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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket Nos. 37985 & 37994

LINWOOD LAUGHY, KAREN 

HENDRICKSON, and PETER GRUBB,

 Plaintiffs-Respondents,

v.

IDAHO DEPARTMENT OF 

TRANSPORTATION, 

 Defendant-Appellant,

and

CONOCOPHILLIPS COMPANY,

 Intervenor-Appellant.

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Boise, October 2010 Term 

2010 Opinion No. 110

Filed: November 1, 2010

Stephen W. Kenyon, Clerk

 

Appeal from the District Court of the Second Judicial District of the State of 

Idaho, Idaho County. Hon. John Bradbury, District Judge.

The decision of the district court is vacated and this case is remanded to the 

district court for entry of a dismissal.

Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Lawrence 

Allen argued.

Holland & Hart, LLP, Boise, for intervenor/appellant. Erik Stidham argued.

Advocates for the West, Boise, for respondents. Laurence J. Lucas argued.

______________________________________

W. JONES, Justice

I. NATURE OF THE CASE

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.

II. FACTUAL AND PROCEDURAL BACKGROUND

ConocoPhillips purchased two coke drums to replace worn out components at its refinery 
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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).1 ConocoPhillips and its 

shipping company, Emmert International, worked with the ITD for over a year to develop a 

detailed transportation plan to move the drums. 

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 

 

1 The ITD rules use the phrase ―overlegal permit‖ as a generic term referring to a permit that allows the applicant to 

exceed weight or size restrictions on the highway. IDAPA 39.03.10.000, .001, .100.
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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 12.2 Last, ConocoPhillips challenges the district court‘s jurisdiction 

on the grounds that Respondents did not exhaust their avenues for administrative appeal before 

petitioning for judicial review.

III. ISSUES ON APPEAL

1. Whether the district court and this Court have jurisdiction to consider this matter.

2. Whether Respondents exhausted their administrative remedies.

3. Whether the ITD properly granted the overload permits to ConocoPhillips.

4. Whether Respondents or ConocoPhillips are entitled to attorney fees incurred in the 

district court.

5. Whether Respondents or ConocoPhillips are entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

―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:

(a) in violation of constitutional or statutory provisions; 

(b) in excess of the statutory authority of the agency; 

(c) made upon unlawful procedure; 

(d) not supported by substantial evidence on the record as a whole; or 

 

2 The ITD‘s rules regarding overlegal permits provide:

01. Primary Concerns. The primary concern of the Department, in the issuance of overlegal 

permits, shall be the safety and convenience of the general public and the preservation of the 

highway system . . . .

02. Permit Issuance. The Department shall, in each case, predicate the issuance of a [sic] overlegal 

permit on a reasonable determination of the necessity and feasibility of the proposed movement.

IDAPA 39.03.09.100 (emphases omitted).
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(e) arbitrary, capricious, or an abuse of discretion. 

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). 

V. ANALYSIS

A. The District Court Lacked Jurisdiction over the Petition for Judicial Review

The Idaho Constitution allows the Legislature to delimit the district courts‘ appellate 

jurisdiction. Idaho Const. art. V, § 20.3 Actions by state agencies are not subject to judicial 

review unless expressly authorized by statute. I.R.C.P. 84(a)(1). Without an enabling statute, 

the district court lacks subject-matter jurisdiction. See, e.g., In re Williams, 2010 WL 3463992, 

at *3–4 (Idaho Sep. 7, 2010) (dismissing a petition for review for lack of jurisdiction because no 

statute authorized an appeal); Taylor v. Canyon Cnty. Bd. of Comm’rs, 147 Idaho 424, 431–32, 

210 P.3d 532, 539–40 (2009) (same); cf. Regan v. Kootenai Cnty., 140 Idaho 721, 726, 100 P.3d 

615, 620 (2004) (holding that a reviewable final order is necessary for subject-matter 

jurisdiction). Respondents filed a petition for judicial review in the district court to challenge the 

ITD‘s decision to grant the overlegal permits. The Idaho Administrative Procedure Act 

(―IAPA‖), I.C. §§ 67-5201 to -5292, governs judicial review of agency actions. Gibson v. Ada 

Cnty. Sheriff’s Dep’t, 139 Idaho 5, 7, 72 P.3d 845, 847 (2003) (citing I.C. § 67-5270(1)). Idaho 

Code § 67-5270, subsections 2 and 3, allow petitions for review in two different scenarios but 

neither applies here.

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).

1. I.C. § 67-5270(2) Does Not Provide Jurisdiction Because Respondents Are 

Challenging an Order in a Contested Case

 

3 The Idaho Constitution states: ―The district court shall have original jurisdiction in all cases, both at law and in 

equity, and such appellate jurisdiction as may be conferred by law.‖ Idaho Const. art. V, § 20 (emphasis added).
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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.4 I.C. § 67-5270(2) (emphasis added). A contested case is then simply defined as 

―[a] proceeding by an agency . . . that may result in the issuance of an order.‖ I.C. § 67-5240. 

Thus, for jurisdiction to exist under subsection 2, Respondents must be challenging a final 

agency action that is not an order in a contested case as that term is defined by statute. An order 

is ―an agency action of particular applicability that determines the legal rights, duties, privileges, 

immunities, or other legal interests of one (1) or more specific persons.‖ I.C. § 67-5201(12); see 

also IDAPA 04.11.01.005.12 (stating that an order is an ―agency action of particular 

applicability that determines the legal rights, duties, privileges, immunities, or other legal 

interests of one (1) or more specific persons‖).

a. The issuance of the permit was an order

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 970, 977 (2009). 

 

4 A ―person‖ is ―any individual, partnership, corporation, association, governmental subdivision or agency, or public 

or private organization or entity of any character.‖ I.C. § 67-5201(15). Respondents are individuals, so they are 
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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).5 Subsection 2, however, rules out reviewability for orders in contested cases, so it must 

therefore only permit judicial review of rules or the agency‘s performance of a legal duty. 

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. § 5270(2).

b. This is a contested case even though the ITD used informal procedures

The Dissent asserts that this is not a contested case because the ITD utilized informal 

 

―persons‖ who could, in some cases, be eligible for review under I.C. § 67-5270(2).
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procedures in processing the case.

A person aggrieved by an agency action other than an order in a contested case is entitled 

to petition for judicial review. I.C. § 67-5270(2). This was a contested case even though the 

ITD only followed informal procedures because the IAPA both authorizes and expressly 

encourages state agencies to resolve issues informally. Formal procedures, such as notice, a 

hearing, or a formal record are not part of the definition of an order in a contested 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.

 

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I.C. § 67-5201(3) defines an ―agency action‖ as: ―(a) The whole or part of a rule or order; (b) The failure to issue a 

rule or order; or (c) An agency‘s performance of, or failure to perform, any duty placed on it by law.‖
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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 case. The Dissent cites I.C. § 67-5241(1)(a), which does provide that ―an 

agency or a presiding officer may decline to initiate a contested case.‖ Again, however, it does 

not matter whether the agency regards a proceeding to be part of a contested case or not. 

Proceedings that result in the issuance of an order are contested cases. I.C. § 67-5240.

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 
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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).

2. I.C. § 67-5270(3) Does Not Provide Jurisdiction Because Respondents Were Not 
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Parties and No Final Order Was Issued

a. Respondents were not parties before the agency

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). 

Rule 150 states that ―[p]arties to contested cases before the agency are called applicants 

or claimants or appellants, petitioners, complainants, respondents, protestants, or intervenors.‖ 

IDAPA 04.11.01.150. People who ―seek any right, license, award or authority from the agency 

are called  ̳applicants‘ or  ̳claimants‘ or  ̳appellants.‘‖ IDAPA 04.11.01.151. To oppose an 

applicant, anyone can petition to become an ―intervenor‖ under Rule 156, a blanket term that 

applies to a person who does not fall into a specific category and who is nonetheless permitted to 

participate as a party.6 IDAPA 04.11.01.156. Persons petitioning for intervenor status are 

admitted as parties if they can demonstrate a ―substantial interest in the proceeding.‖ IDAPA 

04.11.01.350, .353.

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).7

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 

 

6 Rule 156 provides: ―Persons, not applicants or claimants or appellants, complainants, respondents, or protestants to 

a proceeding, who are permitted to participate as parties pursuant to Rules 350 through 354 are called  ̳intervenors.‘‖ 

IDAPA 04.11.01.156.

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It is immaterial whether Respondents were ―entitled‖ to be admitted as intervenors because there is no indication in 

the record that they sought such admission.
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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.

The Dissent suggests that Respondents ―may be entitled to party status‖ as petitioners, 

complainants, or protestants even without filing any pleadings. Even if someone could become a 

party without filing any pleadings, and even if Respondents had filed a pleading to initiate formal 

proceedings, they would not have been eligible for party status under any of these categories. 

First, ―petitioners‖ are persons ―who seek to modify, amend or stay existing orders or rules of the 
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agency . . . or to otherwise take action that will result in the issuance of an order.‖ IDAPA 

04.11.01.152. If Respondents had participated in the agency proceedings, they would have been 

opposing an application or, in other words, opposing the issuance of an order. They would not 

have been seeking to modify or stay an existing order. Second, ―complainants‖ are persons 

―who charge other person(s) with any act or omission.‖ IDAPA 04.11.01.153. Respondents 

would not be charging ConocoPhillips with violating any rule or regulation, but would be 

opposing their application for a permit. Last, ―protestants‖ are persons ―who oppose an 

application or claim or appeal and who have a statutory right to contest the right, license, award 

or authority sought by an applicant.‖ IDAPA 04.11.01.155 (emphasis added). While 

Respondents certainly oppose an application, they have no specific statutory right to do so, and 

have never asserted as such. As explained above, Respondents might have sought to be admitted 

as intervenors if they could demonstrate a ―substantial interest in the proceeding,‖ but they took 

no steps to do so. IDAPA 04.11.01.350, .353. Respondents are not entitled to party status unless 

granted leave to intervene, and were therefore never wrongly denied the opportunity to take part 

in formal agency proceedings.

b. There is not yet a final order 

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.

1. A final order where the presiding officer was the agency head 

―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.
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2. A final order issued by the agency head upon review of a 

recommended order 

―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.

3. A preliminary order that becomes a final order. 

―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 order without further notice; and (b) The actions necessary to 

obtain administrative review of the preliminary order,‖ both of which are required for a 

preliminary order. I.C. § 67-5245(1).

In summary, the record does not indicate that the IDT 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).

3. Respondents Are Not Entitled to Have the Case Remanded to the Agency for 

Formal Proceedings

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. 
14

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.

B. No Party Is Entitled to Attorney Fees Either in the District Court or on Appeal

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 fees under I.C. § 12-
15

117(1) below and on appeal.8

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, 49–50.9 As this 

Court recently held, however, a petition for judicial review of an agency action is neither an 

administrative proceeding nor a civil judicial proceeding, so § 12-117(1) does not enable the 

courts to award attorney fees in cases like this one. Smith v. Washington Cnty., No. 35851 

(Idaho Oct. 6, 2010). Neither party can collect fees under § 12-117(1).

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.‖10 A petition for judicial review is 

not a civil action, Neighbors for Responsible Growth v. Kootenai Cnty., 147 Idaho at 176 n.1, 

207 P.3d at 152 n.1, so fees are not available under § 12-121. Accordingly, ConocoPhillips‘s 

request for attorney fees under I.C. § 12-121 is denied.

VI. CONCLUSION

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.

 

8

In their Response Brief on appeal, Respondents requested attorney fees from the ITD under ―I.C. § 12-117(a)‖ 

because the ITD is a state agency. Respondents were plainly referring to I.C. § 12-117(1), which provides for 

attorney fees in some actions involving state agencies as parties.

9

I.C. § 12-117(1) provides:

Unless otherwise provided by statute, in any administrative proceeding or civil judicial proceeding 

involving as adverse parties a state agency or political subdivision and a person, the state agency 

or political subdivision or the court, as the case may be, shall award the prevailing party

reasonable attorney‘s fees, witness fees and other reasonable expenses, if it finds that the 

nonprevailing party acted without a reasonable basis in fact or law.

10 I.C. § 12-121 provides:

In any civil action, the judge may award reasonable attorney's fees to the prevailing party or 

parties, provided that this section shall not alter, repeal or amend any statute which otherwise 

provides for the award of attorney's fees. The term ―party‖ or ―parties‖ is defined to include any 

person, partnership, corporation, association, private organization, the state of Idaho or political 

subdivision thereof.
16

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. 

THIS IS NOT A CONTESTED CASE

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 

requirements were complied with in this case. There was no notice of hearing, hearing, presiding 

officer, or recording of proceedings as required under section 5242. There was no recommended 

order, preliminary order, or final order as required by sections 5243 through 5246. There was no 

contested case record upon which to base findings of fact as provided in section 5248. The 

―evidence‖ was not as contemplated in section 5251, making it unlikely that the record complied 

with section 5249. And, while section 5253 contemplates no ex-parte communications, the 

record here was based almost solely on ex-parte communications between ConocoPhillips/ 

Emmert and ITD.

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 
17

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.11

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.12 Thus, the Legislature wisely provided that, ―Unless prohibited by other 

provisions of law . . . an agency or a presiding officer may decline to initiate a contested case...‖ 

Idaho Code section 67-5241(1)(a). If an agency declines to initiate a contested case, the agency 

is to furnish a brief statement for the reasons therefor. Idaho Code section 67-5241(3). It is 

unknown whether that occurred in this case. What is known is that ITD did not consider this to 

be a contested case and did not process it as one. In its opening brief, ITD stated:

The issuance of permits is authorized in Idaho Code title 49. There is not any 

provision in title 49 which requires the Department to base its actions exclusively 

on a record. In fact, the permit process generally is not resolved in a contested 

case or an adjudicative manner. Accordingly, this is a not a case in which the 

Department was required to make its decision exclusively upon the administrative 

record. 

Counsel for the Department conceded at oral argument that this case was not handled as a 

 

11 It is not even clear if, or when, a contested case might have been initiated in this matter. According to Rule 200 of 

the AG Rules, an application can initiate a contested case. IDAPA 04.11.01.200. Among the documents in the file 

before the Court are four documents entitled ―Idaho Permit and Application for Over-Legal Permit and/or Load 

Movement,‖ all dated August 20, 2010. If these were ConocoPhillips/Emmert‘s first applications for the four 

permits at issue here, it is unlikely a contested case was initiated prior to August 20, 2010. The copies of documents 

in the Court file do not appear to have been signed by or behalf of ConocoPhillips/Emmert, making it difficult to 

determine whether the applications ever became effective.

12 In an affidavit submitted in support of ITD‘s motion for expedited hearing, Mr. Frew pointed out that ITD issued 

over 28,000 overlegal permits in fiscal year 2010 for overweight and oversized vehicles. Conducting a contested 

case for each of these applications would be a daunting and costly undertaking.
18

contested case.13

ITD apparently has a policy of declining to initiate contested cases in the context of 

permit applications. Rather, it appears that ITD generally treats these matters in an informal 

manner, comparable in some respects to the informal procedure described in AG Rule 100,14

―i.e., procedures without a record to be preserved for later agency or judicial review, without the 

necessity of representation according to Rule 202, without formal designation of parties, without 

the necessity of hearing examiners or other presiding officers, or without other formal procedures 

required by these rules for formal proceedings.‖ IDAPA 04.11.01.100.

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 

 

13 It would be unfair to deem this concession as a binding admission that the matter was not a contested case, just as 

it would unfair and incorrect to deem the Respondents‘ attorney‘s concession that the Respondents were not parties 

in this matter to be a binding admission. Neither issue was raised or decided below, nor addressed in the briefing 

before the Court. We should base our decisions upon the actual facts and not upon what individual participants 

perceive them to be, particularly where the parties have not had an opportunity to brief and argue the issues. With 

regard to the contested case issue, while the concession by ITD does not constitute a legal admission, it certainly 

does have a bearing on the factual matter as to how ITD processes overlegal permit requests, including this one. It 

was by no means handled in the manner of a formal contested case. The question is whether ITD declined to process 

it as a contested case of any nature under the statutory authority of I.C. § 67-5241(1)(a) or whether ITD was 

processing it initially under the informal procedure provided for in the AG Rules. With regard to the issue of 

whether Respondents are parties, the concession by their attorney that they had not been admitted as parties was, at 

best, uninformed. It was fairly obvious when this case was presented on oral argument that Respondents‘ attorney 

was not familiar with the various definitions of party participants in the AG Rules. The discussion revolved around 

the definition of a ―party‖ in the context of the Idaho Rules of Civil Procedure, which definition does not apply in 

the context of an administrative proceeding. As one might expect, the AG Rules set out more relaxed definitions for 

an administrative proceeding that contemplate a broader range of parties than in a court proceeding. Again, this 

matter was not briefed or considered below and not briefed or argued before this Court. This Court has little basis to 

determine whether or not Respondents (or, for that matter, ConocoPhillips/Emmert) obtained party status in the 

administrative proceeding. As that determination is not necessary to the decision of this case, since the procedure in 

the administrative proceeding was informal under any definition, since the administrative proceeding produced no 

final order, and since Respondents will have the opportunity upon remand to seek party status (if they are not 

already parties) and to request a formal administrative proceeding under Rule 102 of the AG Rules, it is a matter of 

no import here. 

14 The AG Rules apply only to contested cases, the attorney general not having been authorized to promulgate 

agency rules for proceedings exempted under I.C. § 67-5241(1)(a). Thus, the AG Rules make no provision for 

procedures to be employed by the agency where it declines to initiate a contested case. The informal manner in

which this case was processed need not necessarily comply with the informal procedure provisions of the AG Rules 

(Rules 100-103), as those rules are promulgated specifically to apply to contested cases.
19

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 THIS IS A CONTESTED CASE, JUDICIAL REVIEW IS PREMATURE

If ITD‘s declination to initiate a contested case in this matter was invalid for failure to 

―furnish a brief statement of the reasons for [its] decision‖ not to initiate a contested case or, if 

for some other reason not apparent in the record before the Court, this is properly considered to 

be a contested case, judicial review is premature because contested case proceedings have not 

run their course. If this is a contested case, I concur in the dismissal so that administrative 

proceeding can be completed, including the issuance of a proper final order.

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.15 Based upon the state of the record, it is difficult to 

say when a contested case was initiated, if indeed one was.

However, assuming that a contested case was initiated some time during the discussions 

 

15 It is unclear when, or if, ConocoPhillips/Emmert became a ―party‖ in the administrative proceeding. Whether a 

contested case is handled under informal or formal proceedings, it must be initiated by a pleading within the 

meaning of AG Rule 200. IDAPA 04.11.01.200. The record does not disclose any document that could be 

considered to be an initial pleading, with the possible exception of the four permit and application documents, dated 

August 20, 2010. ConocoPhillips/Emmert may have regarded this as a potential defect, as it did move to intervene in 

the administrative appeal before the district court on August 19, 2010, and was granted intervenor status by the 

district court judge. That occurred the day before the applications/permits were issued by ITD. 
20

between ConocoPhillips/Emmert and ITD, it was obviously conducted under informal procedure. 

IDAPA 04.11.01.101. Rule 102 of the AG Rules states:

If statute provides that informal procedures shall be followed with no opportunity 

for further formal administrative review, then no opportunity for later formal 

administrative proceedings must be offered following informal proceedings. 

Otherwise, except as provided in Rule 103,16 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. (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 of 

Decision, all dated August 20, 2010, do not constitute final orders under the provisions of 

IDAPA. In Westway v. Idaho Transportation Dept., 139 Idaho 107, 73 P.3d 721 (2003), this 

Court considered and decided what constitutes a final order issued by ITD:

The next question is whether a final order was issued by the ITD. It does not 

argue that it has issued an order that would be final under the APA. The two 

documents in the record that could arguably constitute a final order are the 

August 14, 2000 letter written by ITD‘s counsel and the September 14, 2000 letter 

entitled ―Final Report‖ written by a roadway design engineer. Because neither of 

those persons was the ―agency head‖ (the Idaho Transportation Board), they 

 

16 Rule 103 of the AG Rules states that ―informal proceedings do not substitute for formal proceedings and do not 

exhaust administrative remedies,‖ unless all parties agree to the contrary in writing. IDAPA 04.11.01.103. There is 

no such written agreement in this case. It seems fairly obvious that administrative remedies have not been exhausted 

here. 
21

could only issue either a recommended order or a preliminary order. IDAHO 

CODE § 67-5243(1) (2001). A recommended order becomes final only after 

review by the agency head in accordance with Idaho Code § 67-5244. Id. There is 

no contention that the Idaho Transportation Board reviewed either of these letters. 

Therefore, neither letter was a recommended order that became final upon review 

by the agency head. A preliminary order can become final without review by the 

agency head, Id., but it must include ―a statement that the order will become a 

final order without further notice‖ and ―the actions necessary to obtain 

administrative review of the preliminary order.‖ IDAHO CODE § 67-5245(1) 

(2001). Neither of the letters contained those required statements. Therefore, they 

were not preliminary orders. Thus, no final order has been issued, nor does the 

record indicate that the ITD even complied with the hearing requirements in the 

APA.

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.17 Thus, there is no final order in this proceeding 

and, as mentioned above, ITD has also failed to comply with the hearing requirements. 

Therefore, assuming this to be a contested case, I would concur that the case needs to be 

remanded for dismissal without prejudice so that the administrative proceedings can be 

completed in accordance with the AG Rules.

Justice BURDICK CONCURS.

 

17 Apparently, the permits will lie dormant until such time as the state of Montana issues permits. This creates an 

interesting situation, since the Idaho permits make no provision for inclement weather conditions. If the state of 

Montana were to approve permits for the loads on January 1 of 2011, the Idaho permits would automatically become 

valid for a period of five days. Thus, ConocoPhillips/Emmert would be faced with a situation where they would 

either have to make the risky decision to proceed over snow-covered roads or allow the permits to expire upon the 

fifth day from their issuance. It is unknown why ITD made no provision for inclement weather conditions.