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By Eric Miller, Staff Reporter

This story appears in the Jan. 4 print edition of Transport Topics.

Lawyers for American Trucking Associations said they will ask a federal judge on Jan. 11 to forgo a trial in ATA’s clean trucks lawsuit against the Port of Los Angeles and instead to issue a summary judgment in their favor.

Bob Digges, vice president and deputy chief counsel, said ATA wants the judge to rule in the federation’s favor on several issues related to concession agreement provisions contained in the port’s diesel emissions plan that ATA believes are unconstitutional.

“I think judges are somewhat loath to grant summary judgment, if they believe that it’s possible there are facts that would allow a party to prevail,” Digges told Transport Topics. “But if they gave us what we ask for, I think likely there would be no necessity for a trial.”

In a legal brief filed in December, ATA said the concession agreement violates federal law because it allows only employees of motor carriers to perform drayage operations at the port, effectively banning owner-operators.

The concession agreement affects the “rates, routes or services” of its members, ATA said, and alleges that port officials “do not have the power to suspend motor carriers from interstate operations.”

However, Los Angeles port officials have said the plan to phase out owner-operators gradually is needed to reduce diesel emissions, and the “issue of control is the heart of an employer-employee relationship.”

ATA is asking Judge Christina Snyder of the United States District Court for the Central District of California in Los Angeles to find the port’s concession agreement unconstitutional because the federal pre-emption clause gives the federal government the right to regulate interstate trucking, and not the ports, court documents said.

Earlier this year, Snyder blocked implementation of most of the provisions of the port’s concession agreement with a temporary injunction. She issued the ruling after she was prodded by a federal appeals court, which said most of the port’s concession agreement is likely unconstitutional.

The most contentious issues in the clean trucks concession plan — besides the employee-only provisions — include off-street parking restrictions that prohibit parking on public streets, the posting of placards when trucks enter and exit port terminals and a requirement that carriers de-monstrate “financial capability” with port officials.

ATA hired Annette Sandberg, former administrator of the Federal Motor Carrier Safety Administration, as an expert to bolster its argument that the port’s clean trucks plan would not increase motor vehicle safety.

In a report, Sandberg concluded the Port of Los Angeles has not conducted any studies, nor does it have any data, that would support a ban on the use of owner-operators, court documents said.

“The independent owner-operator phase-out requirement is not responsive to improving motor vehicle safety,” Sandberg said.

The lawsuit is scheduled to go to trial in mid-March. A court document in the case said that settlement talks in November between ATA and the port ended with the two parties “unable to reach an agreement.”

Arley Baker, a Port of Los Angeles spokesman, said the two sides are “trying to keep the lines of communication open” and that “there’s certainly some middle ground.”

However, he said that a settlement between ATA and the Port of Long Beach reached in October has caused Los Angeles to “underscore even more why we feel that the concession program is the way to go for the long term.”

The Long Beach settlement called for a simpler registration process to replace the port’s previous concession agreement. It primarily calls for drayage operators to pay a $250 fee, to install radio frequency identification tags and to ensure that their trucks meet the minimum environmental, safety and security requirements of the port’s diesel emissions reduction plan.

The settlement has been heavily criticized by union officials, other port officials and environmentalists, who have chided Long Beach for “selling out.”

“The employee requirement is certainly a lightning rod, but we will argue in court about the benefits of that kind of requirement,” Baker said. “The concession is really the centerpiece of the program because it allows us to have a contractual relationship with these trucking companies and hold them accountable in a way that we otherwise wouldn’t be able to.”

Curtis Whalen, executive director of ATA’s Intermodal Motor Carriers Conference, said that relations between ATA and port officials have been “testy” in recent weeks, but the two sides have kept communications open.

“We have been battling over the schedule for the trial and over documents,” Whalen said. “They’re sitting on 10,000 documents, which accounts for 78% of what we’ve asked for.

“It is clear to me that the rhetoric has picked up on the West Coast between the two ports and the two mayors,” Whalen said.