Ports Respond to ATA Law Suit

[HardTimeTrucker]

August 25, 2008
From OOIDA -- LandLine
The ports of Los Angeles and Long Beach filed a 60-page response to the American Trucking Association’s lawsuit – capping a week chock-full of port emissions news.

The ATA lawsuit filed in the United States District Court for the Central District of California claims federal regulations protecting interstate commerce prevent the ports from requiring that truckers be licensed concessionaires in order to enter the ports.

In response to ATA’s claims, port attorneys contend that the ports are landlords issuing proprietary rules rather than regulations, and that being landlords negates ATA’s argument that trucks are protected under federal regulations governing interstate commerce.

“ATA, supported by declarations from just three of its trucker members, has brought this action to stop the clean truck program and, specifically, to enjoin the concession contract programs, which are to take effect on Oct. 1, 2008,” the filing states.

“In arguing that the ports’ concession contract programs are pre-empted by section 14501 (U.S. Title 49, Sec. 14501, which gives federal protection of interstate commerce) ATA surprisingly says not a word about the well-established market participant doctrine.

“As we will show, the concession contract aspect of the clean trucks program does not constitute ‘regulation’ as that concept is understood under the market participant doctrine but instead reflects the proprietary action of the Ports in their capacity as commercial enterprises and landlords.”

Officials with the ports approved clean truck programs that will require trucks to meet 2007 engine emissions standards by December 2012, although that implementation may be delayed because of legal and regulatory action.

The programs also phase in requirements that all trucks entering the ports be licensed concessionaires – a status designated by the ports that allows certain trucking companies access into the ports.

The ATA’s suit seeks an injunction to prevent the ports from beginning the concessionaire portion of the clean trucks program.

Both sides are scheduled to present their arguments before a federal judge on Sept. 8.

The ATA appears to be at odds with at least two major carriers with memberships in the association who signed up this week to be concessionaires at the ports.

The Port of Los Angeles announced Thursday that Phoenix-based Knight Transportation and Swift Transportation Inc., signed letters of intent to be concessionaires at the port. American Shipper magazine reported the companies stand to receive $20 million in incentives from the ports for bringing an estimated 2,000 emission-compliant trucks to the port.

And lastly, but importantly for owner operators, the Owner-Operator Independent Drivers Association appears to have scored a victory within the clean trucks program by allowing for occasional visits by long-haul truck drivers.

OOIDA’s Joe Rajkovacz, Rick Craig, Todd Spencer and Laura O’Neill have worked with Port of Los Angeles officials for months to secure a day pass system for long-haul truckers that will give them access to the ports for occasional visits.

Officials from the ports of Los Angeles and Long Beach announced in mid-August a 12-trip-per-year day pass system for long-haul trucks. The announcement came at the California Highway Patrol-sponsored Commercial Vehicle Safety Summit in California, attended by Rajkovacz.

“It’s apparent that both ports are working together to institute the day-pass system,” Rajkovacz said. “The Association’s efforts to get a day pass for long haul truckers is bearing some fruit.”

– By Charlie Morasch, staff writer
[e-mail]

[HardTimeTrucker]

“It’s apparent that both ports are working together to institute the day-pass system,” Rajkovacz said. “The OOIDA Association’s efforts to get a day pass for long haul truckers is bearing some fruit.”



I wouldn't be congratulating myself there just yet OOIDA.
This so-called day pass can only be used 12 times a year to exempt you from being ousted as an owner-operator trucker from the port under the LA clean truck plan costing a whopping $100.00 dollars per trip. What good does that day pass do for the thousands of your own OOIDA container hauler members who move those boxes over the road several times a week from the port terminals?

[greaseman]

Truckers Group Seeks Relief on Port Concessions
August 27, 2008

The American Trucking Associations with the support of its Intermodal Motor Carriers Conference filed suit in the U.S. District Court in California challenging the port "Concession Plans" as approved by the cities of Los Angeles and Long Beach and their harbor commissions. The groups filed the suit in late July.

The plans will limit access to the ports to only those trucking companies that have entered into concession contracts approved by the port program administrator.

The concession plans impose a broad range of operational requirements that create a regulatory environment similar to state intrastate economic regulation. The ports have acknowledged that these intrusive regulatory systems will result in far fewer trucking companies being able to service the ports, reducing competition.

"We firmly believe that these concession programs unlawfully re-regulate the port trucking industry to the detriment of motor carriers, shippers, and the businesses and consumers that depend on the products that are handled at those ports," said ATA President and Chief Executive Officer Bill Graves. "We are particularly concerned with the Port of Los Angeles' concession requirement that will lead to a complete ban of the use of independent contractor/owner operator drivers in servicing that port's operations within five years. That requirement, which has nothing to do with the clean air goals of the ports' Clean Truck Program, threatens a well-established trucking industry operational practice that provides efficiencies and the flexibility needed for the trucking industry to effectively serve our customers."

Graves emphasized that the litigation is not aimed at and should not interfere with the ports' clean air efforts. "Despite the additional costs that our industry will incur, we strongly support the ports' efforts to reduce truck emissions, and our lawsuit does not challenge any aspect of those efforts," Graves said.

"We are challenging only the intrusive and unnecessary regulatory structure being created under the Concession Plans," IMCC Executive Director Curtis Whalen said. "As Congress recognized when it created price, routes, and services pre-emption, regulatory schemes like the Concession Plans burden interstate commerce and are bad for the American economy."

In its filing, ATA specifically asserts that the ports' actions violate the federal statutory provision (49 U.S.C. § 14501) that prohibits states or their political subdivisions from enacting or enforcing a legal requirement that is "related to a price, route, or service of any motor carrier." The filing points to a host of regulatory requirements (for example, submission of truck-maintenance; safety and parking plans; equipment marking and tracking; financial oversight; routing mandates; and periodic reviews and audits) that will dramatically affect a motor carrier's operations at the ports in terms of price, routes, and services.

The filing also relies heavily on the U.S. Supreme Court's recent unanimous ruling interpreting that federal pre-emption provision. Rowe v. New Hampshire Motor Transport Ass'n, 128 S.Ct. 989, 995 (2008). Citing language in that case, the trucking industry papers argue that laws like the Concession Plans that substitute "governmental commands for 'competitive market forces' in determining the services that a motor carrier will provide" are pre-empted.

In response to the lawsuit, the ports of Los Angeles and Long Beach filed their opposition on Aug. 21, in the U.S. District Court in Los Angeles.

The ports' response demonstrates that the requested injunction is without legal basis for three reasons:

• First, the statute that the ATA relies upon does not apply to the special tidelands property on which the ports are located. The U.S. Supreme Court has previously decided that the tidelands were granted to California directly under the U.S. Constitution and subsequently granted to the cities. Therefore, absent explicit congressional intent -- which is not present in the federal statute relied upon by the ATA – a federal statute will not interfere with the ports' rights to manage and control these sovereign lands as they see fit.

• Second, the statute does not apply to actions taken by the ports as landholders and as "commercial enterprises … in the business of providing world-class port facilities and services." The ports rely on many U.S. Supreme Court and Ninth Circuit cases which recognize that the "Market Participant Doctrine" allows programs such as the Clean Truck Program concession requirement.

• Third, the statute clearly does not apply to port actions directed to the safety and security of the ports, which are also among the major goals of the Clean Truck Program concession requirement.

The ports' opposition also emphasizes that the ATA's alleged injuries are merely financial in nature and, therefore cannot justify the extraordinary action of the preliminary injunction it seeks. Furthermore, these claimed financial injuries are more than outweighed by the public health and security interests of those who work at and live near the ports.

Port of Los Angeles Executive Director Geraldine Knatz said, "I believe that a substantial delay in the implementation of the Clean Truck Program will have dire consequences for the air quality in the area in and around the port, for the people who work at the port or live nearby or near the transportation corridors used by trucks serving the port, and for the future of the Port as an enterprise." "The ATA lawsuit directly attacks the ports' efforts to dramatically reduce truck-related pollution and improve the safety, security and efficiency of port operations," said Port of Long Beach Executive Director Richard Steinke. "We strongly believe that our plan is lawful, and we will vigorously oppose any action that will delay the Clean Truck Program."

The court will hold a hearing for preliminary injunction on Sept. 8 and a decision is expected sometime after that date. The ports are committed to moving forward with the Clean Truck Program as planned on Oct. 1.

[greaseman]

I agree. I have lost all respect for OOIDA over this. They joined with the green groups and abandoned their trucker membership who works the ports. I can't believe they were so ignorant to the facts of how many of us own trucks who operate over the road pulling containers weekly. There has to be thousands of OOIDA members that are involved in this business. Good-bye Owner Operator Independent Driver Association. This is one more trucker that will not remain a member of your association after this blunder on your part

[petedabroker]

Find out where the OOIDA funding for these law suits is now coming from. I would bet its no longer the OO's, and is now the Steamship Companies, maybe even the Teamsters in some parts. Wonder if a behind the curtain deal was made between Swift/Knight and others with the Teamsters? Wonder what the new price structure for all these new , clean and very attractive wheeled wonders is going to cost? Wonder if the shipping community is ready for those price increases per dray? Wonder if they are even aware of these goings ons? Wonder if California got together with Wal-Mart and told them of their pending deals? This supply chain will add untold numbers of dollars to the door to door rates. Target prices will look like Macy's in two or less years. Remember once they are in place, they get to name their prices. Wonder if the FTC has been made aware of any of this? Crazy!!!!!!