9th Circuit hears oral arguments in Sierra Club v. FMCSA
Posted on Feb 18, 2008 - 7:21am by Porter Corn in NAFTA, Politics, Trucking
After months of hype smear campaigns by the plaintiffs, the lawsuit against FMCSA over the cross border program was heard by a three Judge panel of the 9th Circuit Court of Appeals in San Francisco on Tuesday, February 12.
Some of the issues raised, included the parties “standing” in the action, the legality of continuing the program in view of the flawed amendment inserted into the Omnibus spending bill signed by President Bush in December and the statistical validity of the results with so few participants.
Out of the gate, the attorney representing Teamsters, Public Citizen and Sierra Club was asked by one of the Jurists, why and for what reason was Sierra Club a party to this action for which he become slightly combative with the Judge and had no good explanation for their presence. It was suggested they were merely a party to share in attorney fees should the plaintiff’s prevail.
One point raised was about state allegedly not prepared to enforce the law when it comes to Mexican trucks, a point I’ve never understood. If they can enforce the law for American and Canadian trucks, an additional 50 Mexican trucks should pose no problem.
This was one of the points of OOIDA’s claims and when asked, none of the attorney’s, including the Government attorney, could name the states in question.
Paul Cullen, representing OOIDA further muddied the issue, in my opinion, using Trinity Industries de Mexico’s withdrawal from the program and giving numbers entirely different from those published recently in articles on their website and by the Teamsters.
What really grabbed my attention though was his mistaken claim that one reason the program should be stopped is because Mexican drivers are required to have US CDL’s to operate here, the same as Americans. Using this reasoning, one could say the same would hold true for the Canadians.
Cullen concluded his presentation and rebuttal time with the overt threat that if they didn’t get a win, they would take it to the Supreme Court. And that he would take a win “any way he could get it”. He also stated he would prefer not to win on the issue of legality since that would cause them to have to return in October and start all over. He also made reference to the 161,000 OOIDA members, which I am sure impressed the court.
Leslie Sorit, the attorney for the Government presented a compact and concise case, answering the questions in a manner which showed she was prepared for the task. From the reasoning and interpretation which allowed the program to move forward to the method the PASA’s are conducted, a fact the female jurist seemed to be impressed with, as well as the fact, which OOIDA and Teamsters have kept from the public, that before each carrier is approved, there is a public comment period specific to that application.
So now we wait for the results and we can be assured this is far from over. If the plaintiff’s prevail, the government will appeal and seek an injunction to delay the court order. If the government prevails, we can expect more exaggerated accusations from Public Citizen and Teamsters as they study their next avenue of appeal.
And in the meantime, the clock will run out on the program and the entire issue will be moot! The winners in the case will be the high dollar law firms OOIDA and Teamsters have retained and wasted their members dues on, and nothing will have been resolved.
According to one of the Justices, the number of trucks in the program are enough to provide statistically valid results for the purpose of the test. In the end, the government will open the borders and that will be that, except, we’ll have another war of words on our hands, with the opposition throwing the fear and terror cards our way with renewed fervor.
But don’t take my word for it. Feel free to download the audio file of the hearing. It provides and insight into our justice system at work and shows just how flimsy this case is. It may hinge upon the meaning of one word, “establish”!
This is the download link to the 9th Circuit Oral Arguments in the Cross Border Case
What next for the Mexican trucks
House Votes to terminate Mexican Cross Border Pilot Program
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What the hell is the Sierra Club got to do with mexican trucks? For the life of me I can not figure that out!
“He also made reference to the 161,000 OOIDA members, which I am sure impressed the court.” oooooohhh! I’m Impressed! How many millions of truckers are there in this country? OOIDA can only get 161 thousand to join up? What a joke!
Sierra Club got involved in the beginning of all this saying, the Mexican trucks were old and were not up to today’s emission standards and would pollute the environment. Unlike all the hot air the Sierra Club is expelling causing global warming.
# 1 job of the new president should be to ban ALL SPECIAL INTEREST GROUPS AND LOBBYESTS…..THESE JERKOFFS HAVE RUINED THIS COUNTRY………………………
I listened to part of the court hearing….. I am not sure the Sierra Club has any real interest in this case….except for their possible concern about the environmental impact of sub-standard Mexican trucks…
I do think the FMCSA staff is wrong to continue this program after the funding was cut by the Congress….
I also think the number of Mexican companies is not sufficient to warrant an accurate test….but I also think they should not have been invited to participate in the test program either…. I was not in favor of NAFTA….and think our own elected leaders and bureaucrats are “selling us down the river” ….. Has anyone looked at our so called “balance of trade” and the devaluation of the dollar of late???
Don Link
Well Don, as one of the Justices pointed out, 10 trucks is enough for statistical relevancy, using the “coin toss” odds as an example.
And after all, as Mellissa Delaney has pointed out in the past, there is no requirement for a Pilot Program, Demonstration Project, call it what you will.
The Sierra Club argument, in my judgment, is frivolous, All of the trucks in Mexico, with exception of the Dina’s and a couple of other marques, that are not sold outside of Mexico, are in compliance with EPA directives in force on date of manufacture.
As the attorney for the government pointed out in her reasoning why the program was allowed to continue. In the same bill, and concerning transportation issues, there were a couple of other amendments to kill programs that used stronger language than the word “establish”. Dorgan’s amendment had the same language initially, but was stripped down to the word “establish”.
Another interesting thing I came to understand listening to the audio, was the majority of the outrageous claims that have been made over the past year by the Teamsters, OOIDA, Public Citizen and others, were glaringly absent in the arguments before the court. Why was this? Did the lawyers simply “forget” these “important” statements, or could they have been, as I have pointed out many times, gross fabrications and mangling of the facts.
Personally, I wish that President Bush, as his last great act of defiance, would lift the 1982 Moratorium, which he has the power to do, and put an end to this farce of a lawsuit.