Court Denies Calif. Port Stay; ATA Files Expedited Appeal

By Eric Miller, Staff Reporter

This story appears in the Sept. 15 print edition of Transport Topics.

A federal judge last week denied American Trucking Associations’ request for a preliminary injunction against controversial portions of emission-reduction programs at the California ports of Los Angeles and Long Beach. ATA filed an expedited appeal Sept. 10, the day after the ruling.

Meanwhile, officials of both ports — the two largest container-handling facilities in the nation — said they would move forward with their clean truck plans Oct. 1. As well as other goods, the two ports handle a flood of imports pouring into the country from Asia.

ATA filed its appeal with the 9th U.S. Circuit Court of Appeals, said Curtis Whalen, executive director of the federation’s Intermodal Motor Carriers Conference.

U.S. District Court Judge Christina Snyder declared Sept. 9 that a preliminary injunction would “not serve the public interest in any significant way.”

Snyder said she based her ruling in part on finding that the port’s licensed concessionaire plans would enhance security, particularly in screening cargo for weapons of mass destruction and narcotics.

“It certainly was a surprise that she would hang her decision on the security thing,” Whalen said. “The good news is that she seemed to agree with us on the major arguments” contained in ATA’s lawsuit.

Although Snyder said in her ruling that ATA had not made strong enough arguments for her to issue a preliminary injunction, ATA said the judge’s statements hinted the federation could prevail when the case gets to trial.

“When you go to a full trial of this, there’s obviously a different standard of proof,” Whalen said, adding that the judge “basically said on the merits of the case, we have the upper hand.”

A trial date has not been set.

In its lawsuit filed July 28, ATA said it did not object to the emission-reduction portion of the clean truck plans, but the two ports’ concessionaire plans “unlawfully re-regulated the federally deregulated trucking industry.”

Backed by supporting affidavits from three drayage operators, ATA said the Los Angeles concession licensing plan banning owner-operators and permitting only employee drivers would be costly for drayage operators and would damage their businesses.

The Long Beach plan allows independent drayage drivers to service the ports. However, ATA and drayage operators said it’s necessary to service both ports for their businesses to be profitable, since the ports are side by side. So, in effect, all the operators are subject to the Port of Los Angeles’ ban on independent drivers, ATA said.

In her ruling, Snyder said that for her to grant a preliminary injunction, it was necessary for ATA to show both monetary and non-monetary damages to drayage operators.

“The balance of hardships and the public interest tip decidedly in favor of denying the injunction,” Snyder wrote.

While port officials said it would be a challenge to get the clean truck plan running by the scheduled Oct. 1 start-up, they re-mained firm in their resolve to move forward.

On Oct. 1, pre-1989 trucks will not be admitted to the ports and the ports will begin collecting a $35 per 20-foot-container fee to help fund the replacement of older trucks, which the ports intend to subsidize.

“Basically, we’re moving full speed ahead,” said Port of Long Beach spokesman Art Wong. “Now that we’ve had this court ruling, I wouldn’t be surprised if we had a rush of applications in the next couple of weeks.”

Arley Baker, a spokesman for the Port of Los Angeles, said, “We are pleased by the initial ruling” and are prepared to contest ATA’s appeal.

Wong said the ports have not yet hired a contractor to collect the fees included in the plan, making start-up by Oct. 1 difficult.

“The only issue that is up in the air is the collection of the fee,” Wong said. “If we don’t have that done on day one, I don’t think anyone’s going to complain about that.”

The two ports have received nearly 300 applications for concession licenses from carriers who said they would operate about 8,500 drayage trucks.

That number is considerably lower than the 16,800 trucks that have traditionally serviced the two ports, but Wong said it is enough to meet the ports’ cargo loading and unloading demands.

“The minimum needed for the two ports on any given day is about 6,000,” Wong said. “So our expectation is that we’ll have enough trucks. If we get a total of over 10,000, I think that’s pretty comfortable.”