The Idaho Transportation Department (ITD) bowed to a powerful oil company, ignoring procedure and public will to pave the way for the mega-loads.
That’s what lawyers for Advocates for the West were pushing in a hearing Monday on the Highway 12 mega-loads controversy. Last week hearing examiner Merlyn Clark ruled that Advocates of the West, made up primarily of Highway 12 residents, deserved to present their case to have the permits revoked.
The gathering at the Grove Hotel in downtown Boise Monday was high drama, the peak of a storybook battle between the little guy and big business, or a tale of a few selfish people blocking something that would benefit a great many. At issue is the use of Highway 12 to move large oil processing equipment from Lewiston to Billings, Mont.
Advocates for the West attorney Laird Lucas played the underdog story, trying to show the big agency and ConocoPhillips as rolling over regular people, ignoring public comments and suggestions.
“And we heard from the oil industry that drilling in the gulf was OK!” Lucas declared when ITD District 2 maintenance engineer Doral Hoff testified that ITD had concluded the chances of a mega-load tumbling into the Lochsa River, which borders Highway 12, were “very remote.” Several Conoco lawyers at the table yelled out objections at the comment.
“And I’d like to put in an objection to using the Exxon Valdez,” retorted one of the Conoco squad.
The lack of a plan for pulling one of those behemoth “coke drums” out of the river, and the improbability of even being able to get a crane in there to do it was just one of many ITD decisions that Lucas one-by-one detailed in a bird-shot blast at the agency. Claims included that ITD didn’t consider other routes and that it did not properly inform the public of developments. He worked to hammer home a theme: ITD did what Conoco said to do. “Did you meet with Conoco’s lawyers to prepare for this hearing?” Lucas asked ITD’s Alan Frew, administrator of the division of motor vehicles, and other witnesses. Frew said that he had, along with his own lawyers.
Throughout the day, which included testimony from several ITD employees, Conoco lawyer Erik Stidham repeatedly objected to lines of questioning he said had nothing to do with the decision at hand: did ITD follow procedure?
His case was simple: a straightforward presentation of existing policy and a recounting of how ITD has abided by it. Assistant Attorney General Tim Thomas backed him up.
“This case is about discretion. The department of transportation has the right priorities. The department of transportation has done the right thing,” Thomas said in his opening statement. “The department of transportation is not the Legislature. It cannot start making new policy determinations. If the Legislature wants a new policy, the Legislature can do exactly that.”
Things got chippy at times with Lucas pressing witnesses into uncomfortable corners — he confronted Frew about a change he had made to a memorandum of decision, removing a passage saying the trucks would go no more than 25 mph (in part to show that ITD policies aren’t firm and that officials tweaked things to suit Conoco).
“How did this happen?” Lucas asked, implying that Conoco had forced the change. He pressed,”How did this error happen?”
“I made a mistake,” Frew answered, saying he relied on staff to provide information and review documents.
Lucas questioned if Frew had authored the decision he had signed and went on to suggest he didn’t care about preserving public safety or the convenience of the public — two of ITD’s professed goals.
“What we do is we try to balance the needs of all the highway users. Ocassionally a highway user like Emmert (the company slated to transport the coke drums) is going to come along,” said Frew.
Several of the charges boil down to the belief that ITD had long ago, before studies and careful consideration, assured oil companies that they could haul across the state when the time came. Presented as the evidence is the fact that drums were showing up at the Lewiston port before permits were granted and many utility lines crossing Highway 12 have been moved in recent years.
“I was aware there was an urgency on the part of Conoco to get this stuff from one place to another. That didn’t affect me,” said Frew. “The urgency of the corporation wasn’t a consideration.” But Frew said informal assurances may have been given.
The hearing continues Thursday with Advocates for the West calling witnesses.