for what the wording calls “special circumstances.”

During the Oct. 1 Supreme Court hearing in Boise, Chief Justice Daniel Eismann suggested a traffic plan was necessary if delays were to be more than 10 minutes. Lucas responded that such an interpretation eliminates the need for the 10-minute exception to the regulations. Eismann replied that the exception does not apply if the proposed movements are managed under a plan. Lucas argued, as Judge Bradbury had found, that the 10-minute rule provides a context to determine what “frequent” means, and that, by law, the agency’s interpretation of its own regulations must be reasonable.

Later, Lucas said that, although he felt the prosecution’s position regarding the 10-minute rule was strong, “Chief Justice Eismann obviously does not agree. That seems clear.”

One of the main arguments mounted by ITD concerned the discretion state agencies are given to make decisions and issue orders. The Idaho Administrative Procedures Act requires such determinations be upheld by courts except under certain conditions, one of which is that the agency’s decision is “arbitrary, capricious, or an abuse of discretion.” Even if a court determines that a state agency’s action violated any of the prescribed provisions, the action still should be upheld if the “substantial rights” of the plaintiffs have not been prejudiced.

In district court, Bradbury had found that ITD’s issuance of the permits was arbitrary and capricious, but the ITD brief for the appeal said the judge had misapplied a federal law in his ruling. ITD and Conoco contended the test of whether a state agency’s decisions should be given deference by the court was outlined in a 1991 suit that involved the J.R. Company and the Tax Commission.

This test, known as the Simplot Factors, has four stipulations, one of which is that the agency’s “construction” or interpretation of a statute must be reasonable. ITD argued its interpretation of the two passages concerning frequent passing and the 10-minute rule fit the bill. The Lucas team countered it was unreasonable because it conflicted with the plain language of the regulations to reach an illogical conclusion.

The Conoco and ITD briefs also charged that the plaintiffs failed to establish they suffered prejudice to their substantial rights because the agency erred in issuing the permits.

In the state Supreme Court, Justice Jim Jones asked Lucas what substantial rights of the plaintiffs would be prejudiced. The attorney replied the main issues were damage to their livelihoods in the tourism industry and to the quiet enjoyment of their properties, as well as health issues concerning access to medical care and disruption of sleep. He said he placed them all under the umbrella of “irreparable harm,” which embraces prejudice to substantial rights.

Two other major issues for the Supreme Court to decide are whether ITD made public safety and convenience a primary concern in its decision to issue the permits, and whether the agency made a “reasonable determination of the necessity and feasibility of the proposed movements.” Both these requirements are included in Chapter 9 of IDAPA.

“I harbor no doubt that there is substantial evidence that the Department honored its duty to preserve Highway 12,” Bradbury’s ruling stated. “The same cannot be said about the public’s safety and convenience.”

Both Stidham and Lawrence contended strongly in court that the extensive traffic control plan created by Emmert, which was revised four times and included more than 700 pages, made public safety and convenience a primary concern. The ITD’s position was that public meetings had been held, but Lucas contended these meetings were prompted by public outcry and revolved largely around 200 shipments proposed by Imperial Oil, not the four planned by Conoco. The appellants said they had responded to written public comments, but the plaintiffs claimed the responses were form letters.

Concerning the issue of necessity, the Lucas team asserted the transportation department accepted information from Emmert that ruled out other options for delivery of the equipment, rather than making an independent assessment of whether or not that’s true. Bradbury ruled an independent determination is needed. ITD’s responded its responsibility regards moving the equipment from Lewiston through Idaho and that it did not have the authority, the capability or the manpower to make such transport assessments extending outside the state’s borders.

These were far from the only legal issues addressed in the documents and in court. Lucas contends regardless of which side wins this battle, he anticipates further allegations in court that ITD permits violate its own regulations. He also revealed a possible new direction in the struggle: “We’re looking at federal court lawsuits, because we think there’s a role federal agencies play here.”

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