On Nov. 24, when hearing officer Merlyn Clark recommended that formal proceedings be held concerning the U.S. Highway 12 megaloads issue, he was the seventh independent legal expert to provide an opinion on the case. Taken together, the Idaho district court judge and five state supreme court judges who preceded him were evenly divided on whether ConocoPhillips should be allowed to transport its four loads across northern Idaho to Montana without further ado.
This isn’t to say the three supreme court judges who had ruled Nov. 1 in favor of Conoco necessarily supported the shipments of massive refinery equipment. That court concerned itself with the question of whether it had jurisdiction to even listen to the arguments.
They ruled that certain procedural steps had to be taken before the proper conditions existed for a formal hearing. Those steps were then initiated by attorneys for the three Idaho residents who brought the suit. The Idaho Transportation Department (ITD) responded with further steps, which led to the hearing and Clark’s decision.
The supreme court’s considerations of jurisdiction had arisen in the midst of many other questions. During that hearing, both sides put forth arguments about whether or not it is a good idea to transport the loads on Highway 12, the only main road available to area residents, which would be completely blocked during the passage of the trucks.
In detailed briefs and long presentations, all the primary legal issues were addressed: the feasibility and necessity of using Highway 12, the safety and convenience of the general public, and whether the three residents had a direct and substantial interest in the proceedings.
The hearing over which Clark presided contained such arguments, but it mostly focused on whether the three residents would be personally affected by transport of the four loads in ways that were greater than those of the general public.
At the hearing’s outset, Clark declared he would not consider other potential megaloads in his deliberations, and he did not believe that permitting the four loads to be transported would open the door to more such shipments. But he added that his preconceptions were subject to change if arguments convinced him otherwise.
A few days before Clark’s decision was announced, one of the petitioners, Linwood Laughy, guessed that his side would lose, “because it is hard to argue that just four loads will damage the tourism industry.”
Indeed, a main objective of the hearing was to determine whether the three petitioners, who all work in the tourism industry, would be directly affected by the four loads. Conoco’s attorneys put much emphasis on this question. The residents’ lawyers also addressed the issue, but positioned it within a larger canvas of what it would mean to let the loads go without holding formal court proceedings.
Clark’s 20-page recommendation says health and business concerns of the petitioners show they have a direct and substantial interest in allowing the loads to go. Pointing to a rule that says their interests must not “unduly broaden the issues,” he stresses that the prospect of other megaloads is “not relevant” to the case.
Apparently, Clark decided that fully blocking the road, despite pulloffs at regular intervals, might put the residents at risk. A tempting interpretation of all this is that the big picture drawn by the petitioners’ lawyers, which included long-term preparations by ITD for many megaloads on the highway, was persuasive despite Clark’s protestations that other potential shipments are irrelevant.
In any case, Borg Hendrickson, one of the petitioners, offered what a formal hearing means to her. “It is good news that a neutral lawyer has said, yes, residents and business owners who live, work and recreate along U.S. Highway 12 do have a voice in government agency dealings that directly affect them.”