New West Feature

Megaloads Court Battle Looks Like A Close Call

By Steve Bunk, 12-10-10

The two sides went toe-to-toe this week in a legal battle over megaloads on U.S. Highway 12 so closely fought that the hearing officer, Merlyn Clark, remarked he had no idea what his decision would be.

The two-day hearing in Boise ended with an order by Clark for the opposing attorneys to submit their post-hearing briefs by noon Wednesday, Dec. 15. Clark did not indicate when his written decision would be issued.

This was the first among several legal proceedings over the proposed Conoco megaloads that allowed testimony, and each side presented a star witness on Thursday, the final day. For the intervenors, or citizens who brought the case, the key witness was Linwood Laughy, the man at the center of the public uprising against the megaloads. For Conoco, it was Mark Albrecht, an experienced and savvy manager at Emmert International, the company contracted to carry the loads.

Both men gave compelling testimony that nevertheless was partially deflated by tough cross-examination.

Under questioning by the intervenors’ lead attorney, Laird Lucas, Laughy emerged as an intelligent and diligent pursuer of many questions concerning why and how Emmert intended to haul four loads of oil equipment that would be around 200 feet long, 27 feet high and wide enough to fill the entire highway, which is two lanes for much of the way from the inland Port of Lewiston, Idaho, to the destination of Billings, Montana.

Laughy, a Harvard University graduate with honors who later earned a PhD in education and psychology, has spent hundreds of hours on the highway as a tour guide, an author of books on the area, for travel from his home on the highway, and for recreation.

Much of his testimony was about measurements he made along the road. His objectives included estimating how long it might take the truck drivers to travel from one designated pullout to the next along the route and to assess whether pullouts were large enough to allow traffic to pass the rigs.

Several specific pullouts and segments of road were discussed at length, including a pullout less than 200 yards from the driveway of Laughy and his wife and co-activist, Borg Hendrickson.

According to a chart in a 700-page transport plan compiled by Emmert, which Laughy obtained through a public records request, the pullout near his home is 25 feet wide. He testified that this was “very inaccurate.” His measurements showed it was 13 feet at the widest spot, which caused him concern that traffic would not to able to get around the trucks.

Laughy also noted that a column in the transport plan’s chart seemed to indicate a total of 18 minutes would be needed to get from the previous pullout to the one near his driveway. This didn’t count adjustment of helper dollies to get across a bridge west of his property, an operation that another part of the transport plan said would take five minutes.

The maximum time allowed by ITD regulations for traffic to wait while the loads occupy the entire road is either 15 minutes or 10 minutes, depending on how the regulations are interpreted.

Under the questioning of Lucas, Laughy discussed several other segments of road that went around rock faces within inches of the white fog line, and pullouts he had measured as less than the width or length of the giant loads.

In Conoco lead attorney Eric Stidham’s cross-examination, he established that Laughy had no expertise in engineering, transportation, or oversized loads.  Stidham likened the situation to an attempt by an attorney to understand aeronautics. Laughy responded that he could read a numerical chart, use a tape measure, and figure average speeds with a calculator.

Stidham pointed to a segment of road that the chart said was 8.2 miles long, which Laughy had calculated would have to be covered in the 10 minutes shown on the chart by traveling an average of 49 miles per hour on the narrow, winding road. Stidham said the distance had been misprinted on the chart, and the correct distance was 0.82 miles.

Stidham extracted an admission from Laughy that he did not know the convoy accompanying the trucks would include an advance flagger who could warn the main vehicles of approaching traffic, to enable them to respond before the oncoming traffic came to a stop. Laughy also acknowledged under questioning that he used no mathematical formula to determine if the traffic would have room to pass the trucks, basing his calculations entirely on data in the transport plan and his own road measurements.

Stidham asked if Laughy was aware that the devices called saddles, from which loads are suspended on Emmert rigs, had been specially modified for these trips, and Laughy said no. These modifications reduced the width of the transport, allowing traffic to pass more easily, Stidham said.

Albrecht’s testimony helped to strengthen such points. An Emmert employee for more than three decades whose rise from the ranks to an executive position had included working as a truck driver, Albrecht established his deep experience with transportation of extra-large loads.

He told Stidham that pullouts on the route had been measured an estimated 25 to 30 times over recent years by company supervisors and an independently contracted group. The figured were placed into schematic drawings and were run through calculations by Emmert engineers, who recommended modifications to the saddles, although clearance was possible without those changes. The modifications reduced the load widths from about 29 feet to 23 feet and the clearance from about 18 inches to 4 feet in some places near rocky outcrops, he said.

The times listed on the transport plan chart are not travel times, he said, but rather are estimates of possible delays. This implied that vehicle speed calculations by Laughy based on distance traveled over time were not necessarily accurate.

Under close cross-examination by Lucas, Albrecht explained that traffic delays began when vehicles stopped at a point in advance of the convoy. A delay time of, say, 10 minutes for a segment of the trip was an estimate of how long traffic would be delayed before being allowed to pass. Albrecht declared that all delay time restrictions on the chart would be met.

The chart shows six delays times of 15 minutes between segments. The rest are delays of 10 minutes or less.

Albrecht told Lucas that the five minutes to put on helper dollies to cross bridges mentioned in the plan was not a necessity, because the helper dollies were pre-attached and could be hydraulically lowered or raised within seconds, even as the trucks moved.

He said turnouts that Laughy had thought were not large enough for the rigs were adequate, because Laughy had measured the paved areas, but Emmert measured the smaller area of wheel base, using entrance and exit points on the pullout. Front and back sections of the vehicles could be independently maneuvered to “arch” into the spaces enough to allow traffic to pass, he said. Also, rock and grass on the river side of the paved pullout near Laughy’s home could be used for parking, which Laughy had not included in his measurements.

When Lucas questioned the time required for such maneuvers, Albrecht retorted, “These loads can accelerate and decelerate fast enough to put your head through the window.” He then added that the company’s goal was safety.

Albrecht avoided answering how long it would take to drive any given segment of road, saying that speeds were determined by the company’s highly experienced drivers. Generally, he said 30 mph would probably be “comfortable” on some stretches, down to 5 mph or 15 mph elsewhere.

He said “secondary pullouts” between some of the main pullouts would help to alleviate traffic delays, but Lucas did not present that chart. Stidham later introduced it as evidence, saying it was part of the transport plan.

Albrecht acknowledged that Emmert had made no preparations to forewarn the public of when the loads would be coming down the highway, so people could adjust their travel plans accordingly. He said ITD was responsible for that. Emmert did have a plan in place to contact other trucking companies in an effort to minimize commercial traffic conflicts.

Responding to a recent revelation that ITD’s now-defunct permits to Emmert for the loads allowed them to barricade pullouts for up to 24 hours prior to shipments, he indicated the company would help private vehicle operators as much as possible.

Emergency services, an important concern for area residents, who have no other route into nearby towns, could be supplied with the help of a state troopers and a staffed ambulance that would travel with the convoy, Albrecht contended. The load could be hydraulically leaned to help cars pass in emergencies, he said.

Other key issues addressed at the hearing included the wild and scenic values of the corridor, a federally-designated All-American Highway, which by definition is a destination unto itself that draws tourists worldwide. The two sides debated whether loads of equipment the size of three-story buildings going down the highway would be a transitory phenomenon or, as Lucas argued, would make an indelible impression on people’s minds, changing the corridor’s reputation to that of a place to be avoided because of the megaloads.

It also was confirmed during questioning that the Conoco employees at the hearing were being paid by the company to attend in lieu of going to work. Moreover, Conoco had hired lobbyists in Washington, D.C., and for Idaho and Montana, and was placing newspaper advertisements about the loads to counteract the public outcry and interviews Lucas had given.

Clark said he would keep to his plan of considering the four Conoco loads separately from 207 more such loads proposed to be sent along the route by Imperial Oil/Exxon Mobil, and other loads that have been mooted. He would consider the evidence de novo, without reference to an earlier Idaho district court decision against allowing the shipments.

He expressed concern about whether or not ITD’s regulatory commitment to placing a primary emphasis on public safety and convenience was being met, or had been overshadowed by what the agency called a need to balance various concerns. He also said he would have to resolve the issues of whether delays of 10 or 15 minutes are allowed by ITD regulations, and of what is legally meant by the term “delay.”

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