As has already been widely reported, an Idaho judge in Lewiston yesterday struck down permits issued by the Idaho Department of Transportation to allow huge trucks to ship oil refinery equipment up the Clearwater / Lochsa corridor. The judge agreed with local plaintiffs that the shipments were a threat to public safety and that the shipments violated ITD’s own rules. ITD could appeal the ruling, or they could go back to the permitting drawing board to try to solve the problems identified by the judge.
Although taking place a couple of drainages to the south of KEA’s Coeur d’Alene basin headquarters, the issue is one we are watching closely — in part, because KEA member and friend Peter Grubb of ROW Adventures is one of the plaintiffs in the case. Grubb operates the very popular River Dance Lodge on the Lochsa and the shipments slowing traffic on the highway for days at a time would be a major impact on the Lodge’s atmosphere and experience.
But we are also watching because the case offers an important lesson to other agencies of Idaho state government. In Judge Bradbury’s written opinion (available here) he takes issue with ITD’s decision-making process:
“It is extremely difficult to determine when the decision was made and therefore what portion of the record was relied on by the person who made the decision. The Memorandum Decision was dated August 20, 2010… The drums have been at the Port of Lewiston since May.”
The Judge goes on to say:
“The difference between making findings and conclusions to justify a decision already made and the rigor of reasoned discretion to arrive at a decision is one of kind, not degree. The U.S. Supreme Court has held that these types of “post hoc rationalizations” are not entitled to the substantial deference they otherwise would enjoy.”
This is what lawyers call dicta – words from the judge that aren’t necessary to the decision, but worth saying nonetheless. And in this case, they are words of warning about a common Idaho agency decision-making practice of “decide, announce, and defend” rather than employing careful consideration of public comment and requiring substantial evidence to support a decision.
In other words, in this case, ITD cannot issue a permit for these shipments by merely arguing, after the decision was already made, that the public’s safety and convenience are not adversely impacted, ignoring actual evidence to the contrary.
The dicta from the judge is a restatement of a fundamental tenet of due process in administrative decision-making, and his pointed reminder is one which Idaho agencies would do well to take notice.