ConocoPhillips calls opposition ‘unprofessional'

By KIM BRIGGEMAN of the Missoulian | Posted: Thursday, January 13, 2011 10:58 pm

Opponents' claims about an Idaho hearing officer's recommendation to let four megaloads of coke drums roll up U.S. Highway 12 are "unprofessional and without merit," ConocoPhillips says.
In a 36-page brief filed late Wednesday with the Idaho Transportation Department, the oil giant reiterated its impatience over delays to the shipments, the first four nights of which will follow Highway 12 from Lewiston, Idaho, to Lolo Pass.
Conoco said it has already lost more than $4 million due to legal maneuvering by those opposing the loads, and the losses "will soon escalate into the tens of millions of dollars."
"The delays must end," the brief began. "ConocoPhillips needs to get two coke drums to Billings in order to make much needed repairs to its refinery, which is a critical source of domestic energy, supplying over 7 percent of Idaho's gasoline alone."
Idaho Transportation Department attorneys on Thursday issued their own response to the brief opponents filed Monday.
The 13-page ITD brief maintained that, contrary to what foes claim, hearing officer Merlyn Clark applied correct legal standards to relevant evidence, but that most of the evidence foes introduced was irrelevant.
"Although the intervenors now complain about the hearing officer, what really has happened is that the intervenors failed to carry their burden of persuasion in this matter," ITD said.
The decision over whether to permit the shipments lies with ITD director Brian Ness, who said Thursday he'll review the arguments from opponents, ConocoPhillips and his own department as soon as possible. There is no time frame for his decision.
Opponents, represented by the Boise-based Advocates for the West, said Clark merely "regurgitated" the case made by ITD and ConocoPhillips.
ConocoPhillips argued that opponents, whom it referred to as the "Laughy Group," had their fair chance to be heard by Clark, a Boise attorney appointed by ITD to determine the legitimacy of the opposition's arguments.
Conoco said the group "failed to raise any points, legal theories or other reasons justifying any change to the hearing officer's recommendation."
Linwood Laughy of Kooskia, Idaho, was one of three original intervenors in the case, along with wife Borg Hendrickson and Peter Grubb. They were joined by 10 others and approved by Clark in November.
Clark recommended on Dec. 28 that the transportation department issue the four permits, saying evidence showed the loads could be transported safely and with minimum inconvenience. The route follows a narrow, winding National Scenic Byway along the Lochsa and Clearwater rivers.
ConocoPhillips based its charges of unprofessionalism on the exception opponents filed that were signed by the director of Advocates for the West, as well as on a Nov. 10 Associated Press story.
"The exception, signed by counsel Laird Lucas, is in large part an attack on the integrity of the hearing officer, the same man that (sic) approximately 60 days ago, Lucas referred to as a man who ‘commands the respect of all of the lawyers in the state.'
"These unprofessional attacks on (Clark) are all unjustified. Attorneys certainly may disagree with rulings ... but the Laughy Group has no basis to challenge a hearing officer's integrity or competence," ConocoPhillips claimed.
It also said that Clark was correct when he ruled that state law doesn't require Conoco comply with a 10-minute minimum traffic delay when a traffic control plan is in place. Opponents claimed the law did indeed require it.
In its response brief, ITD agreed with the oil company that opponents were putting their own, incorrect spin on the traffic delay law.
"Such an interpretation ... not only removes all discretion from the department, but it ignores the plain language of the (law)," the transportation department said. "As repeatedly explained by the ITD witnesses at the hearing, and as found by the hearing officer, the time limitation ... only applies when there is either no traffic control plan or a lack of adequate detours."
The Montana Department of Transportation has said it's prepared to issue ConocoPhillips permits for the four loads once Idaho gives its approval. MDT has yet to release a final environmental assessment on a proposal by Imperial Oil/ExxonMobil to ship 207 megaloads from Lolo Pass to Alberta, Canada, via Missoula.