Peaked caps and Conoco T-shirts on beefy bodies were prevalent among an audience of about 100 who filled an auditorium at the Idaho Transportation Department (ITD) in Boise on Friday morning for a dramatic confrontation concerning plans by the oil company to truck four megaloads of refinery equipment along U.S. Highway 12 over Lolo Pass.
The look of the audience was in stark contrast to the long, gray hair and alternative-style dress that had predominated at the Idaho Supreme Court hearing Oct. 1.
The state supreme court decided it had no jurisdiction to decide a suit brought by three northern Idaho residents to stop the shipments, because proper procedural steps had not been followed. The Nov. 19 hearing was a response to those concerns.
Boise attorney Merlyn Clark, who was appointed by ITD director Brian Ness as the hearing officer, said that before Thanksgiving, he will deliver a recommendation on whether the residents’ petition to intervene in the shipments should be upheld or denied.
Clark told the attendees he practiced law in Lewiston from 1964 to 1979, had fished the area extensively, and knew the highway and the rivers very well, although he had not been back in a long time. He said the hearing was to acquire legal and factual analyses and statements of position on two issues. The first is whether a “direct and substantial interest” in the shipments that is claimed by the residents actually exists. The second issue is whether ITD should hold formal, contested hearings before the loads are allowed to travel under permits that have been issued by the agency.
He said if he were to recommend to Ness that the petition to intervene was not justified, he presumed that the loads would go forward. If he were recommend upholding the petition, the question would be should the next step be a formal hearing. Or would there be other options?
Clark gave his initial impressions, which he said were subject to change in the wake of arguments.
“I think the petitioners cannot simply allege generalized grievances that are common to all citizens,” he said. Their grievances should be particular to them, not to all taxpayers, he emphasized.
Clark also said he would limit the scope of his considerations to Conoco’s proposed four loads, not to approximately 200 other loads that might later be transported by another company, Imperial Oil, principally owned by ExxonMobil. He also would not consider the question that these and others loads could turn Highway 12 into a so-called “high and wide corridor” for transport of megaloads.
“I don’t accept the argument that if you open the doors, all the others are coming in,” he said.
‘THE SIZE OF AN OFFICE BUILDING’
Laird Lucas, the lead attorney for the petitioners, showed large photos of the proposed megaloads. “They’ll be approximately the size of an office building,” he said. “Nothing that large has ever been approved to go up there.”
He pointed out that many changes to the highway have been made to enable such transports, including vegetation removal, construction on turnouts, and moving power lines, much of which had been funded by Imperial Oil rather than Conoco. Lucas argued that the proposed shipments by those two companies could not be considered in isolation.
“I’m going to focus on the four loads, but I don’t think they happen in a vacuum,” he said. “We believe they’re going to set a precedent.”
Regarding the issue of a “specialized interest” by the petitioners, he cited regulations that state a primary concern in considering issuance of permits for over-sized or “overlegal” loads must be the safety and convenience of the general public. Lucas argued that those who use the highway regularly have a particular interest in its safety and convenience.
He said one reason Idaho district court Judge John Bradbury ruled against Conoco last August—a decision later vacated by the state supreme court—was because ITD had not made a reasonable determination of the necessity and feasibility of the proposed shipments, as required by state regulations. Instead, the agency had relied on an unsigned letter of less than one page from Conoco’s contracted trucking company, Emmert International, that no other route was feasible.
Lucas pointed out that an overlegal load similar in size to that of the proposed Conoco shipments had traveled an alternate route in recent weeks. His associate attorney, Natalie Havlina, later said loads have gone recently to Montana through the Great Lakes harbor town of Duluth, and through Houston via the Panama Canal.
Noting that Conoco and ITD had been in consultation since 2007 concerning these shipments, Lucas said, “Never was the public advised.” Only through investigative efforts by private citizens, led by two of his clients, was the plan uncovered and public meetings finally held earlier this year, he said. Those meetings concerned the Imperial Oil loads, and Conoco representatives were invited to attend but declined.
Lucas said he was “surprised” by Conoco, who he charged is trying to “keep the little people who are affected by this out of the process of challenging them.”
He said rather than a formal hearing, which would require “putting on all our armor,” the dispute still might be resolved through informal proceedings. Lucas said he had suggestions to make in that regard, although he felt that the hearing was not the appropriate venue to discuss them.
‘A BILLINGS REFINERY THAT EMPLOYS 400 PEOPLE’
“We really are talking about two different lawsuits,” Eric Stidham, the lead attorney for Conoco, said as he began his argument. “They want to talk about supposed injuries that don’t relate to four shipments traveling in the middle of the night with plenty of safeguards.”
He said the case was simply about a refinery in Billings that needs repairs. “Lewiston is the closet inland port to Billings by a factor of thousands of miles.”
Stidham agreed that negotiations between Emmert International and ITD have been long, which he said is normal for such massive products manufactured overseas. “The proposed intervenors continue to take pokes at ITD as if they somehow weren’t doing their job.”
Arguing that the case had become more political than legal in nature, he showed a web page from the website of the petititioners’ nonprofit legal firm, Advocates for the West, that he contended was a fund-raising effort. Referring to proposed megaloads, it carried the headline, “Axels of Evil.”
Stidham said Idaho has 21,000 miles of scenic byways, but, “There are no restrictions on commercial use based on a scenic byway.” He began projecting photos and videos of the area in question to demonstrate that it already has commercial activity.
This drew a heated objection from Lucas, on the grounds that it was new evidentiary material, which had been disallowed for the hearing. Advocates for the West had attempted to enter affidavits from other residents about the effect that the loads would have on them, but had been denied. Clark sustained the objection but told Stidham he would consider the visual materials outside the hearing.
Stidham projected a map that showed where two of the petitioners live, in relation to a small bridge and a turnout where they felt the megaloads would have a particular adverse effect on them. He said the bridge was about 0.4 miles from the petitioners’ home, which was 100 yards up a hill behind trees, and the turnout was about 0.25 miles from their house.
He displayed overheads that showed financial damages to Conoco from the delayed shipments. Lucas objected, but was overruled. The figures showed an anticipated $490,000 loss to Conoco this month, about $2.5 million in losses since the legal proceedings began in August, and a projected total of $40 million in losses if the refinery were shut down to undertake additional construction.
“This is really about a Billings refinery that employs 400 people,” he said. “To assert that there’s no finding of necessity, no fact of necessity . . . is a little bit difficult to take.”
Stidham said because proper procedures had been followed by Conoco and ITD, “Our position is that there’s nothing left to intervene in.”
He likened the petition to upsetting a negotiation between two parties. The state supreme court’s decision established a lack of jurisdiction but did not give the proposed intervenors an open road to formal legal proceedings, he claimed. Nor had the petitioners shown that they have a “protected right” that is being threatened by the shipments. Assertions they made their affidavits were vague and suppositional, he said.
These points were elaborated upon by ITD’s counsel, J. Tim Thomas, who said the petitioners had not established a direct and substantial interest in the effect on them of the four loads. He said some of their complaints were about larger policy concerns, such as the possibility of establishing a high-and-wide corridor, that were not within ITD’s purview. Others, which concerned use and travel of the highway and health and safety considerations, had been properly dealt with already by ITD, he said.
A ‘CORPORATE GAMBLE’?
Lucas was allowed a rebuttal, in which he charged that both ITD and Conoco were trying to make the case that the petitioners should have done something else at an earlier time and did not do so, which means they can do nothing now. “The suggestion that we sort of laid in the weeds and waited for a chance to intervene is not true.”
He also pointed out that the Idaho permits, which were issued earlier this month, are contingent upon the issuance of permits by Montana, which has not done so.
Montana’s law would require it to conduct an environmental assessment, he said, which it instigated for the Imperial Oil shipments but not for the Conoco ones. Lucas said Montana Department of Transportation “clearly” has a regulation limiting the halting of traffic for megaloads to 10 minutes between pullouts.
Whether or not Idaho’s regulations allow only 10 minutes or more between pullouts is a main point of contention, but Emmert International’s transportation plan for the Idaho part of the journey has a number of segments that would take more than 10 minutes between pullouts.
“They made a corporate gamble,” Lucas said of Conoco, “planning to rush it through … and that’s not right.”