W. JONES, Justice.
The Idaho Transportation Department ("ITD") granted permits to ConocoPhillips Company ("ConocoPhillips") to transport oversize loads of refinery equipment down U.S. Highway 12 in northern Idaho. The ITD and ConocoPhillips appeal the district court's decision to reverse these permits.
ConocoPhillips purchased two coke drums to replace worn out components at its refinery in Billings, Montana, and seeks to move them down Highway 12 from Lewiston, Idaho, to the Montana border. Highway 12, also known as the Northwest Passage Scenic Byway, runs through the Clearwater National Forest and, for much of its length, borders the Clearwater and Lochsa Rivers.
The maximum size and weight of vehicles and their loads allowed on state highways are prescribed by statute. See I.C. §§ 49-1001, -1002, -1010 (defining the maximum gross load weight and maximum vehicle and load sizes allowed on the highway). ConocoPhillips's drum shipments will be large enough to take up the entire two-lane highway, requiring a rolling roadblock along with a number of traffic flaggers and escort vehicles. For permission to exceed the weight and size specifications, ConocoPhillips had to apply to the ITD for "overlegal" permits under the ITD's rules regarding special permits. IDAPA 39.03.10.100; see I.C. § 49-1004 (allowing ITD to consider applications for special permits).
Respondents, who live and operate businesses along the Highway 12 corridor, oppose the shipment. They assert that moving the loads down Highway 12 will degrade the local tourism industry, disturb the peaceful enjoyment of their homes, impede highway users from reaching medical care in an emergency, and could create logistical and environmental problems if a drum topples into the river. Respondents voiced their disapproval by sending numerous comments to the ITD but did not intervene as parties in the application process.
Although the ITD had not yet issued the permits to ConocoPhillips, on August 16, 2010, Respondents filed a Petition for Judicial Review and Request for Immediate Injunctive Relief. The district court granted a temporary restraining order the following day, enjoining the ITD from issuing the overlegal permits. On the morning of August 19, 2010, the district court held a telephonic hearing in which it granted a motion by ConocoPhillips to intervene. It also lifted its restraining order, finding that it did not have jurisdiction over the matter until the ITD issued a final agency order. In response, the ITD granted four overlegal permits to ConocoPhillips the following day. Then, on August 24, after a hearing on the merits, the district court reversed the ITD's decision to issue the permits, reasoning that the agency did not properly consider public safety and did not reasonably determine that the shipment plan was necessary.
The ITD and ConocoPhillips (collectively "Appellants") both appealed the district court's decision. ConocoPhillips then filed a Motion for Expedited Hearing, which this Court granted. Oral arguments before this Court occurred on October 1, 2010.
On appeal, Appellants contend that Respondents did not properly articulate any substantial rights that would be prejudiced if the shipment were allowed to occur. They further argue that there was substantial evidence in the record to justify the permits because the ITD correctly considered the public's safety and convenience and determined that it was reasonably necessary to use Highway 12.
"When reviewing a decision of the district court acting in its appellate capacity, the Supreme Court directly reviews the district court's decision." Reisenauer v. State, 145 Idaho 948, 949, 188 P.3d 890, 891 (2008). The district court shall affirm the agency's action unless the agency's decision was:
I.C. § 67-5279(3). In addition to proving one of the enumerated statutory grounds for overturning an agency action, the challenging party must also show prejudice to a substantial right. Id. § 67-5279(4); Lane Ranch P'ship v. City of Sun Valley, 145 Idaho 87, 89-90, 175 P.3d 776, 778-79 (2007). The interpretation of a statute is an issue subject to free review by this Court. Neighbors for Responsible Growth v. Kootenai Cnty., 147 Idaho 173, 176, 207 P.3d 149, 152 (2009).
The Idaho Constitution allows the Legislature to delimit the district courts' appellate jurisdiction. Idaho Const. art. V, § 20.
None of the parties raised the issue of whether the district court had jurisdiction under § 67-5270 to consider Respondents' petition for judicial review. Nonetheless, the courts are obligated to ensure their own subject-matter jurisdiction and must raise the issue sua sponte if necessary. Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008).
Idaho Code § 67-5270(2) provides that "[a] person aggrieved by final agency action other than an order in a contested case is entitled to judicial review under this chapter," provided the petitioner exhausts the available administrative remedies and complies with other procedural requirements.
Determining whether the definition of an order applies requires a two-step analysis. Westway Constr., Inc. v. Idaho Transp. Dep't, 139 Idaho 107, 112, 73 P.3d 721, 726 (2003). First, to have an order, the Legislature must have empowered the agency to determine the particular issue. Id. The Legislature has enabled the ITD to issue, in its discretion, permits for vehicles traveling on the highway exceeding the legal weight or size. I.C. § 49-1004(1). This includes the power to "limit the time of use and operation. . . and may contain any special conditions and require any undertaking or other security" that the ITD deems necessary. Id. § 49-1004(1)(a). Pursuant to this grant of authority, the ITD has adopted a variety of rules and standards to govern the permit process, including specifically that applicants provide a written plan for moving overlegal loads down the highway. IDAPA 39.03.09 to .23. Thus, the Legislature has enabled the ITD to make a determination in this case.
Second, the decision must determine "the legal rights, duties, privileges, immunities, or other legal interests" of one or more persons. Westway Constr., 139 Idaho at 112, 73 P.3d at 726. This Court has already found that ITD encroachment permits are orders because they determine "the legal rights and interests" of the applicant seeking to access their property from a state highway. Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 239, 207 P.3d 963, 970 (2009). Similarly, the overlegal permits here would grant to ConocoPhillips the right to transport its overlegal coke drums down a state highway, in addition to imposing numerous public-safety requirements. See IDAPA 39.03.09.200 (specifying the extent of the ITD's authority to issue permits). Because the permits are an "order" as defined by the IAPA, they were orders issued in a contested case.
Subsection 2 does not permit review of the ITD's order because it is instead meant to enable challenges either to an agency rule or an agency's compliance with a legal duty. Overall, the IAPA contemplates three distinct types of agency actions that could be reviewed by a court: (1) rules, (2) orders, and (3) the performance of a duty placed on the agency by law. I.C. § 67-5201(3).
The distinction between an order and a rule "turns primarily on applicability: orders —like judicial decrees—affect identified parties; rules—like statutes—affect classes of persons." Michael S. Gilmore & Dale D. Goble, The Idaho Administrative Procedure Act: A Primer for the Practitioner, 30 Idaho L.Rev. 273, 284 (1993) (emphasis omitted). Unlike a generally applicable rule, the permits particularly affect only ConocoPhillips's right to move a load down a state highway. The permits are therefore an order, not a rule, and are not reviewable under subsection 2 because they were orders in a contested case. Similarly, there are other duties that are imposed on the ITD by statute or judicial mandate, such as, for example, the obligation to adopt a uniform system of traffic-control devices. Id. at 289; I.C. § 49-201(3). A failure or deficiency in performing this duty would also be an agency action reviewable under subsection 2. Again, however, the permits at issue in this case affect ConocoPhillips's particular rights, privileges, and duties. They are therefore an order, not the product of an improperly performed duty. Respondents contend that by issuing the permits, the ITD incorrectly fulfilled its "duty" to ensure the public's safety and convenience. This in reality is just a substantive challenge to ITD's order that questions whether the ITD correctly applied the standards governing special permits. Consequently, no jurisdiction is available under I.C. § 67-5270(2).
The Dissent asserts that this is not a contested case because the ITD utilized informal procedures in processing the case.
The IAPA provides that an "informal disposition may be made of any contested case by negotiation, stipulation, agreed settlement, or consent order." I.C. § 67-5241(1)(c). It goes on to specifically state that "[i]nformal settlement of matters is to be encouraged." Id. The statute represents a conscious legislative effort to "encourage informal dispute resolution" related to all kinds of agency action. Gilmore & Goble, supra, 30 Idaho L.Rev. at 280; see also Act of April 8, 1992, ch. 263, § 25, 1992 Idaho Sess. Laws 783, 802 (adding I.C. § 67-5241).
However, an agency cannot unilaterally decide to utilize informal procedures to the exclusion of formal proceedings. "Unless all parties agree to the contrary in writing, informal proceedings do not substitute for formal proceedings and do not exhaust administrative remedies, and informal proceeding [sic] are conducted without prejudice to the right of the parties to present the matter formally to the agency." IDAPA 04.11.01.103.
Although the ITD has adopted substantive standards for issuing special permits, the Attorney General promulgates rules of procedure for agencies to use when executing their general functions, including adjudicating contested cases. Id. § 67-5206(2), (4). These rules apply unless an agency has devised its own procedural scheme, which the ITD has not. Id. § 67-5206(5). The ITD rules also specifically state that appeals in special-permit applications are governed by the Attorney General's rules. IDAPA 39.03.11.003. The Idaho Rules of Administrative Procedure of the Attorney General ("the Rules") can be found at IDAPA 04.11.01.000 to .999.
The Rules allow informal proceedings to be followed in contested cases before an agency. IDAPA 04.11.01.100. "Unless prohibited by statute, the agency may provide for the use of informal procedure at any stage of a contested case." IDAPA 04.11.01.101. There is ample authority supporting an agency's decision to handle a dispute informally.
The Dissent asserts that only formally adjudicated cases are contested cases under the IAPA. To the contrary, no statute or rule makes formal proceedings a prerequisite to a contested case. A contested case is defined both by statute and by the Rules as a "proceeding by an agency . . . that may result in the issuance of an order." Id. § 67-5240; see also IDAPA 04.11.01.005.06 (stating that a contested case is a "proceeding which results in the issuance of an order"). Moreover, Rule 50 states that the rules governing both informal and formal proceedings apply to agencies in contested cases. IDAPA 04.11.01.050.
Following the plain text of the statute, this Court has twice stated that there are only two elements to a contested case: (1) the agency must be empowered to determine the particular issue, and (2) the action must fit the statutory definition of an "order." Lochsa Falls, 147 Idaho at 237, 207 P.3d at 968; Westway Constr., 139 Idaho at 111-13, 73 P.3d at 725-27. This Court has never otherwise suggested that only formally adjudicated cases are contested cases. See Barron v. Idaho Dep't of Water Res., 135 Idaho 414, 417, 18 P.3d 219, 222 (2001) (stating that "all proceedings by an agency . . . that may result in the issuance of an `order'" are governed by the IAPA (emphasis added)); Dupont v. Idaho State Bd. of Land Comm'rs, 134 Idaho 618, 622, 7 P.3d 1095, 1099 (2000) ("I.C. § 67-5240 defines any proceeding that may result in an order as a contested case, unless otherwise provided." (emphasis added)). Whether formal procedures were followed is irrelevant to the definition of a contested case.
The Dissent nonetheless contends that there was no contested case because the ITD stated that it declined to initiate one and indicated that it did not regard ConocoPhillips's application for a permit as a contested
Idaho Code § 67-5241(1)(a) does not state that an agency may decline to follow the required statutory procedures in a contested case. It states that an agency may decline to initiate a contested case. It recognizes that some agencies have a prosecutorial function and, when exercising that function, have discretion to decline to prosecute. Agencies can have both prosecutorial and adjudicatory functions. As IDAPA 04.11.01.420 states, "[w]hen statute assigns to an agency both (1) the authority to initiate complaints or to investigate complaints made by the public, and (2) the authority to decide the merits of complaints, the agency is required to perform two distinct functions: prosecutorial/investigative and adjudicatory." The prosecutorial function includes deciding whether or not to issue a complaint. As IDAPA 04.11.01.420.01 states, "[t]he prosecutorial function includes presentation of allegations or evidence to the agency head for determination whether a complaint will be issued. . . ." A "complaint" charges a person with a violation of the law. "All pleadings charging other person(s) with acts or omissions under law administered by the agency are called `complaints.'" IDAPA 04.11.01.240.01. The filing of a complaint initiates a contested case. See IDAPA 04.11.01.210 ("Pleadings in contested cases are called applications or claims or appeals, petitions, complaints, protests, motions, answers, and consent agreements."). Idaho Code § 67-5241(1)(a) simply provides that an agency has discretion to decline to prosecute—to decline to initiate a contested case.
For example, under the Idaho Bar Commission Rules ("I.B.C.R."), Bar Counsel investigates all grievances that allege violations of the Rules of Professional Conduct. I.B.C.R. 504(b), 509(a). Bar Counsel has a number of options when handling a grievance, including the power to seek formal charges. I.B.C.R. 509(c). Yet, after an informal investigation, Bar Counsel often chooses to simply disregard the matter, to issue an informal admonition, or to privately reprimand the charged attorney. I.B.C.R. 509(b), (c). While all of these actions would constitute the agency's disposition in a dispute, none involves an order that determines the attorney's legal rights, duties, or privileges. These actions would reflect the presiding officer's decision to "decline to initiate a contested case" under I.C. § 67-5241(1)(a).
The Dissent also argues that, since apparently no application was filed with the ITD until the day it issued the permits, no contested case was ever initiated. It cites Rule 200 for the proposition that "an application is the initial pleading that commences a contested case." This position ignores the plain text of Rule 200, which simply provides that representatives for service must be named in "[t]he initial pleading of each party at the formal stage of a contested case." IDAPA 04.11.01.200 (emphasis added). The rule on its face does not require any pleading to commence a contested case, but merely governs how pleadings are filed in the formal stage of a contested case. ConocoPhillips did not have to file an application to initiate a contested case.
Therefore, because the issuance of the permit was an order in a contested case, this Court does not have jurisdiction under I.C. § 67-5270(2).
Subsection 3 states that "[a] party aggrieved by a final order in a contested case decided by an agency . . . is entitled to judicial review under this chapter," again if some additional procedural requirements are met. I.C. § 67-5270(3) (emphasis added). "`Party' means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." Id. § 67-5201(13).
Respondents were not admitted as parties at any time; neither did they seek admission. Respondents sent a number of written comments and objections to the ITD to oppose ConocoPhillips's application for an overlegal permit, but never filed as intervenors or any other kind of party. Despite the fact that ConocoPhillips and the ITD had undergone months of discussion over this matter, Respondents simply filed a petition for judicial review just as the ITD was preparing to issue the overlegal permits. They therefore were not parties entitled to judicial review under I.C. § 67-5270(3).
Allowing only a party, and not simply any interested person, to petition for judicial review of an order is a natural corollary to the exhaustion doctrine, which requires all petitioners to exhaust their administrative remedies before appealing to the district court. See I.C. § 67-5271 (imposing exhaustion requirement). The exhaustion doctrine flows from a number of important policy considerations, "such as providing the opportunity for mitigating or curing errors without judicial intervention, deferring to the administrative processes established by the Legislature and the administrative body, and the sense of comity for the quasi-judicial functions of the administrative body." White v. Bannock Cnty. Comm'rs, 139 Idaho 396, 401-02, 80 P.3d 332, 337-38 (2003). Being admitted as parties would have enabled Respondents to actively participate in the application process at the agency level. Shokal v. Dunn, 109 Idaho 330, 334, 707 P.2d 441, 445 (1985). If Respondents had formally intervened, the agency could have brought its expertise to bear in considering the parties' competing interests, heard Respondents' evidence and testimony, and corrected substantive mistakes. Instead, Respondents sought to circumvent the administrative process by going directly to the district court to block ConocoPhillips's overlegal permits from issuing.
Counsel for Respondents suggested at oral argument that, since the ITD and ConocoPhillips were undergoing an informal application process, the Respondents could become parties by informally opposing the permits. Neither the IAPA nor the Rules, however, recognize or create a classification of "informal parties." Although the IAPA expressly encourages parties and agencies to reach informal dispositions, I.C. § 67-5241(1), a person asserting party status must still be admitted or rightfully be seeking admission as a party, id. § 67-5201(13). The law distinguishes between informal and formal proceedings merely to specify what procedures the agency must undergo in adjudicating a contested case, such as appointing hearing examiners and building a formal record. See IDAPA 01.11.01.100 (stating that "[i]nformal proceedings are proceedings in contested cases . . . to be conducted using informal procedures" such as a proceeding without a formal record, designation of parties, hearing examiners, or other formal procedures). Persons seeking admission must still file a protest, a petition to intervene, or another similar pleading to be admitted as a party. IDAPA 04.11.01.250, .350, .353. Because Respondents never sought to be admitted as parties, it is irrelevant whether the proceedings were in a formal or informal phase.
A party aggrieved by a final order in a contested case can seek judicial review. I.C. § 67-5270(3). Not only must the person seeking judicial review be a party, but there must be a final order. It does not appear in this case that there is yet a final order that is subject to judicial review.
The only document in the appellate record that could be a final order is the "Memorandum of Decision" issued on August 20, 2010, by Alan Frew, Administrator of the Division of Motor Vehicles, Idaho Transportation Department. For that to be a final order, it must fit within one of three definitions, and it does not.
"If the presiding officer is the agency head, the presiding officer shall issue a final order." I.C. § 67-5246(1). "`Agency head' means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law." I.C. § 67-5201(4). The Idaho Transportation Board is the agency head of the Idaho Transportation Department. I.C. §§ 40-301 & 40-501. Because Mr. Frew is not the Board, his memorandum cannot constitute a final order issued by the agency head.
"If the presiding officer issued a recommended order, the agency head shall issue a final order following review of that recommended order." I.C. § 67-5246(2). Mr. Frew's memorandum does not constitute a recommended order because "[a] recommended order shall include a statement of the schedule for review of that order by the agency head or his designee." I.C. § 67-5244. There is no such statement in the memorandum. In addition, a recommended order is not a final order. The agency head must still issue a final order after reviewing the recommended order, and the record does not reveal any such final order issued in this case.
"If the presiding officer issued a preliminary order, that order becomes a final order unless it is reviewed as required in section 67-5245, Idaho Code." I.C. § 67-5246(3). Mr. Frew's memorandum was not a preliminary order because it did not include "(a) A statement that the order will become a final
In summary, the record does not indicate that the ITD ever issued a final order in this case. Absent a final order, any petition for judicial review is premature.
Because the Respondents are not parties, and because there was no final order issued, there is no jurisdiction under I.C. § 67-5270(3).
The Dissent argues that even if this were a contested case, judicial review is premature and the permits should be remanded to the ITD for formal adjudication procedures. It refers to Rule 102, which states that "any person participating in an informal proceeding must be given an opportunity for a later formal administrative proceeding before the agency, at which time the parties may fully develop the record before the agency." IDAPA 04.11.01.102. The Dissent maintains that Respondents were automatically entitled to formal proceedings because they submitted comments to the ITD during the application process.
Because the district court, and thus this Court, lacks jurisdiction, the only remedy this Court may order is a dismissal. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." I.R.C.P. 12(g)(4). Therefore, this Court must dismiss the case and does not have the power to remand to the agency for further proceedings.
Further, regardless of whether Respondents were entitled to an "opportunity" to participate in formal proceedings here, they never took the basic procedural steps necessary to request them. "Formal proceedings. . . must be initiated by a document (generally a notice, order or complaint if initiated by the agency) or another pleading listed in Rules 210 through 280 if initiated by another person." IDAPA 04.11.01.104. Rules 210 through 280 list a number of pleadings a person may file, including "applications or claims or appeals, petitions, complaints, protests, motions, answers, and consent agreements." See IDAPA 04.11.01.210. Respondents filed no such documents. They therefore are not entitled to any formal hearing before the ITD. Respondents would only be entitled to participate in formal proceedings if they became parties before a final order was entered.
It is no mystery why persons must initiate formal proceedings by filing a pleading. This rule prevents anyone from doing what Respondents did here: sit out the agency proceedings, show up in court just as a decision is made, and force the agency to litigate the matter. As the Dissent itself emphasizes, the ITD handles roughly 28,000 overlegal permits per year. It would place a crushing burden on state agencies if anyone supposedly aggrieved by an agency action could become a "participant" by commenting on a permit application, then drag the agency into court and force it to hold formal hearings after making its decision. This would eviscerate the administrative process and allow anyone to unfairly prevent an applicant from receiving a license from a state agency.
To summarize our holding today, it is entirely possible that Respondents have real grievances with the ITD's decision in this case, and the Court is sympathetic to those who seek to participate in the government's participation process. Even so, the Constitution and the Legislature have limited the Court's power to act here. Without the authority to consider the Respondent's arguments, the Court's only choice is to remand with instructions to dismiss without prejudice.
The ITD did not request attorney fees on appeal and did not challenge the district court's refusal to award fees below. ConocoPhillips, however, requests fees under I.C. § 12-117(1) and -121, both in the district court and on appeal. Respondents also request
Neither ConocoPhillips nor Respondents are eligible for attorney fees under I.C. § 12-117(1). This provision was amended to permit fees "in any administrative proceeding or civil judicial proceeding." Act of March 4, 2010, ch. 29, 2010 Idaho Sess. Laws 49, 49-50.
ConocoPhillips is also not entitled to fees under I.C. § 12-121. This provision grants discretion to the Court to award fees "[i]n any civil action."
The district court lacked jurisdiction, as does this Court, to consider Respondents' petition for judicial review. The order reversing the ITD's decision to grant overlegal permits to ConocoPhillips is vacated and the case remanded for entry of an order of dismissal without prejudice for lack of jurisdiction. No attorney fees are awarded.
Chief Justice EISMANN and Justice HORTON concur.
J. JONES, Justice, dissenting or, alternatively, concurring in the result.
I dissent because this does not appear to be a contested case under the Idaho Administrative Procedure Act (APA) and the Respondents have the right to seek judicial review of ITD's decision. However, if this is properly considered to be a contested case, I concur that it should be dismissed for the reason that judicial review is premature. No final order has been issued by ITD and Respondents are entitled to the opportunity to request further proceedings.
It is common knowledge that if something does not walk like a duck or talk like a duck, it is probably not a duck. Similarly, if a request for a state permit is not required to be processed as a contested case, if the request is not treated like a contested case by the processing agency, and if the agency does not comply with any of the requirements for handling a contested case, it probably is not a contested case. That is the situation here.
While it is true that requests or applications for state licenses and permits are proceedings that may result in the issuance of an order, as defined in Idaho Code section 67-5201(12), arguably making the proceedings contested cases under Idaho Code section 67-5240, that is not the end of the inquiry. In order to be a contested case, it must be processed in accordance with the statutory requirements in Idaho Code sections 67-5242 through 5253. None of those
Further, as required under Idaho Code section 67-5206(2), the Idaho Attorney General has promulgated rules of administrative procedure that apply to administrative proceedings (AG Rules). IDAPA 04.11.01. According to Rule 1 of the AG Rules, "Every state agency that conducts rulemaking or hears contested cases must adopt individual rules of procedure as required by this chapter. Further every state agency will be considered to have adopted the procedural rules of this chapter unless the state agency by rule affirmatively declines to adopt this chapter, in whole or in part." IDAPA 04.11.01.001.02. ITD has not affirmatively declined to adopt the AG Rules, except in certain narrow respects not relevant here, and therefore the AG Rules apply here. ITD did not follow the contested case rules set out in Subchapter B (Rules 100 through 800) of the AG Rules.
Idaho Code section 67-5240 appears to make every application for a state license, permit, registration, or charter, a contested case subject to the contested case rules. However, the APA requires much more of a proceeding in order to properly categorize it as a contested case. The Legislature obviously recognized that it would be impractical and unnecessary to make each and every one of these proceedings a contested case. Indeed, it would impose a crushing burden on every state agency to have to appoint a hearing officer every time someone walked through the door wanting some sort of permit, or to be licensed as a lawyer, chiropractor, certified public accountant, or the like.
Counsel for the Department conceded at oral argument that this case was not handled as a contested case.
Since the Department did not consider this to be a contested case and did not process it as a contested case but, rather, processed it informally, it is simply not a contested case. The Legislature gives an agency the option to decline to initiate a contested case and that is what occurred here. Therefore, the Respondents are entitled to review under Idaho Code section 67-5270(2) which provides, "A person aggrieved by final agency action other than an order in a contested case is entitled to judicial review under this chapter if the person complies with the requirements of sections 67-5271 through 67-5279, Idaho Code." While the permit and application documents, or the Memorandum of Decision, may be orders, they are not orders in a contested case because this was not a contested case. One need not be a "party" in order to obtain judicial review of a final agency action where the action is something "other than an order in a contested case" under the APA. An aggrieved person may seek judicial review of final agency action resulting outside the context of a contested case. As persons who live along the route and who will be affected by the transportation of the ConocoPhillips units, Respondents certainly appear to be aggrieved persons. As such, they have a right to be heard.
If ITD's declination to initiate a contested case in this matter was invalid for failure to
The procedural analysis is complicated by the uncertainty as to when, or even if, ConocoPhillips/Emmert actually submitted an application for the overlegal permits. None of the parties have pointed to an application by ConocoPhillips, or its agent Emmert, prior to the four permit and application documents dated August 20, 2010. The copies of those documents in the file are not signed. Under the AG Rules, an application is the initial pleading that commences a contested case. IDAPA 04.11.01.200. If no application was submitted prior to August 20, 2010, it may be that a contested case was never properly initiated.
It appears axiomatic that there can be no parties to a contested case until a contested case is initiated. If ConocoPhillips/Emmert did not file an application until August 20, 2010, it could hardly have been a party before that time.
However, assuming that a contested case was initiated some time during the discussions between ConocoPhillips/Emmert and ITD, it was obviously conducted under informal procedure. IDAPA 04.11.01.101. Rule 102 of the AG Rules states:
IDAPA 04.11.01.102. (emphasis added). None of the briefing before the Court discloses a statute that provides for the use of informal procedure with regard to the permits at issue here or that prohibits an opportunity for further formal administrative review. Therefore, persons participating in the informal proceedings at issue here, specifically including Respondents, must be given an opportunity for a later formal administrative proceeding in order to fully develop the record before ITD. While it is not entirely clear from the AG Rules, it appears that persons, other than applicants, who participate in informal proceedings may be entitled to party status when formal proceedings follow the informal proceedings. Such persons may qualify as petitioners (IDAPA 04.11.01.152), complainants (IDAPA 04.11.01.153) or protestants (IDAPA 04.11.01.155). If Respondents do fall within one of these categories, and it appears they might, they become parties upon the commencement of formal proceedings and need not file a petition for intervention to become a party during the course of the formal proceedings.
Furthermore, ITD has failed to issue a final order. The permits and Memorandum
Id. at 114, 73 P.3d at 728. The same situation pertains here. There is no indication anywhere in the "record" that the agency head reviewed or approved the permits or the Memorandum of Decision. Mr. Frew, who issued the Memorandum of Decision, is not the agency head. Neither the Memorandum of Decision nor the permits contain the finality statements required by the APA or by the AG Rules. See IDAPA 04.11.01.740. Furthermore, it should also be observed that the four permit and application documents are only conditional "orders." Each permit states, "Permit not valid until Montana permit has been issued." There is no evidence in the record that Montana has issued permits for the four loads.
Justice BURDICK concurs.
IDAPA 39.03.09.100 (emphases omitted).
